Madras High Court
Ramalinga Bajanai Madam By Muthupillai vs Gerart Pappammal And 19 Others on 7 November, 1997
Equivalent citations: 1998(1)CTC85, (1998)IMLJ468
ORDER
1. The second appeal has been preferred by the plaintiff.
2. The suit was filed by the plaintiff to declare its right over the suit property and for injunction restraining the first defendant and his men from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff.
3. The case of the plaintiff is that the plaintiff is a Bajanai Madam managed by the trustees. One Ananda Chandrasekaran by deed dated 6.4.1972 donated the suit property to the Madam. One Ramalinga Gramany by deed dated 2.4.1970 bequeathed properties to his daughters. However, he left out some properties from the purview of the will and bequeathed those items of properties in favour of Ananda Chandra Sekaran his eldest son-in-law. In fulfillment of the wishes of Ramalinga Gramani, Ananda Chandrasekaran donated the suit property to the madam and handed over possession also to the Dharmakarthas. The first defendant has purchased 3/4th share in the suit property from the defendants 3 to 5 who are the daughters of the aforementioned Ramalinga Gramani. After the purchase the first defendant filed a suit and obtained ex parte injunction against the 3rd parties but no such injunction was obtained against the Madam.
4. The defendants conceded that Ananda Chandra sekaran had no right over the suit property and hence his donation was not valid. The plaintiffs were not in possession of the property, in O.S.No.211 of 1974 against one Kanniappan Pathri, Venu, Angalan and Murugan and injunction was obtained. Mere application to set aside the ex parte decree was dismissed. O.S. No.495 of 1980 filed by Madam by its trustee for identical relief was dismissed on 12.6.1981. Therefore, the present suit is not maintainable.
5. The trial court has framed as many as five issues. The issue No.l relates to the maintainability of the suit. The second one is whether the property devolved upon the 6th defendant by virtue of a will dated 2.4.1970 by Ramalinga Gramani. In substance, the issue is as to whether the aforementioned Ananda Chandrasekaran was bequeathed with some of the properties of Ramalinga Gramani, which was not covered by his will dated 2.4.1970. The trial court answered both issues in favour of the plaintiff and as well as decreed the suit
6. The lower appellate court had framed as many as six points for determination. The main points are whether the suit filed by Madam is maintainable and whether the defendants No. 6 became the owner of the suit property. After considering all the points, the lower appellate court held that the 6th defendant did not became the owner of the suit property. Hence he has no title to donate the property to Madam. As regards the maintainability i.e. Point No. 3 it has held that the suit was not maintainable as there is no proof relating to the appointment as trustees. Another point that was considered by the lower appellate court is whether the averments in paragraph 4 of the written statement of D1 about O.S.No.211 of 1974 and 495 of 1980 are true and proved. On this point also the lower appellate court has found that paragraph 4 of the written statement of D1 stood proved through documents.
7. Paragraph 4 refers to the suit O.S.211 of 1974 and to the suit O.S.No.459 of 1980. O.S. No.211 of the 1974 was filed by the first defendant against four persons for declaration of title to suit property. Suit O.S.No. 459 of 1980 was filed by the Madam against the first defendant for setting aside the sale in favour of the defendant No. 4, the 1st defendant herein in the present suit and for injunction restraining him from interfering with the peaceful possession of the plaintiff. The said suit was dismissed as not pressed on 12.12.1981. The lower appellate court after perusal of Exs.B6 to B11 relating to these two suits it has answered point No. 5 in favour of the first defendant. Thus the lower appellate court has reversed the finding of the trial court and set aside the decree in favour of the plaintiff. Therefore, the plaintiff Bajanai Madam is before this Court.
8. Thiru. G. Masilamani, Additional Solicitor General for the appellant has raised the following three contentions:-
1. The finding of the lower appellate court that the defendant No.6 Anandachandrasekaran did not get any right to the suit property under the will of Ramalinga Gramani under Ex.A2 dated 2.4.1970 is erroneous. The constructions put by the lower appellate court on the will is apparently wrong.
2. The lower appellate court's finding on point No. 5 that the suit is barred by res judicata in view of the decision in O.S.No.211 of 1974. Is not wrong.
