RAMASWAMI PANIPOONDAR Vs. MANI

JUDGEMENT

(1.) The plaintiff in O.S.No.70 of 1977 on the file of the District Munsif, Pattukkottai, is the appellant in this second appeal. The respondent herein is the first defendant in the suit. There were two other defendants and they have not been made parties to this second appeal, since obviously their presence is not necessary for the purpose of this second appeal. The plaintiff laid the suit for declaration of title and for recovery of vacant possession. The suit has come to be filed under the following circumstances. The suit property is about one kuzhi of land in new survey No.158/9/19, part of old survey No.158/1 in Avadainallavijayapuram village, Orathandau Taluk, Thanjavur District. The suit property and five kuzhis of land south of the suit property (total 2 cents) were purchased by the plaintiff from one Chinnayyan under a registered sale deed dated 23-7-76, marked in the suit as Ex.A-1 and the plaintiff has put up a shed thereon and it is in his enjoyment. Before the sale, the first defendant had taken a shed in the suit property from Chinnayyan on lease and on purchase by the plaintiff, the first defendant and Chinnayyan agreed to dismantle and take away the shed and vacate the land within three months from the date of the sale. One Pichamuthu, claiming that he had purchased the extent of the land covered by Ex.A-1 from the very same Chinnayyan, obstructed the enjoyment of the plaintiff. The plaintiff was obliged to file the suit, O.S.No.173 of 1976 on the file of the District Munsif, Pattukkottai, against Pichamuthu, the first defendant herein and Chinnayyan, for declaration and for injunction. Pichamuthu and Chinnayyan remained ex parte in the suit and the first defendant in the present suit, who was the second defendant in the earlier suit, alone contested the suit. I will have occasion to refer to the scope of the suit and the nature of the contest by the first defendant herein, the second defendant in that suit, while discussing the question of res judicata agitated in this case. Suffice it to point out at this juncture the plaintiff succeeded in obtaining a decree on 26-3-77 for declaration of his title, and for an injunction restraining the first defendant therein, Pichamuthu from in any way interfering with his possession and enjoyment of the property and the first defendant herein, who was the second defendant in that suit, was directed to pay the plaintiff the costs of the suit. Stating that the first defendant had declined to vacate the suit property and had denied the title of the plaintiff, the plaintiff filed the present suit for the above reliefs. Defendants 2 and 3 were added as parties on the ground that they claimed some rights in the suit property. The first defendant contested the suit, denying the title claimed by the plaintiff and questioning the validity of the sale deed under which the plaintiff claims title and the right of Chinnayyan to alienate the suit property to the plaintiff. The first defendant also denied that he was a tenant under Chinnayyan and he would claim that he is running a tea-shop, putting up a superstructure, over an extent of 3/4 cent and neither the plaintiff nor his predecessor-in-interest has any right over the suit land. He would also state, that the suit is bad for want of notice to quit. We are not concerned with the defence of the other two defendants in the present second appeal since they went out of the picture by the dismissal of the suit against them by the first court itself and there had been no further agitation against them. With regard to the contest between the plaintiff and the first defendant, three questions arose for consideration. The first question is as to whether the decision in O.S.No.173 of 1976 would operate as res judicata for the claim of the first defendant the second is as to whether the plaintiff has established independent title to the suit property and the third is as to whether the suit of the plaintiff should fail for want of notice to quit. On the first question, the first court held that the plea of res judicata urged by the plaintiff must fail on the second question, the first court held that the plaintiff has title to the suit property and on the third question, the first court held that the suit cannot be thrown out for want of any notice to quit. As a result, the suit was decreed against the first defendant with costs. The first defendant appealed and the appeal, A.S.No.115 of 1978 was heard and disposed of by the Subordinate Judge, Thanjavur and the appellate court concurred with the view of the first court on the question of res judicata. However, it took a different view both on the question of title as well as on the question of want of notice to quit. As a result, the appeal of the first defendant was allowed the judgment and decree of the first court were set aside and the plaintiffs suit was dismissed with costs throughout. This second appeal is directed against the judgment and decree of the lower appellant court.

(2.) At the time of admission of this second appeal, the following substantial questions of law were formulated for consideration: (a) Whether the judgment in O.S.No.173 of 1976 operates as res judicata" (b) Whether any valid notice to quit is necessary when the first defendant denies the title of the landlord" (c) Whether the reasoning of the lower appellate Court for holding that O.S.No.173 of 1976 is not res judicata correct" (d) Whether the lower appellate Court is correct in going into the question that the plaintiff should prove title even after the judgment in O.S.No.173 of 1976""

(3.) Mr.D. Peter Francis, learned counsel for the plaintiff, would first submit that the plea of the first defendant on the question of title will come within the mischief of res judicata and learned counsel would submit that the two Courts below have not appreciated and applied correctly the principles of res judicata to the facts of the present case. In answer, Mr.G. Subramanian, learned counsel for the first defendant, would submit that the first defendant herein, who was the second defendant, against whom no relief was claimed and hence, the decision in O.S.No.173 of 1976 cannot be put against the pleas of the first defendant herein on the question of title, invoking the principles of res judicata.