Madras High Court
C. Arumughathan vs S. Muthusami Naidu And Ors. on 26 October, 1990
Equivalent citations: (1991)2MLJ538
JUDGMENT K.M. Natarajan, J.
1. This appeal has been preferred by the ninth defendant in O.S. No. 223 of 1977 on the file of the Principal Subordinate Judge, Madurai, challenging the decree and judgment passed in the above suit for permanent injunction or in the alternative for recovery of possession.
2. The case of respondents 1 to 3 plaintiffs 2 to 4 as disclosed from the plaint can be briefly stated as follows:
The subject matter of this appeal is only in respect of item 42 of the plaint A Schedule properties, to an extent of 4.74 acres. According to the plaintiffs, the deceased first plaintiff and one Chinnama Naidu.who is the father of defendants 1 to 3, are brothers. The said Chinnama Naidu, who was the elder brother died on 1.1.1963 and they constituted a joint Hindu family. The properties described in A Schedule, including item 42, were comprised of the properties acquired by the deceased first plaintiff and the deceased Chinnama Naidu. The deceased first plaintiff is entitled to half share while defendants 1 to 3 who are the legal heirs of Chinnama Naidu are entitled to the remaining half share. One Alagan (since dead), the ninth defendant (appellant herein) and the 12th defendant are brothers. Defendants 4 to 8 are the heirs of the said Alagan. Defendants 10 and 11 are the sons of the ninth defendant and they constituted a joint Hindu family. The ninth defendant is the present joint family manager. Item 42 in the Plaint A Schedule properties originally belonged to the joint family of late Alagan and his two brothers. The deceased Alagan borrowed from Errammal wife of Thambu Chinnama Naidu, elder brother of the deceased first plaintiffs father. He also incurred other sundry debts for family expenses. In order to discharge the debt incurred by him, he executed a registered othi deed dated 25.11.1933 in favour of Errammal for Rs. 500 in respect of the said item. Errammal was in possession and enjoyment of the property as othidar. In view of the relationship of the par - tics, the deceased first plaintiff and his brother used to cultivate the othi land also on behalf of Errammal. Errammal died in or about 1946 leaving behind her the deceased first plaintiff and his brother as her heirs. The deceased first plaintiffs elder brother who was the senior member of the family for himself and on behalf of the first plaintiff was cultivating the othi land. In or about 1955 the deceased Alagan discharged the othi. Thereafter also, he was borrowing monies from others and othied the land. On 17.5.1956 Alagan and his two brothers (defendants 9 and 12) executed a registered sale deed in respect of the said item in favour of the deceased first plaintiffs elder brother Chinnama Naidu, he being the eldest male member of the family and he was managing the joint family. The family of the deceased first plaintiff had been paying kist for the said item even during the life time of Errammal. By virtue of their possession and enjoyment openly and continuously to the knowledge of defendants 4 to 12, the deceased first plaintiff and his elder brother and after his death, defendants 1 to 3, acquired the property by adverse possession. They also effected improvements by putting seemai karuvela live fence along the boundaries and planted mango and coconut trees. The ninth defendant's name was also included in patta No. 155 in respect of the said item. The deceased first plaintiff fell ill in or about May, 1973. On hearing that, defendants 4 to 12 were cutting the seemaikaruvela trees. The deceased first plaintiff sent for the first defendant and questioned him regarding cutting of the trees. It was only at that time, he came to know that the first defendant filed a suit O.S. No. 238 of 1974 on the file of the District Munsif's Court, Melur, for a permanent injunction restraining defendants 4 to 12 herein from interfering with his enjoyment of the said item. The said suit was dismissed. He was unsuccessful in the appeal, A.S. No. 181 of 1976 as well as the second appeal in the High Court. It is stated that then the deceased first plaintiff took the first defendant to task for not consulting him before filing the suit or for conducting the suit or appeal without his knowledge. Thereupon he got the papers relating to the proceedings and found that full instructions were not given for drafting the plaint and for conducting the said proceedings. He would state that since the deceased first plaintiff was not a party to the said suit, any decision therein cannot bind the deceased first plaintiff and cannot operate as res judicata Further, the District Munsif's Court, Melur, is not the competent court to try the suit. It is also stated that in view of the conduct of the first defendant, the deceased first plaintiff filed the suit for a declaration that item 42 belongs to the deceased first plaintiff and the first defendant and also for permanent injunction restraining defendants 4 to 12 from interfering with the first plaintiffs possession and enjoyment of the same jointly with the first defendant till a partition is effected and for partition and separate possession of his half share in the A and B Schedule properties or in the alternative f6r recovery of possession. The first plaintiff died pending suit. Hence his sons and daughter were impleaded as plaintiffs 2 to 4.
