D KRISHNAMURTHI Vs. K PARASURAMAN

JUDGEMENT

(1.) THE defendant is the appellant. This appeal is directed against the decree in O. S. No. 2259 of 1983 on the file of the VII Assistant judge, City Civil Court , Madras . That suit was tried along with another suit filed by the appellant herein in o. S. No. 6970 of 1982. It was an earlier suit. THE present respondent was the defendant in that suit. THE two suits were tried together and disposed by a common judgment. THEre is no appeal against the judgment and decree in o. S. No. 6970 of 1982.

(2.) THE respondent claims title to the property under a sale deed dated 13. 7. 1979 marked as Ex. A-1. According to the appellant, that sale deed was sham and nominal and the title was with himself. On that footing he filed O. S. No. 6970 of 1982 for permanent injunction restraining the defendant from interfering with his possession. As he rested his claim on his title, an issue was framed on the question of title. THE first issue was whether the sale deed in favour of the defendant was fictitious. In the suit out of which this appeal arises, the respondent prayed for recovery of possession of property and also damages. In this suit also, issue was framed relating to the title to the property. THE court below has found that the sale deed is an operative one and title had passed under that sale deed. Consequently, the court below dismissed the suit filed by the appellant and decreed the suit filed by the respondent. A preliminary objection is raised that the present appeal is barred by res judicata in view of the finality of the judgment and decree in O. S. No. 6970 of 1982. THE position has been considered in several cases by this Court. Vide: thangavelu Kounder v. Venkatarama Kounder, (1988)2 L. W. 14, M. Subramanian v. C. Chottabhai and Company, (1990)1 L. W. 182 and Arumugha Nainar v. Lakshmana perumal, (1992)1 M. L. J. 457. It has been held in all those cases that oncea decree has become final that will operate as res judicata, vis-a-vis an appeal against another decree in an other suit even if the judgment in both the suits are common. THE principle is, once a decree is passed on the basis of title to the property and that decree has become final, there cannot be a conflicting decree in the pending appeal. Thus, the pending appeal will be affected by the decree which has already become final. THE relevant judgments of the Supreme court have been referred to in those cases and followed.