Madras High Court
Thirumangai Naidu vs R. Srinivasan And Ors. on 5 January, 1996
Equivalent citations: (1996)2MLJ259
JUDGMENT Raju, J.
1. The appellant in the above second appeal is the defendant in O.S. No. 3024 of 1979, on the file of the District Munsif s Court, Cuddalore and the respondents are the heirs and successors in interest of late Kamalammal, wife of Late V.R. Radhakrishna Reddiar and who was also the plaintiff in O.S. No. 3024 of 1979.
2. The plaintiff's husband, Radhakrishna Reddiar was said to have purchased the suit property from one Thillaikannu Ammal, under a registered sale deed dated 27.9.1964 for a sum of Rs. 3,000. After his purchase, he was claimed to have demolished the building that was on the south side and built superstructure at a cost of Rs. 50,000 in the year 1965. The suit property was said to have originally belonged to one Krishnasami Padayachi, the grand-father of P.W.1 Venugopal. Thillaikannu Ammal was the wife of Krishnasami Padayachi. In a suit filed in O.S. No. 235 of 1945 by Venugopal, a compromise decree was said to have been passed as entered into between the said Venugopal and Thillaikannu Ammal, as per which Thillaikannu Ammal should enjoy the property till her life time without any power of alienation and after her P.W.1 Venugopal should take it absolutely. The compromise decree in the said suit dated 19.8.1946 has been marked as Ex.B-2 in the present proceeding. The defendant/appellant has purchased the entire 3 cents of property covered under the compromise decree from Venugopal Padayachi on 15.5.1963. The said sale deed has been marked as Ex.B-1. After the death of Thillaikannu Ammal, the defendant/ appellant filed O.S. No. 897 of 1968, for declaration of his title and also for recovery of possession of the land contending that since late Thillaikannu Ammal had only a life interest, the defendant is entitled to the property in question. The said suit though hotly contested by Radhakrishna Reddiar, was decreed in favour of the defendant herein on 30.10.1970. As against the said judgment and decree of the trial court, late Radhakrishna Reddiar filed A.S. No. 3 of 1971 on the file of the Sub Court, Cuddalore and when the said appeal was pending, Radhakrishna Reddiar died and the plaintiff in the present suit (Kamalammal) and her children were added as legal representatives of the deceased Radhakrishna Reddiar and they prosecuted the appeal. Ultimately, by a Judgment and decree dated 22.11.1974, the appeal was also dismissed. Thereupon, the matter was pursued before this Court and it is stated that the second appeal filed was also dismissed in limine.
3. After all these, the defendant herein has initiated execution proceeding and the objections raised by Kamalammal were overruled by the executing court and the possession was about to be delivered when O.S. No. 3024 of 1979 was filed by Kamalammal for a permanent injunction restraining the defendant from interfering with her possession and enjoyment of the suit property. The case of the plaintiff. Kamalammal, in the present round of proceeding was that the site in question is a railway poramboke that nobody can have a right to purchase except the enjoyer of the property that the plaintiff's family has rights under the City Tenants Protection Act and since the decree obtained by the defendant was in respect of the site it cannot be delivered without removed of the superstructure, for which there is no direction and that the plaintiff's family having been in possession and enjoyment of the property for over the statutory period her right cannot be taken away by anybody except the Railways.
4. The defendant herein opposed the claim on the ground that the present suit is barred by res judicata on account of the earlier proceedings referred to supra and that the plaintiff and her children were already parties from the stage of the first appeal in the earlier round of proceedings and therefore the suit claim is devoid of merits.
5. The trial court held that in the earlier suit O.S. No. 877 of 1968 the title of the plaintiff's husband to the suit property has been negatived and this finding which came to be affirmed by two further appellate courts constituted res judicata and the present suit was hit by Section 11 of the Code of Civil Procedure. It was also found that what was purchased by the plaintiff's husband from Thillaikannu Ammal could be only a life interest in the property and notwithstanding the said purchase the title to the property accrued to the defendant on the death of Thillaikannu Ammal. But, the plaintiff's husband and thereafter the plaintiff were in possession of the property by putting up the superstructure in question. The trial court also framed an additional issue as to whether the defendant was estopped from claiming title in view of the acquiescence as contended by the plaintiff in the suit. In paragraph 5 of the judgment, the trial court held that the principles of acquiescence by estoppel cannot be applied to the facts of the present case.