3. The first defendant filed a written statement supporting the case of the plaintiffs in all respects.
4. Defendants 3 and 14 to 16 adopted the written statement filed by the first defendant.
5. The ninth defendant filed a written statement, which is adopted by defendants 4 to 8 and 10 to 12 wherein the allegations that defendants 1 to 3 constituted a joint Hindu family and that defendants 4 to 12 and late Alagan (father of defendants 4 to 8) constituted a joint Hindu family are denied as false. The deceased first plaintiff filed the suit suppressing the earlier proceedings and the real state of affairs. The father of the ninth defendant died while defendants 9 and 12 were minors. So, the deceased Alagan was looking after the family, he being the elder brother. Item 42 of the A Schedule was originally assigned by the Government in favour of the eldest brother Alagan. But, all the three brothers were enjoying the same in common along with other properties. Subsequently, some 50 years ago when and oral partition took place in the family, item 42 of the A schedule properties was allotted to the ninth defendant. Ever since then, he has been in effective possession and enjoyment of the same and patta was also granted in his name. The ninth defendant and his family members were the pannayals of the first defendant. As per custom, kist was paid by the master to the ninth defendant and his family members and it was deducted in the wages payable to them. The 9th defendant planted 639 coconut trees and 42 mango trees. Neither the first defendant nor the deceased first plaintiff ever planted any tree or effected any improvement. For the first time in the beginning of 1974 the first defendant obstructed possession and enjoyment of item 42. The ninth defendant gave a petition to the Tahsildar. When the matter was pending enquiry before the Tahsildar the first defendant filed O.S. No. 238 of 1974 on the file of the District Munsif s Court, Melur, with ulterior motive and obtained an ex parte order of injunction. The ninth defendant contested the above suit denying the execution of the so-called sale deed as false. The said suit was dismissed with costs. A.S. No. 181 of 1976 and S.A. No. 696 of 1977 were also dismissed. After dismissal of the second appeal on 23.4.1977 and having failed in all attempts, the first defendant set up the deceased first plaintiff as if they were the joint family properties liable for partition in order to grab at the properties of the ninth defendant. The deceased first plaintiff and his son one Ayyakalai were all along attending the previous proceedings in the High Court along with the first defendant. They were fully aware of the proceedings. Ayyakalai (son of the deceased first plaintiff) and the first defendant attempted to interfere with the possession and enjoyment of the property by the 9th defendant during the pendency of the appeal A.S. No. 181 of 1976 and Ayyakalai caused injuries, to Kamatchi Ammal and in respect of the same a criminal case was pending in C.C. No. 5 of 1977 on the file of the Judicial Second Class Magistrate's Court, Melur, against the first plaintiffs son. The first defendant filed a private complaint against the ninth defendant and eight others in C.C. No. 347 of 1976 on the file of the First Class Magistrate No. 2, Madurai. It is stated that in view of those proceedings, it cannot be said that the first plaintiff had no knowledge of the earlier proceedings instituted by the first defendant. It is stated that the property was leased out to one Mohammed Kasim in respect of the usufructs of the coconut and mango trees for a period of three years from 1.3.1977 and the said Mohammed Kasim, who is the licencee, has been in possession. The patta and adangal entries only stand in the name of the ninth defendant. Hence the ninth defendant prayed for dismissal of the suit.
6. In the additional written statement filed by the ninth defendant it is stated that in view of the earlier proceedings, the present suit is clearly barred by res judicata and on that ground also, the suit is to be dismissed. Further, the suit is also barred by limitation. It is also stated that the assignment is only a Panjamar conditional assignment and the property should not be sold to any other community people except to Harijans. Hence the sale deed in favour of the first defendant is nothing but an invalid document first defendant is nothing but an invalid document and that he cannot claim any title on the basis of the same.
7. On the pleadings, the trial court framed as many as 13 issues. On the side of the plaintiffs, the second plaintiff was examined as P.W. 1 and seven other witnesses were examined as P.Ws.2 to 8 and Exs. A-1 to A-77 were marked. On the side of the defendants, 17th defendant was examined as D.W. 1, the 9th defendant was examined as D. W.2 and one Ayyavu was examined as D.W.3 and Exs. B-1 to B. 19 were marked. The Commissioner's report was marked as Ex. C-1. The Trial Court for the reasons stated in the judgment, decreed the suit for declaration of the plaintiffs title and also the title of the first defendant in respect of item 42 and for recovery of possession of the same. The trial court also decreed the suit for partition of the plaint schedule properties by metes and bounds and allotment of half share to the plaintiff while dismissing the suit in respect of the relief of injunction. Aggrieved by the same, the ninth defendant has preferred this appeal challenging the finding in respect of item 42 of A Schedule properties.
8. The learned Counsel for the appellant, Mr. G. Subramaniam, submitted that under issues 8 and 11 the trial court held that the decree in O.S. No. 238 of 1974 and the subsequent appeals A.S. No. 181 of 1976 and the second appeal are not binding on the plaintiff and the present suit is not barred by res judicata. He would submit that the said finding is not sustainable as notwithstanding the fact that the plaintiff was not an eo nominee party to the earlier suit, he is bound by the decree for the reason that the first defendant as the eldest member of the family was admittedly managing the joint family and in that capacity his title and the family title of the property was agitated. Further, a specific issue was framed in the earlier suit with regard to the title and it was found that the first defendant, who was the plaintiff in that suit, has failed to establish title. It was also held that the second defendant, who was the fourth defendant in that suit, has been in possession of the suit property from the date of the assignment. It is submitted that even though the prior suit is for bare injunction, since title was denied, a specific issue was framed and evidence was adduced and finding has been rendered and it was confirmed upto the High Court. It was also submitted that the earlier proceedings came to the end on 23.4.1977 and the present proceedings were instituted by the deceased first plaintiff in May, 1977. The present suit is barred by res judicata. Further, in view of the finding in the earlier suit that the ninth defendant's family have been in possession ever since the date of assignment for nearly 50 years, the claim of the plaintiff is in any event barred by adverse possession. On both the grounds, the findings of the court below with regard to item 42 are liable to be reversed. In support of his contention, the learned Counsel took us through various case-laws and also the relevant pleadings and the evidence as well as the documents. The learned Counsel also submitted that even otherwise admittedly both the parties traced title only through Alagan who got assignment of the suit property from the Government, that the said assignment was Panjamar conditional assignment, namely, the property should not be alienated to Non-Hindus, that if any violation of the condition is found, the assignment itself is void and that the plaintiffs being Hindus cannot rely on the alleged mortgages and the sale deed in favour of the first defendant's father and on that ground also, the plaintiffs should be non-suited. Per contra, the learned Counsel appearing for the contesting respondents/plaintiffs mainly submitted that what was agitated in the prior proceedings by the first defendant was enforcing a private right and not on the footing that the property belongs to the joint family consisting of himself and the plaintiffs. Further, the earlier suit being one for injunction, the question of title was extraneous for deciding the said suit and the earlier suit was disposed of by the Court of District Munsif which has no pecuniary jurisdiction to try the subsequent suit and that it cannot be said that the suit is barred by res judicata. He would submit that through it is admitted that the land was acquired by Alagan, brother of defendants 9 and 12, who was assigned by the Government, yet the original assignment in favour of Alagan was not produced to sustain the condition regarding alienation. No Revenue Officer has been examined to sustain the contention of the appellant in this connection. He would state that it is only the Government which could take action in respect of assignment and that it is not open to the appellant to contend that the assignment is invalid and the respondents-plaintiffs are not entitled to the relief of declaration of title and consequential relief. With regard to possession, the learned Counsel would submit that the ninth defendant's branch produced andangal and other documents in respect of possession from 1973 and they have not produced the documents prior to that period. They cannot rely on the earlier finding in the suit filed by the first defendant wherein it is stated that the ninth defendant and his people have been in possession from the date of assignment for over 20 years and more. He would submit that the court below has rightly disbelieved the case of the ninth defendant that kist was paid by the plaintiffs in the capacity as master of the ninth defendant as per custom and the same has been deducted out of the wages and as such it cannot be said that the defendants have established adverse possession to non-suit the plaintiffs. As regards limitation, it was stated that the suit was filed in 1977 within 7 years from the date of trespass by the defendants and hence it is within time. Hence, it is submitted that the findings of the trial Court need not be disturbed and have to be confirmed.
