CHANDRA RAO MUDALIAR AND ANOTHER Vs. HARISABAM THEERTHA EASWARAR TEMPLE, BIG KANCHEEPURAM BY ITS TRUSTEE, S.P.V. DURAISAWMY CHETTIAR

JUDGEMENT

(1.) The principal question argued in this second appeal is res judicata. The point arose in O.S. No. 160 of 1969 the former suit in regard to which the question was debated was O.S. 537 of 1967. Both the suits were in the District Munsif Court, Kancheepuram. The parties were identical in the two suits, with one difference; the plaintiffs in the one suit were defendants in the other and vice versa.

(2.) The dispute between the parties concerned a bit of land, 12 feet by 90 feet, belonging to a temple in Big Kancheepuram, called Harisabam Theertha Easwarar Temple. The suit land was under the charge of two brothers who were using it as a passage. In that suit, they asked for a declaration against the temple that they were having permanent occupancy rights over the site as lessees under the temple. They also asked for other reliefs, against the temple by way of injunction, both prohibitory and mandatory. The temple resisted the suit claim, saying that the plaintiffs were only licensees with a bare right of passage across the suit site. At the trial of this suit, the parties joined issue on the precise character of the plaintiff's use and occupation of the suit land. The court also went into the temple's alleged acts of interference, actual or apprehended, in the suit land. On the first issue, the learned District Munsif refused to grant to the plaintiffs the declaration they asked for. He recorded a finding that the plaintiffs had no rights of permanent occupancy. All the same, he granted a decree for injunction against the temple on the basis that the plaintiffs were in occupation of the suit land as the temple's tenants under a monthly lease, terminable by the temple by fifteen days' notice to quit.

(3.) It may be observed that while granting relief to the plaintiffs, the court did not grant any permanent injunction against the temple. On the contrary, the decree for injunction was only to be in force 'until the lease was properly terminated'. This limitation was obviously conditioned by the court's finding on the other issue in the suit to the effect that the plaintiff's leasehold in the suit land was terminable by the temple by fifteen days' notice. The decree on the terms aforesaid, was passed on 11th February 1969. The temple did not appeal against the decree. It took the hint, as it were, from the terms of the decree and terminated the plaintiff's tenancy by issuing a lawyer's notice in appropriate terms. The tenants, however, paid no need to the notice to quit. The temple thereupon filed the later suit in ejectment, barely a month after the decree in the earlier suit. The tenants entered appearance and resisted the suit for ejectment saying that they were entitled to remain in permanent occupation of the suit property. As to this defence put forward by the tenants, it was contended on behalf of the temple that the tenants were barred under S. 11 C.P.C. from taking up the issue of permanent occupancy rights, considering that the issue had been concluded against them in the earlier suit. This is how the question of res judicata arose for consideration before the learned District Munsif at the trial of the subsequent suit, O.S. No. 160 of 1969.