6. Aggrieved, the respondents herein filed A.S. No. 32 of 1982 on the file of the Sub Court, Cuddalore, as the legal representatives and successors-in -interest of the plaintiff- Kamalammal, since after the judgment and decree by the trial court and before filing the appeal, the plaintiff- Kamalammal died. The learned appellate court also considered the matter at length and affirmed the conclusion of the trial court on the question of res judicata and held that the suit claim was hit by the principles of res judicata on account of the judgment and decree in the earlier suit filed in O.S. No. 897 of 1968. The courts below, including the lower appellate court, also was of the view that the defendants' title to the property is unassailable. The courts below also rejected the claim about the mistake in the identity of the property. But at the same time on the question of acquiescence by estoppel the lower appellate court came to the conclusion that the principles of acquiescence had to be applied to the case on hand and granted permanent injunction as prayed for on the view that the defendant is entitled to recover damages only and not recover the possession of the property, and so far as the recovery of possession is concerned, the present suit is hit by the principles of acquiescence by estoppel. Consequently, the appeal has been allowed resulting in the filing of the above second appeal by the defendant, before this Court.
7. Mr. M.N. Sundararajan, learned Counsel appearing for the appellant contended that the principles of acquiescence or estoppel are not applicable to the case on hand and that the lower appellate court committed a grave error of law in coming to a contrary conclusion and that the decisions relied upon by the lower appellate court are not only distinguishable by the principles laid down therein cannot be applied to the case on hand. The learned Counsel per contra relied upon the decisions reported in R.S. Madanappa v. Chandramma , Sarjug Devi v. Dulhin Kishori , Bodi Reddy v. Appu Goundan (1970)2 M.L.J. 577, Duraisami Mudaliar v. Ramasami Chettiar 1979 T.L.N.J. 9 and Mohamed Ismail v. Ashiq Husain to support his stand point and justify the decree granted by the trial court.
8. Mr. V. Narayanasami, learned Counsel appearing for the respondents, on the other hand placed reliance upon the decisions reported in K. Satyanarayana v. K. Ramaiah , Associated Cement Companies Limited v. Ramakrishna Gowder 77 LW. 629, Palanivelu v. Varadammal 90 LW. 531 and Muthuswami Gounder v. Annamalai 94 LW. 617, to contend that the lower appellate court was right in reversing the judgment and decree of the trial court and that the decisions relied upon by the lower appellate court squarely justify the view taken by the lower appellate court.
Before adverting to the merits of the respective contentions of the learned Counsel appearing on either side, it would be appropriate and necessary to refer to the judicial pronouncements relied upon on either side and the principles laid down thereunder.
9. In R.S. Mandanappa and Ors. V. Chandramma and Anr. , a Bench of three learned Judges of the Supreme Court have considered the very question in the context of Section 115 of the Indian Evidence Act and the Principles of equitable estoppel, and held as hereunder:
(i) The first defendant was neither estopped from claiming possession of her half share of the properties nor could she be made liable to pay half the costs of improvements alleged to have been made by the second defendant; (a) It cannot be implied from the conduct of the first defendant in not replying to the notice given by the plaintiff that she had admitted that she had no interest in the properties; (b) The second defendant's case that the properties belonged to him having been negatived, there was no possibility of an erroneous belief being created in the mind of the second defendant that he had title to the property because of what the first defendant had said in her letter to her step-mother; (c) The attestation of the will by the first defendant and her husband, by which the second defendant purported to make a disposition of the suit properties in favour of the other defendants could not operate as an estoppel, as no interest had accrued in favour of those defendants on the date of the suit. As far as the second defendant was concerned, he knew the true legal position and could not say that an erroneous belief was created in his mind by reason of the first defendant and her husband attesting the will.
