M.Ganesa Reddiar v. C.Krishnasamy Raju

title and for permanent injunction. Since the appellant had diedduring the pendency of the present second appeal, his legalrepresentatives have been brought on record by an order of thisCourt, dated 11.02.2008, made in M.P.No.1 of 2008 in S.A.No.933 of2006.4. The brief facts of the case, as stated by the plaintiff inthe plaint, are as follows:a) The plaintiff is the absolute owner of an extent of 1.65acres of agricultural land situate in Marambedu village of PonneriTaluk comprised in S.No.8/3 (45 cents) and in S.No. 8/4 (1.20 cents).The plaintiff had purchased the lands from one V.Kanniah Raju, hiswife and son, by a registered sale deed, dated 11.04.1977, registeredas Document No.676/1977 at the Sub Registrar's Office, Ponneri. Thesaid property described in the schedule to the plaint, referred to asthe suit property, was purchased by the vendor of the plaintiff fromone Munusamy Raju by a sale deed, dated 4.11.1957, registered asDocument No.3828/1957, in the office of the District Registrar, NorthMadras, among other properties. The said Munusamy Raju had purchasedthe suit property in S.No.8/4 by a sale deed, dated 9.11.1953, fromone Gajapathy Naidu and the other suit property with an extent of 45cents was purchased by Munusamy Raju from one Venugopal Naidu, undera sale deed, dated 30.01.1954. b) The vendor of the plaintiff, namely, Kanniah Raju, was inpossession and enjoyment of the suit property from the time of itspurchase in the year 1957. The vendor had leased out the propertyalong with other properties to one Bakthavachalu Budhur Kandigai by alease agreement, dated 14.10.1970. Thus, the vendor of the plaintiffwas in possession and enjoyment of the suit property till it wasconveyed to the plaintiff in the year 1977. From the date of hispurchase, the plaintiff had continued to enjoy the property withoutany hindrance from anyone. The patta of the suit property had beentransferred in the plaintiff's name and he had paid the kist for thesuit property. Therefore, no other person excepting the plaintiff hasexclusive title over the suit property.c) The defendant, who is a resident of the same village as thatof the plaintiff, wanted to purchase the suit property and since theplaintiff had refused to sell the property to the defendant, he hadattempted to trespass in the suit property to commit acts of waste.Since the defendant had denied the title of the plaintiff in hiswritten statement, the plaintiff had filed an amended plaint prayingfor the relief of declaration of title to the suit property, alongwith the earlier relief of permanent injunction as sought for,initially. It is also the case of the plaintiff that he hasprescribed title to the suit property, by adverse possession, as hehas been in open, continuous and uninterrupted possession andenjoyment of the suit property for more than the required statutoryperiod. https://hcservices.ecourts.gov.in/hcservices/ 5) The defendant had filed a written statement denying theclaims made by the plaintiff. The defendant had stated that the saledeed, dated 11.04.1977, said to have been executed by Kanniah Raju,his wife and son, in favour of the plaintiff is not binding on thedefendant, since the vendors in the said sale deed had no title overthe suit property to convey the same to the plaintiff. The vendors ofthe plaintiff had not been in possession and enjoyment of the suitproperty at any point of time and they had no right to sell the saidproperty in favour of the plaintiff. It was also stated that MunusamyRaju, is not the owner of the property. Munusamy Raju, who is thebrother-in-law of Chinnaswamy Raju, the father of the defendant, wasliving with the defendant and his father and he was cultivating thesuit lands for their benefit. The property mentioned in the plaintschedule was acquired by the defendant's father, Chinnaswamy Raju,with his own funds and he has been in possession and enjoyment of thesame for a very long time. The defendant and his father have beenpaying the kist for the land and they have been deriving the benefitsfrom the land for nearly five decades. 6) Kanniah Raju S/o Duraiswamy Raju, the vendor of the plaintiffhad conspired to obtain a sham conveyance as though Munusamy Raju wasentitled to the property. Kanniah Raju had filed a suit in O.S.No.929of 1973 before the District Munsif Court, Tiruvallur, with regard tothe house site in S.No.1/2 in the Marambedu village. However, he hadnot taken any steps with regard to the suit property. The sale deed,dated 4.11.1957, by Munusamy Raju and the vendor of the plaintiff isnot valid and Munusamy Raju had no right to the property. Thedefendant had also denied that Kanniah Raju was not in possession andenjoyment of the property from the date of his purchase. The allegedlease in favour of Bakthavachalu, on 14.10.1970, is also denied asfalse. The plaintiff had no right in the suit property and he has notbeen in possession and enjoyment of the suit property at any point oftime. 