Madras High Court
A.S.A. Arumugam And Anr. vs Ramalinga Nadar And Anr. on 18 November, 1996
Equivalent citations: 1997(3)CTC384
ORDER S.S. Subramani, J.
1. Defendants is O.S.No.430 of 1979 on the file of District Munsif, Manamadurai, are the appellants.
2. The suit filed by the plaintiffs was one for declaration that they are entitled to the scheduled properties and for a consequential injunction restraining the defendants from in any way interfering with their possession and enjoyment of the suit properties. The plaintiffs also prayed for a declaration that the sale deeds executed by them in favour of the appellants in 16.6.1979 are sham and nominal and the same does not convey any title. It is alleged that the appellants and their father are doing commission business at Vridhunagar and in the course of that business, the plaintiffs also got acquainted with them, that during the course of transactions, they had to execute two sale deeds in favour of the appellants, which, according to them, are sham and nominal and they continued to be in their possession and enjoyment.
3. In the written statement filed by the appellants, they disputed the claim put forward by the plaintiffs and said that the documents in their favour had come into effect and they are the title holders thereof. It is also said that they were one for consideration and the recitals contained in those documents are valid. The plaintiffs/executants of the documents, are not entitled to contend against the terms of the same as it is barred by Section 92 of the Indian Evidence Act. They prayed for the dismissal of the suit.
4. Along with the suit filed by the plaintiffs, the 2nd defendant/2nd appellant filed O.S.No.55 of 1980 for declaration that they are entitled to the properties and the documents executed by the plaintiffs had come into effect and for a consequential injunction.
5. Since the pleadings and defence are common, the same is not restated.
6. The trial court, after recording evidence, on the basis of the oral and documentary evidence, came to the conclusion, that the plaintiffs/respondents herein are absolute owners of the properties and the sale deeds executed by them were sham and nominal, and the plaintiffs' title was declared. The documents, which were so declared are Exs: B-4 and B-5.
7. As I have said already, O.S.No.55 of 1980 was also jointly tried along with O.S.No.430 of 1979. The suit filed by the 2nd appellant was dismissed holding that they have no title to the properties.
8. The matter was taken in appeal before the lower appellate court as A.S.Nos.129 of 1981 and 24 of 1982. Both the appeals were clubbed together and the lower appellate court also affirmed the judgment of the trial court and dismissed the appeals.
9. Against the judgment in A.S. No. 24 of 1982, the present second appeal is filed.
10. The following substantial questions of law are framed at the time of admission.
1. Whether any oral evidence is admissible as against the recitals in the registered sale deeds Exs: B-4 and B-5 under Section 92 of the Indian Evidence Act?
2. Whether the recitals in Exs. B-4 and B-5 sale deeds should not be looked into while considering these documents, a sham and nominal?
11. When the matter was being heard, counsel for the respondents submitted that the second appeal is not, maintainable, since there is no appeal against the connected judgment A.S.No.129 of 1981 and when that has become final, this second appeal is barred by res judicata.
12. I find force in the said contention and I feel that the preliminary objection raised by the respondents, has to be accepted.
13. In Deva Ram v. Ishwar Chand, the Supreme Court has held that, Section II contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipublicae ut sit finis litium" (it concerns the State and there by an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue; if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised."
14. The contention of learned counsel for the appellants is that there cannot be any question of res judicata. Counsel submitted that where two suits having common issues are either by consent of the parties or by order of the Court tried together, the evidence being written on state record and both suits disposed of by a single judgment, the question would arise as to whether there have been two distinct and independent trials. According to counsel, the dictum is not a decree, but the decision in the matter in controversy. Since there is only one judgment, there is no former or latter suit for the application of the principle of the res judicata. However, whether the said contention could be accepted, is the only matter to be considered in this case.
15. In Sheodan Singh v. Daryankunnak, , it has been held thus.
"Where the trial Court has decided two suits having common issues on the merits and there are two appeals there from and one of them is dismissed on some preliminary ground like limitation or default in printing with the result that the trial Court's decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case, the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be res judicata."
