High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29-01-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE M. JAICHANDRENL.P.A.NO.70 OF 2002andC.M.P.NO.5411 OF 20021. Vaidiyanathan2. G. Satanathan3. G. Selvanathan4. G. Aruljothi.. Appellants/ Plaintiffs Vs.P. Sambanda Mudaliar (died)S/o. Subaraya Mudaliar2. Govindammal3. Vaidyanathan4. Subbarayan5. Ganesh @ Ganesan6. Rajendran7. Bhaskar8. Sivakumar9. Vijayalakshmi10. Premkumari11. Malika12. Taiyalnayaki13. Chandra14. Sasikala(Respondents 2 to 14 broughton record as LRs of the dead sole respondent vide order dated 22.8.2002 in CMP.No.1118 of 2002... RespondentsAppeal filed under Clause 15 of the Letters Patent against thejudgment of the learned single Judge dated 14.2.2002 in A.S.No.810 of1987 allowing the appeal filed against the judgment and decree dated30.4.1987 in O.S.No.45 of 1985, on the file of Sub Court, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.K. KannanFor Respondents 2 to 14 : Mr.M.S. SubramanianJ U D G M E N TP.K. MISRA, JPlaintiffs are the appellants against the reversingjudgment.2. The suit was filed for declaration that 'A' scheduleproperty exclusively belongs to the plaintiffs or in alternative forpartition of half share in 'B' schedule property of which 'A'schedule is a part. According to the plaintiffs' case, theproperties originally belonged to two brothers, Palanivel andChockalingam. Palanivel had two sons Narayanasamy and Manickam. Theplaintiffs are the grandsons of Narayanasamy, being the son ofGnanasambandam. On 21.7.1912, in a partition, the propertiesdescribed in 'A' schedule were allotted to Chockalingam and theproperties described in 'B' schedule of the same document wereallotted to Narayanasamy and Manickam, two sons of Palanivel. Outof 310 acres comprised in Survey No.67, which was dealt with inpartition, after sale of certain portions, the total extent wasreduced to 2.72 acres and in resettlement proceedings in 1922, theproperties had been allotted and enjoyed by Narayanasamy andManickam. On 5.4.1933, in a partition, 'A' schedule property wasallotted to the share of Manickam as per Ex.A-39. The said propertywas sold by Manickam to one Appar Mudaliar on 11.9.1940 as per Ex.A-2. On 26.2.1942, the property purchased by Appar Mudaliar was soldin favour of Sambanda Mudaliar of Naduveerapattu (A petition foraccepting such document dated 26.2.1942 as additional evidence hasbeen filed in the present appeal). On 9.2.1950, the propertypurchased by Sambanda Mudaliar was sold to Narayanasamy as per Ex.A-3. After the death of Narayanasamy in 1965, the plaintiffs' branchentitled to whole of the said property. Chockalingam's share wassold in court auction and had been purchased by defendant's father.There was no delivery of possession pursuant to the court auctionsale and at any rate the court's sale could confer right, title andinterest of the judgment debtor, namely, Chockalingam's halfinterest, which was 1.36 acres, out of 2.72 acres recorded in theresettlement. This property was always used as house-site and therewere no demarcation. In resettlement proceedings in 1976, theproperties were converted from acres to hectares and now comprised inthree patta numbers in the joint name of plaintiffs' father SambandaMudaliar and S.K. Velayudha Mudaliar. The plaintiffs' father was https://hcservices.ecourts.gov.in/hcservices/ paying kist and house tax and the defendant has no right in 'A'schedule property and he is not entitled to any extent more than theChockalingam's share. The defendant had also treated such propertyas if a joint family property of the defendant and the plaintiffs andin the partition among the defendant and his son only half share ofthe entire extent had been dealt with. On 5.11.1978, in a partitionin the family of plaintiffs and their father, the suit property hadbeen allotted to the share of the plaintiffs. Since the defendantattempted to trespass into South Western portion of the suit propertyand prevented the plaintiffs from demarcating, the suit had beenfiled for the reliefs claimed.3. In the written statement filed by the defendant, themain allegations of the plaintiffs have been denied. According tothe defendant, his father had purchased the entire extent in theSurvey Number in court auction dated 21.12.1933, which was confirmedon 29.9.1934, and his father had taken delivery of possession andafter his death, the defendant has continued to be in possession. In1975, Sri Muthumariamman Temple had filed a suit against thedefendant and Gnanasambanda Mudaliar, father of the plaintiffs, inrespect of the said property. Such suit was dismissed on the groundthat temple had no right and the defendant and his father wereentitled to same. The appeal filed by the temple was also dismissed.Thus, the title of the defendant and his father