Madrasdated High Court · 2025

SA No. 905 of 2010..Appellant(s)Vs1.R.ShanmugamS/o Ramaswamy, No.40, Ambedkar St, East, C.S.I.St, Surampatti, Erode 638 009.2.S.YovanS/o Samidoss, Ambedkar St, East, E.S.I, St, Surampatti, Erode 638 009...Respondent(s)Prayer:This second appeal is filed under Section 100 of C.P.C. Against the judgment and decree in AS.No. 107 of 2007 on the file of the Principal District Court, Erode dated 31.07.2008 reversing the judgment and decree in OS.No.421 of 2006 on the file of the District Munsif Court, Erode dated 27.04.2007.For Appellant(s):M/S. G. JEREMIAH For Respondent(s):V.S. KESAVAN FOR R1 JUDGMENTThe plaintiffs are the appellants. The suit has been filed for the relief of declaration and delivery of possession. The trial court decreed the suit and the first appeal preferred by the 1st defendant; the judgement of the trial court was __________Page 2 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010set aside and the appeal was allowed. Aggrieved over that the plaintiff has filed this second appeal.2.The short facts pleaded in the plaint are, in brief:The suit property belongs to the father of the plaintiff and the 2nd defendant's father, Samydass, a patta has been issued in his name in patta No. 87/71 dated 26.9.1971. The plaintiff's father built a tiled house having the vacant site towards the southern side. In the vacant site he has also put up a thatched house and is residing there with his family. The 1st defendant is the son of the plaintiff's father's brother. The plaintiff and the 2nd defendant are the sons of the deceased Samydass. When the plaintiff's father was alive, the 1st defendant had approached him in the year 1987 and sought permission to reside in the suit property. Considering the family circumstances of the 1st defendant, the plaintiff's father allowed the 1st defendant to reside in the suit property, and he was residing in the suit property up to the year 1992, and thereafter he vacated. Again in the year 1997, the 1st defendant approached the plaintiff's father; the plaintiff and the 2nd defendant are residing in the suit property.2.1. Once again the 1st defendant's request was considered. The 1st defendant is residing in the suit property only out of permission. As the 1st defendant, with the help of his uncle, had managed to get a property tax __________Page 3 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010assessment in his name without producing any title deed for the suit property. The 1st defendant has got no manner of right to do so. The plaintiff and the 2nd defendant have to be declared as the owners of the suit property because they are the only legal heirs of the deceased father (Samydass). The 1st defendant has got nothing to do with the entire suit property. The plaintiff had already filed one suit against the 1st defendant in OS.No.376 of 2003. In the said property, he omitted to give correct particulars, and on that ground, the above suit got dismissed. The plaintiff approached the 1st defendant to vacate the suit property within two days. But the 1st defendant did not vacate and took up the quarrel. So the plaintiff has filed the suit for seeking the relief of declaration that the plaintiff and the 2nd defendant alone are the owners of the suit property along with recovery of possession from the 1st defendant.3. The 1st defendant's written statement in brief:It is false to state that the entire suit property belongs to the father of the plaintiff and the 2nd defendant's father, Samydass. It is true that the 1st defendant is the son of the plaintiff's father's brother, and the plaintiff and the 2nd defendants are the sons of the deceased Samydass. The plaintiff has three sisters, and they are also interested in the suit property, but they have not been impleaded as parties. The suit property is not valued properly. The market value __________Page 4 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010of the suit property is more than Rs.5,00,000/-, and the court fee paid thereon was very low. 3.1. Even in the earlier suit filed by the plaintiff in OS.No. 376/2003, he pleaded that he is the absolute owner of the suit property and he is in possession of the same. However, the suit was dismissed. The plaintiff was estopped from making any other pleadings contradictory to the earlier suit, and the appeal filed by him challenging the judgement passed in O.S. No. 376/2003 also got dismissed. The defendant has been in enjoyment of the suit property for more than 20 years. Permissive possession pleaded by the plaintiff is not correct. The plaintiff's father, Samydass, and the defendant's father, Ramadass, are brothers and grandsons of one Kuppan. The suit property and other properties are situated on the same street in Door Nos. 28, 29, and 30. Kuppan also occupied the vacant natham poramboke about 50 years ago and enjoyed the same as its absolute owner with his sons. As the sons of Kuppan had set up his family in separate houses. The suit properties and the other properties were divided between them for their convenient enjoyment. 3.2. According to Samydass, the sons of Ramasamy put up their houses in their respective residential places. The plaintiff's father, Samydass, appeared to have obtained patta in his name alone by omitting the defendant's father's name. The plaintiff's father was a Thandalkarar in the office of Maniyakarar. __________Page 5 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010By using his influence, the patta has been obtained by considering the real facts. Neither the plaintiff nor his father was given a patta in the natham survey settlement held in the year 1991. The patta issued in the year 1971 is not enforceable, and the resurvey natham settlement alone is in force now. The house with door number 40 is only the property succeeded by the defendant after the death of his father. The 1st defendant is working as a coolie, and the plaintiffs are wealthy, and they are capable of purchasing any property. They demanded the defendant to sell his portion in Door No. 40 for a better price. 