Quaere: Whether the court, while determining whether the conduct of a particular party amounts to an "equitable estoppel" could travel beyond the provisions of Section 115 of the Evidence Act. Case law reviewed.
(ii) No man who knowing fully well that he has no title of property, spends money on improving it, can be permitted to claim payment for improvements which were not effected with the consent of the true owner. Ramsden v. Dyson L.R. 1 H.L. Appl. 129, 140 distinguished.
(iii) Both the plaintiff and the first defendant claimed under the same title and though the other defendants had urged special defences against the first defendant, they had been fully considered and adjudicated upon by the High Court while allowing her appeal. The High Court could, while upholding her claim, have transposed her as a plaintiff, if either over-looked the technical defect or felt that under 0.41, Rule 33, it had ample power to decree her claim. However that may be the provisions of Section 99, C.P.C., would be a bar to interference by the Supreme Court with the High Court's decree upon such a ground. Bhupendra v. Rajeshwar 58 LA. 228 referred to.
(iv) Though mesne profits prior to the suit cannot be awarded to a successful party unless a claim is made in respect of them, the position. Regarding future mesne profits is governed by Order 20, Rule2, C.P.C. The decree awarding mesne profits to the first defendant must be upheld because the first defendant admitted the plaintiff's claim and in substance prayed for a similar decree in her favour. Mohd. Amin v. Vakil Ahmed A.I.R. 1952 S.C. 1138 : 1952 S.C.R. 1133, distinguished.
The facts and circumstances of the case which lead to the filing of an appeal before the Supreme Court resulting in the above conclusions are as follows:
The plaintiff instituted the suit for possession of her half share in the suit properties and for mesne profits. The first defendant, who was the plaintiff s sister, admitted the plaintiff's claim and herself claimed a decree against the other defendants in respect of her half share in the suit properties. The second defendant was their father and the suit properties were in his possession. He had the other defendants, who were his second wife and children by her, contested the suit. The trial court decreed the plaintiff s claim, but held that the first defendant was estopped from claiming possession of her share. On appeal by the first defendant, the High Court passed a decree in her father also for possession of her half share in the suit properties, and for past and future mesne profits. On appeal to this Court, against the decree in favour of the first defendant, it was contended on behalf of the other defendants:(i) that the first defendant was estopped by her conduct from claiming possession of her half share of the properties because (a) she had not replied to a notice from the plaintiff to join with her the suit for obtaining possession and division of the suit properties; (b) she had written a letter to her stepmother stating that she wished to have no interest in the suit properties then in her father's possession; (c) she and her husband had attested a will executed by the father on 25.1.1941 which covered the disposition of the suit properties, and (d) that the first defendant's conduct was either covered by Section 115, Evidence Act or fell within the Principle of "equitable estopped", (ii) even if the first defendant's claim to the half share in the suit properties could not be denied, she must be made to pay for half the cost of various improvements of those properties effected by the second defendant in the bona fide belief that the properties belonged to him, as she had acquiesced, in the expenditure being incurred; (iii) that no decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit; and (iv) that it is not open to a court to award future mesne profits to a party who did not claim them in the suit.
10. In Sarjug Devi v. Dulhin Kishore , the learned single Judge of the Patna High Court had held as hereunder:
Lastly, it was argued that the plaintiffs' suit was barred by the principles of acquiescence. It is urged that the plaintiffs were aware of the costly structures and mill, being erected upon the suit land, and they stood by and allowed the appellants to spend money thereon. Therefore, it is argued, they cannot now turn round and claim to recover possession. I do not think how the appellants can plead estoppel by acquiescence. I do not see how a man can be said to have acquiesced in what the other side knew to be a true fact. There is no case of money being expended by the appellants in any mistaken belief as to their legal rights, or of the plaintiff's knowing of the existence of any such mistaken belief or encouraging the appellants by abstaining from asserting a right inconsistent with the acts of the appellants.
