KRISHNAN Vs. PERUMAL NADAR

JUDGEMENT

(1.) THE plaintiff in O. S. 13 of 1967 on the file of the District Munsif, padhmanabhapuram, is the appellant. The above suit is for a declaration of the plaintiff's title and possession of the suit properties (S. Nos. 140-B and 165-B)charged for the performance of Dharmams, and for issue of a permanent injunction against defendants 2 to 4 restraining them from interfering with the plaintiff's possession. The suit properties along with S. No. 165-A, according to the plaint, stood charged for the performance of Dharmam in possession of the plaintiff's forefathers, that after them, the plaintiff has been in enjoyment of the same, that the plaintiff originally leased out to the first defendant in 1962 item (1)140-B, 165-B and 165-A that the patta for the said lands stood in the name of the ambalam that the plaintiff has been enjoying the aforesaid properties doing the dharmams out of the income therefrom, that the fourth defendant claiming to be a heir of Kaliamma Valliamma created a number of documents throwing a cloud on the plaintiff's possession and enjoyment, that the claim of the fourth defendant that she alone is the trustee in possession of the suit properties is false, that the further allegations that the plaintiff's grand-father was not related to the original owner Subramaniam, that the fourth defendant has no connection with Kaliamma valliamma, that the decree obtained in O. S. 175 of 1090 filed by the father of the plaintiff in O. S. 13 of 1967, against the fourth defendant's being an influential man, has been manoeuvring to grab at the properties belonging to the Ambalam are all false and the present suit is filed for a declaration of the plaintiff's possession and enjoyment of the suit properties and for an injunction restraining the defendants from interfering with the plaintiff's possession.

(2.) EVEN before the filing of the above suit the first respondent, who claimed to be the plaintiff's lessee, had filed O. S. 189 of 1966 against the plaintiff and defendants 2 to 5 in O. S. 13 of 1967 for a declaration of his leasehold right over s. Nos. 165-A and 165-B and 140-B, which are covered by the present suit O. S. 13 of 1967. Defendants 1, 2, 5 and 6 in O. S. 13 of 1967 remained ex parte. The fourth, defendant contested the suit and his contentions are that he is the son of kaliamma Valliamma, that the decree in O. S. 175 of 1090 is not collusive, that as heir of Kaliamma Valliamma he is entitled to the properties that he had executed a mortgage in favour of the fifth defendant who had assigned it to the second defendant, that later on he had given a superior mortgage in favour of the third defendant, who filed O. S. 191 of 1966 for redemption of the earlier mortgages from defendants 2 to 5 and while O. S. 191 of 1966 was pending the present suit was filed to delay the redemption of the properties by the third defendant in O. S. 191 of 1966, that the plaintiff in O. S. 175 of 1090 is the father of the present plaintiff in O. S. 13 of 1967 and his claim over the suit property was rejected and that the present suit (O. S. 13 of 1967) is barred by res judicata and the claim of the plaintiff having been negatived in various proceedings, the plaintiff is estopped from putting forward the same claim in the present suit and that the plaintiff has no cause of action and the suit is therefore not maintainable.

(3.) IN O. S. 189 of 1966, the case of the plaintiff is similar to his defence in O. S. 13 of 1967. The first defendant in O. S. 189 of 1966 is the plaintiff in O. S. 13 of 1967 and his case in O. S. 189 of 1966 is similar to the plaint version in O. S. 13 of 1967. Both the suits were tried together and the trial court dismissed both the suits, holding that the plaintiff in O. S. No. 13 of 1967 has no possession of the suit properties, that he is not entitled to the injunction prayed for, that the suit, however, was not barred by res judicata as the prior suit O. S. 175 of 1090 was dismissed on the sole ground that the suit was barred by limitation without any consideration of the merits of the case.