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Sunday, June 9, 2013

DECLARATION & POSSESSION, NO RESJUDICATE = Declaration of Title & Possession = basing of payment receipt for allotment of building for suit site, earlier Mortgage deed in society and discharge receipt, no due certificate = Dismissal of previous injunction suit not operate as resjudicate = "12. As a matter of fact even such an issue was not framed. The High Court, therefore, in our opinion posed unto itself a wrong question. In a suit for permanent injunction, the Court had rightly proceeded on the basis that on the date of the institution of the suit, the first respondent was in possession of the disputed land or not. It was not required to enter into any other question. It, in fact did not. 13. It is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess." The Supreme Court held finally that in such a situation, the previous judgment in permanent injunction suit will not be a bar for declaration of title and recovery of possession. ;Simply because the plaintiff who is working in the Indian Railways at a very long distant place and allowed the defendant who is his own brother to reside in the suit property, the defendant cannot claim right or title for the suit property to himself. ;plaintiff though did not file proceedings of the Government allotting the suit house to him, the plaintiff has filed Exs.A.1 to A.4 to show that the suit house was allotted to him by the Society and that the suit house is registered in his name in municipal records and he paid taxes therefor. ;Exs.B.6 to B.8 ration card and identity cards of the defendant and his wife show the defendant's residence in the suit house. They will not clothe the defendant with any right or title to the schedule property.


REPORTED / PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9737

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU          

SECOND APPEAL No.626 of  1999  

01-04-2013

C.Ramulu.

C.Anjaneyulu.

Counsel for the Appellant: Sri Prabhakar Sripada

Counsel for Respondent: Sri J.Azad Chandra Sekhar

<Gist:

>Head Note:

?Cases referred:
1 (1994) 2 Supreme Court Cases 14
2 AIR 2008 Supreme Court 2212

JUDGMENT:
         The plaintiff is the appellant herein.  He filed the suit in the trial
court for declaration of his ownership in the plaint schedule property and for
delivery of possession of the same together with past and future mesne profits.
The plaintiff's claim was opposed by the defendant.  After trial, the trial
court decreed the suit; and on appeal by the defendant, the lower appellate
Court allowed the appeal.  Hence, the plaintiff approached this Court with this
second appeal.
        2) At the time of admission of this second appeal, the then learned Judge
of this High Court framed the following substantial question of law for
determination in this second appeal:
        "Whether the appellate Court is justified in reversing the judgment and
decree of the trial Court only on the ground that the judgment and decree in an
earlier suit filed by the plaintiff in O.S.No.163/1992 operate as res judicata,
when it is the principle of law that the decree passed in an injunction suit
does not operate as res judicata to a subsequent suit filed for declaration and
for consequential relief, more so when there was no issue as to the principle of
res judicata either before the trial court or before the appellate Court."

        3) The plaintiff and the defendant are brothers and they belong to
scheduled caste. The plaintiff filed the suit on the ground that he is owner of
the plaint schedule property.  The plaint schedule property consists of house in
weaker sections colony of Kurnool town in D.No.45/322 (old plot No.117) in an
extent of 0.21/4 cents including open appurtenant site.  It is the plaintiff's
case that the suit house and site was assigned to him by the Government in the
year 1983 and that when the plaintiff wanted to construct another room in
appurtenant open site and dug foundation pits, the defendant raised objection
and threatened the plaintiff to stop the construction and therefore the
plaintiff filed O.S.No.163/1992 in the District Munsiff Court, Kurnool.  After
it was dismissed, the plaintiff filed the present suit in a comprehensive
manner.  The defendant, on the other hand, contends that the previous suit was
dismissed as the plaintiff failed to prove his title to and possession of the
suit property and that the plaintiff is residing at Manchiryal since the past 18
years where he is working as Assistant Station Master in Railways and that the
municipality is serving notices on the defendant relating to enhancement of tax
etc.,.  From the respective contentions of both the parties, the primary
question in this case is whether the previous decision in O.S.No.163/1992
operates as res judicata herein.
        4) The previous suit O.S.No.163/1992 was a simple suit for permanent
injunction restraining the defendant from obstructing his constructions in the
appurtenant CDEF site shown in the plaint plan therein and from interfering with
his possession and enjoyment of the suit house and site.  After trial, the
previous suit O.S.No.163/1992 filed by the plaintiff against the defendant was
dismissed.  The previous suit is also relating to the self same property, which
is the subject matter herein.  Ex.B.4 is certified copy of Judgment and Ex.B.3
is certified copy of decree in O.S.No.163/1992.  It is sought to be pointed out
by the defendant that in Ex.B.1 deposition of the plaintiff as P.W.1 in the
previous suit, the plaintiff admitted that he has no document to show his title
for the suit land.  Effect of Ex.B.1 will be considered subsequently, because
the plaintiff herein filed certain documents to prove his right and title to the
suit property.  The lower appellate court held that Ex.B.4 judgment operates as
res judicata herein, placing reliance on Sulochana Amma Vs. Narayanan Nair1 of
the Supreme Court.  The question before the Supreme Court was on competency of
the Court to try the subsequent suit.  In that matter, the previous suit for
injunction was tried and decided by the District Munsif Court having limited
pecuniary jurisdiction, whereas the subsequent suit was filed for declaration of
title and possession in the Subordinate Judge's Courts having unlimited
pecuniary jurisdiction.  The Supreme Court considered explanation VIII together
with main Section 11 and came to the conclusion that the said situation is also
covered by explanation VIII, resulting in applicability of the doctrine of res
judicata contained in Section 11 CPC.  On facts, it was a case where the
District Munsif Court in the previous suit for injunction decided the issue of
title, after raising the said issue in the suit.  Therefore, it was held that
the decision as to title decided in the previous suit by the District Munsif
Court in injunction suit operates as res judicata in the subsequent suit filed
in the Subordinate Judge's Court for the reliefs of declaration and possession.
        5) It is contended by the appellant's counsel that in Ex.B.4 Judgment of
the previous suit there was neither an issue framed on title nor any finding
given by that court on title for suit property and that therefore the previous
judgment Ex.B.4 does not operate as res judicata herein.  The only issue that
was framed in Ex.B.4 Judgment is whether the plaintiff is entitled for permanent
injunction as prayed for.  After discussing the material on record, finally in
Ex.B.4 judgment, it was held as follows:
        "In the instant case, the plaintiff failed to prove that he was in
possession and enjoyment of the suit property on the date of filing of the suit.
Therefore, I find the plaintiff is not entitled for the relief of the permanent
injunction as prayed for.  I find this issue against the plaintiff."