7. It has been further stated that the suit in O.S.No.929 of1973 on the file of the District Munsif, Tiruvallur, filed by KanniahRaju and his wife Saradammal, who was added subsequently as the legalheir, seeking for the declaration of title and possession against theMunusamy Chetty and the defendant in the present suit, had beendismissed. The appeal filed against the judgment and decree of thetrial Court had also been dismissed and the sale deed, dated4.11.1975, was declared as not valid, holding that he had no title toconvey. It was also held that the defendant is the owner of theproperty. Supressing the said fact the plaintiff had filed thepresent suit with the ulterior motive of dispossessing the defendantfrom the suit property. 8. Considering the rival claims of the plaintiff, as well as thedefendant and after the amendment of the plaint by the plaintiff andbased on the additional written statement filed on behalf of thedefendant, the following issues were framed by the trial Court forconsideration: https://hcservices.ecourts.gov.in/hcservices/ i) Whether the plaintiff is the absolute owner of thesuit properties?ii) Whether the plaintiff is entitled to declarationof his title to the suit properties?iii) Whether the plaintiff is entitled to permanentinjunction as prayed for?iv) To what relief is the plaintiff entitled?9. Eight documents were marked as exhibits and one witness wasexamined in favour of the plaintiff and 13 exhibits were marked andtwo witnesses were examined on behalf of the defendant. 10. The plaintiff's son, who was examined as P.W.1, had statedin his evidence that the plaintiff had purchased the suit propertiesunder Ex.A-1, sale deed, dated 11.4.1977, executed by Kanniah Rajuand others in favour of the plaintiff Ganesa Reddiar. Kanniah Rajuhad purchased the properties from Munusamy Raju, who in turn hadpurchased the suit properties, under Ex.A-2 and three other saledeeds. Kanniah Raju was in possession and enjoyment of the suitproperties and he had leased out the said property to Bakthavachaluunder Ex.A-4 lease deed. The decree in the suit filed by Kanniah Rajuwas not against the plaintiff. Since the plaintiff has been in long,open and uninterrupted possession of the suit properties, he hasprescribed title by adverse possession. 11. The defendant was examined as D.W.1. He had stated that thevendors of the plaintiff had no title to convey Ex.A-2, sale deed wasneither true nor valid. The suit property belonged to the defendant'sfather and Munuswamy Raju was assisting his father in cultivating thelands. Taking advantage of the illness of his father, Ex.A-2 saledeed had been obtained. In the suit filed by Munusamy Raju, inO.S.No.929 of 1973, it was held that Munusamy Raju has no title. Thetrial Court had found that P.W.1, examined on behalf of theplaintiff, had admitted in his evidence that the vendor of theplaintiff, Kanniah Raju, had filed a suit against the defendant andanother in O.S.No.929 of 1973 in respect of the suit property. 12. The learned counsel appearing on behalf of the plaintiff hadalso conceded that the said suit related to the sale deed under whichKanniah Raju had purchased the suit property and under the said saledeed, some other properties had also been purchased. The judgmentmade in O.S.No.929 of 1973 was marked by the defendant as Ex.B.3. Inthe said judgment, the District Munsif, Tiruvallur, had held that theplaintiff's vendor had purchased the said property involved in thepresent suit, under the sale deed, dated 04.11.1957, and the saidsale deed was true but not valid.13. It was contended before the trial Court by the learnedcounsel appearing on behalf of the defendant that the sale deed,under which Kanniah Raju, the vendor of the plaintiff had purchasedthe suit property, was held to be invalid and that the person who hadsold the property to Kanniah Raju had no title to convey the same.Therefore, the plaintiff could not derive any title to the suit https://hcservices.ecourts.gov.in/hcservices/ property. It had also been contended that the suit was barred by theprinciple of resjudicata. Even though the earlier suit was inrelation to some other properties the sale deed, under which the suitproperty was said to have been purchased was held to be invalid. 