had been upheld in alitigation, wherein the father of the plaintiffs was a co-defendantalong with the defendant. Subsequently, the defendant had filedO.S.No.1290 of 1974 against S.K.V. High School and such school hadalso filed O.S.No.1289 of 1974 for declaration of their right. Thefather of the plaintiffs was the first defendant in O.S.No.1289 of1974 filed by the school. After a joint trial in both the suits, thesuit filed by the present defendant was decreed upholding his titleand the suit filed by the school was dismissed. The appeal filed bythe school against such decision was also dismissed. Validity of thesale deed dated 11.9.1940 and 9.2.1950 have been denied in thewritten statement. Similarly, the partition deed dated 5.11.1978 hasbeen attacked as a fraudulent and collusive transaction. In all theearlier litigations, the defendant's title to the suit property hasbeen upheld. It has been further stated that the defendant has notdealt with remaining 1.36 acres would not confer title on theplaintiffs and the defendant being in possession from 1933continuously, has acquired right by adverse possession. Moreover,the suit is also barred by the principle of res judicata. The claimof joint possession is denied. 4. The trial court upholding the plea of the plaintiffs hasgranted alternative relief of partition. Appeal against suchjudgment and decree was filed by the defendant. Learned single Judgehaving reversed the decision of the trial court, the present appeal https://hcservices.ecourts.gov.in/hcservices/ has been filed by the plaintiffs. An application has been filed foraccepting document dated 26.2.1942 as additional evidence before thelearned single Judge. 5. Learned single Judge has concluded that in the earlierlitigations filed by third parties in respect of the entire property,the father of the plaintiff, who was a co-defendant along with thefather of the present defendant, had either pleaded or given evidenceto the effect that the entire property was purchased by the father ofthe defendant in court auction and the father of the defendant was inpossession. Such disputes were decided by upholding the title of thefather of the defendant and therefore by operation of principle ofres judicata as well as estoppel, it can be said that the defendantand his father had right over the property and the plaintiff did nothave any right. It is also found that the defendant and his fatherhad remained in an uninterrupted possession and the defendant and hisfather had been asserting their right continuously and openly from1933 onwards and unless the plaintiffs prove that they got possessionsubsequently, they cannot succeed and even if they had title, suchtitle had been defeated by long adverse possession by the defendant.6. Learned counsel appearing for the appellants hassubmitted that the question of any conflict regarding inter se titlebetween the plaintiffs father and the defendant's father had not beenin issue in any of the earlier litigation and, therefore, there is noquestion of attracting the principle of res judicata between thedefendants. Similarly it has been contended that admission of theplaintiffs' father regarding the right of the defendant's fathercannot operate as estoppel as it cannot be said that the defendant orhis father had acted to his detriment on the basis of any admissionand any such admission could be explained away. It has been furthersubmitted that once a joint title is established, it is for thedefendant to plead and prove that he has remained in exclusivepossession with the exclusion of the plaintiffs, adverse to theirinterest for the requisite period, otherwise the question ofacquiring right by adverse possession would not arise.7. In JT 1995(3) S.C. 168 (MAHBOOB SAHAB v. SYED ISMAIL &OTHERS), it was observed :-" 8. Under these circumstances the question emergeswhether the High Court was right in reversing the appellatedecree on the doctrine of res judicata. At this juncture itmay be relevant to mention that the trial court negativedthe plea of res judicata as a preliminary issue. Though itwas open to sustain the trial court decree on the basis ofthe doctrine of res judicata, it was not argued before theappellate court on its basis. Thereby the findings of thetrial court that the decree in OS No. 3/1/1951 does notoperate as res judicata became final. The question then https://hcservices.ecourts.gov.in/hcservices/ is whether the doctrine of res judicata stands attracted tothe facts in this case. It is true that under Section 11CPC when the matter has been directly or substantially inissue in a former suit between the same parties or betweenparties under whom they or any of them claimed, litigatingunder the same title, the decree in the former suit wouldbe res judicata between the plaintiff and the defendant