9. The three points that arise for consideration in this appeal are:
1. Whether the present suit filed by the father of plaintiffs 2 to 4, who are respondents 1 to 3 herein, is barred by the principle of res judicata in view of the earlier decision in O.S. No. 238 of 1974 which was confirmed in A.S. No. 181 of 1976 on the file of the District Court, Madurai, and S.A. No. 696 of 1977 High Court, Madras.
2. Whether the first plaintiff and the father of the first defendant have prescribed title to item 42 of the A Schedule properties by adverse possession.
3. Whether the alienation in favour of the first defendant's father by Alagan and his brothers defendants 9 and 12 under Ex. A-30 (original of Ex. A-2) is invalid for the violation of the condition of Panjamar assignment as contended by the appellant.
10. As regards the first point, it is submitted on behalf of the appellant that the earlier suit in O.S. No. 238ofl974was filed by the first defendant for the relief of injunction on the ground that the present defendants 4 and 8 to 12 and others are threatening to trespass on the suit property and that the first defendant traced his title to the suit property on the original sale deed executed by the deceased Alagan and defendants 9 and 12 in favour of his father Chinnama Naidu and that all the courts dismissed the said suit. It was submitted that a specific issue was framed with regard to title as well as possession to the suit property and it was held that the first defendant has not proved his title to the suit property and that the facts established that defendants 4 and 8 to 12 have been in possession from the date of assignment from 1934. The said finding was confirmed by the District Court, Madurai as well as the High Court. The said proceedings were terminated only on 23.4.1977. The present suit was filed in May, 1977 in the Vacation Civil Court by setting up the first plaintiff who is the junior paternal uncle of the first defendant. The learned Counsel would submit that even as per the plaint allegations, the first plaintiff as well as the first defendant and others constituted a joint Hindu family, that the first defendant's father was the senior member of the family and he was cultivating the suit property on behalf of the family and that after his death on 1.1.1963 the first plaintiff and the first defendant were in management of the property. As such, when the earlier suit was filed the first defendant was managing family and the suit property and only during his management, when troubles started he instituted the earlier proceedings. What was contended in the earlier suit was that the deceased first plaintiff was not aware of the proceedings. It is pointed out by the learned Counsel for the appellant that it was not even contended that there was any collusion between the first defendant and the ninth defendant and others, that is, plaintiff and defendant in that suit. As such, it was submitted that the two reasons given by the lower court for holding that the suit is not barred by res judicata, namely, the plaintiff was not a party to the earlier proceedings and the earlier suit is not one for title, but on for injunction, are not sustainable. The learned Counsel would submit that even though the plaintiff is not an eo nominee party in the earlier proceedings, he is bound by the decree for the reason that the suit was instituted by the first defendant who was the Manager of the joint family at that time and he also based his title only through one sale deed in favour of his father, which was the basis of the present suit filed. He would submit that the decision regarding title was necessary for the adjudication of the dispute in the earlier suit and that even though it was a suit for injunction, in view of the denial of the title, specific issue was framed regarding title and evidence was adduced and finding was rendered and as such, it cannot be said that the suit is not barred by res judicata on the sole ground that the earlier suit is one for bare injunction. The learned Counsel further submitted that the present contention on behalf of the respondents that the District Munsif has no pecuniary jurisdiction to try the subsequent suit is not sustainable in view of Explanation 8 to Section 11 of the amended Code of Civil Procedure of 1976.
11. The trial judge considered the question of res judicata. Under issues 8 and 11 and found against the appellant. The two reasons given by the trial judge are, as contended by the learned Counsel for the appellant, that the earlier suit was filed for bare injunction and for deciding the question of injunction, the question of title need not be gone into and in the earlier suit even though the question of title was gone into, it was only incidental, and the other reasoning is that the plaintiffs were not parties to the earlier suit. Let us now consider the above reasonings given by the trial court. As rightly contended by the learned Counsel for the appellant, even though the plaintiffs are not parties to the earlier proceedings, admittedly the deceased first plaintiff, who filed the suit, and his legal representatives who were subsequently added as plaintiffs 2 to 4 and the first defendant constituted a joint Hindu family when the suit was filed in 1974 and the present suit was filed. It is seen from the plaint in the earlier suit that the first defendant, who was the plaintiff therein, filed the suit against defendants 4 and 8 to 12 and others on the basis of the sale deed dated 17.5.1956 executed by Alagan and defendants 9 and 12 in favour of the first defendant's father and also possession ever since that date. The present suit was also filed by the deceased first plaintiff within a few days alter the termination of the proceedings, tracing title only on the basis of the said sale in favour of the first defendant's fatherly the deceased Alagan and his brothers defendants 9 and 12. It was also averred in the present plaint that the deceased first plaintiff came to know of the earlier proceedings in March, 1977. When the first plaintiff came to know that taking advantage of the patta for the suit property in the name of the ninth defendant and he and defendants 4 to 12 attempted to interfere with the deceased first defendant's possession and enjoyment, he filed the suit for the relief of permanent injunction. The deceased first plaintiff took the first defendant to task for not consulting him in filing the suit or conducting the suit or appeal and asked him to hand over all the papers. Then he found that the first defendant had not given necessary and full instructions for drafting the plaint and hence the present suit was filed. It is stated that since the first plaintiff is not a party in the earlier suit for injunction, the present suit is not barred byres judicata. As rightly contended by the learned Counsel for the appellant, in para 11 of the plaint it is averred 'that from about 1973 the deceased plaintiff fell ill and was suffering from Asthma and Tuberculosis and was not able to attend cultivation work and other family affairs personally and that the cultivation of A Schedule lands and all family affairs was looked after by the first defendant and that the first plaintiff is not attending to agriculture after the above said illness. It is clear from the above averments that the first defendant was the manager of the family in 1974 when the suit was filed and he filed the suit to protect their possession and to safeguard the suit property from the defendants on the basis of the title in favour of the first defendant's father. As already stated, the present suit is filed by the deceased first plaintiff also impleading the first defendant contending that the first defendant had not properly prosecuted the earlier suit, that it is the family property in which the first defendant is entitled to half share and that it was not disputed by the first defendant. In this connection, our attention was drawn to the decision reported in Venkata Seshayya v. Koteswara Rao A.I.R. 1937 P.C. 1 : (1937) 1 M.L.J. 113 : 166 I.C. 1 : I.L.R. 1937 Mad. 263 : 64 I.A. 17, wherein it was held:
The provisions of Section 11 of the Code are mandatory and the ordinary litigant, who' claims under one of the parties to the former suit, can only avoid its provisions by taking advantage of Section 44, Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion. It is not for the Court to treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. Under Section 11, Explanation 6, C.P.C., the plaintiffs in the present suit are deemed to be claiming under the plaintiffs in the 1891 suit, and again the statute defines a condition as necessary to the applicability of the section, namely, that the plaintiffs of 1891 litigated bona fide. In the opinion of their Lordships, no case of fraud apart from collusion being suggested, the appellants, are bound to establish either that the 1891 decrees were obtained by collusion between the parties, or that the litigation by the 1891 plaintiffs was not bona fide.