14) The trial Court after considering the various decisionsplaced before it had come to the conclusion that since the sale deed,under the which the vendor of the plaintiff is said to have purchasedthe suit property, was held to be invalid, the plaintiff could nothave acquired any title to the suit property. Therefore, theplaintiff cannot claim any ownership of the suit property based onEx.A-1 sale deed. 15) The contention raised on behalf of the plaintiff that evenif it was found that the plaintiff could not have derived title overthe suit property under Ex.A-1 sale deed, the plaintiff had cleartitle by prescription as he had been in possession and enjoyment ofthe suit property for more than the statutory period. However, thetrial Court had declined to accept the said contention by holdingthat in order to claim adverse possession, the plaintiff ought tohave admitted the title of the defendant in the suit property. Sincethe plaintiff had not admitted the title of the defendant with regardto the suit property, he cannot claim adverse possession. 16) The trial Court had held that the claim of adversepossession by the plaintiff was not sufficiently proved even thoughthere were some entries in the revenue records in favour of theplaintiff. Thus, the trial Court had dismissed the suit holding thatit was hit by the principle of resjudicata and for the reason thatthe plaintiff had not successfully proved that he had prescribedtitle in the suit property by adverse possession. 17) Aggrieved by the judgment and decree of the trial Court,dated 30.01.2004, made in O.S.No.403 of 1993, the plaintiff had filedan appeal in A.S.No.11 of 2004, on the file of the Subordinate Judge,Ponneri. 18) The only point for consideration framed by the FirstAppellate Court is whether the appeal is to be allowed.19) Considering the evidence on record and the contentionsraised on behalf of the plaintiff as well as the defendant, the FirstAppellate Court had confirmed the judgment and decree of the trialCourt, holding that the trial Court had come to the right conclusionthat the suit was barred by the principle of resjudicata holding thatonce the sale deed, dated 11.4.1977, marked as Ex.A-1, was held to beinvalid, the plaintiff cannot derive title relying on it. It wasfurther held that the plaintiff was not entitled to claim adversepossession, since he had not accepted the title of the defendant inthe suit property. Further, it was held that the plaintiff had notgiven sufficient details both in the plaint, as originally filed andin the amended plaint, with regard to his adverse possession of thesuit property. The exhibits marked in favour of the plaintiff do not https://hcservices.ecourts.gov.in/hcservices/ sufficiently support the claims made by the plaintiff with regard hislong, open, uninterrupted possession of the suit property. In suchcircumstances, the First Appellate Court had confirmed the conclusionarrived at by the trial Court by its judgment and decree, dated23.08.2005, made in A.S.No.11 of 2004. In such circumstances, theplaintiff in the suit in O.S.No.403 of 1993, had filed the presentsecond appeal. 20. The second appeal had been admitted on the followingsubstantial questions of law:1) Whether the Courts below are correct in coming tothe conclusion that by virtue of Ex.B-3, the Appellant'sclaim is barred by resjudicata.2) Whether the findings given by the Courts below thatthe appellant has not perfected title by adverse possessionis sustainable when he has proved his possession andenjoyment of the property for over the statutory period.21) The learned counsel Mr.V.Selvaraj, appearing on behalf ofthe appellant had contended that the earlier suit filed by KanniahRaju in O.S.NO.929 of 1973, before the District Munsif, Tiruvallur,was in respect of a different property and it did not relate to thesuit property. Even if the sale deed, dated 11.04.1977, marked asEx.A-1, was held to be invalid, it was held to be so only in relationto some other properties and it was not declared to be invalid in sofar as the suit property is concerned. Thus the principle ofresjudicata cannot apply to the present case. Even if the sale deed,dated 11.04.1977, was held to be invalid, the suit ought to have beendecreed in favour of the plaintiff, based on the plea of adversepossession. Since the issue in the earlier suit was relating to aparticular property, title derived by the plaintiff in the suitproperty through the sale deed, dated 11.04.1977, cannot be held tobe invalid or non existent.22. The learned counsel Mr.N.R.Gopalan had submitted that since,in the earlier suit in O.S.No.929 of 1973 filed by Kanniah Raju, ithad been held that Ex.A-1 sale deed, dated 11.04.1977, was invalid,the same issue cannot be reopened again by the plaintiff by claimingthat he had got the title to the suit property through the said saledeed. Further, the plaintiff cannot prove both the pleas claimingtitle over the suit property through the sale deed, dated 11.4.1977,as well as the claim of adverse possession.23) If the plaintiff could rely on the claim of title throughadverse possession, he has to necessarily accept the title of thedefendant in the suit property. Since he had not done so, his claimof title by adverse possession cannot be accepted. It was alsopointed out by the learned counsel appearing on behalf of thedefendant that the plaintiff had opted to pursue his claim of adversepossession alone, during the first appeal in A.S.No.11 of 2004. https://hcservices.ecourts.gov.in/hcservices/