3. Similarly earlier suit O.S.459 of 1980 which was for identical relief and dismissed as not pressed operate as is not a bar to the maintainability of the present suit.
9. According to the learned counsel for the appellant Mr.G. Masilamani, Additional Solicitor General though these points have not been specifically and properly dealt with under point No.5 by the lower appellate court. Hence he has to necessarily raise these points specifically in this court and establish that there is no res judicata and there is no bar also in view of the earlier suits 211 of 1974 and O.S. 459 of 1980. The learned senior counsel Mr. T.R. Rajagopalan appearing for the respondent contended that in the second appeal the points involved for decision as stated above by the learned Additional Solicitor General. Therefore, both of them advanced their arguments on the above three main points only before this Court. Now, we will take up the points urged in the second appeal.
10. Point No.1: The first point is that the will executed by Ramalinga Gramani of deed dated 2.4.1970 under Ex.A2 did not confer any right on the 6th defendant. Ex.A2 with reference to the properties not covered by the will states as follows:-
The lower appellate court has considered that the above provisions meant that the properties involved in the litigation and not included in the will must be taken over by the son-in-law after conducting the litigation and spending for the same. The lower appellate court concluded that since there was no litigation involved in respect of the suit property they were to be inherited by his daughters. Hence the 6th defendant has no right to the suit property.
11. This interpretation appears to be very unreasonable. The specific wording is that the properties not covered by the will should be taken by the eldest son-in-law even if there was litigation. Admittedly, the suit property was not covered by the will. Hence the 6th defendant has derived right from the will in the suit properties. The learned counsel for the respondent also did not seriously advance much arguments on this aspect.
12. Now, coming to the question of res judicata in view of the ex parte decree under Ex.B6. Ex.B6 shows that one Jerard Santhanasamy, plaintiff obtained ex parte decree with costs. The relief mentioned in the judgment shows that the plaintiff obtained the ex parte decree against the defendants etc. The reliefs stated in the judgment are permanent injunction restraining the defendants and their agents the successors and servants from interfering with the possession and enjoyment of the suit property by the plaintiff and his successor on title. There is no schedule attached to the said judgment. In the judgment it is not seen what is the property involved in the said suit. The next document is Ex.B7. It is admittedly an order in I.A.3392 of 1978 dated 16.7.1979. In this document as well there is no mention about the property. Ex.B9 is the written statement in O.S.No.211 of 1974. Only from this written statement we can gather that Ananda Chandrasekara Gramani got the suit properties involved in the said suit under the will of Ramalinga Gramani dated 2.4.1970 and the said Andanda Chandra Sekaran executed a registered settlement deed in favour of Ramalinga Bajanai Madam. The property in the said suit is the property donated by Ananda Chandrasekaran to Madam. It is also stated in paragraph 4 that the defendants were in possession of the properties as the trustees of the Madam. Therefore, we can assume that the suit property in this case was the property involved in the earlier suit O.S.No. 211 of 1974.
