N B RAJU Vs. N M HALAN

JUDGEMENT

(1.) THIS revision is directed against the dismissal of the appeal in C.M.A. No: 2 of 2005 preferred by the petitioners against the fair and decreetal orders passed in I.A. No: 266 of 2003 in O.S. No: 36 of 1998 by the lower Court in allowing the application, for the suit is barred by resjudicata. The brief facts of the parties before the lower Court are as follows :"(i) The petitioner is the defendant in the suit. The present suit purely comes under resjudicata since the earlier suit in O.S. No: 35 of 1967 was decreed and E.P. was filed in E.P. No: 58 of 1998 before the District Munsif, Kotagiri, and possession was delivered to the defendant. The plaintiffs and their father are parties to the previous suit. The present plaintiff has no right to file the suit. The petitioner will be put to irreparable loss, if the Court does not allow this petition. Hence, issue No: 2 has to be decided as preliminary issue.(ii) The 6th respondent filed a counter affidavit which has been adopted by the other respondents. The petition is not maintainable. Written statement has been filed on 01.06.1998 and this petition is filed with ulterior motive. The plaint in O.S. No: 35 of 1967 on the file of the Subordinate Court, Ooty, never speaks any allegations against the plaintiffs or their predecessors. The preliminary decree in O.S. No: 35 of 1967 never directed these respondents/ plaintiffs to hand over any property in favour of this defendant who is 37th defendant and the rights of the plaintiffs in that suit under Ex.A.6 and B.6 in that suit has to be worked out on proving the rights of the vendors under these documents. If there is any difficulty to allotment of extents they are entitled to work out the same at the time of actual partition. Many of the defendants including the present plaintiffs and their predecessor in title have been made as parties to the previous suit only as formal parties. Hence there was no necessity to contest the previous suit. The judgment did not specify that these plaintiffs should hand over any property in favour of the defendant. The main aspect is the plaintiff and the 37th defendant in that suit has to work out their extents only at the time of final decree and they never disturbed the possession of the plaintiffs. The defendant No: 37 and the plaintiff in that suit colluded with each other and without making the present plaintiffs and their predecessors as parties to the final decree created false records against the preliminary decree. Moreover the defendant colluded with the plaintiff in O.S. No: 35 of 1967 without making the present plaintiffs or their predecessors as parties, created false records as if the plaintiff in O.S. No: 35 of 1967 handed over his property to the defendant. The preliminary decree final decree and E.P. will not bind the suit property as the same is a patta land enjoyed by the plaintiffs and their predecessors. The issues involved in the previous suit and the issues involved in this suit are certainly different issues and the rights of this plaintiffs was not decided as an issue in the previous suit. Further the Resjudicata is a mixed question of law and fact and the same cannot be raised as a preliminary issue. Hence, the petition may be dismissed. ".

(2.) THE trial Court had gone through the documentary evidence and considered the arguments advanced on either side and had come to the conclusion that the suit is barred by resjudicata. Aggrieved by the said order, the respondents / plaintiffs had preferred appeal before the appellate Court and the appellate Court had, after hearing the arguments on both sides, come to the conclusion of confirming the order passed by the trial Court. Aggrieved by the said order passed by both the Courts below, the plaintiffs, who were the respondents, before the trial Court had preferred this revision petition.

(3.) I have given anxious consideration to the arguments advanced by the learned counsel for the revision petitioner. I have also gone through the contentions submitted by the respondent before the trial Court as well as the Appellate Court and also the substance of the orders passed by the Courts below. The present suit has been laid by the revision petitioners in O.S. No: 36 of 1998 seeking a permanent injunction against the defendant. The plea of the revision petitioners before the lower Court was that the plaintiffs were in possession and enjoyment of the suit properties and the defendant was seeking to interfere with the possession and enjoyment of the suit property under the guise of final decree passed in O.S. No: 35 of 1967 and, therefore, the defendant / respondent has to be injuncted. The pleas of the defendant / respondent in the written statement would be that the plaintiff was estopped from making the suit claim since his father was a party to the earlier suit in O.S. No: 35 of 1967 on the file of the Sub Court, Ootacamund. It is also pleaded that the suit was barred by resjudicata in view of the judgment passed in O.S. No: 35 of 1967. Therefore, we have to see whether the previous suit in between the father of the plaintiffs and the defendant in O.S. No: 35 of 1967 and the decrees passed thereon and the E.P. Proceedings taken on the basis of the said decrees are constituting resjudicata as found by the lower Court. No doubt the issue regarding resjudicata was framed by the lower Court. The request of the defendant was only to the effect that the issue of resjudicata should have been taken as preliminary issue and be disposed of. The relief sought for in O.S. No: 35 of 1967 was admittedly for partition of the properties and for separate possession. There is no dispute that the property mentioned in O.S. No: 36 of 1998, the later suit filed by the revision petitioners for bare injunction is forming part of the schedule of properties in O.S. No: 35 of 1967, the former suit. The father of the plaintiffs ( revision petitioners ) was admittedly one of the parties in the previous suit i.e. O.S. No: 35 of 1967. For the purpose of understanding as to whether the resjudicata is applicable to the present case, it has become necessary to extract Section 11 C.P.C." Section 11 of C.P.C. - Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been sub-sequently raised, and has been heard and finally decided by such Court. ".