24. All the grounds raised in the first appeal by the plaintiffwere relating to his claim of adverse possession. Since the plaintiffhad not accepted the title of the defendant to claim title by adversepossession, both the Courts below have rightly held that he is notentitled to such a relief. Further, the Courts below have rightlycome to the conclusion that the suit filed by the plaintiff, inO.S.No.403 of 1993, was hit by the principle of resjudicata as theissue relating to Ex.A-1 sale deed, dated 11.04.1977, had alreadybeen decided conclusively in the suit filed by Kanniah Raju inO.S.No.929 of 1973, on the file of the District Munsif, Tiruvallur.While so, it is not open to the plaintiff to reopen the same issueonce again in the present suit. 25. The learned counsel appearing on behalf of theplaintiff/appellant had submitted that the plea of resjudicata hadnot been raised by the defendant in the written statement filed bythe defendant, except for vague reference made in paragraph-5 of thesaid written statement. Further, no issues had been framed by theCourts below with regard to the issue of resjudicata. The issue ofresjudicata could be decided only if all the connected documents,including the pleadings and evidence in the earlier suit, inO.S.No.929 of 1973, had been marked in the present suit. The issue ofresjudicata cannot be decided only based on the three documents,namely Ex.B-3, dated 29.11.1978, which is the judgment in O.S.NO.929of 1973, Ex.A-8, dated 28.02.1981, the judgment in A.S.No.47 of 1979,and Ex.B-4, dated 12.02.1993, the judgment and decree in S.A.No.1037of 1982. 26. The learned counsel appearing for the plaintiff had reliedon the following decisions in support of his contentions:26.1 In the decision reported in Shri Jai Kishan Dass and othersV. Smt.Nirmala Devi and others (AIR 1984 SC 589) it has been heldthat the principle of res judicata would apply if the issues hadbeen decided in earlier litigations between the parties and or theirpredecessors.26.2 In the decision reported in Srimati Raj Lakshmi Dasi andothers V. Banamali Sen and others (AIR 1953 SC 33) it has been heldthat the test of res judicata is the identity of title in the twolitigations and not the identity of the actual property involved inthe two cases.26.3 In the decision reported in Mahalingeshwara Devaru andanother V. Seetharama Bhatta and another (AIR 1978 Karnataka 213), ithas been held as follows:"The primary test of res judicata depends upon the identity oftitle in the two litigations and not the identity of the actualproperty involved in the two cases. Therefore, even if the propertyinvolved in the previous suit was different, that cannot be animpediment to invoke the principles of res judicata." 26.4 In the decision reported in Kadapurath Illam Khalid V.Beemapura Palamkakkada Sulekha and others (AIR 1986 Kerala 251) ithas been held as follows: https://hcservices.ecourts.gov.in/hcservices/ "To press into service the doctrine of res judicata orestoppel by record it is enough if the party concernedshows that the parties to both the suits were the same, andare persons whose names are on the record at the time ofthe decision, even if a party may be a person who gotintervened in the suit."26.5 In the decision reported in Ram Gobinda Daw and others V.Smt.H.Bhakta Bala Dassi etc., (AIR 1971 SC 664) it has been held asfollows:"The test of res judicata is the identity of title inthe two litigations and not the identity of the actualproperty involved in the two cases but the previousdecision must be one on a title in respect of which adispute has been raised and which dispute was heard andfinally decided by the Court. Once the decision on questionof title becomes final it operates as resjudicata even ifthe value of the subject matter on which the formerdecision was pronounced was comparatively very trifling.When the decision was given by trial Court after contest itoperates as res judicata even if appeal therefrom mighthave been dismissed on some preliminary grounds likelimitation."26.6 In the