RAMAN MENON Vs. MADHAVA MENON

JUDGEMENT

(1.) The second defendant sued the present plaintiff for Rs. 54 in Small Cause Suit No. 925 of 1919 on a kanom demise made by Krishna Menon to the plaintiff, on the ground that the property belonged to the tarwad of Krishna Menon after his death and the second defendant was the karnavan and obtained a decree. The first defendant, an Anandravan collected the same amount from the plaintiff as agent of the karnavan of the Tavazhi. The plaintiff now sues to recover the sum of Rs. 54 back on the ground he made double payments.

(2.) So far as the second defendant is concerned, the suit is to set aside the decree in the Small Cause suit. Though there is no express prayer to that effect, the Court below regarded it in that light. Now the decree in the Small Cause suit can be set aside only on account of fraud or collusion (vide Kadirvelu Nainar V/s. Kuppuswami Naicker [1918] 41 Mad, 748. No such thing is pleaded. It may he that the judgment in the Small Cause suit is wrong but it cannot be set aside. The decision in the Small Cause suit is as much res judicata so far as the actual subject- matter of the suit is concerned, like the decision in any other suit and until the decree is set aside, the actual decision is binding on the Courts.

(3.) Both the Courts below thought that the decision in the Small Cause suit is not res judicata because "the question of title could not be gone into in a Small Cause suit." In the first place it is not true to say that a question of title cannot be gone into in a Small Cause suit. It can be gone in so far as it is incidental and necessary to adjudicate on the claim. It is also optional to the Court to transfer the suit to the Original Side for deciding the question of title. But, even then, it retains its nature so far that, though a first appeal may lie, a second appeal will not lie. When the suit is tried on the Small Cause Side, the finding on the question of title will not be res judicata in another suit involving the same point; but, as to the actual subject-matter it is always res judicata.