RAJAMMAL Vs. KANNIYAN MUTHURAJ AND ORS

JUDGEMENT

(1.) The first defendant in O.S. No. 85 of 1958 on the file of the District Munsif, Mannargudi, is the appellant herein. The circumstances necessary for a consideration of this Second Appeal are briefly the following. The suit property belonged originally to one Sevu Ambalam who died several years ago leaving behind a widow by name Pothiathal. Two sons of Sevu Ambalam had predeceased him, and they had left behind three daughters, Rajammal, Sambu Ammal and Veerammal, the three defendants in the suit. Pothiathal left a will, dated 23rd April, 1931, under which she bequeathed the suit properties to two of her grand-daughters, namely, defendants 1 and 3. The plaintiff purchased from the third defendant, the latter's share in the suit properties under the will, by a sale-deed, dated 12th July, 1956. In a prior suit on the file of the District Munsif, Mannargudi, O.S. No. 272 of 1956, the plaintiff claimed possession of the properties he got under the sale-deed from the third defendant. That suit was dismissed on the ground that the will of Pothiathal was invalid. While disposing of that suit, the learned District Munsif made inter alia certain observations:

(2.) The trial Court construed the sale-deed in favour of the plaintiff, from third defendant, and held that it was valid, even assuming that the will became inoperative, as it conveyed third defendant's 1/3rd share to the plaintiff. Therefore the plaintiffs title to |rd share in the properties and the right to claim partition were affirmed. The plea of res judicata was found against, on the main ground that the issue in the present suit of plaintiff's title to 1/3rd share, was not directly and substantially in issue in the earlier suit. The second defendant also was not a party to the prior suit. The trial Court also negatived the claim of the first defendant to title by adverse possession and decreed the suit for partition and separate possession of the plaintiffs 1/3rd share of the properties. The second defendant was also declared entitled to claim another 1/3rd share.

(3.) The first defendant appealed to the learned District Judge of West Thanjavur. The learned District Judge confirmed the trial Court's finding, that the suit was not barred by res judicata. However, he construed the sale-deed by the third defendant, Exhibit A-1, as conveying only such rights which the third defendant got under the will of Pothiathal, and that it was not sufficient to convey to the plaintiff whatever interest or title the third defendant had in the properties sold. The effect of this finding was that since she (third defendant) got nothing under the will, the plaintiff also got nothing under the sale-deed. Therefore the sale-deed would not convey the right to 1/3rd share which the third defendant obtained as heir of the last male owner. In this view, the lower Appellate Court differed from the finding of the trial Court as well as the finding given by the Munsif who heard the earlier suit. It may be pointed out at this state that the third defendant was ex parte at the trial stage, but in the appeal, an application was filed on behalf of the third defendant for transposing her as plaintiff in the suit relying on the provisions of Order 1, Rule 10, Civil Procedure Code. The appellate Court examined the arguments for and against this petition and granted the prayer. Then it upheld the trial Court's finding that the first defendant had not perfected title by adverse possession. A decree was thereupon passed in favour of the third defendant after transposing her as the second plaintiff and giving her relief of partition and separate possession of 1 /3rd share in the suit properties. It is against this decision that the present appeal is filed by the first defendant. Learned Counsel appearing for the appellant urged that this was not a case where permission should have been granted under Order 1, Rule 10, of the Civil Procedure Code to the third defendant, for being transposed as plaintiff. Secondly it was contended that the finding of the Courts below regarding the first defendant perfecting title by adverse possession was incorrect and should be reversed.