oras between the co-plaintiffs or co-defendants. But forapplication of this doctrine between co-defendants fourconditions must be satisfied, namely, that (1) there mustbe a conflict of interest between the defendants concerned;(2) it must be necessary to decide the conflict in order togive the reliefs which the plaintiff claims; (3) thequestion between the defendants must have been finallydecided; and (4) the co-defendants were necessary or properparties in the former suit. This is the settled law as heldin Syed Mohd. Saadat Ali Khan v. Mirza Wiquar Ali Beg;Shashibushan Prasad Mishra v. Babuji Rai; and IftikharAhmed v. Syed Meharban Ali. Take for instance that if in asuit by A against B & C, the matter is directly andsubstantially in issue between B & C, and an adjudicationupon that matter was necessary to determine the suit togrant relief to A; the adjudication would operate as resjudicata in a subsequent suit between B & C in which eitherof them is plaintiff and the other defendant. In otherwords, if a plaintiff cannot get at his right withouttrying and deciding a case between co-defendants, the courtwill try and decide the case, and the co-defendants will bebound by the decree. But if the relief given to theplaintiff does not require or involve a decision of anycase between co-defendants, the co-defendants will not bebound as between each other.9. Where the above four conditions did not exist thedecree does not operate as res judicata. It must,therefore, be that all the persons who have right, titleand interest are made parties to the suit and that theyshould have knowledge that the right, title and interestwould be in adjudication and the finding or the decreetherein would operate as res judicata to their right, titleand interest in the subject-matter of the former suit. Evenin their absence a decree could be passed and it may beused as an evidence of the plaintiffs title either acceptedor negatived therein. The doctrine of res judicata wouldapply even though the party against whom it is sought to beenforced, was not eo-nomine made a party nor enteredappearance nor did he contest the question. The doctrine ofres judicata must, however, be applied to co-defendants https://hcservices.ecourts.gov.in/hcservices/ with great care and caution. The reason is that fraud is anextrinsic collateral act, which vitiates the most solemnproceedings of courts of justice. If a party obtains adecree from the court by practising fraud or collusion, hecannot be allowed to say that the matter is res judicataand cannot be reopened. There can also be no question ofres judicata in a case where signs of fraud or collusionare transparently pregnant or apparent from the facts onrecord.10. Therefore, in applying the doctrine of resjudicata between co-defendants or co-plaintiffs, care must,of necessity, be taken by the courts to see that there mustin fact be a conflict of interest between the co-defendantsor co-plaintiffs concerned and it is necessary to decidethe conflict in order to give relief which the plaintiff inthe suit claimed and the question must have been directlyand substantially in issue and was finally decided therein.As found by the appellate court, Maqdoom was playing fraudupon his creditors by creating false oral gifts or spuriousclaims of mortgages with a view to defraud them. Section 44of the Evidence Act envisages that any party to a suit orproceeding may show that any judgment, order or decree,which is relevant under Section 40, 41 or 42 has beenobtained by fraud or collusion. Under Section 40, theexistence of the judgment, order or decree which by lawprevents any court from taking cognizance of a suit orholding a trial, is a relevant fact when the question iswhether such court ought to take cognizance of such suit orto hold such trial."8. Similar view had earlier been taken in the decision ofthe Privy Council in A.I.R. 1931 Privy Council 114 (Mt. MUNNI BIBIAND ANOTHER v. TIRLOKI NATH AND OTHERS), while considering thedoctrine of res judicata between the co-defendants.9. More recently, similar views have been expressed in thedecision of the Supreme Court in (2005) 6 SCC 304 (MAKHIJACONSTRUCTION & ENGG. (P) LTD. v. INDORE DEVELOPMENT AUTHORITY ANDOTHERS).10. Keeping in view the aforesaid principles, it has to beexamined whether the determination in the earlier two suitsdismissing the suits of third parties against the father of thepresent plaintiffs as well as the father of the present defendant andupholding the title of the father of the present defendant wouldconstitute res judicata. https://hcservices.ecourts.gov.in/hcservices/