As rightly contended by the learned Counsel for the appellant, even though in the prior litigation it was not stated by the first defendant (plaintiff in the earlier suit) that he was litigating the suit in his capacity as manager, in view of the fact that he put forth his claim only through the title in favour of his father who is the kartha of the family and in view of the fact that admittedly the first plaintiff and the first defendant and his father constituted a joint Hindu family and the family was not divided till the present suit was filed and in view of the fact that the first defendant was managing the properties when the earlier suit was filed, it cannot be said that the present plaintiffs are not bound by the earlier decision on the ground that they were not parties to the earlier suit. It is not the case of the plaintiffs that there was any collusion between the first defendant and other defendants in the earlier suit, who are defendants 4 to 12 herein. Yet another decision drawn to our attention is reported in Amritsagar v. Sudesh Behari . Therein it was held:
It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit, that the plaint or written statement should state in express terms that he was sued or being sued as a manager. It is sufficient if the manager was in fact suing or was being sued as representing the whole family. A suit by or against the manager will be deemed to be one brought by or against him as representing the family if the circumstances show that he was the manager and the property involved in the suit was family property.
The facts involved in that case were that a suit between J, the father of the appellants, and B, the father of respondents, each claiming possession of the suit properties on the strength of an alleged gift deed in his favour, was decreed in favour of J and the decree was confirmed by the Supreme Court. After various attempts by B and after his death by his sons, to defeat J's rights, one of B's sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of which B was the kartha. The question was whether the decree in the earlier suit operated as res judicata, and it was held as stated above and it was also held that B must be deemed to have been sued in the previous suit as the kartha of his family. In the instant case it is seen that the earlier suit was filed by the first defendant who was admittedly managing the joint family at the time of filing of the suit and he was also putting forth the same title. The mere fact that he has not specifically stated that he was suing in his capacity as manager will not in any way take away the affect of the question of res judicata in view of the circumstances of the case on the ground that the plaintiffs were not parties to the earlier proceedings.
12. Next we have to see whether the decision rendered in the earlier suit, which was filed for injunction, on the question of title, will operate as res judicata for the subsequent suit for declaration and possession or in the alternative for partition and recovery of possession. In Srinivasa Row v. Kaliaperumal 79 L.W. 180, Veeraswami, J. (as he then was) held:
In order that a finding in an earlier suit should operate as res judicata in a subsequent suit, it must have been necessary for the disposal of the earlier litigation, and in that sense the point was substantially in issue between the parties and must have been heard and finally decided. Where in view of the finding of the court in the earlier litigation on the first issue, the other issues did not arise for consideration and in fact the Court said so, but nevertheless the Court proceeded to consider those issues and record its findings in the necessary or required earlier suit which were quite unnecessary for the disposal of the suit, cannot operate as res judicata.
It was for the sake of fullness in the earlier litigation that the Court recorded findings on the other issues. Such findings on issues which were not necessary, or which did not arise, in view of a finding on a vital issue which would by itself dispose of the suit, will not operate as res judicata in a subsequent suit between the same parties where identical issues which were not to be decided in the earlier suit, arise for consideration.
In that case, the learned Judge followed the decision in Raja Gopala Venkatanarasimhacharyulu v. Veeraswami 68 M.L.J. 625. In Srinivasa Pillai v. Ragunathan (1983) 1 M.L.J. 159, Nainar Sundaram, J., held:
Nobody can dispute the general principle that a person in peaceful possession is entitled to be maintained in possession against all but the true owner and the suit by such a person for an injunction against any other person threatening to dispossess him is maintainable and there could be an investigation of his cause and relief granted if there is a warrant for it on facts.
As pointed out by the Supreme Court in M. Kallappa Setty v. M.V. Lakshminarayana Rao , the plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. The question of protecting the possession of the plaintiff, who has failed to establish his title, when the defendant's plea of title has been rejected, came up for consideration before Gokulakrishnan, J. in Mohammed Sulaiman v. Mohideep Thambi (1971) 84 L.W. 252, and the learned Judge found, that in that case both the Courts below concurrently found that the defendants have neither title to nor possession of the suit properties and in the said circumstances when the plaintiffs are in possession of the suit properties, they are entitled to have their possession protected by decree of injunction.
4. In the present case, there is a dispute on the question of title to the suit property between the plaintiff and the defendant. Either it must be found that the plaintiff has title by deed or by adverse possession and if he is found to be in possession on the date of the suit, the plaintiff is entitled to have his possession protected by a decree of permanent injunction; or it must be found that the plaintiff is in possession on the date of the suit and the defendant has no title to the suit property and in that circumstance also the plaintiffs possession can be protected. On going through the judgment of the lower appellate Court, I find that there is a glaring omission to approach the controversy in issue and find the resolution for the same keeping in mind the above principles and as stated above only on the ground that the plaintiff is in possession and the defendant is no in possession and without adjudicating the question of title one way or the other, the lower Appellate Court has chosen to decree the suit of the plaintiff. This approach and the reasoning the lower Appellate Court do not fit in with the well-accepted principles delineated above.