The structures were erected not in any mistaken belief by the appellants of their rights in regard to the land, but in assertion of rights which they correctly believed to be theirs. There is no question of any encouragement or abstention on the part of the plaintiffs. They ignored the plaintiffs mala fide and purchased the land from persons having no title. The appellants cannot plead absence of knowledge of the right of the plaintiffs. The documents enumerated above and the facts show that they were aware of the rights of the plaintiffs in the land in suit. Any way, actual knowledge is not necessarily in all cases material, if there be the means of such knowledge.
If the appellants had exercised care and diligence expected of a man of ordinary prudence, they would have easily discovered where the true title lay. The appellants cannot say that they constructed the building in an honest belief that they had title. Rather, they knew or had the means to know that the plaintiffs had the title and not their vendors. In these circumstances, the plaintiffs' suit cannot be barred by the principles of waiver and acquiescence. This contention also falls to the ground.
11. In Associated Cement Companies Limited v. Ramakrishna Gownder 77 L.W. 629, a Division Bench of this Court held as hereunder:
Held: that where a person bona fide taking himself to be the owner of the land spent money upon it while the true owner was standing allowed him to spend money for the improvements upon his land, the latter would be estopped from asserting his title to the land as against the person bona fide believing the property to be his and was making improvements.
62 L.W. 741 and Ramsden v. Dyson (1865) L.R. 1 H.L. 129, relied on.
Although a owner of a property will have the undoubted right to recover possession of it from a trespasser albeit that the latter had put up a construction upon it, an exception does exist to such a rule where the owner is precluded by any conduct on his part from claiming possession. That is not really denying the owner his right to recover possession from the trespasser; buy a rule of estoppel which prevents the owner from claiming the property to be his so far as the other side is concerned.
22 M.L.J. 62, Distinguished.
43 L.W. 512 and 47 L.W. 266, referred to.
21 All. 406 and 36 L.W. 91 (P.C.) considered.
12. In Mohd. Ismail v. Ashiq Hussain , a learned single Judge of the Allahabad High Court has held as hereunder:
Where the constructions were made before the institution of the suit, the rule laid down in the Rangoon case could be adopted; but where the constructions were made during the pendency of the suit, constructions made are against the law and hence shall be deemed to have been made by the judgment-debtor at his own risk and responsibility namely, that he shall not be able to claim any benefit of such constructions during the execution proceeding. When the judgment-debtor had no right to the constructions, he can raise no objection to the removal of the constructions during the execution. Where it appears to the executing court that the costs of removal or demolition of the constructions would exceed the costs of material to be fetched after the demolition and the decree-holder is willing to let the construction stand on the land, the rule laid down in (1872)18 W.R. 527 (Cal.) can be adopted namely, that it can be left open to the decree-holder to decide what he shall do with the constructions after he is given actual possession of the land along with the constructions standing thereon. Thereby the judgment-debtor would not be put to any additional expenses. But if costs of demolition shall not exceed the costs of the materials and the judgment-debtor is willing to release the materials in favour of the decree-holder free of charges, and the decree-holder is willing to accept the constructions, the executing court need not direct the demolition of the constructions, the ownership which would automatically pass to the decree-holder.
13. In Bodi Reddy v. Appu Goundan (1970)2 M.L.J. 577, M.M. Ismail, J. as the learned Judge then was, had elaborately considered the matter and held as hereunder:
Held, when the owner of a land files a suit for recovery of possession of his land from a trespasser who had built upon the land, with incidental prayer for mandatory injunction directing the defendant to demolish the building put by him, the plaintiff (owner) is entitled to succeed once he has established his title and the fact that he has been in possession of the property within 12 years from the date of the suit and he is not prevented by the principle of equitable estoppel from asserting his title to the suit property. Simply because the plaintiff has prayed for a mandatory injunction as incidental to the relief of recovery of possession, there is no discretion vested in the court to deny delivery of possession, to the plaintiff and instead, to award compensation to him. Once the suit is within time, the doctrine of laches or acquiescence has no place to defeat the right of the plaintiff to obtain the relief in the suit, unless acquiescence amounting to equitable estoppel is established, the plaintiff cannot be denied the relief of possession, which he has asked for.
14. In Palanivelu v. Varadammal 90 L.W. 531, Varadarajan, J. as the learned Judge then was, held as hereunder:
In the present case also, as already stated, the respondent has not done anything when the appellant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing other acts on the trespassed property. The appellant could not have done these things in a hurry. They must have done these things in a hurry. They must have taken several months for the appellant to complete the things which he had done on the property. The respondent had not disclosed these things in the plaint and has not prayed for a mandatory injunction for the removal of the structures put up by the appellant on the trespassed portion of the suit property. The court would, therefore, be justified in inferring acquiescence on the part of the respondent; I consider that this is not a case for directing delivery of possession of the trespassed portion to the respondent. But, this is a case where the respondent has to be compensated in money for the value of the trespassed portion.
The learned Judge has chosen to distinguish the decision of the Apex Court in R.S. Madanappa v. Chandramma , on the ground that the appellant before the learned Judge could not be held to have put construction and did several acts on the property occupied by him knowing fully well that he was doing so on a property which does not form part of the land allotted to him by the co-operative society of which he is a member or that he was doing these acts on a land belonging to the respondent. It is on the same line of reasoning at the learned Judge has chosen to distinguish also the decision reported in Secretary of State v. Dugappa Bhandary A.I.R. 1926 Mad. 921. Thus it could be seen that the ratio of the said decision of the learned Judge turn mainly on the peculiar fact that in the case before him the superstructure was put up on a bona fide belief that the property belonged to him as part of the allotment made by the society. In Muthuswami Gounder, R.S. v. A. Annamalai 94 L.W. 617, the same learned Judge while applying the ratio of his earlier decisions, viz., Palaniveiu v. Varadammal 90 L.W. 531 and of the decision reported in Associated Cement Companies Limited v. Ramakrishna Gowder 77 L.W. 629 held as hereunder:
I am bound by the decision of the Division Bench of this Court rendered in the aforesaid The Associated Cement Companies Limited v. L.S. Ramakrishna Gowder 77 L. W. 629 and following that decision and my own view expressed in S. Palaniveiu v. K. Varadammal 90 L.W. 531, hold that the plaintiff, who resides about a mile away from the suit property would have come to know about the defendant putting up constructions on a major portion of the suit property if he had cared to find out and since he has not done so and kept quiet until the first defendant had completed his constructions which have been valued by the Commissioner at Rs. 15,000 and had sent the notice only about 7 or 8 months later after January, 1972, asserting his right to the suit property, I am of the opinion that the principle of acquiescence has to be made applicable to the facts of the present case and that the plaintiff has to be given only a decree for compensation in respect of the property, namely the market value of the suit property in lieu of the relief of recovery of vacant possession of the property. For want of evidence, a finding has to be called for from the lower appellate court regarding the market value of the suit property as on the date of the suit. The lower appellate court will submit its finding within two months from the date of receipt of the records. The parties are at liberty to adduce fresh evidence regarding the market value of the suit property. They will have two weeks' time to file their objections after the finding is received in this Court.
15. In Duraisami Mudaliar v. Ramasami Chettiar and Anr. 1979 T.L.N.J. 9, S. Nainar Sundaram, J., as the learned Judge then was, has held as hereunder:
The question for consideration is when a superstructure has been admittedly put by the judgment-debtor prior to the institution of the suit and does not direct the removal of the superstructure while directing the delivery of possession, can the execution of the decree he denied to the decree-holder.
The salutary principle which has got to be kept in mind is that where a court directs by a decree or order that vacant possession of land should be given, that decree can be made effective by directing its own officer to remove the superstructure on it, and to deliver vacant possession of the property to the decree holder, it may not be necessary to have any specific power in that behalf, and such a power is exercised in every case in which vacant possession is ordered. The power to remove the superstructure on the land is an incidental power; necessary and ancillary to the power to deliver possession of the property. If, however should there be any obstruction within the meaning of Order 21, Rule 97 of the Code of Civil Procedure, that has got to be dealt with specifically under the said provisions. This has been recognised in K. Arumugham v. Thiruvallwava Nayanar I.L.R. 1955 Mad. 774.
Of course, the learned Judge was concerned with a case, where the relationship of landlord and tenant prevailed and, the proceedings were one under Section 41 of the Presidency Small Cause Courts Act. There will not be any difficulty with reference to a case where the superstructure came to be put up by the defendant either during the pendency of the suit or after the decree. In such case, in the execution of the decree for possession, the executing court can order the removal or demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in Secretary of State v. Fauja Singh A.I.R. 1934 Lah. 97 and . Where however the superstructures were put up before the institution of the suit and were not ordered to be removed as a part of the mandate in the decree, the proper course in appropriate cases would be to direct the judgment debtor to remove the superstructure so put up by him so as to effectuate vacant delivery of the suit site to the decrees-holder. See Kawk Sike v. Ong Hock Sein A.I.R. 1927 Rangoon 82.
I am inclined to follow the ratio enunciated in and that presents a workable solution in a case like the present case. The first defendant is given four weeks time from to-day to remove the superstructure if he so desires. In case the first defendant does not remove the superstructure, the executing court will deliver to the decree-holder as it stands at the time of the delivery, leaving the decree-holder to decide as to how to deal with the superstructure.
16. In Sathynarayana v. K. Ramaiah , a Bench of two learned Judges, of the Supreme Court has held as follows:
The sketch Annexure I shows the situation of the wall W.W.1, the house of defendants Nos. 2 and 3 as well as the house of the plaintiff. Plaintiff's house abouts on the passage and it is adjacent and to the South of the House of the plaintiff. This passage appears to be the only access the Plaintiff has from his house to the road beyond the point G-1 and G-2. and marked as 'R' in the sketch. The question is whether any case, is made out for removal of the wall which, appears to have been constructed in 1956 i.e., about 27 years back. If there is an encroachment and if the suit is brought within the period of limitation ordinarily the relief ought to be granted, save and except where the plaintiff had disentitled himself to a discretionary relief by his conduct. In this case both the appellate court and High Court have concurrently held that the plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the court in 1965 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, we are not inclined to entertain the submission on behalf of the plaintiff- appellant that defendants 2 and 3 should be directed to remove the wall W.W.1. and clear the passage of encroachment. But at any rate, defendants 2 and 3 are not entitled to dumping of Tandu adjacent and to the west of the wall in the name of a support to the wall and thereby further reduce the width of the passage. Therefore, having heard learned Counsel on both sides, we are satisfied that original defendants Nos. 2 and 3 should remove Tandu or any dumping of earth just adjacent and to the west of the wall W.W.1 and keen the passage of the width between G-1 and W upto W.I. open unencroached and of the same level for passing and repassing including the passing of the cart, animals and vehicles. We direct that not an inch of land beyond the wall W.W. 1 to the West shall be used or enjoyed by defendants 2 and 3 and the whole of the passage of the width between G-1. and W upto W-1. shall be kept open by removal of encroachment including the dumping of Tandu or any earth filling to be used as passage. We grant mandatory injunction to that extent and direct that the defendants shall remove the encroachment within four weeks from to-day failing which the court shall get it removed at the cost of the defendants Nos. 2 and 3. A fair copy of the sketch at page 77 of the record (Annexure I) should be annexed to this Judgment and should be treated as part of the judgment. The appeal is allowed to the extent herein indicated with no order as to costs.
The above conclusions were rendered in the context of a suit for declaration and for the removal of an encroachment on the pathway or passage.