16. The said decision was followed in Lonankutty v. Thomman, which is to the following effect:
"Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of the suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S.No.66 of 1950 which arose out of the decree passed by the trial court in the appellant's suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondent's suit became final and conclusive. That decision, not having been appealed against, could not be re-opened in the second appeal arising out of the appellant's suit. The issue whether respondents had the easementary right to the flow of water through the appellant's land for fishing purposes was directly and substantially in issue in the respondent's suit. That issue was heard and finally decided by the District Court in a proceeding between the same parties and the decision was rendered before the High Court decided the second appeal. The decision of the District Court was given in an appeal arising out of a suit, which though instituted subsequently, stood finally decided before the High Court disposed of the Second Appeal. The Decision was, therefore, one in a former suit within the meaning of Section II, Explanation I, CPC. Accordingly, the High Court was in error in deciding an issue which was heard and finally decided in a 'former suit' and was therefore barred by res judicata".
In its remanding judgment dated July 8, 1964 which the plea of res judicata was repelled the High Court relied principally on the decision of this Court in Narahari v. Shankar, 1950 SCR 754. That decision is in our opinion distinguishable because in that case, only one suit was filed giving rise to 2 appeals. A filed a suit against B and C which was decreed. B and C preferred separate appeals which were allowed, by a common judgment, but the appellate court drew two separate decrees. A preferred an appeal against one of the decrees only and after the period of limitation was over, he preferred an appeal against' the other decree on insufficient court fee. The High Court held that A should have filed 2 separate appeals and since one of the appeals was time-barred, the appeal filed within time was barred by res judicata. This Court held that 'there is no question of the application of the principle of res judicata.' Because 'When there is only one suit, the question of res judicata does not arise at all.' This was put on the ground that 'Where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.' In our case, there were 2 suits and since the appellate decree in one of the suits had become final, the issues decided therein could not be re-opened in the second appeal filed against the decree passed in an appeal arising out of another suit. This previously is the ground on which Narhari's case, 1950 SCR 754 was distinguished by this Court in Sheodan Singh v. Smt Saryan Kunwar, . It was held therein that where the trial court has decided 21 suits having common issues on the merits and there are two appeals therefrom the decision in one appeal will operate as res judicata in the other appeal.'
17. The principle enunciated in Lonankutty's Case, was reiterated again in Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu (Dead) By L.Rs., . Their Lordships have expressed the view that the expression 'former suit', according to Explanation I of Section II, makes it clear that, if decision is given before the institution of the proceedings, which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge.
18. Again, recently, the Supreme Court has considered this question in the decision reported in Premier Tyres Ltd., v. Kerala State Road Transport Corporation, wherein it was held that the effect of non- filing of appeal against a judgment or decree is that it becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from. This, the finality of finding recorded in the connected suit, sue to non-filing of appeal. Precluded the court from proceeding with appeal in the other suit. In any view of the matter order of the High Court is not liable to be interfered with.
19. Our High Court had occasion to consider this question in Thangavelu Kounder v. Venkatrama Kounder, 1988 (2) L.W. 14. Ratnam, J., as he then was had held in that decision as under:
"Even on the footing that the adjudications in O.S.No.51 of 1971 and 221 of 1971 cannot be considered to be distinct and separate, but as cross adjudications, that would not effect the applicability of the principle of res judicata, for, by the time the appeal against the dismissal of the suit O.S.No.51 of 1971 came to be considered, there had been an earlier final decision in O.S.No.221 of 1971, which had negatived the claim of the appellants made in O.S.No.51 of 1971 that the suit properties are the self acquired properties of the appellants. What is material is only an earlier final decision, irrespective of whether it is given in a common judgment or separately. Viewed that way, it is seen that the adjudication in O.S.No.221 of 1971 had attained finality and had become an earlier decision inter-parties prior to the disposal of the appeal in A.S.No.483 of 1975 against O.S.No.51 of 1971, by the lower appellate court. In Koshal Pal V. Mohanlal, , a plea of resjudicata was raised at the stage of appeal before the Supreme Court. By a common judgment, the High Court disposed of two appeals, though there were two decrees. The appellant before the Supreme Court filed only one appeal against one of the two decrees and the respondent raised the plea of res