AYYA PILLAI Vs. AYYADURAI GOUNDAN

JUDGEMENT

(1.) The plaintiff, a minor, appeals from the decree of the learned Subordinate Judge of Vellore, reversing a decree of the District Munsif of Eani-pot, and dismissing his suit brought for recovery of possession of 2 acres 3 cents of wet land from the defendants who were it was alleged, in possession under a mortgage granted to them and their ancestors by the plaintiff's father in 1891, and, after the mortgage was paid off in 1910, under a lease for five years from that year. The plaintiff alleged that there had been a previous litigation, O.S. No. 201 of 1916, brought by a subsequent mortgagee under the plaintiff to recover the same property from the defendants, that in that suit the plaintiff was added as defendant ,4 and his mother appointed guardian-ad-litem, that in the Munsif's Court defendants 1 to 3 in that case represented by the present defendants repudiated the mortgage of 1891 and set up long adverse possession but the Munsif held against that plea, that in appeal however the then learned Subordinate Judge came to the opposite conclusion and held that it was not proved that the defendants were holding under the mortgage of 1891 and that it was proved that they had been in adverse possession for a long time and hence dismissed the suit, that the matter was taken up in second appeal (Second Appeal No. 1141 of 1918) where an issue was sent down as to the character of the defendants possession, that on the same evidence the Subordinate Judge submitted a finding that the defendants were in adverse possession which the High Court accepted and dismissed the appeal and the suit, that in the course of these proceedings which lasted from April 1916 to March 1920 the plaintiffs guardian-ad-litem took no steps to assert the plaintiff's title or to prove that the defendants were in possession under the mortgage of 1891 but that all she did was to appear personally in Court when the issues were framed and to admit the then plaintiff's claim, that she took no trouble to engage a pleader or to adduce any evidence and in particular the documents now produced A, C (or C-1), K etc., which would have shown clearly the plaintiff's title and the nature of the defendant's possession, that for this reason the learned Subordinate Judge was misled into finding against the plaintiff and that therefore the guardian was grossly negligent and the decree in that litigation is not binding upon the plaintiff.

(2.) The plaintiff therefore prayed for a decree declaring his, title and that the decree in O.S. No. 201 of 1916 is not binding upon him and for possession of the properties and other reliefs. The defendants generally traversed these allegations and urged that the properties never belonged to the plaintiff, that their possession throughout was as absolute owners and adverse to the plaintiff and that decision in the previous litigation is binding upon the plaintiff and operates as res judicata against him. Of the issues framed, the first related to the title to the property whether it belongs to the plaintiff or to the defendants, the second is merely explanatory of the first and raised the question whether the suit properties are karnam inam, the fourth issue raised the question of the truth and validity of the mortgage of 1891 and the subsequent lease set up by the plaintiff, the fifth raised the question whether the decree in O.S. No. 201 of 1916 was res judicata and the sixth whether the plaintiff's guardian was guilty of laches and if so whether the plaintiff is not bound by the same for the reasons stated.

(3.) The District Munsif who delivered a carefully considered judgment found that the properties originally were inam granted for the service of karnam which belonged to the family of the plaintiff and that in 1884 the inam was enfranchised and the plaintiff's father given a title deed (Ex. A) entitling him to hold (the properties subject to a quit rent of t Rs. 19 mentioned therein in commutation both of the services and the reversionary interest possessed by the Government. No attempt was made in either of the two Courts to show that the title to the property is otherwise than as Ex. A shows, viz., that it was karnam inam land belonging to the family of the plaintiff but subsequently enfranchised by Government and raiyatwari patta granted under Ex. A. On the question of res judicata the Munsif held that v the decision in the former suit would be res judicata against the present plaintiff in the present litigation although these parties wore co-defendants in the former suit, but he held that this result was avoided by his view as to the conduct of that litigation by the then guardian-ad- litem. He found that the result of that litigation by preponderance of documentary indications and probabilities sic should have been in plaintiff's favour and as of that as the new materials were then of available and within reach of the plaintiff's former guardian, the indictment of 36 gross negligence should be sustained and the minor plaintiff should be held not it bound by the former adverse decision.