13. But the question is whether the Madam can be said to be a party in the said suit for the purpose of Section 11 CPC. Because for the purpose of operation of res judicator the suit must be between the same or between the parties under whom they or any of them claim. Exs. B6 to B8 do not show that the Ramalinga Bajanai Madam was not a party. On the other hand 'B6 shows that four persons Kannian Packiri, Venu, Angalan, Murugavenu alias Kathawarayan were defendants. Ex.B6 does not show that they were representing the Bajanai Madam. B7 and B8 also do not show that the afore said persons were representing the Bajanai Madam. But Ex.B9 contains the statement that the four persons mentioned in the cause title were trustees of the Madam who wee looking after the affairs of the Bajanai Madam. It is also stated that the said Madam is in possession and enjoyment of the suit property. From the written statement we can presume that there was Bajanai Madam. There were four persons looking after the interest of the Madam and the Bajanai Madam was in possession of the suit property. From this it will be very difficult to hold that the Bajanai Madam was a party in the said suit. When there is specific statement that the Bajanai Madam was in existence in the written statement, it is clear that the four persons mentioned therein were in managers of the properties and the possession was only with the Madam. Inasmuch as the plaintiff has not filed the suit against the Madam, it is very difficult to hold that Madam was a party to the suit O.S.211 of 1974. It may be that the four persons representing Madam in their capacity as the trustees might have interfered with the possession and enjoyment of the suit property by the plaintiff in the said suit. But the declaration and injunction was only against the four individuals and not against the Madam. The learned counsel for the respondents when confronted with this position attempted to show that there was no Bajanai Madam in existence at that time and the properties were settled in favour of the aforesaid persons. Therefore, subsequent successors in the office of the Bajanai Madam will also be bound by the decision. In Ex.A1 dated 6.4.1972 it is stated that the donation was for Ramalinga Nagar Bajanai Madam and for the said Madam in favour of the then trustees. When donation is specifically in favour of the Bajanai Madam and possession has been handed over to it and if the Bajanai Madam is not shown as a party in the suit, the decision in the suit cannot bind the Bajanai Madam. I am not able to appreciate the learned Senior Counsel for the respondent because Bajanai Mamdam is stated to be in existence in Pondichery Ramalinga Nagar Ulavar Karathi vittan, Pondichery. The then trustees were also mentioned. Further there is a statement that as per the wishes of his father in-law donation deed was executed. It implies that the father in-law himself has desired the execution of the document in favour of Bajanai Madam and the Bajanai Madam was in existence even during the life time of the father-in-law. Therefore, the contention of the counsel for the respondent is untenable.
14. The learned counsel for the appellant next contended that Ex.B1 and B11 show that for identical relief the said suit was filed. But according to him the said suit was only to set aside the sale deed in favour of the 4th defendant Jerard Sandanasamy, the first defendant in the present suit. The cause of action is stated to have arised on 6.4.1972 when the donation deed Ex.A1 was executed. But the present suit is for declaration that the plaintiff is the absolute owner of the property. Further it is contended that the subject matter in O.S.No.459 of 1980 was the sale deed executed in favour of the first defendant. But in the present suit the subject matter is for declaring the plaintiff as the owner of the suit property. The learned counsel argued that Order 23, Rule 1(4) CPC will get attracted only if the subject matter is one and the same. Order 23, Rule 1(4) CPC is as follows:-
"Where the plaintiff-
(a) abandons any suit or part of claim under Sub-rule (1), or
(b) withdraws from a suit or part or a claim without the permission referred to in sub-rule (3) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim."
Relying on sub rule (b) it is contended that the subject matter means the bundle of facts and not relating to the property involved. The learned counsel for the appellant cited the following decisions in support of his contentions.
1. Pandillapalli Singareddi v. Yeddula Subba Reddi and others, 1916 (4) LW 915; 2. Narayanaswami Udayan and others v. Manner, AIR 1929 Mad 798; 3. Shadi Ram v. Amin Chand and others, AIR 1930 Lah. 937; 4. Vallabh Das v. Dr. Madalal and others, ; 5. Kaloot Sao And Another v. Mostt (name not known, ; 6. Kurij Jinabhai Kotecha v. Ambalal Kanjib Ai Patel, .
15. In Padillapalli Singareddi v. Yeddula Subba Reddi and others, 1916 (4) LW 915 the first suit was filed by the plaintiffs when the mother-in-law of the defendant Venkatammal was alive for declaration that the alienation by a settlement deed by Venkatammal in favour of the defendant making several false recitals as to the defendant being an illatom son-in-law and son on was invalid and not binding on the reversioners after Venkatammal's death. Venkatammal died in 1912 pending the first suit. The plaintiffs withdraw the first suit. The second suit was filed for declaration of the invalidity of Venkatammal's acts and for possession of the lands. The first suit was withdrawn without permission to file a fresh suit.
16. In the second suit which was filed by the plaintiff in their capacity as vested reversioners while the former suit was filed in their capacity as contingent reversioners.
