VAIYAPURI VANNIYAR Vs. S. RANGARAJU NAIDU, AND ANOTHER

JUDGEMENT

(1.) This second appeal raises the question as to whether the judgment and decree in an earlier litigation constituted, as has been found by both the Courts below, res judicata on a question of title to immoveable properly. The first defendant who failed in both the Courts below is the appellant in this Court. In O.S. No. 85 of 1955, the present plaintiff asked for a declaration of his title to the suit property and for an injunction restraining the present first defendant from interfering with his possession. The Court found title in favour of the plaintiff, but dismissed the suit on the ground that he had not established possession on the date of the suit. While doing so, the Court also directed that each party must bear his costs. The instant suit out of which this second appeal arises was brought by the same plaintiff for possession and mesne profits. The suit was resisted on various grounds denying the plaintiff's title and disputing the identity of the suit property with what the plaintiff claimed to belong to him. On the question of title, as I said, both the Courts below considered that the finding recorded in the earlier suit operated as res judicata. The lower appellate Court dismissed the appeal of the first defendant on that ground. On behalf of the first defendant it is contended before me that the view of the lower appellate Court that the earlier judgment and decree constituted res judicata on the question of title is erroneous. It is pointed out that since the suit was disposed of in favour of the first defendant, the finding recorded adversely to him would not in the circumstances operate as res judicata. In support of this proposition reliance is placed on Midnapore Zamindari Co. Ltd. v/s. Naresh Narayan Roy, 48 Cal. 460 and Kumarappa v/s. Raghunatha : A.I.R. 1932 Mad. 207 = 55 Mad. 483 = 35 L.W. 35. In the first of the cases Lord Dunedin speaking for the Judicial Committee observed:

(2.) It does not appear whether In that case the earlier suit was dismissed without costs. But it is clear that it was disposed of in favour of the defendant, but on a factual finding recorded against them on one of the issues. Nevertheless in the opinion of the Judicial Committee the finding did not operate as res judicata between the parties in the subsequent litigation. This was on the ground that the defendants who were successful in the suit had no occasion to appeal against the finding. This view was followed by this Court in Kumarappa v/s. Raghunatha : A.I.R. 1932 Mad, 207 = 55 Mad. 483 = 35 L.W. 35.

(3.) On the other hand, the contention for the respondent -plaintiff is that since the suit was dismissed but with no costs to the defendants, they had an occasion to agitate the question of title by filing an appeal against that decree denying costs. But it is not clear on what ground the costs were disallowed in the earlier suit. Kotayya v/s. Subbayya, 45 L.W. 53 is a case where in the earlier suit which was dismissed it was clearly stated that costs to the defendants were disallowed because they have failed on the question of title. Apart from that point of distinction in that case, the defendants had actually appealed against the decree, but the appellate Court dismissed the appeal with costs concurring with the trial Court on the question of title. It was on those circumstances this Court considered in that case that the finding in the lower Court on the question of title was clearly res judicata. In Venkatachala v/s. Vetayuda : A.I.R. 1932 Mad. 701 = 35 L.W. 452, the very point argued for the respondent appears to have been urged, but negatived. There also, in the earlier suit the direction was the parties should bear their own costs in the circumstances of the case and the adverse finding was not made the ground for depriving the defendants of their cost, as in this case. Dealing with the point Venkatasubba Rao, J., said - -