Relying on the ratio laid down in the above judgments, it was contended that in the earlier decision, the title of the first defendant (Plaintiff in that case) was disputed, that the defendants contended that they are the owners of the property, that they have got valid title and that they perfected title by adverse possession. Specific issues were framed with regard to the title of the suit property and also on the question of adverse possession. In the earlier suit it was held that the first defendant had not established title to the suit property as well as possession; but, on the other hand, the defendants have proved their valid title and possession of the suit property and consequently the suit was dismissed. The same was upheld by this Court also. Hence, it cannot be said that the decision with regard to the question of title in the earlier suit was not necessary for adjudicating the question involved in the said suit. The first defendant should prove lawful possession of the suit property on the date of the suit when he laid the suit for injunction. The first defendant also filed the very same title deeds in the earlier suit and the ninth defendant also filed documents relating to title as well as possession before the court and the parties have adduced evidence and on merits, the questions of title as well as possession were decided. When once it is found that the decision in the earlier suit is necessary, certainly it will operate as res judicata even though the earlier suit is one for bare injunction.
13. The learned Counsel for the respondents 1 to 3 relied on certain decisions in support of his contention. The decision in Kondaiah v. Ramanareddy , was rendered by a single learned Judge Of Andhra Pradesh High Court. That was a case where the question of valuing the suit for the purpose of court - fees and jurisdiction under the Andhra Court Fees and Suits Valuation Act came up for consideration. There the suit was filed for the grant of injunction. The trial District Munsif on the basis of the denial of title by the defendant in the written statement came to the conclusion that the plaintiffs title is denied and held that the provisions of Section 26(a) of Andhra Court Fees and Suits Valuation Act are applicable. The learned Judge in the above decision relying on the decision of this Court reported in Ponnuswami Gounder v. Sinnanna Gounder (1955) 2 M.L.J. 523 : I.L.R. 1956 Mad. 1266 : A.I.R. 1956 Mad. 52, held that in the absence of any allegation in the plaint that there was denial of title by the defendant, it is not open to the trial District Munsif to rely on the averments in the written statement and if the averments in the written statement are excluded from consideration, on the basis of the averments in the plaint the suit is one for injunction and as such the case does not attract the operation of Clause (a) of Section 26 of the Act. That decision is not applicable to the instant case, as it is well established that court fee has to be paid on the basis of the allegations made in the plaint and not in the written statement, and in view of the averments stated in the plaint, it was held that the suit is for bare injunction on the basis of possession and as such, the suit need not be valued as if it is a suit for declaration of title as there was denial of title. Yet another decision relied on by the learned Counsel for the respondent is Kallappa Setty v. Lakshminarayana Rao (1973)1 S.C. J. 374, wherein it was held:
The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it was accepted that the plaintiff was in possession of the property ever since 1947 then his possession had to be protected as against interference by some one who was not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, even if the plaintiff had failed to prove his title satisfactorily, the plaintiff was entitled to a permanent injunction restraining the defendant from unlawfully and forcibly entering upon the suit site and disturbing the plaintiffs possession and also from constructing a house by unlawfully obtaining a licence from the Municipality.
The said decision is not helpful to the respondents, as in the above quoted case the plaintiff was in possession for a sufficiently long period from 1947 and the defendant had no better title than the plaintiff and on that finding, it was held that "even if the plaintiff had failed to prove his title satisfactorily, the plaintiff was entitled to a permanent injunction." But, on the facts of the present case, the plaintiffs have neither proved possession nor title; but, on the other hand, the defendants have established valid title and possession for more than the statutory period. Hence, it cannot be said that the question of title was extraneous for decision of the earlier suit. In Ramaswamy Moopanar v. Rathanammal (1976) 2 M.L.J. 363, it was held:
Where the suit is for injunction based on possession the plaintiff need not prove title. The question of title is not relevant for the purpose of considering the eligibility for injunction prayed for by the plaintiff. The plaintiff is entitled to injunction on the basis of his possession.
That was a case where neither the plaintiff nor the defendant established title to the suit property. However, the trial court granted injunction in favour of the plaintiff who was in possession. That was a case were the defendant subsequently filed a title suit also and even as per the defence it was contended that licence was granted by his father and the plaintiff was running the school in the property. According to the plaintiff, it was Government poramboke and they have been in possession for over 70 years. However, in view of the fact that the possession of the plaintiff was admitted even by the defendant, it was held that injunction has to be granted to protect his possession as it is only a kind of shield in support of his possession. In the circumstances of that case, it was held that the question of title is not relevant and injunction can be granted on the basis of possession. That decision is not helpful for deciding the question involved in the present case. Since we have taken the view that a decision in the earlier suit on the question of title was necessary for adjudicating the dispute between the parties, certainly it will operate as res judicata and it cannot be got over on the ground that it is a suit for bare injunction. Hence we sustain the contention raised by the learned Counsel for the appellant in this regard.
14. It was contended by the learned Counsel for respondents 1 to 3 Mr. A. Ramanathan, that the Judgment in the earlier suit was rendered by District Munsif, who has no pecuniary jurisdiction to try the present suit in the Sub Court for the relief of declaration, injunction and partition not only in respect of item 42 but also other items and as such on that ground it can be held that the earlier decision will not operate as res judicata. In this connection, the learned Counsel relied on the decision reported in Gulab Bai v. Monphool Bai A.I.R. 1962 S.C. 214, where it was held:
The plain and grammatical meaning of the word "suit" occurring in clause "in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised" of Section 11 of C.P.C., includes the whole of the suit and not a part of the suit, so that giving the word "suit" its ordinary meaning it is difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause. It is the whole of the suit which should be within the competence of the Court at the earlier time and not a part of it. Having regard to the legislative background of Section 11 there can be no hesitation in holding that the word "suit" in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it.
This decision was rendered prior to the amendment of the Code of Civil Procedure in 1976 wherein Explanation 8 was added to Section 11 which reads as follows:
An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
In view of the above inclusion of Explanation 8 to Section 11, C.P.C. the ratio laid down in the aforesaid Supreme Court decision rendered before amendment of the Code of Civil Procedure cannot help respondents 1 to 3. Next the learned Counsel relied on the decision in Nabin Majhi v. Tela Majhi , wherein relying on the decision of the Supreme Court in Mst. Gulab Bai v. Manphool Bai , referred to above, it was observed.
In our view, Courts of limited jurisdiction are Courts other than the Ordinary Civil Courts. These Courts are Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency Courts, Guardianship Courts, Probate Courts etc. These courts are to try certain specific matters and in that sense they may be said to be courts of limited jurisdiction. These Courts are also Courts of exclusive jurisdiction in respect of the matters they are to try. The decisions of such Courts operated as res judicata in subsequent suits not by virtue of Section 11 but on the general principles of res judicata.
