RAJAKUMARI JHAMED Vs. V.N.DORAI AMMAL

JUDGEMENT

(1.) The appellants/plaintiffs filed a suit for declaration of title and for delivery of possession of the suit property. They also sought for a declaration that the decree passed in O.S.A.No.33 of 1975 modifying the decree in C.S.No.23 of 1969 was not binding on the plaintiffs in respect of the suit property. The plaintiffs also prayed a decree for injunction restraining the defendants from interfering with the possession pursuant to the decree passed in O.S.A.No.33 of 1975. The suit was partly decreed by declaring the title of the plaintiffs over the suit property. The trial court also declared that the decree passed in O.S.A.No.33 of 1975 modifying the decree in C.S.No.23 of 1969 was not binding on the plaintiffs in respect of the suit property and the same was also in-executable against the plaintiffs. The trial Court also granted a decree for possession directing defendants 2 to 6 to deliver possession of the suit property to the plaintiffs. The suit was dismissed partly in respect of the relief of permanent injunction. Aggrieved by the same, the contesting defendants 2 to 6 filed First Appeal (contesting defendant No.4 died pending suit and defendants 2, 3, 5 and 6 were recorded as his legal representatives). The First Appellate Court allowed the appeal and dismissed the suit. Aggrieved by the same, the plaintiffs have come before this Court.

(2.) (i). According to the appellants/plaintiffs, the suit property originally belonged to one Kandaswami Pillai of Valliyoor, he having inherited the same from his father Narayanaswami Pillai. It was also stated that originally the suit property was purchased by father of Narayanaswami Pillai namely, Subbaroya Pillai from one Venkatadri. After death of Subbaroya Pillai property was inherited by Narayanaswami Pillai and after his death, it was inherited by Kandaswami Pillai. Even during his lifetime, Kandaswami Pillai exercised right over the suit property by mortgaging the same.

(3.) (i). The contesting defendants contended that they filed a suit for declaration of title and recovery of possession against the vendor of the present plaintiffs, namely, first defendant herein and others in C.S.No.23 of 1969 and the said suit was dismissed as far as suit property was concerned. Subsequently, the appeal filed by the defendants 1 and 2 herein (plaintiffs in C.S.No.23 of 1969) in O.S.A.No.33 of 1975 was allowed by declaring title of contesting defendants and decree for possession was also passed against the first defendant and others. It was the main contention of the contesting defendants that the plaintiffs who purchased the property pending litigation is bound by the decree passed in O.S.A.No.33 of 1975 and hence the present suit is not at all maintainable. According to the defendants, C.S.No.23 of 1969 was filed on 17/4/1968 and the same was disposed of on 17/8/1972. The appeal in O.S.A.No.33 of 1975 was preferred on 17/4/1973 and the same was disposed of on 29/1/1979. The present plaintiffs purchased the suit property from first defendant who was party to the earlier suit and O.S.A.No.33 of 1975 on 21/11/1975 pending proceedings. Therefore, according to the contesting defendants, the judgment and decree passed in the earlier litigation is binding on the present plaintiffs and they could not maintain the present suit.