17. The Full Bench of this Court has held that the cause of action and relief claimed in the second suit are substantially different from those in the first suit. The Full Bench has held that the word 'matter' has a larger meaning than cause of action. But the matter in the second suit cannot be held to be the same when the cause of action is substantially different though the defence is the same. The Full Bench further upheld the decisions in the following cases Krishna Behari Roy v. Brojeswari Chowdranee, 2 I.A. 283, T.K. Ummatha v. T.K. Cheria Kunhamed, I.L.R. 4 Mad 308, Allunni v. Kunjusha, I.L.R. 7 Mad 264, Ramaswami Ayyar v. Vythinatha Ayyar, I.L.R. 26 Mad 760 which held that, where the causes of action are different even in the dismissal of the first suit by the Court after contest on the merits there will not be a bar to the maintainability of the second suit on a substantially different cause of action, even though the defences may be the same in the two suits.
18. In the case on hand, the cause of action is stated to have arisen on 6.4.1972 when the donation made by the 6th defendant in favour of the plaintiff Madam was executed and on 29.7.1981 when the other defendants attempted to interfere by putting up a fence in the suit property. The cause of action for the earlier suit though stated to have arisen on 6.4.1972 the date of donation deed, actually O.S.No.459 of 1980 relates to the sale deed executed by the defendants 1 to 4 in favour of the 4th defendant in the said suit. The relief claimed in the present suit is for declaration that the plaintiff is the absolute owner of the property mentioned in the schedule and consequential injunction. The relief in the earlier suit is for setting aside the sale executed by the defendants 1 to 4 in favour of defendant No.4 and for consequential injunction. (The 4th defendant in the earlier suit is the first defendant in the present suit.)
19. In the earlier suit, the matter i.e. the question or the cause of action was the execution of the sale deed in favour of the present first defendant and the relief was to have that sale deed set aside. In the present suit, the cause of action is the donation deed which has conferred title on the plaintiff. The relief is based on the donation deed. The defence, no doubt in both the suit is one and the same namely that the first defendant claiming right under the sale deed executed in his favour. The above referred full bench has categorically held that where the causes of action are different, even a dismissal of the first suit by the Court after contest on the merits is no bar to the maintainability of a second suit, even though the defences may be the same in the two suits." This principle laid down by the Full Bench is squarely applicable to the present case.
20. In Narayanaswami Udayan and Others v. Manner (AIR 1929 Madras 798) a single Judge of this Court has held that if the cause of action for the prior suit to recover immovable property, treating the defendant as a trustee is different from the cause of action stated in the subsequent suit to recover immovable property if the subsequent suit is based on allegation that the defendant was a mere trespasser. The subject matter and the claim in the two suits are different and the withdrawal of the former suit without permission of the court would not constitute a legal bar to the plaintiff for maintaining the subsequent suit. The learned Judge has followed the principles laid down by the Full Bench referred to above.
21. In Shadi Ram v. Amin Chand and others, AIR 1930 Lah. 937 the facts are as follows:-
The first suit was filed for cancelling the gift by GUR Devi to Amin Chand by the reversioners of Bhau Mal. There was a compromise in the said suit giving 4/5th of the gifted land to the reversioners of Bhau Mal who were the plaintiffs. The compromise decree was passed and 4/5th share was given to the plaintiff. At that stage Gur Devi, who was not a party to the compromise, filed an appeal challenging the compromise as well as her own gift in favour of Amin Chand. Then compromise decree was set aside and the suit was remanded to the Sub-ordinate Judge and at the stage the suit was withdrawn. Thereafter, Amin Chand filed a petition for restoration of possession of the gifted land. From the reversioners, Aminchand secured back the possession of the gifted property. Thereafter the second suit was filed by the reversioners of Bhau Mal. They claimed 4/5th share of land gifted to Amin Chand by GUR Devi after the death of Gur Devi. The trial court held that the reversioners could not claim land as the suit was barred by time Appeal was preferred before the District Judge. One of the points raised was that the second suit was barred under order Order 23, Rule 1. Then the matter was taken to the Lahore High Court. A single Judge of the Lahore High Court has held that the cause of action is different in the second suit. The previous suit was based on the gift, while part of cause of action, which the plaintiff had in the second suit was the restoration of the land to Amin Chand under Section 144, CPC after the previous decree had been set aside by the remand order of the District Judge. The Full Bench Judgment in Surja Reddi v. Subba Reddi, 1916 39 Mad. 987 has been followed in the said case.