        6) It is pointed out that there is no definite finding given by the Court
in Ex.B.4 Judgment on the question of title and that the Court only found that
the plaintiff who was not in possession of the suit property on the date of
filing of that suit, was not entitled for relief of permanent injunction. In the
previous suit covered by Ex.B.4 judgment, none of the parties filed any
documents of title for the suit property.  The entire discussion in Ex.B.4
judgment was on possession of the suit house and ultimate finding therein was
also on possession only and the said finding resulted in negativing permanent
injunction to the plaintiff therein.  While discussing evidence of the plaintiff
as PW.1 therein, it was observed in Ex.B.4 judgment:
          "PW.1 admitted in his cross examination that there are no proceedings
issued by the Government to show that the suit house was allotted to him.  He
further stated he gave an application to the Government for granting the house
to him.  But PW.1 did not choose to file the copy of his application nor sent
for his application from the Revenue Department.  Therefore, there is no
documentary evidence to show that the plaintiff schedule house was allotted to
PW.1 in the year 1983".
Thus, there was no definite finding as to the plaintiff's title to the suit
property in the previous suit covered by Ex.B.4.  There was neither an issue on
title in the previous suit nor a finding on title of the plaintiff in the
previous suit covered by Ex.B.4.  Therefore, it cannot be said that Ex.B.4
judgment operates as res judicata in the present suit filed by the plaintiff for
the reliefs of declaration of his title to the suit property and for possession
of the same.
       7) The appellant's counsel placed reliance on Williams v Lourdusamy2  of the Supreme Court wherein it was observed:

    "12. As a matter of fact even such an issue was not framed.  The High Court, therefore, in our opinion posed unto itself a wrong question.  In a suit for permanent injunction, the Court had rightly proceeded on the basis that on the date of the institution of the suit, the first respondent was in possession of
the disputed land or not.  It was not required to enter into any other question. It, in fact did not.
        13. It is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess."

The Supreme Court held finally that in such a situation, the previous judgment in permanent injunction suit will not be a bar for declaration of title and recovery of possession. 
 Therefore, I find on the substantial question of law
framed herein that the lower appellate Court is not justified in reversing the
judgment and decree of the trial Court on the ground that Ex.B.4 judgment in the
earlier suit O.S.No.163 of 1992 operates as res judicata.  I further find that
having regard to issues framed and findings given in O.S.No.163 of 1992, Ex.B.4
judgment does not operate as res judicata in the present suit.
       8) In the present suit proceedings, the plaintiff filed 
Ex.A.1 original
receipt dated 27.10.1995 issued by Kurnool District Scheduled Caste and Tribes
Co-operative House Building Society Limited (in short, the Society)
acknowledging receipt of Rs.8,534.40 ps. from the plaintiff for the suit site.
Ex.A.4 is no dues certificate of the same date issued by Deputy
Registrar/Secretary of the Society in favour of the plaintiff to the effect that
no amount is due from the plaintiff towards value of the suit property.
Subsequently, the plaintiff mortgaged the same in favour of the Society vide
Ex.A.2 registered mortgage deed.  
The plaintiff also filed Ex.A.3 receipt dated
23.09.1996 issued by Kurnool Municipal Corporation in his name for the suit
building. 
 Even though the plaintiff as PW.1 in O.S.No.163 of 1992 stated as in
Ex.B.1 to the effect that there are no proceedings issued by the Government to
show that the suit house was allotted to him, now in the present suit, the
plaintiff though did not file proceedings of the Government allotting the suit house to him, 
the plaintiff has filed Exs.A.1 to A.4 to show that the suit house
was allotted to him by the Society and that the suit house is registered in his name in municipal records and he paid taxes therefor.  

Simply because the plaintiff who is working in the Indian Railways at a very long distant place and allowed the defendant who is his own brother to reside in the suit property, the
defendant cannot claim right or title for the suit property to himself. 

Exs.B.6
to B.8 ration card and identity cards of the defendant and his wife show the defendant's residence in the suit house.  
They will not clothe the defendant with any right or title to the schedule property.  
In view of my discussion of
the material on record and my finding on the substantial question of law,
judgment of the lower appellate Court cannot stand.
       9) In the result, the second appeal is allowed with costs through out
setting aside decree and judgment passed by the lower appellate Court and
granting decree in favour of the plaintiff/appellant as prayed for in the
plaint.
_____________________________  
SAMUDRALA GOVINDARAJULU,J      
Dt.1st April, 2013

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