decision reported in Kunhayammed and others V. Stateof Kerala and another (AIR 2000 SC 2587) it has been held as follows :"The logic underlying the doctrine of merger is thatthere cannot be more than one decree or operative ordersgoverning the same subject-matter at a given point of time.When a decree or order passed by inferior Court, tribunalor authority was subjected to a remedy available under thelaw before a superior forum then, through the decree ororder under challenge continues to be effective and bindingnevertheless its finality is put in jeopardy. Once thesuperior Court has disposed of the lis before it either way– Whether the decree or order under appeal is set aside ormodified or simply confirmed, it is the decree or order ofthe superior Court, tribunal or authority which is thefinal, binding and operative decree or order wherein mergesthe decree or order passed by the Court, tribunal or theauthority below. However, the doctrine is not of universalor unlimited application. The nature of jurisdictionexercised by the superior forum and the content or subjectmatter of challenge laid or which could have been laidshall have to be kept in view. The superior jurisdictionshould be capable of reversing, modifying or affirming theorder put in issue before it. Under Art.136. of theConstitution the Supreme Court may reverse, modify oraffirm the judgment decree or order appealed against whileexercising its appellate jurisdiction and not whileexercising the discretionary jurisdiction disposing ofpetition for special leave to appeal. The doctrine of https://hcservices.ecourts.gov.in/hcservices/ merger can therefore be applied to the former and not thelatter."26.7 In the decision reported in Bhavani Amma and others V.Narayana Acharya and others (AIR 1963 Mysore 120) it has been held asfollows:"When the judgment and decree of a Court are appealedagainst, the decree of the Court of first instance ismerged in the decree of the appellate Court though theappellate Court may affirm the decree of the trial Court.What operates as res judicata is not only the decision butthe grounds on which the decision is based. Where ajudgment has been superseded by the decree and judgmentmade in the appeal, the former judgment cannot be pleadedin bar of res judicata."26.8 In the decision reported in Venkateswarlu V. VenkataNarasimham and others (AIR 1957 AP 557) it has been held as follows:"Where the matter went up on appeal the appealdestroyed the finality of the judgment of the trial Courtand the appellate, judgment superseded that of the trialCourt. It is the appellate judgment that has to be lookedto determine the question of res judicata."26.9 In the decision reported in Munshi Mohammad Abdul Aziz V.Gulam Julani (AIR 1937 Madras 709) it has been held as follows:"Where in a former suit between the same parties anissue was decided by the trial Court but the appellateCourt refrained from deciding it, the issue cannot bedeemed to have been finally decided and it can be raised ina subsequent suit between the same parties."26.10 In the decision reported in Syed Mohd. Salie Labbai (Dead)by L.Rs and others V. Mohd. Hanifa (Dead) by L.Rs. And others (AIR1976 SC 1569) it has been held as follows:"Before a plea of res judicata can be given effect,the following conditions must be proved-(1) that the litigating parties must be the same. (2)that the subject-matter of the suit also must be identical;(3) that the matter must be finally decided between theparties and (4) that the suit must be decided by a Court ofcompetent jurisdiction."26.11 1n the decision reported in A.M.K.Mariam Bibi and othersV. M.A.Abdul Rahim and others (2000 AIHC 661) it has been held thatwhere pleadings in the suit between the same parties have not beenfiled and when only a judgment was filed, the question of resjudicata cannot be decided since pleadings cannot be proved merely byrecitals of allegations mentioned in the judgment.26.12 In the decision reported in Kuppusamy Gounder and othersV. Kannammal and others (2001 3 L.W 483) it has been held that forurging a plea of res judicata merely filing of a final decree in theearlier suit is not sufficient, since necessary ingredients such asidentity of the properties, issues etc. have to be shown. The https://hcservices.ecourts.gov.in/hcservices/ pleadings and the judgment in the earlier suit have to be marked inthe trial Court. 