11. The materials on record relating to the earlier suitsdo not indicate that any question had been raised relating to theinter se right of the plaintiffs' father and the defendant's fatherin those suits. The main question was whether the third parties, whohad claimed rights, were entitled to the property. Since thequestion of inter se title between the defendant's father and theplaintiffs' father was not in issue and was also not required to bedecided in the disputes then raised, obviously the doctrine of resjudicata cannot be applied between the co-defendants. The contentionof the learned counsel for the appellants to the above extent isacceptable and the tentative conclusion of the learned single Judgethat the earlier decisions operated as res judicata between the co-defendants cannot be accepted. 12. The next question is relating to the question ofestoppel. It has been contended by the contesting defendant that thefather of the plaintiffs had admitted either in the pleadings or inhis deposition regarding title of the father of the defendant in theearlier litigations and, therefore, such an admission should beconsidered as binding.13. It is no doubt true that admission is one of the bestpiece of evidence. However, admission can always be explained,unless such an admission give rise to the principle of estoppel. Inthe present case, the principle of estoppel does not arise because itcannot be said that the father of the defendant had acted to hisdetriment on the basis of the representation made by the plaintiffs'father. For attracting the principle of estoppel, the basicrequirement is that the person to whom representation has been mademust have acted on the basis of such representation and particularlyto his own detriment. Moreover, since it can be said that the fatherof the defendant knew about the correct position and had not acted tohis detriment, the question of estoppel may not arise. In the abovecontext, the decisions of the Supreme Court in A.I.R. 1959 SC 504(KISHORI LAL v. Mt. CHALTIBAI) and A.I.R. 1966 SC 605 (AMBIKA PRASADTHAKUR AND OTHERS v. RAM EKBAI RAI(dead) BY HIS LEGAL REPRESENTATIVESAND OTHERS) can be referred to.14. In AIR 1959 SC 504 (cited supra) it was observed:-"14. . . . It was also submitted that the admissionsshifted the onus on to the respondent on the principle thatwhat a party himself admits to be true may reasonably bepresumed to be so and until the presumption was rebutted,the fact admitted must be taken to be establish : ChandraKunwar v. Narpat Singh, 34 Ind App 27. The question of onusloses its efficacy because it was never objected to in theCourts below and evidence having been led by the parties,at this stage the Court has to adjudicate on the material https://hcservices.ecourts.gov.in/hcservices/ before it. And admissions are not conclusive, and unlessthey constitute estoppel, the maker is at liberty to provethat they were mistaken or were untrue. Trinidad AsphaltCompany v. Coryat, 1896 A C 587. Admissions are mere piecesof evidence and if the truth of the matter is known to bothparties the principle stated in Chandra Kunwar's case (34Ind App 27) (supra) would be inapplicable. And in this casethere is no admission by the respondent of the appellant'sadoption by her husband in his lifetime. Such admissionsthat there are cannot help the case of the appellant orsupport a different appraisal of the evidence of the factumof adoption or establish an adoption which is otherwisedisproved."15. In AIR 1966 SC 605 (cited supra), the Subordinate Judgedid not examine the basis of the plaintiffs' claim of title and hisfinding in favour of the plaintiffs' title was base chiefly on oralevidence, depositions of witnesses in previous litigations,possession and admission of the Maharaja. After analysing otheraspects, the Supreme Court referred to the aspect relating toadmission and observed :-"(13) . . . The Maharaja was interested in the successof the suit, and it was necessary for him in his owninterest to make this admission. The admission was madeunder somewhat suspicious circumstances at the end of thetrial of the case when the arguments had begun. Thoughthis petition was filed, the written statement of theMaharaja was never formally amended. In the circumstances,this admission has weak evidentiary value. In this suit,the plaintiffs do not claim tenancy right either by expressgrant or by adverse possession. Title cannot pass by mereadmission. The plaintiffs now claim title under Cl.(1) ofSection 4 of Regulation XI of 1825. The evidence on therecord does not establish this claim." 16. In the present case, the claim of title by thedefendant has to be examined by keeping in view the materials onrecord. Law is well settled that in an auction purchase the auctionpurchaser does not acquire any right over the property higher thanthat of the judgment debtor. Since the principle of res judicatabetween the co-defendants is not applicable and since mere admission,which does not operate as estoppel, does not create or pass anytitle, it cannot be said that the defendant's father had exclusiveright over the entire property and on the other hand it is apparentthat the defendant's father had right over the half interest in theproperty which he has purchased. https://hcservices.ecourts.gov.in/hcservices/