3.3. Since the defendant refused to consider his demand, the plaintiff started to give all sorts of troubles and threatened to vacate him by force. As the plaintiff was not able to achieve his object, he has come forward with the suit. The suit has been constructively adjudicated in OS.No. 376/2003, and hence it is liable to be dismissed.4. On the basis of the above pleadings, the trial court has framed the following issues:“1.thjp jhthtpy; nfhhpathW tpsk;g[ifg; ghpfhuk; bgw mUfifa[ilatuh>2.thjp jhthtpy; nfhhpathW RthjPtg; ghpfhuk; bgw mUfifa[ilatuh>3.thjpf;Ff; fpilf;ff; Toa ,ju ghpfhu';fs; vd;d>__________Page 6 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 201025.04.2007y; tidag;gl;l TLjy; vGtpdhf;fs;1. jhth Kd; jPh;g;g[j; jil nfhl;ghl;lhy; ghjpf;fg;gl;Ls;sjh>2.thjp Kuz;jil nfhl;ghl;od;go khWgl;L rhl;rpak; mspg;gjw;F jil bra;ag;gl;Ls;shuh>5. During the course of the trial on the side of the plaintiff, two witnesses were examined as PW.1 & PW.2, and Ex. A1 to A8 were marked. On the side of the defendants, two witnesses were examined as DW.1 and D.W.2, and Ex. B1 to B22 were marked.6. After the conclusion of the trial and upon consideration of the materials available on record, the trial court had decreed the suit as prayed, and the first appeal preferred by the 1st defendant was also allowed by setting aside the judgement of the trial court. Aggrieved over that, the plaintiff has filed this second appeal. The second appeal has been admitted on the following substantial questions of law:"1. Whether in law the First Appellate Court was correct in reversing the judgement of the trial court on the ground of bar by the principle of res judicata when the question of title was not an issue in the earlier suit?2. Whether in law it is right for the First Appellate Court to hold that Ex. A1 patta cannot be considered as a document __________Page 7 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010of title when the same has been given under the Housing Scheme?3. Whether in law the 1st defendant can be allowed to raise the simultaneous plea of title and title acquired by adverse possession?7. The learned counsel for the appellant submitted that the First Appellate Court had reversed the judgement of the trial court on the finding that the suit is barred by res judicata. When the earlier suit has been filed only for injunction, the present suit has been filed for declaration, and that has been omitted to be taken note of by the first Appellate Court. The patta, which stands in the name of the plaintiff's father, has been issued under the Housing Scheme, which is marked as Ex. A1. So the patta alone can be the document that would trace the title of the plaintiff. The plaintiff has stated the property as R.S. No. 95/B and Door No. 41, whereas the defendant has described it as R.S. No. 306/21 and Door No. 40. The respondent admits the plaintiff's father's patta in HSD 87/1971 only stated that his father's name has not been impleaded. Despite the trial, the court has arrived at a right conclusion as to the title of the plaintiff; the 1st Appellate Court had reversed the judgement without any basis. The patta has been issued in the name of the plaintiff's father and the same has not been disputed by the 1st defendant.__________Page 8 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 20108. The learned counsel for the respondent submitted that the plaintiff has pleaded in the earlier suit that he is in possession and that the 1st defendant should not disturb his possession. But in the present suit he has taken a contrary pleading that the 1st defendant is in possession of the suit property and he is seeking relief of declaration and recovery of possession. Both the suits have been filed with the same cause of action, and hence constructive res judicata is applicable. The patta was given in favour of the plaintiff's father only in respect of his house door No. 41, and hence it is right for the First Appellate Court to hold that the plaintiff is not entitled to the relief as prayed for.DISCUSSION:9. The relationship between the parties is not in dispute. The only contention of the appellant is that his father, by name Samydass, has been given an assignment patta in respect of the suit property, and the 1st defendant has been inducted into a portion of the same as a permissive tenant. But the 1st respondent has submitted that the suit property was to a larger extent in the name of the plaintiff's father and the 1st defendant's father, and later both the property has been divided between them conveniently, and the portion in which __________Page 9 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010the 1st defendant is residing has been given with door no. 40, and the portion in which the plaintiff is living has been given with door no. 41.10. On perusal of the Ex.D1 assignment, it is seen that it has been given in the name of Samydass, who is the father of the plaintiff and the 2nd defendant. It has been given with survey No. 95/B, and the property in question is also shown to be situated in the same survey number, 95/B. According to the appellant, the above property also has a vacant site measuring 10 x 15 ft on the southern side of the tiled house, which is in door No. 41.11. The 10 x 12 ft thatched shed does not have a separate door number or survey number. The first respondent claims that the door number is 40 and its survey number is 306/21. The above property has got nothing to do with the suit property, which is in survey number 95/B. If the 1st defendant has been in occupation of the thatched shed, then it could be either in his capacity as a tenant or permissive tenant under the plaintiff or his father. According to the appellant, taking into account the relationship between the plaintiff's father and the 1st defendant, he was allowed to reside in a portion of survey number 95/B, for which he claims title, and he has not chosen to vacate the same.