judicata. The Supreme Court upheld this objection and rejected the appeal without going into the merits and in the course of the judgment, the Supreme Court made a distinction between the position that was obtained in the High Court, where two second appeals were disposed of together by a common judgment, and the later position when one decree of the High Court atone was made the subject matter of an appeal before the Supreme Court, and observed that though there was no question of res judicata at the stage of the second appeals before the High Court, the position was different, before the Supreme Court, which was analogous to a case where a party to two decrees passed jointly by a trial Court, appealed against only one of them, leaving the other to become final. This principle is further clearly laid down by the Supreme Court in Lonankutty v. Thomman, where all the earlier judgments on the subject had been reviewed. It was pointed out by the Supreme Court that where there are two suits and the decree in one of the suits had become final, the issues decided therein, could not be reopened in the second appeal filed against the decree passed in an appeal arising out of another suit. The Supreme Court had laid down that even when appeals are disposed of by a common judgment, the decision in that judgment, may amount to two decisions, and the failure of a party to challenge the decision in one, would operate as res judicata, as it had not been appealed against. Apart from this, the Supreme Court has also recognised that a final decision in a suit, though instituted subsequently, may operate as res judicata in a pending appeal, on the footing of a decision in a former suit. This principle does not appear to be confined in its application to independently instituted suits, but can be applied even in the case of a common judgment, if two suits are tried together and a common judgment is rendered and separate decrees are also drawn up and one of the adjudications is allowed to become final that adjudication assumes finality on and from the date of its adjudication and in the course of an appeal against the other judgment and decree, adjudication, which had become final, can be pleaded as res judicata on the ground that the controversy had been finally adjudicated upon. Under those circumstances, the appellants cannot contend that there is no bar of res judicata by reason of the finality of the adjudication in O.S.No. 221 of 1971, Sub Court, Cuddalore. Consequently, for the foregoing reasons, the second fails and is dismissed."
20. The same principle was followed by Srinivasan, J. (as he then was), in Arumugha Nainar v. Lakshmanan Perumal (Died), 1992 (I) MLJ 457. His Lordship followed an earlier decision of the Supreme Court in M. Subramanian v. C. Chottabhai, 1990 (1) LW 182 and held that the appeals were barred by the principle of resjudicata as there was no appeal against one of the suits disposed of by a common judgment in the trial court. The relevant portion of that judgment is as follows:
"It was laid down by the Supreme Court that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions, but on the question whether the same issue under the circumstances given in Section 11, had been heard and finally decided; It was observed that the expression 'former suit', according to Ex. 1 of Section 11, CPC makes it clear that, if a decision is given before institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final operation of law, a bar of res judicata would emerge."
In view of the pronouncements of the Supreme Court in the above two cases, there can be no doubt that the present appeals are barred by res judicata. It is not open to the appellants herein to contest the same issues in the appeals when there is a decree against them in O.S.No.346 of 1968 which has become final and conclusive. The argument of learned counsel for the appellants that there should be confirmation of the decree of the trial court by an appellate court in order to constitute res judicata is without any substance."
21. Following the principles of law enunciated in the above case law, I consider that the present second appeal could not be entertained, as in both suits, the only question that arose was the same, i.e. Whether the sale deeds executed by the plaintiffs were sham and nominal and whether they came into effect. Both the reliefs, i.e., declaration and consequential injunction were sought for in both the suits. Common evidence was let in. It was held that the documents executed by the plaintiffs were sham and nominal and it was held that the title continues in their favour. The declaration was also granted declaring that those documents did not come into effect. The suit filed by the 2nd appellant was dismissed and it was confirmed in the first appeal. Once that judgment is not challenged, in that, the title of the respondents herein/plaintiffs has become final. Though it is a common judgment, the same has to be treated to be in each case separately. I therefore consider that the principle of res judicata applies in this case.
22. In the result, upholding the preliminary objection, I hold that the second appeal is liable to be dismissed. The substantial questions of law are only with regard to the validity of the sale deeds. Once it is held that the second appeal is barred by the principle of res judicata, the substantial questions of law have to be answered against the appellants.
23. In the result, the second appeal is dismissed with costs.