26.13 In the decision reported in Shantaben Naranbhai Dalvadiand others V.Vadilal Kacharabhai Prajapati (2000 AIHC 717) it hasbeen held that when there is a substantial difference between thenature of the property, extent of the property and distribution ofthe property amongst the various floors in the earlier suit and thesubsequent suit and since the identity of the property cannot beurged to be the same, the bar of res judicata will not apply.27. The learned counsel appearing on behalf of the respondenthad submitted that the plea of adverse possession was raised by theplaintiff, belatedly, only after eight years. While the plaint inO.S.No.403 of 1993 had been filed on 20.04.1993, praying for therelief of permanent injunction, the amendment was made as per theorder in I.A.No.773 of 2001, dated 12.09.2001. The plaintiff hadpursued only the plea of adverse possession at the stage of the firstappeal. The First Appellate Court had considered all the issuesrelating to the matter and had come to the right conclusion ofconfirming the judgment and decree of the trial Court.28. The learned counsel appearing for the defendant had reliedon the following decisions in support of his contentions:28.1 In the decision reported in R.Samudra Vijayam Chettiar V.Srinivsa Alwar and others (AIR 1956 Madras 301) it has been held asfollows:"Where a man is entitled to one of two inconsistentrights and he has with full knowledge done an unequivocalact indicating his choice of the one he cannot afterwardspursue the other which after the first choice is by reasonof the inconsistency no longer open to him. Such cases donot require detriment to the other party as foundation fortheir application."28.2 In the decision reported in Union of India V. Bharat Fireand General Insurance Ltd. New Delhi (AIR 1961 Punjab 157) it hasbeen held as follows:"Where a person concerned has the choice of tworights, either of which he is at liberty to adopt, but notboth, and he adopts the one he cannot afterwards assert theother."28.3 In the decision reported in P.Dasa Muni Reddy V. P.Appa Rao(AIR 1974 SC 2089) it has been held as follows:"Abandonment of right is much more than mere waiver,acquiescence or laches. The decision of the High Court inthe present case is that the appellant has waived the rightto evict the respondent. Waiver is an intentionalrelinquishment of a known right or advantage, benefit,claim or privilege which except for such waiver the partywould have enjoyed."28.4 In the decision reported in M/s.Motilal Padampat SugarMills Co. Ltd., V. The State of Uttar Pradesh and others (AIR 1979 SC621) it has been held as follows: https://hcservices.ecourts.gov.in/hcservices/ "Waiver means abandonment of a right and it may beeither express or implied from conduct, but is basicrequirement is that it must be an intentional act withknowledge."28.5 In the decision reported in M/s.Marisami Brothers by itsManaging Partner M.Marisami V. M/s.Bluemount Switchgears Assocaites(Pte.) Ltd., represented by its Managing Director S.Palaniswami andothers (1969 (I) MLJ 573) it has been held as follows:"As a matter of fact, it is significant that thedefendants have raised the question of res judicata withregard to the maintainability of the suit itself on thebasis of the decision in the earlier suit. The plaintiffhad ample opportunity to put forward any such plea of resjudicata in relation to the genuineness of Exhibit A-1, andthey did not do so. Under these circumstances, I am of theview that they cannot be permitted to raise the questionfor the first time in this second appeal."28.6 In the decision reported in Washdev Singh Biji V. Union ofIndia and another (AIR 1970 Delhi 85), it has been held as follows:"Plea of res judicata – Plea negatived by trial Court– Plea not agitated in first appellate Court – Plea notallowed to be raised in second appeal, more particularlywhen the suit itself is held to be incompetent."28.7 In the decision reported in Manak Lal V. Dr.PremchandSinghvi and others (AIR 1957 SC 425) it has been held as follows:"Held that on the facts and circumstances of the casethe appellant knew the material facts and must be deemed tohave been conscious of his legal rights in that matter andtherefore his deliberate failure to raise theobjection.......... at the earlier stage of the proceedingscreated an effective bar of waiver against him and he wasprecluded from raising it before the High Court for thefirst time."28.8 In the decision reported in Seth Ghasiram Seth DalchandPalliwal V. Mt.Kundambai W/o.Rameshwar Shukul and others (AIR 1940Nagpur 163) it has been held as follows:"New plea – Plea of res judicata not raised in Courtbelow cannot be allowed in second appeal.The plea of res judicata is not a pure plea of law andif it was not pleaded or raised in the lower Court, itcannot be agitated in second appeal."28.9 In the decision reported in P.S.M.Ahamed Abdul Khader V.T.K.Mohammed Abubucker and others (AIR 2002 Madras 213) it has beenheld that to prove adverse possession, one has to plead and provethat a particular person is the true owner and he is holding theproperty in adverse possession openly. 