S. SAROJA Vs. K. ARUMUGHAM

JUDGEMENT

(1.) THE plaintiff, who succeeded in the trial Court but failed in the lower appellate Court, is the appellant. She is the grand -daughter of one Ponni Mandakkattal and daughter of Subbammal. Subbammal is the sister of the first respondent Arumugam, who is the husband of the second respondent. Radha. The suit was filed for declaration of the appellant's title to the suit property, which is a tiled building stated to be situate on 21/8 cents of land in Survey No. 3030/3 -A of Vadassery Village and for recovery of possession thereof from the respondents. According to the appellant, the suit property belonged originally to her maternal grandmother, Ponni Mandakkattal, and was inherited by Subbammal on her death and that she inherited the property on the death of Subbammal in 1960. Ponni Mandakkattal was the wife of one Kolappan.

(2.) THE defence was that the house property is situate in Survey No. 3144 and not in Survey No. 3030/3 -A and belonged to Kolappan, the father of the first respondent, and that the appellant is not entitled to declaration and possession. The appellant had filed O.S. No. 695 of 1965 in the District Munsif's Court, Nagercoil, against the respondents for declaration of her title to the suit property and for possession on the basis that she had leased the property to the first respondent. Exhibits A -1 and A -2 are the certified copies of the judgment and decree passed in that suit. There was a decree only declaring the appellant's title to the suit property and the other relief of possession was denied to the appellant on the ground that she had not proved the lease pleaded in the plaint in that suit. There was no appeal and the judgment and decree passed in that suit had become final.

(3.) THE learned Subordinate Judge has relied upon the decision of the Privy Council in Midnapur Zamindari Co., Ltd. v. Naresh Namyan Roy, 64 Ind.Cas. 231 :, 48 I.A. 49 :, A.I.R. 1922 P.C. 241, in holding that there is no bar of res judicata in the present case on the question of title and the appellant has to prove her title once again. That is a case where the entire suit was dismissed and it was not possible for the defendants to file any appeal. But, in the present case, as already stated, there was no dismissal of the former suit in its entirety, the appellant's title to the suit property had been declared and only the other portion of the appellant's clair, namely possession, had been dismissed. The Learned Counsel for the respondents concedes that the respondents could have filed an appeal against the decree declaring the appellant's title to the suit property in the previous suit. The Learned Counsel for the appellant invited my attention to the decision of a Bench of the Calcutta High Court in Murad Biswas v. Basti Mandal : AIR1929Cal449 , where it was found on a reference to the record that the previous suit was one in which the plaintiff had asked for declaration of his title to the land and khas possession and that the defence was that the defendant was not a tenant holding under the plaintiff but was a co -sharer. That defence was gone into and ultimately it was found that the plaintiff's title to the land was made out but, notice not having been served on the defendant, the suit was not dismissed but a decree was made in the plaintiff's favour in the following terms: