Madras High Court
Balasubramanian vs Ramachandra Jothi on 14 December, 2006
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/12/2006 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.518 of 1996 Balasubramanian ... Appellant Defendant Vs Ramachandra Jothi ... Respondent Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree in A.S.No.93 of 1992 on the file of the Subordinate Judge, Tenkasi, dated 21.09.1995 confirming the judgment and decree in O.S.No.352 of 1986 on the file of the District Munsif Court, Tenkasi, dated 25.06.1992. !For Appellant ... Mr.S.Meenakshisundaram ^For Respondent ... Mr.Ramesh alias Ramaiah for Mr.G.Nagarajan :JUDGMENT
This appeal is directed as against the judgment and decree in A.S.No.93 of 1992 on the file of the Subordinate Judge, Tenkasi, dated 21.09.1995, confirming the judgment and decree in O.S.No.352 of 1986 on the file of the District Munsif Court, Tenkasi, dated 25.06.1992.
2. The parties are referred to hereunder as they were arrayed before the trial Court.
3. A re'sume' of facts absolutely necessary for the disposal of the second appeal could be portrayed thus.
(i) Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be set out as under:
The plaintiff claiming himself as the purchaser of the suit property from the defendant's father by virtue of the sale deed dated 12.08.1981, has filed the suit on the ground that the defendant without any manner of right whatsoever had chosen to make attempts to commit trespass by trying to cut the Vadhamudakki trees in the suit properties.
(ii) Per contra, denying and disputing, challenging and impugning the averments and the allegations in the plaint, the defendant filed the written statement inter alia which would run thus:
(iii) The suit has not been properly framed and filed. The suit is hit by lis pendens and also res judicata in view of the reason that the defendant herein previously instituted the suit in O.S.No.254 of 1981 in the Court of District Munsif, Tenkasi, for declaration of his title to the suit property and for injunction as against his father who during the pendency of the said suit, illegally transferred the suit property in favour of the plaintiff herein; the said suit was dismissed by the trial Court; as against which the defendant herein who was the plaintiff therein filed A.S.No.8 of 1984 on the file of the Sub Court, Tenkasi, during the pendency of which the respondent therein, gave his consent for allowing the appeal and thereby as per the previous proceedings, the defendant herein was declared as the owner of the suit property and that he was entitled to injunction also; consequently, the sale deed which the plaintiff herein got it executed by the defendant's father during the pendency of the trial proceedings, was hit by lis pendens and the appellate Court's judgment and the decree in the previous proceedings would operate as res judicata; the defendant has been in possession and enjoyment of the suit property including the suit trees for which the plaintiff is having no right and accordingly, he prayed for the dismissal of the suit.
4. The trial Court framed issues and during trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.3 were marked. The defendant examined himself as D.W.1 and Exs.B.1 to B.4 were marked.
5. The trial Court ultimately dismissed the suit as against which the appeal in A.S.No.93 of 1992 was filed on the file of the Sub Court, Tenkasi which Court also confirmed the judgment and decree of the trial Court.
6. Being aggrieved by the judgment and decree of both the Courts below, the second appeal has been filed on the following main grounds among others:
(a) Disregarding the fact that in the previous proceedings between the father and the son, the present suit property was very much in dispute; and that ultimately the defendant herein as appellant in the previous proceedings as revealed by Ex.B.2, obtained decree in his favour, the present suit is barred by res judicata.
(b) The trial Court as well as the appellate Court failed to consider that the plaintiff in this proceeding is none but the mere purchaser of the suit property from the defendant's father during the pendency of the previous case before the trial Court and thereby attracted the doctrine of lis pendens.
7. This appeal has been admitted to decide the following substantial questions of law:
"(i) Whether both the Courts below have erred in holding that decree in the A.S.No.8 of 1994 on the file of the Sub Court, Tenkasi, was a collusive one?
(ii) Whether both the Courts below failed to note that the sale deed in favour of the respondent under Ex.A.1 dated 12.08.1981 is hit under Section 52 of Transfer of Property Act since O.S.No.254 of 1981 on the file of the District Munsif Court, Tenkasi, was pending when Ex.A.1 was executed?