28.10 In the decision reported in Annasaheb Bapusahep Patil andothers V. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs andheirs etc., (AIR 1995 SC 895) it has been held as follows: https://hcservices.ecourts.gov.in/hcservices/ "Where possession could be referred to a lawful title,it will not be considered to be adverse. The reason beingthat a person whose possession can be referred to a lawfultitle will not be permitted to show that his possession washostile to another's title..... Therefore, a person whoenters into possession having a lawful title, cannot divestanother of that title by pretending that he had no title atall."28.11 In the decision reported in Kadapurath Illam Khalid V.Beemapura Palamkakkada Sulekha and others (AIR 1986 Kerala 251) ithas been held as follows:"Resjudicata – Test – Identity of title in bothearlier and subsequent suits is to be proved and notidentity of actual properties involved."28.12 In the decision reported in Mahalingeshwara Devaru andanother V. Seetharama Bhatta and another (AIR 1978 Karnataka 213) ithas been held as follows:"The primary test of res judicata depends upon theidentity of title in the two litigations and not theidentity of the actual property involved in the two cases.Therefore, even if the property involved in the previoussuit was different, that cannot be an impediment to invokethe principles of res judicata. 28.13 In the decision reported in M/s.Ram Mohan & Co rep. by itsProprietrix R.Renuka and another Vs. Ganesar Ginning Co. P. Ltd.,Coimbatore and twelve others (1999(III) CTC 40) it has been held asfollows:"Code of Civil Procedure, 1908, Order 43, Rule 1 –Appeal - No appeal can be filed against a finding by partyin whose favour the proceedings have ended.28.14 In (AIR Civil Court, Manual 451) the followingillustration has been shown:A sues B for possession of certain properties on thebasis of a sale deed in his favour. B impugns the deed asfictitiuous. It is held that the deed is fictitious and thesuit is dismissed. A subsequently brings another suitagainst B for certain other properties on the basis of thesame sale deed. The suit is barred, as the issue about thecharacter of the deed was actually in issue in the formersuit directly and substantially."29. Considering the contentions raised on behalf of the partiesconcerned and in view of the records available before this Court, itis clear that the Courts below have come to the right conclusion indismissing the suit filed by the plaintiff as he has not been in aposition to substantiate his claim of title in the suit property.Both the trial Court as well as the First Appellate Court hadrejected his claim of title in the suit property, since the saledeed, dated 11.04.1977, marked as Ex.A-1, had been found to beinvalid in the suit in O.S.No.929 of 1973, filed by Kanniah Raju.Thus, it was rightly held by the Courts below that the claim of titlein the suit property by the plaintiff is hit by the principle ofresjudicata. Further, the plaintiff has not been in a position to https://hcservices.ecourts.gov.in/hcservices/ prove his claim of title in the suit property by adverse possession.It is clear that unless the plaintiff had accepted the title of thedefendant in the suit property, it was not open to him to claim titleby adverse possession. It is also seen that the plaintiff had waivedhis claim for title through the sale deed, dated 11.04.1977, markedas Ex.A-1, at the stage of the first appeal. It is seen that all thegrounds raised by the plaintiff in the first appeal relates only tothe claim of adverse possession. As rightly contended by the learnedcounsel for the defendant that once the plaintiff had opted to choseone of the pleas, between the two inconsistent pleas of title throughthe sale deed, dated 11.04.1977, and title by adverse possession, itis not open to the plaintiff to come before this Court by way of asecond appeal, reopening both the pleas once again.30. In such circumstances, this Court is of the considered viewthat the plaintiff in the suit in O.S.No.403 of 1993, who had comebefore this Court by way of the present second appeal, has not shownsufficient cause or reason to set aside the judgment and decree ofthe Courts below. In such circumstances, the second appeal standsdismissed. No costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrarcsh1. The Subordinate Judge, Ponneri.2) The District Munsif, Ponneri.3) The Section Officer,V.R,section, High Court, Madras 104.+1 cc To Mr.R.Anantharamakrishnan, Advocate, SR.22607+1 cc To Mr.V.Selvaraj, Advocate, SR.22655S.A.No.933 of 2006ms [co]gkg/21.5