The said view was followed by the Calcutta High Court in the decision in Promode Ranjan v. Nirapada Mondal . The learned Counsel relied on the said decisions and submitted that the District Munsifs Court which has no pecuniary jurisdiction will not come within the definition of limited jurisdiction. We are unable to agree with the said submission. The decision relied on by the learned Counsel for respondents 1 to 3 in Gangabai v. Chhabubai , is also not applicable to the facts of this case, as in that case it was held:
When a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the termination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the Court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. A question of title in a small cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised.
In the instant case, the question of title was directly and substantially in issue in the former suit and the decision was rendered by a competent civil court. It was not collaterally or incidentally in issue as observed in the above judgment and as such the said judgment is not helpful to the case of respondents 1 to 3 in any way. A Division Bench of the Kerala High Court in P.V.N. Devoki Ammal v. P.V.N. Kunhi Raman , dissented with the view expressed in the decision of the Division Bench of the Calcutta High Court in Nabin Majhi v. Tela Majhi , and held as follows:
The Parliament's object in introducing Explanation 8 was to remove the anomaly and to render the principle of res judicata more effective by providing that the prior decision rendered on the issue concerned by a court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit. In such case, it cannot be said that the expression "Court of limited jurisdiction" signifies courts other than ordinary courts of Civil judicature such as Revenue Courts, Land Acquisition Courts, Insolvency Courts, Probate Courts etc. The expression "a Court of limited jurisdiction" is wide enough to include a court whose jurisdiction is subject to a pecuniary limitation and it will not be right to interpret the said expression as connoting only courts other than ordinary Civil Courts. Such a narrow and restricted interpretation is not warranted by the words used by the Parliament. The object and purpose underlying the introduction of Explanation 8 was much wide, namely, to render the principle of res judicata fully effective so that issues heard and finally decided between the parties to an action by any Court competent to decide such issues should not be allowed to be reagitated by such parties or persons claiming through them in a subsequent litigation.
It is true that while adding Explanation 8, Parliament has not deleted from the main body of the section the words "in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised." The retention of those words in the main body of the section does provide room for the argument that only a restricted interpretation should be given to Explanation 8. The correct mode of interpretation is to read the section in combination and harmony with Explanation 8. The result that flows from such an interpretation is that a decision on an issue heard and finally decided by a Court of limited jurisdiction (which expression will include a Court of limited pecuniary jurisdiction) will operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit.
In Kumarmoni Sa v. Himachal Sahu , a Division Bench held as follows:
Where property in the former suit for suit for redemption was a part of the property in subsequent suit for partition, the finding in the previous suit that the plaintiff who claimed by virtue of sale in his favour had acquired no right to the property inasmuch as the sale was not supported by - legal necessity, though given by a court not competent to try subsequent suit for want of pecuniary jurisdiction operates as res judicata." Dalmia Dadri Cement Co. Ltd. v. Commissioner of I.T. A.I.R. 1955 Pepsu 3, Nabin Majhi v. Tela Majhi , Promode Ranjan Banerjee v. Nirapada Mondal and P.V.N. Devoki Ammal v. P.V.N. Kunhi Raman , followed:
In Ravindranath v. Hanumantha Rao , a Division Bench of this Court, while considering the competency of Court trying former suit to try subsequent suit, observed in para.12 as follows:
In this case, though the suit property is valued in 1972, at Rs. 60,000 there is no evidence to show as to what was the value in 1960. Having regard to the steady rise of prices of properties in the City of Madras and taking into consideration that the property valued in 1972 was only Rs. 60,000 it may not be proper for us even to assume that the property would not be more than Rs. 50,000 of value in 1960. In the circumstances, therefore, the decision in the earlier suit was given by a Court of competent jurisdiction. Even if there is any doubt in this case, as the learned single judge has held, the principle of res judicata is a general principle relating to avoidance of multiplicity of suits and giving finality to the decisions of Civil Courts, and, therefore, the ratio of Section 11, C.P.C., could be applied even to cases where the provisions are not strictly applicable.
It was also held in the case that the decision in suit rendered against son would operate as res judicata in subsequent suit by grandson. In the unreported judgment rendered by Ratnam, J., in P. Lakshnianan and Anr. v. Sir Gangai Vinayagar Temple, Pondicherry, represented by its Managing Trustees C.R.P. Nos. 101, 102, 103, 170, 171 and 172 of 1989 dated 13.6.1990 the learned Judge considered the question of res judicata in respect of the finding of title in an earlier suit for injunction to a subsequent suit for declaration of title and also considered the scope of the decision in Srinivasa Row v. Kaliaperumal and Rule Venkatanarasimhacharyulu v. Veeraswami 68 M.L.J. 625 and held as follows:
Considering the scope of the controversy raised regarding the title in O.S. No. 5 of 1978, though the relief asked for was one of injunction, an investigation into title was inevitable and under those circumstances, when in the presence of the respondent herein, a finding had been rendered on the issue regarding its title raised in the suit to the effect that the property did not belong to Sri Gangai Vinayagar Temple, but to Sethuraman Chettiar as his separate or exclusive property, that adjudication, not having been in any manner set aside would, in my view, undoubtedly operate as res judicata. What is significant is, the issues referred to earlier had been tried and decided without any objection from Meenakshi Ammal and her children and when there was no protest and the parties joined issue on upon the point regarding title, the finding on that issue would certainly operate as res judicata. It only remains to refer to the decision reported in Srinivasa Row v. Kaliaperumal , strongly relied on by learned Counsel for the respondent. In that case, in the course of this earlier proceedings, the Court observed that issues 2 to 9 did not arise for consideration as a result of the finding on issue 1, but in spite of it, it proceeded to discuss those issues also and gave findings. It was in that context it was pointed out that when even according to the court, a finding on issues 2 to 9 was unnecessary, findings on those issues would not operate as res judicata between the parties in a subsequent suit. In so holding, reliance was placed upon the decision in Rajagopala Venkatanarasimhacharyalu v. Veeraswami 68 M.L.J. 625, in which decision also, it was pointed out that a finding on an unnecessary issue would not be res judicata in a subsequent proceeding. These decisions cannot have any application whatever on the facts and circumstances of this case, for, it has not been found by the court while disposing of O.S. Nos. 5, 6 and 7 of 1978 the issues adjudicated upon by it were unnecessary, as in the case referred to earlier.