(iii) Whether both the Courts below failed to note that the suit is barred by the principle of res judicata in view of the fact that O.S.No.254 of 1981 was decreed in favour of the Appellant?
8. Point Nos.(i) to (iii) are taken together for discussion in view of the fact that they are interwoven and inter-linked with each other.
Point Nos:(i) to (iii)
9. The unassailable and indubitable facts are that previously between the defendant herein and his father, there was a litigative battle initiated by the defendant herein by instituting a suit in Munsif Court for declaration of his title to the suit property and for injunction so as to restrain the father from preventing the son to cut and remove the suit property. The said suit was dismissed as revealed by Ex.B.4, the judgment of the trial Court, dated 24th November, 1983. As against which the appeal was filed by the defendant who was the plaintiff therein in A.S.No.8 of 1984; during the pendency of such appeal, the father as revealed by Ex.B.2, the certified copy of the decree in the appeal, filed a memo to the effect that he had no objection for allowing the appeal relating to the second item of the suit property therein which is the suit property herein and accordingly, the said appellate Court decreed the suit. During the pendency of the then suit in O.S.No.254 of 1981 in District Munsif Court, Tenkasi, the father of the defendant herein sold this same suit property herein which was the second item of the suit property therein in favour of the plaintiff herein as demonstrated by Ex.A.1, the sale deed dated 12th August 1981. Both sides are not at variance with each other so far as the emergence of those facts in the manner set out above.
10. However, the learned Counsel for the defendant herein would contend that Ex.B.2, the decree of the appellate Court in the previous proceedings would operate as res judicata and that Ex.A.1, the sale deed is hit by lis pendens. It is therefore, just and necessary to discuss those issues in seriatim.
11. Right at the first instance, it is just and necessary to consider as to whether the principle of res judicata is applicable or not in view of Ex.B.4?
12. A plain reading of Ex.B.4 would leave no doubt in the mind of the Court that the appellate Court in the previous proceedings simply relying on a memorandum filed by the father of the defendant herein, allowed the appeal and passed a decree in favour of the defendant herein relating to the same suit property herein.
13. The learned Counsel for the plaintiff would rely on various decisions and advance his argument to the effect that the collusive decree is no decree at all and for that matter, the principle of res judicata cannot be pressed into service as against the present suit.
14. The decision in Venkata Subba Rao v. Jagannadha Rao reported in AIR 1964 SC 578 would posit the proposition that compromise decree is not the decision of the Court and hence, it would not operate as res judicata under Section 11 of the Code of Civil Procedure. An excerpt from the said decision would run thus:
"The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide anything. Nor can it be said that a decision of the Court was implicit in it. Only a decision by the Court could be res judicata, whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests."
15. It is therefore clear from the aforesaid decision that Ex.B.4 which is apparently having the effect of a compromise decree and not one on merits, would not operate as res judicata.
16. The dictum in Venkiteswara Pai v. Kunju Vava reported in AIR 1952 Travancore-Cochin 309, would highlight the point that a compromise between the parties to the suit with intention to defraud a stranger transferee during the pendency of the suit would not attract the principle of lis pendens. An excerpt from it, would run thus:
"The law is clear on the point and it is to the effect that when a compromise is entered into by a party to the suit with the opposite party subsequent to the transfer of his interest in favour of a stranger with a view to defraud that stranger transferee that compromise will not affect the interest of the transferee & the decree passed on such a compromise will not affect that transferee, that is to say, the principle of 'lis pendens' will not apply to such a case. Reference may be made to pages 239 and 240 of Mulla's Transfer of Property Act (3rd edn.). It may here by mentioned that Mr.Vasu learned Counsel for the respondent did not very seriously canvass the correctness of this position of law because he himself cited before us 'VEERARAGHAVA REDDI v. SUBBA REDDI', 43 Mad 37 (S.B) which is another authority for the above said position."