22. In Vallabh Das v. Dr. Madanlal and others, the Full Bench Judgment referred to above was accepted as correct. In the Supreme Court case, the facts are that one Madanlal filed the suit for partition and separate possession. Dr. Madanlal filed the said suit against his adoptive father and the cause of action was the division of status between Madanlal and his adoptive father and the relief claimed was for conversion of joint possession into separate possession. In the second suit the relief claimed was for possession from one Vallabh Das who was also a defendant in the earlier suit and who was said to be the adopted son of Prem Sukh. The first suit was withdrawn but liberty was given to file a second suit on payment of some costs. But without payment of costs, the second suit was filed against Vallabh Das who succeeded to Premsukh after his death. The first suit was withdrawn after Premsukh died.
23. The Supreme Court found that the cause of action namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. The factum and validity of adoption of Dr. MadanLal was challenged in both the cases. The Supreme Court has observed that the adoption was not the cause of action in the first or in the second suit. It was merely an antecedent event which conferred certain rights on him. Mere identity of some of the issues in the two suits do not bring about an identity of the subject matter in the two suits. The reasoning in the above case is squarely applicable to the facts of the present case.
24. In Kaloot Sao And Another v. Mostt, (name not known), the Division Bench of Patna High Court has categorically stated that unless the cause of action for the two suits is the same the bar of Order 23 Rule 1(3) of the Code cannot be applied. In the said case, the first suit was filed for possession, without service of notice under Section 106 of the Transfer of Property Act. But the second suit was filed after the service of notice under Section 106. The Full Bench Decision of Madras High Court is followed in the said case also.
25. A single Judge of Gujarat High Court has held in Kurji Jinabhai Kotecha v. Ambalal Kanjibhai Patel, that mere identity of some of the issues in the two suits will not bring about identity of the subject matter. In this case also, the Full Bench decision of Madras High Court has been followed.
26. After considering the aforesaid decisions I am of the view that the cause of action for the two suits are different and the reliefs claimed are also different.
27. The learned counsel for the appellant has also cited the following decisions and contended that the bar under Order 23 Rule 1(4) applies only where a second suit is filed after the withdrawal of the first suit. However, if the second suit is filed during the pendency of the first suit, the bar is not attracted.
1. P.A. Muhammed v. The Canara Bank and another, ; 2. Girdhari Lal Bansal v. The Chairman, Bhakra Beas Management Board, A reading of the Order 23, Rue 1.4(b) extracted in para 14 shows that it refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1 cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed.
28. The learned Senior Counsel for the respondent Mr. T.R. Rajagopalan contended that the bar under Order 23, Rule 1(4) of CPC squarely applies to the facts of the present case. The learned Senior Counsel relied on the following decisions.
1. Pandillapalli Sanga Reddi v. Yeddula Subba Reddi And Two Others, ILR 39 Mad. 987; 2. B. Chenchuram Naidu v. Muhamed Bahuvuddin Sahib, AIR 1933 Mad. 3; 3. Ram Bharose v. Baramdin and others, AIR 1939 All. 584; 3. Gubbala Suryanarayana and another v. Ganesulu and another, ; 5. Insurance Corporation of India v. Seshi Ammal, AIR 1958 Mad. 463; 6. Albert Judah, v. Rampada Gupta and another, ; 7. Order of The Holy Cross v. Lonnappan Thattil and another, .
29. The case Pandillapalli Sanga Reddi v. Yeddula Subba Reddi and two others ILR (39) Mad. 987 : 1916 (4) LW 915 as I have already set out the facts and proposition of law set out in the said case is rather helpful to the appellant than to the respondent.
30. B. Chenchuram Naidu v. Muhamed Bahuvuddin, AIR 1933 Mad. 3. This is a case where the first suit was filed without notice of termination of tenancy. Subsequently another suit after notice was filed. The Bench of this Court has held that there was no bar since the subject matter was not same.