Ultimately it was held in that case "that as a result of the findings rendered on the issues that arose in O.S. No. 5 of 1978 on the pleadings of the parties regarding the validity of the sale in favour of the petitioners herein, in the presence of the respondent herein, it cannot be heard to put forward any right or interest to the property and seek to get impleaded as a party defendant to the suits instituted by the petitioners herein." In Guiam Abbas v. State of U.P. 95 L.W. 41 (S.N.). Their Lordships of the Supreme Court considered the pecuniary jurisdiction and also considered the same question with regard to Section 11, Code of Civil Procedure. That was a case where it was contended that the decision in Suit No. 232 of 1934 would not operate as res judicata against the respondents as the District Munsif's Court at Banaras did not have either pecuniary or subject wise jurisdiction to grant the reliefs claimed in the instant writ petition and it was contended that the said Court was not competent to decide the present subject matter and as such the bar of res judicata under Section 11, C.P.C. was not attracted relying on the earlier decision of the Supreme Court in Mst. Gulab Bai v. Manphool Bai . The said contention was repelled and it was held as follows:
It is not possible to accept this contention for the reasons which we shall presently indicate. It is well settled that Section 11 of the C.P.C. is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in Section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation.
Daryo and Ors. v. The State of U.P. . Duchess of Kingston's 2 Smith Lead, Cas, 13th Edn. 644-645 case. Halsbury's Laws of England, 3rd Edn. Vol. 15, Para 357 at P. 185, Corpus Juris Vol. 34 P. 743 and Gulabchand Chhotalal Parikh v. State of Bombay (now Gujarat) , Union of India v. Nanak Singh , referred to.
It is thus clear that the technical aspects of Section 11 of C.P.C., as for instance, pecuniary or subject - wise competence of the earlier forum to adjudicate the subject matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. The two decisions relied upon by counsel for the respondents 5 and 6 were directly under Section 11, C.P.C. Even under Section 11 the position has been clarified by inserting a new Explanation 8 in 1970. It was not disputed that the Munsifs court at Banaras was competent to decide the issues that arose for determination before it in the earlier litigation and, therefore, the decision of such competent court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata. The contention raised by counsel for respondents 5 and 6 in this behalf, therefore, has to be rejected.
Thus, the ratio laid down in the above decisions clearly established that from the mere fact that the earlier decision was rendered by the District Munsif who has no pecuniary jurisdiction to try the subsequent suit for partition wherein some other items were also included and that the earlier decision was rendered in a suit for injunction, it cannot be said that the said decision would not operate as res judicata as contended by the learned Counsel for respondents 1 to 3. Hence, we do not find any merit in the said contention.
15. Next it was contended by the learned Counsel for respondents 1 to 3 that unless to finding regarding title is incorporated in the decree, it would not operate as res judicata and in support of his contention, he relied on two decisions, namely, D. Narasamma v. Kanaya I.L.R. 4 Mad. 134, Pappammal v. Swamikkannu Padayachi 100 L.W. 867. The decision in D. Narasamma v. Kanaya I.L.R. 4 Mad. 134, relates to a case where the first defendant desired to appeal against the determination of the second, third and fourth issues by the District Judge on the ground that having regard to the view taken of the plaintiffs case, it was altogether unnecessary to decide them. It was found that the decree in that case simply decided that the plaintiffs suit should be dismissed, the grounds for that decision being that the plaintiff was not sufficiently near in the line of heirs to be entitled to the declaration sought. On the facts of that case, it was found that the ultimate decision was not rendered on the finding of those issues and hence it was held that if the decree does not decide the question, it is not res judicata. That decision will not apply to the facts of the instant case as in the instant case even though the earlier suit was for injunction, in view of the dispute with regard to title in respect of the property in question, specific issue was framed with regard to the question of title and a finding was given and on the basis of title, the suit was dismissed and accordingly the decree was drafted and as such that decision is not helpful to the case of respondents 1 to 3. In Pappammal v. Swamikkannu Padayachi 100 L.W. 867, it was held that "In order that a decision in a former suit should constitute res judicata, it should have been directly and substantially in issue in that suit and such issue must have been heard and finally decided by the court. On the facts of this case, it is already seen that the issue whether the will relied upon by the plaintiff was genuine or not, was not in issue in the former proceeding, nor was it heard and finally decided by the Court. A more expression of opinion in a judgment or an obiter dictum will not have the effect of res judicata." That decision is also not helpful to the contention of respondents 1 to 3, as it is seen that in the earlier suit, a specific issue has been framed and a finding has been given and that the said issue arose directly and substantially on the pleadings and was necessary for the decision in the said suit. It was then contended by the learned Counsel for respondents 1 to 3 that as between co-defendants, the decision in the earlier suit, will not operate as res judicata. It is to be noted that the earlier suit was filed by the first defendant and even according to the plaintiffs, defendants 1 to 3 and the plaintiffs are members of joint family. The said suit was filed against the ninth defendant's branch who claimed title and possession of the suit property. It is the case of the ninth defendant that the first defendant having failed in the earlier suit, set up the plaintiffs to file the suit and defendants 1 to 3 only supported the case of the plaintiffs. Hence in the circumstances of the case the contention that there is no question of res judicata as between the co-defendants does not arise in this case. Even otherwise, in the decision relied on by the learned' counsel for respondents in Sankaramahalingam Chetti v. Muthulakshmi 33 M.L.J. 740, it was held:
For the decision in a suit to operate as res judicata between co-defendants therein, it is necessary (1) that there should be active controversy between the co-defendants and (2) that an adjudication inter se between the co-defendants should be necessary to give the appropriate relief to the plaintiff.
Hence, that decision is not relevant to the facts of this case. Lastly it was submitted by the learned Counsel for respondents 1 to 3 that in view of the Proviso to Section 6 of the Hindu Succession Act, the first defendant has no right to represent the joint family or to do any act which would bind the other sharers. The said question was raised for the first time in this appeal and even otherwise for the applicability of the Proviso to Section 6 of the Hindu Succession Act, the respondents have not made out any case to show that the Proviso to Section 6 is applicable to the facts of this case, and on that ground the earlier suit filed by the first defendant will not bind the other members of the family. When once it is found that the first defendant acted as manager of the family when the suit was filed, certainly it is binding on the other members unless it is shown that he has acted against other sharers and that he was negligent or was colluding with other party or steps have been taken to set aside the same. So long as the said decision was not challenged and is in force, it is not open to them to contend that by virtue of the proviso to Section 6 of the Hindu Succession Act, they are not bound by the decision in the earlier suit. For all these reasons, we have no hesitation in holding under point No. 1 that the earlier decision in O.S. No. 238 of 1974 which was confirmed by the District Judge and also by this Court in favour of the appellant's branch will certainly operate as res judicata to the present suit filed by the plaintiffs. Accordingly this point is answered in favour of they appellant.