17. Here, the facts involved in this case, would clearly show that during the pendency of the original suit filed by the son as against the father, there was tough fight and during the pendency of such suit, Ex.A.1 sale deed emerged at the instance of the father in favour of the third party who is the plaintiff herein. It is apparent that the said suit was filed by the son was dismissed on merits and Exs.B.4 and B.1 are the judgment and decree concerned. However, as revealed by Ex.B.2, the decree of the appellate Court at the appellate stage, the father gave up his fight as against the son in the litigative battle and thereupon only, the son got the decree but not on merits.
18. The perusal of Ex.B.4, the printed judgment of the trial Court in the previous proceedings, would clearly show that the trial Court gave a reasoned judgment and that was not set aside by the appellate Court on merits, but simply based on the concession and compromise, set aside the judgment and decree of the trial Court and decreed the original suit. It is therefore evident and explicit that Ex.B.4 is nothing but a compromise decree, which cannot operate as res judicata as per the dictum of the Honourable Apex Court cited supra.
19. The learned Counsel for the appellant/defendant would cite the decision of the Honourable Apex Court in Raj Kumar v. Sardari Lal reported in 2004 (1) CTC 549 which highlights that a transferee of the suit property during the pendency of the suit at the instance of the defendant cannot be deprived of his right to file an application under Order 9 Rule 13 and Order 22 Rule 10 of the Code of Civil Procedure as such on a different set of facts. However, it highlights the scope of concept of the lis pendens as envisaged by Section 52 of the Transfer of Property Act, 1882. Paragraph No.5 of the aforesaid judgment is extracted hereunder for ready reference:
"5. The doctrine of lis pendens expressed in the maxim 'ut lite pendente nihil innovetur' (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as a representative- in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22, Rule 10 of the CPC. In case of an assignment creation or devolution of any interest during the pendency of any suit, Order 22, Rule 10 of the CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to the brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree."
20. However, this decision in a way helps the plaintiff herein in the sense that as a transferee of the suit property under the defendant's father in the previous proceedings, he acquired a right as per the cited judgment supra, but quite as against such transferee's interest, the transferor namely the father of the defendant after knowing fully well that he had actually transferred the suit property pending litigation, he had chosen to file a memorandum for allowing the appeal in favour of the defendant herein in the previous proceedings.
21. Ex facie and prima facie, it shows that Ex.B.4 is nothing but a collusive decree. If not Ex.B.4 is a collusive decree, it is not known as to what else would constitute could be a collusive decree. The father of the defendant after consciously executing Ex.A.1 during the pendency of the previous suit without taking into confidence such transferee pendenti lite, all of a sudden had a volte-face and by way of somersault, simply filed the memorandum for passing a decree in favour of his son leaving the transferee pendente lite high and dry. It is a classic example of collusive decree. The cited decision supra i.e, Raj Kumar's case goes to the benefit of the plaintiff only as the Honourable Supreme Court without any reservation categorically held that the transferee pendente lite has got right. However, his right undoubtedly depends upon the ultimate result in that proceeding, but subsequent to his transfer pendente lite, if there is a collusion, then the doctrine of lis pendens would not be attracted and the transferee pendente lite cannot be made to suffer by simply applying the doctrine of lis pendens envisaged under Section 52 of the Transfer of Property Act, 1882.
22. On the aforesaid line only, the following decisions emerged:
(i) Chironjilal v. Khatoon Bi [AIR 1995 Madhya Pradesh 238].
(ii) Gram Panchayat, Naulaha v. Ujagar Singh [AIR 2000 Supreme Court 3272].
(iii) Periamurugappa v. Manicka [AIR 1926 Madras 50].
23. The underlying thread of reasoning and ratiocination as found embedded and embodied, incorporated and adhered to, would unequivocally highlight the fact that the litigation started honestly might ultimately end in collusion. Actually, it had happened so in that case between the father and the son. The question might arise as to whether in all cases, the father submits to decree or agrees for passing a decree in favour the son, it could be termed as collusive. At the trial stage, if there is any submission to decree or if the defendant confesses, it cannot be taken as collusive and it all depends on the facts and circumstances of the case. But, at the appellate stage, if the respondent simply agrees for allowing the appeal and thereupon if any appeal is allowed and consequently, a decree is passed, such decree would undoubtedly be a collusive decree.