17. The next question is whether the defendant had perfected histitle by adverse possession. Once it is held that the auctionpurchaser only stepped into the shoes of the judgment debtor, who wasa co-sharer, the auction purchaser can be held to be a co-sharer, whois entitled to possess separately by enforcing partition. Thelearned counsel for the defendant placed reliance upon the fact thatthere was some kind of delivery of possession and since in theprevious litigations the plaintiffs predecessor-in-interest hadadmitted about the possession of the defendant or the defendant'sfather, it must be held that the defendant was in exclusivepossession of the disputed property and, therefore, the plaintiffs ortheir predecessor-in-interest had lost title over the property.18. In order to prove adverse possession, the defendant isrequired to prove that he or his predecessor-in-interest hadpossession over the entire property to the exclusion of theplaintiffs and their predecessor. There is no direct evidence onrecord that after auction purchase there was physical delivery ofpossession of the property by evicting all the persons. In theabsence of any such specific proof, the only reasonable inference isthat there was symbolical delivery of possession. This may be moreparticularly so because of the legal principle that auction purchaseris entitled to separate possession only after enforcing partition.It is of course true that at some point of time the plaintiffs'predecessor had admitted about the possession of the defendant. Butthe subsequent events and more particularly the documents on recordclearly indicate that there was no exclusive possession of eitherparty and on the other hand there was joint possession. This isapparent from Exs.A-7, A-8 and A-9, which are pattas in the name ofSambanda Mudaliar (original defendant) and Gnanasambanda Mudaliar,the predecessor in interest of the plaintiffs. 19. Apart from the above, the kist receipts and the housetax receipts are all in the name of the plaintiffs' predecessor.Similarly, Exs.A-41,A14 and A-19, tax demand receipts are in the nameof the plaintiffs' predecessor . Coupled with the above, thematerials on record indicate that when there was a partition in thefamily of the defendant, reference was only made to half extent of 2acres 72 cents, which was dealt with in the partition deed dated29.12.1971 Ex.A-44. Subsequently, in the partition after the deathof Narayanasamy, 'A' schedule property has been subject matter ofthe division and allotment has been made in favour of the secondplaintiff as per Ex.A-40. This subsequent event and includingseveral documents clearly indicate that the defendant was not inexclusive possession. Since the defendant is raising the question ofadverse possession, it was for him to prove by unimpeachable evidencethat he was in exclusive possession to the exclusion of theplaintiffs and their predecessor. In the absence of any strongevidence on this aspect, keeping in view the documentary evidence on https://hcservices.ecourts.gov.in/hcservices/ record, more particularly patta, rent receipts and the tax receipts,etc., it is difficult to accept the contention of the defendant /respondent regarding adverse possession. 20. Learned single Judge has merely referred to so calledlong possession of the defendant and upheld the contention relatingto adverse possession without analysing in depth the various aspectsand various materials on record. The strong evidence, which isrequired in support of the plea of adverse possession is singularlyabsent. The admission made by the plaintiffs' predecessor ininterest regarding possession of the defendant and defendant's fatheris proved to be erroneous by virtue of subsequent conduct of both theparties as well as several documents on record. Those documents wereavailable at a time when there was no dispute between the partiesand, therefore, are of great value in coming to the conclusion thatthe defendant was not in exclusive possession. In view of theaforesaid conclusion, we are unable to sustain the decision of thelearned single Judge.21. For the aforesaid reasons, we allow the appeal and thedecision of the learned single Judge is setaside and that of thetrial court is restored. There would be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkTo1. The Subordinate Judge,Cuddalore.2.The Record-keeper, V.R. Section, High Court, Madras.1 cc to Mr.Ms. Subramanian, Advocate, Sr. 56881 cc to MR.R Yashod Vardhan, Advocate, sr. 5643 LPA.NO.70/2002AKM (CO)kk 26/3