17. I have carefully considered the contentions of the learned Counsel appearing on either side in the light of the principles laid down in the various decisions referred to supra. In my view, the lower Appellate court has committed a grave error of law in reversing the judgment and decree of the Trial court dismissing the suit. The earlier suit filed which indisputably constituted res judicata as held by both the courts below and filed by the defendant- appellant herein was for declaration of his title and recovery of possession and past rents. The predecessor in interest of plaintiff and her successors in interest should trace title only through Thillaikannu Ammal, who indisputably and admittedly held only a limited estate, namely, a life interest in terms of the compromise decree passed in O.S. No. 235 of 1945, marked as Ex.B-2. in the present proceedings. Consequently, Radhakrishna Reddiar, through whom only the plaintiff as well as the other respondents claimed right, title and interest could not pretend ignorance of the limited right of enjoyment of Thillaikannu Ammal. It is only on that account, the earlier suit O.S. No. 897 of 1968 came to be decreed. As a matter of fact, the trial court in the said suit has held that the defendant-Radhakrishna Reddiar had not cared to verify the boundaries of the property as also does not appear to have exercised due care, caution and diligence before venturing upon the purchase. The decree passed in the said suit was not only for declaration of title but also for recovery of possession and for past profits. This decree having been affirmed by the first appellate court as also by this Court on account of the rejection of the second appeal in limine and having been considered and held in the present proceeding also that those earlier proceeding constituted res judicata, it was not proper for the lower appellate court to have restricted the applicability of the principle of res judicata only to a part or portion of the decree, namely, the declaration of title alone and not to the portion of the decree relating to recovery of possession. The previous judgment and decree having been for both reliefs, the relief of permanent injunction claimed in the present proceedings so as to stultify the decree for recovery of possession earlier granted by competent courts should be held to have been equally barred by the principle of res judicata engrafted in Section 11 of the Code of Civil Procedure. To this extent the lower appellate court in my view committed a serious blunder and grave error of law and the judgment and decree of the lower appellate court are liable to be set aside on this ground alone.
18. Even on the question of applicability of the principles of acquiescence or estoppel, I am of the view that the lower appellate court committed an error in applying the ratio of the decision in Palanivelu v. Varadammal 90 L.W. 531 and Muthuswami Gounder R.S. v. A. Annamalai 94 L.W. 617 to the case on hand. In doing so, the lower appellate court in my view has completely overlooked a vital fact that till the death of Thillaikannu Ammal in 1967, the appellant in this appeal had no right to object either Thillaikannu Ammal or any one claiming through her enjoying the property in the manner they liked or doing any acts on the property in exercise of the right to possession and enjoyment during the life time of Thillaikannu Ammal and he acquired the right to property only on the death of Thillaikannu Ammal. Therefore, if Radhakrishna Reddiar had recklessly and without exercising due or proper diligence or care or caution has purchased the rights from a limited owner who had only life interest put up any construction even in 1964 when the appellant had no right in presenti whatsoever to the possession and enjoyment of the property, the appellant cannot be considered to be guilty of any lapse or laches or acts constituting acquiescence amounting to estoppel so as to deny his legitimate right to recover possession of the property as absolute owner thereof in terms of the decree passed in O.S. No. 897 of 1968 by a competent court. If Radhakrishna Reddiar had put up any structure recklessly, there is no justification to deny the legitimate rights of the appellant to recover possession of his property in terms of the decree in his favour. This vital fact would constitute considerable difference to distinguish the present case on hand from the cases considered by this Court in the decisions reported in Palanivelu v. Varadammal 90 L.W. 531 and Muthuswamy Gounder v. Annamalai 94 L. W. 617 and render those decisions inapplicable to the case on hand. In my view, the principles laid down by the Apex Court in R.S. Madanappa and Ors. v. Chandramma and Anr. (1965)3 S.C.R. 383 will squarely govern the case on hand and no exception could be taken to the well merited reasons and conclusions arrived at by trial court in dismissing the suit. Consequently, the judgment and decree of the Lower Appellate court is set aside and that of the trial court is restored and the second appeal is allowed, but in the circumstances of the case, there shall be no order as to costs.