31. Ram Bharose V. Baramdin and others, AIR 1939 All. 594 is a case where the facts are that the first suit was filed for recovery of possession of number of plots from the co-shares. The co-sharers were in possession of some of the plots as mortgagees. In the first suit the prayer was for possession of 3 bighas 7 bigwas of lands. The suit was withdrawn without permission to bring fresh suit. The second suit was filed on the similar cause of action. The relief claimed was also for same. Therefore, a single Judge of Allahabad High Court held that there was identity of cause of action as well as identity of relief claimed. Hence the second suit was barred. The learned Judge has also distinctly pointed out the meaning of subject matter. According to the learned Judge after referring to the Full Bench Judgment of Madras High Court in Singha Reddi V. Subba Reddi, 1971 4 AIR Mad 512 and another judgment in Chenchuram Naidu v. Md. Bahavuddin, AIR 1933 Mad 3 gave the meaning of the subject matter. The subject matter means series of cause of acts or transactions alleged to exist giving rise to the relief claimed. As we have already pointed out in the case on hand, the cause of action for the present suit is different. The relief claimed is also different. Therefore, the said decision does not help the respondent.
32. In Gubbala Suryanarayana and another v. Gadiyapu Ganesulu and another, a single Judge of this Court has held that an adverse order in Execution Petitioner also becomes final unless it was set aside. The person against whom such an order was passed cannot re-agitate the matter in a subsequent suit. The contention raised in that case was that in the earlier suit there was no adjudication on merits, after investigations. That contention was rejected. It was held that if a person chose to take advantage of a summary procedure, he must suffer its disadvantages as well as its benefits. It was also mentioned that the principle of constructive res judicata was also involved. We are not concerned with the principles of constructive res judicata directly in the present case. We are considering the principle involved under Order 23, Rule 1(4), CPC.
33. Albert Judah v. Rampada Gupta and Amptjer, . The said case is also not helpful to the respondent. The first suit in the said case was for declaration that he is entitled to act as Managing Director, the issue of new shares and allotment thereof were not valid, etc. One more suit was also filed by the wife of the plaintiff and other shareholders on behalf of the shareholders of the company for declaration that the plaintiff in the first suit was the Managing Director and injunction restraining the defendants from interfering with his right of management of the company. The two suits were withdrawn. Thereafter another suit was instituted for declaration that the plaintiff was the holder of large number of ordinary shares and he is alone entitled to the rights and the privileges attached to the shares that the transfer of shares in the name of the defendant was illegal, void and inoperative. In the second suit, the Order 23, Rule 1(3) and Order 2, Rule 2 of the CPC was raised. The learned Single Judge of the Calcutta High Court has observed that for the determination of the question one has to look to the substance of the two suits and not their form and language only. We have to find out what the phrase "in respect to the same subject matter" means. The subject matter of a suit can only be ascertained from the plaint filed. For the purpose of finding out the meaning of "subject- matter" within the meaning of Order 23, Rule 1(3) it is not necessary nor is it proper to look to the written statement. The imperative provisions of a plaint are amongst others, the facts constituting the cause of action and the relief which the plaintiff claims. In other words, the plaint must state the reliefs claimed and the cause of action that entitled the plaintiff to get the reliefs claimed. This indicates that the subject matter of a suit can only be ascertained from the cause of action and the reliefs, set out in the plaint. If the cause of action in the subsequent suit is different from the cause of action in the previous suit withdrawn, the two suits must be held to be in respect of different subject matter. The learned Judge further added that the two causes of action must not be different in form only but in substance. In other words, the difference must not be due to the clever draftmanship of the counsel who rafted the subsequent plaint whereby the same cause of action has been presented in different form. The learned judge has further observed as follows:-
"It is the combination of facts, the concatenation of circumstances that give rise to a cause of action and a claim for relief. The addition of a new fact to a state of existing facts may change the character of the suit and the right to relief. I am unable to accept the argument that for the purpose of Order 23 Rule 1 (3) each one of the bundle of facts jointly and severally should be treated as giving rise to the cause of action so that the subject matter of the suit is so extensive as to cover all claims that may arise from the proof of each single fact in such permutation and combination as can be imagined. I do not think so. For the purpose of cause of action all the facts pleaded have to be looked at as a "bundle" that is in its collective capacity as giving a right to a claim. Each fact cannot be looked at in isolation or the facts cannot be looked at in a different combination. If the reliefs claimed in the subsequent suits though not expressly stated but was implicitly in the previous claim by reason of the bundle of fact pleaded as constituting the cause of action, the plaintiff would be debarred from claiming the relief in a subsequent suit based on the same bundle of facts because of Order 2, Rule 2 of the Code. I doubt whether in such a case Order 23, Rule 1(3) would be a bar, even though certain decisions may perhaps be read as suggesting it would But this is by the way."