24. I may hold that a reasoned decree of the trial Court, purely on the concession given by the respondent at the appellate stage, cannot be set aside and such an appellate decree can only be an invalid decree, but the trial court's decree would stand proprio vigore. The defendant having filed Ex.B.4, the copy of the decree, failed to file the judgment relating to it, obviously that it would be of no use. It is not the case of the defendant before this Court that the appellate Court in support of Ex.B.4, passed a reasoned judgment dehors the memo of submitting to decree, filed by the father of the defendant.
25. It is a trait proposition of law that the appellate Court has no power to set aside the trial Court's judgment and decree without citing reasons and that is the pith and marrow, warp and woof, quintessence and core, of the legal principle as found embodied under Order 41 of Code of Civil Procedure.
26. The learned Counsel for the appellant would cite the decisions of the Honourable Apex Court in Nagubai v. B.Shama Rao reported in 1956 S.C 593 [(S) AIR V 43 C 103 Oct.] to the effect that collusion is different from fraud etc. For the foregoing reasons, this decision has been cited out of context.
27. At this juncture, I may proceed to lay down as a general rule that whenever a party after effecting transfer pendente lite simply agrees to the claim of the other side without taking the transferee pendente lite into confidence or making adequate provisions to safeguard the interest of such transferee pendente lite, such act should be termed as only a collusive act.
28. The question may arise as to how the other party to the litigation who was not a party to the transfer pendente lite could be imputed with knowledge and ultimately with collusive state of mind. Normal course of occurrences alone is the sole test. The transferor pendente lite invariably does make the transfer with some specific purposes and more specifically as against the opposite side in the litigation and if such a person all of a sudden turns turtle by having a volt face and submits to the claim of his enemy in the litigative battle that is the opposite party, naturally the role of the opposite party could rightly be inferred in it and ultimately, bringing about a non- adjudicatory judgment.
29. Here, the defendant being the son of the respondent in the previous proceedings cannot pose or feign, pretend or project as though he was in the dark about the transfer pendente lite at the time of the father submitting to the decree at the appellate stage. It is therefore crystal clear that the doctrine of lis pendens and res judicata cannot be pressed into service. The principle of res judicata in its full form is "res judicata pro veritate accipitur", which presupposes that judges do nothing causelessly and maliciously; that the decisions of a Court of competent jurisdiction are well founded, and their judgments regular. Based on such presumptions alone, the concept of res judicata subsists.
30. Here, admittedly when the Court has not passed a reasoned judgment so as to set aside the reasoned judgment of the trial Court, such cited presumption in support of Ex.B.4, does not exist and as a sequelae the principle of "res judicata pro veritate accipitur" cannot be pressed into service. For the same reason, the principle of lis pendens also gives a go by to the defendant.
31. Relating to the question as to whether the plaintiff was duty bound to file a separate suit or incorporate a prayer in the suit filed by him, for setting aside Ex.B.4; the answer comes in handy that the plaintiff has got the right to highlight the inapplicability and ineffectiveness of such a decree in the proceedings itself, without instituting any separate proceeding or without incorporating a prayer to that effect as the catena of decisions would posit such a proposition only.
32. It is therefore obvious that the suit filed by the plaintiff is not bad for not having prayed for setting aside Ex.B.4.
33. Both the Courts below also considered after appreciating the evidence relating to the factual position, that the suit filed by the plaintiff seeking for declaration and injunction relating to the trees alone without including the land was proper and no interference is warranted as it was based on appreciation of evidence relating to facts. There is no hard and fast rule that there should not be a suit for declaration and injunction for trees alone without a prayer for title over the land on which those trees are standing. Accordingly, the point Nos.(i) to (iii) are answered accordingly.
34. In view of the aforesaid reasons, there is no merit in this appeal and hence, this second appeal is dismissed. However, there is no order as to costs.
rsb To
1.The Subordinate Judge, Tenkasi.
2. The District Munsif Court, Tenkasi.