__________Page 10 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 201012. The 1st respondent claims title over the suit property by his long continued enjoyment. However, he also takes a contradictory plea that his father has got joint title along with the plaintiff's father, but Ex. A1 patta has been managed to be obtained in the name of the plaintiff's father alone. On perusal of Ex.A1 patta given in the housing scheme, it has not arisen out of any long possession. Since Ex. A1 is an assignment patta in the name of the plaintiff's father, the appellant can derive title only through Ex. A1 and nothing else. As the patta has been granted by the government in favour of the appellant/plaintiff under the housing scheme, he becomes the owner of the suit property, and hence the patta so given in favour of Samydass can only be the source of the title as well as the possession over the suit property.13. No doubt, the plaintiff has filed an earlier suit in OS.No.376 of 2003 by alleging that he is in possession of the suit property and the defendants are trying to cause disturbances to his possession. As the suit property is of a larger extent and the 1st respondent is alleged to be occupying a smaller portion, which is a thatched shed, the earlier suit cannot be considered as the suit filed on the same cause of action as that of the present suit. In other words, the present suit has been filed to recover possession from the 1st defendant in __________Page 11 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010respect of a portion of the suit property in which he was in occupation by claiming the relief of declaration also.14. So, the earlier suit in which the pleadings have been made about disturbing the possession of the appellant could be the disturbance given in the possession of the part that is occupied by the plaintiff. So it cannot be strictly said that the plaintiff has claimed similar relief or a contradictory statement from the earlier suit. Even if the earlier suit filed for permanent injunction is dismissed, the appellant still has the cause of action, as he has to protect his title, and the subsequent suit has been filed for the relief of declaration of title and recovery of possession from the defendant in respect of the portion that is shown as a thatched shed in the suit property.15. As the present suit has been filed for substantial relief of declaration and recovery of possession, and the issue with regard to title did not surface in the earlier suit filed by the plaintiff, it cannot be strictly said that the present suit is barred by the principle of res judicata. The plaintiff has taken merely contradictory pleas in both the suits. Thus, substantial question of law No. 1 is answered.__________Page 12 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 201016. In fact, it is only the respondent/1st defendant who has made contradictory statements by claiming title by entitlement and title by possession. If the respondent/1st defendant takes up a stand that the suit property has been considered as a joint property of his father and the father of the plaintiff, he should have also made it clear how the patta has been changed subsequently in favour of his father and thereafter it has been mutated in his name.17. The 1st defendant, without producing any such ulterior documents, cannot claim that the suit property is a joint property of the plaintiff's father and the 1st defendant's father. Ex. A1 is a statement given by the State in favour of the appellant/plaintiff under the housing scheme; it cannot be considered as the patta obtained for namesake in the name of the plaintiff's father. In the absence of any such documents, the defendant's possession over the suit property can only be considered as permissive possession and nothing else. The appellant has himself admitted in his pleadings that the patta was issued in the name of the plaintiff’s father, Samydass, is not a patta but an assignment. Pursuant to the fact that the plaintiff has been in enjoyment of the property, it can be safely held that the patta issued subsequent to the assignment, can be construed as a document of title for the purpose of this suit. Thus, the substantial question of law Nos. 2 & 3 are answered.__________Page 13 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 201018. The defendant has taken contradictory stand one by pleading title and another by adverse possession. The 1st appellate court did not consider the above-said aspect and it had simply influenced by the earlier suit filed by the plaintiff in O.S.No. 376 of 2003 and hence the judgement of the first appellate Court is liable to be set aside. The defendant has failed to establish title either by adverse possession or through any document of title, whereas the appellant/plaintiff has satisfactorily proved his title. The first appellate Court ought to have considered the appellant’s claim favourably; however, the learned first appellate Court has mislead itself and rendered a wrong finding. As the plaintiff has proved his title, the impugned judgment is liable to be set aside. In the result, the second appeal is allowed. The judgement made in AS.No. 107 of 2007 on the file of the Principal District Court, Erode, dated 31.07.2008, is set aside. The judgment and decree of the trial Court made in OS.No.421 of 2006, dated 27.04.2007, is restored. No costs.11-11-2025Index: Yes/NoSpeaking/Non-speaking orderNeutral Citation: Yes/NoJRS__________Page 14 of 15 https://www.mhc.tn.gov.in/judis SA No. 905 of 2010DR.R.N.MANJULA, J.JRSTo1.The Principal District Court, Erode 2.The District Munsif Court, Erode.SA No. 905 of 201011-11-2025__________Page 15 of 15