The learned Judge has almost exhaustively given the definition of the word subject matter. In paragraph 16, the learned Judge noticed the differences between the earlier suit and the subsequent suit. In the first suit, the right of the plaintiff to act as Managing Director and the validity of the issue of new shares and allotment thereof were issues. In the subsequent suit, the declaration was that in respect of the plaintiff's holding 26752 ordinary shares and as consequence his entitlement to the rights and privileges attached to the said shares. And further declaration that the transfer of shares in the name of the defendant Ramapada Gupta was illegal, void nd inoperative. In the pervious suit also there was a challenge to the transfer and allotment of shares to a particular individual is there. But yet the learned Judge has held that there was no bar. The learned Judge has not decided the application of Order 2, Rule 2 CPC in the said case.
34. That apart, the learned Judge has also accepted the contention that since there was injunction against the defendants restraining them from selling the shares in the previous suits and that would prove that the subject matter in both the suits were the same. From the aforesaid view it is clear that even though the subject matter in both the suits are same, and when the cause of action, plea and relief claimed are different, the bar of Order 23 Rule 1 is not there. In my view this case helps the appellant and not the respondent.
35. The last case cited by the learned counsel for the respondent is Order of the Holy Cross v. Lonappan Thattil and another, . This case is relating to the bar under Order 23, Rule 1(4). In the said case, the plaintiff filed a suit for declaration that the first plaintiff is the trustee of the second plaintiff organisation and is the Director, Superior etc and injunction restraining the defendants from interfering in any way with the first plaintiff's rights. The said suit was withdrawn. Another suit was filed for the following reliefs:-
1. Granting decree of permanent injunction.
2. Restraining the defendants from interfering in any manner with the rights of the plaintiff as Director, of Superior, etc. of the second plaintiff Organisation.
The learned single Judge of the Kerala High Court after perusing the pleadings has held that the parties and relief sought for in both the suits are same. But to make it appear that the present suit is different from the earlier suit, the plaintiffs have made certain statements in the plaint and also impleaded certain new parties. But as we have found above, the facts of the case on hand are different. The cause of actions are not similar. It cannot also be said that there is any camouflage in this case.
36. The learned Senior Counsel for the respondent Mr. T.R. Rajagopalan raised another contention that event though the suit was dismissed as withdrawn the bar of res judicata will apply. He cited a case in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior, . The said decision is not helpful to him. The Apex Court has held that the principle underlying Order 23 Rule 1 should be extended in the interests of administration of justice to cases of withdrawal of writ petition also. Further they have stated that the bar is not on the ground of res judicata. Hence the said decision is not helpful to him. In Albert Judah v. Rampada Gupta and Amptjer, it is held that there is no res judicata when the suit was not decided on merits but only withdrawn.
37. On a consideration of all the relevant facts and the authorities cited before me, I am of the view that the suit out of which the second appeal has arisen is not hit by any bar contained in Order 23 Rule 1(4) CPC. It is also not hit by principle of res judicata under Section 11 CPC.
38. I have already taken the view that the interpretation with reference to the will put by the lower appellate court is erraneous. The 6th defendant is entitled to take suit property under the will. Therefore, he has got title. It follows, therefore, that his donation to the Ramalinga Bajanai Madan is valid and the Bajanai Madam gets title to the suit property.
39. As regards possession also, there is evidence to show that Bajanai Madam has been in possession of the trees and it sold the coconut trees to PW2. In as much the suit property is a vacant site, the principle of possession follows title has to be applied in this case. The first defendant has not shown his possession of the suit property. The courts below simply inferred possession since he had ex parte order injunction in the earlier suit, without going into the question of actual possession. Since I have found that the defendant have no right over the suit property by virtue of sale deed and found title in favour of the plaintiff, the plaintiff is entitled for injunction as prayed for. Hence the judgment and decree of the lower appellate court is set aside. The suit is decreed as prayed for. However, there will be no orders as to costs.