ARULAYI Vs. RAKKA KUDUMBAN

JUDGEMENT

(1.) We wish to state at the outset, with a view to avoid any further confusion, that the suit out of which this appeal arises, is concerned only with the central plot marked C-1, C-3, C-4 in the Commissioner's plan Ex. D-l of the extent of 74 cents, out of the larger parcel of 23 cents, which consists of three parts: the western, the central and the eastern parts. The point at issue, stated simply, which the first Court had to try, was did the suit plot belong to the plaintiff Rakka Kudumban or to defendant 2 Mada Kudumban? If it belonged to defendant 2, it is admitted that he having sold it to defendant 1, the latter was the owner on the date of the suit. The learned District Munsif held that the plaintiff was the owner and defendant 2 was not. This finding necessarily negatived defendant 1's right. The District Munsif, giving effect to this view, passed a decree in favour of the plaintiff. An appeal was filed before the Subordinate Judge by defendant 1. The plaintiff alone was imp leaded as the respondent, with the result that defendant 2 was not a party on the record in the appeal. The learned Subordinate Judge accepted defendant 1's case, and reversing the Munsif's judgment, dismissed the plaintiff's suit. A second appeal was filed by the plaintiff which came on before Gornish J. The learned Judge held that the Munsif's decree negativing defendant 2's right became final in the absence of an appeal by the latter and operated as a bar to defendant 1's attempt to reopen that decision; in other words, there being no appeal by defendant 2 against the trial Court's finding, it had become res judicata (the question is rather one of finality of the finding that of res judicata) against defendant 1 who claimed through defendant 2, Taking this view, the learned Judge allow, ed the second appeal. The question in the present Letters Patent Appeal is whether the view of Cornish J. is right.

(2.) The learned Judge in support of his position relied upon the decision of the Judicial Committee in Chockalingam Chetty V/s. Seethai Ache . If that decision applies, this appeal is really unarguable, but the question is, does it apply? The facts of the Privy Council case are these. The plaintiff there, having bought a certain property which had belonged to the insolvent, sued to recover it. He alleged that a transfer by the insolvent before his adjudication to defendant 1, and transfers by defendant 1 and other defendants to one another successively, were all invalid. The suit was dismissed. The plaintiff appealed to the High Court, but failed to join defendant 1 as a respondent. It was held that owing to the failure to make defendant 1 a respondent, there was no appeal from this finding which had consequently become res judicata as between the plaintiff and defendant 1 and must also be regarded as res judicata against the respondents, who claimed through defendant 1.

(3.) Now let us examine what this decision involves. It was from defendant 1 that the other defendants derived their title. The trial Court's finding was that the former had acquired a good title and it followed from this that each successive transfer was valid. For the plaintiff to succeed in the appeal, it was essential that the finding in favour of defendant 1 should be vacated and what do their Lordships hold? In the absence of the successful party, it would be wrong on the part of the Appellate Court to reverse a decision in his favour. Such a reversal would not be binding upon him and would lead to two contradictory decisions. Their Lordships accordingly held that the first Court's decision, having become final in favour of defendant 1, must be taken to have equally become final in favour of the other defendants also they deriving their title from the former.