16. The second point relates to the claim of adverse possession of item 42 of the A Schedule properties by the first plaintiff and the first defendant's father. The learned Counsel for the appellant, Mr. G. Subramaniam pointed out the finding rendered, by this Court in S.A. No. 696 of 1977 wherein Paul, J., observed:
Both the courts below have found that the plaintiff has not proved this document of title on which he based his claim. With regard to the question whether the plaintiff was in possession of the suit property on the date of the suit, both the courts below have elaborately considered the claim of the appellant and came to the conclusion that the plaintiff was not in possession of the suit property on the date of the suit, but that it was the defendants who have been in possession all along of the suit property ever since the property assigned to them about 20 years ago.
It is seen from the Judgment of the Appellate Court in A.S. No. 181 of 1976 that the finding was that "the District Munsif rightly accepted the evidence of D.Ws. 1 to 3 whose evidence is amply supported by adangals marked Exhibits B-2 to B-4 in preference to the evidence of P.Ws. 1 to 4, and has rightly arrived at the conclusion that the appellant and his father were not in possession and enjoyment of the suit property in pursuance of Exhibit A-1 as alleged in the plaint and that the 3rd respondent and his brothers alone were in possession and enjoyment of the suit property as contended by them in their written statement. "Thus, it is clear from the earlier findings that the possession of the first plaintiff in pursuance of the alleged sale deed, which was marked as Ex. A-1 in the earlier suit, and which is now marked as Ex. A-30 and its copy is marked as Ex. A-2, is not accepted. But, on the other hand, the contention of the ninth defendant is that he and his brothers (who was the third defendant and his brothers who were parties in the earlier suit) alone were in possession of the suit property ever since the date of the assignment in favour of Alagan in the year 1922 and subsequently when patta was transferred in the name of the ninth defendant in year 1934. Anyhow, as already found, on account of the earlier suit, the present suit was barred by res judicata and in view of the said finding, the plaintiffs cannot be heard to say that they have perfected title by adverse possession. On the other hand, the ninth defendant has established that they have perfected title by adverse possession. On the other hand, the ninth defendant has established that they are in possession in "pursuance of the assignment and they were in possession for more than the statutory period. Admittedly the defendants were in possession and they have also produced adangals (Exs. B-2 to B-6) and Nabarkathi Chitta extracts (Exs. B-7 and B-8). The only documents relied on by the plaintiffs are receipts for payment of kist for the suit property. That has been explained by the defendants by saying that the said kist was paid by the plaintiffs in their capacities as masters of the ninth defendant and his brothers. The ninth defendant who was examined as D.W. 2 has categorically stated the circumstances under which the kist was paid by the plaintiffs on their behalf and the same was deducted from their wages. In any event, the payment of kist alone would in any way prove the possession. It is seen from the oral and documentary evidence adduced in the case that the plaintiffs have miserably failed to prove adverse possession and hence they are not entitled to get a decree for declaration. But, on the other hand, the defendants have adduced satisfactory evidence to show that they have been in possession in pursuance of the assignment and patta also stands in their name. It is not in dispute that the suit property was originally assigned in favour of Alagan, brother of the ninth defendant. The mere fact that the ninth defendant has not produced any document to prove the oral partition in which the suit property was allotted to him will not disprove his case. Admittedly patta was transferred in the name of the ninth defendant. His brothers are not disputing his claim in pursuance of the said partition. Under the circumstances, the non-production of partition deed will not negative the case of the ninth defendant regarding possession. We are concerned with the question whether the ninth defendant and his branch have been in possession or whether the plaintiffs are in possession as alleged by them. In view of the earlier findings and in view of the various documents filed in this cases as already observed, the plaintiffs have miserably failed to establish adverse possession for more than the statutory period and as such, they are not entitled to any declaration. This point is answered against the respondents 1 to 3 plaintiffs.
17. As regards the validity of the alleged sale deed Ex. A-30 in favour of the first defendant's father in respect of item 42 of the suit properties, it is contended by the learned Counsel for the appellant that admittedly the property was originally assigned to Alagan by the Government and that it is a Panjamar Conditional assignment. The ninth defendant relied on Ex. B-19 patta. The lower court observed in para. 11 of the judgment that admittedly the said item was assigned in favour of Alagan; but there is no evidence to show under what circumstances, the patta was assigned in favour of the ninth defendant. It is to be noted that the ninth defendant is also claiming title only through the assignment in favour of Alagan. Though vaguely it is stated that patta was assigned in favour of the ninth defendant, it is seen that the property was originally assigned in favour of Alagan in the year 1922 and subsequently patta was issued in the name of the ninth defendant. Ex. B-19 is the patta relied on by the ninth defendant. The lower court commented upon that no assignment order was produced in favour of the ninth defendant. As already observed even the case of the plaintiffs is that the suit property was originally assigned in favour of Alagan. They traced title only through Alagan. The lower court has commented upon the non-production of the assignment deed to find out the condition under which the assignment was made in respect of the suit property. It is only for proper appreciation and to arrive at a just decision, the appellant now filed a petition C.M.P. No. 11549 of 1990" to receive an extract from the register relating to the assignment of the suit land in favour of Alagan in the year 1922 granted by the Tahsildar, Natham. The said certified copy clearly shows that the assignment, was made on 8.7.1922 in favour of Alaganthotti subject to the condition that the land should not be alienated to any person other than Panjamar and if it is done, it is liable for cancellation and resumed by the Government. It is seen from Ex.B-7 which is a certified copy of the chitta extract in the name of the ninth defendant that as per order dated 6.3.1934 the said land was assigned and the transfer of patta was made in the name of Arumughathan subject to the condition that the land should not be alienated in favour of any person other than Panjamar (Harijan) and if there is any violation, it is liable for cancellation and resumption to the Government. To the same effect it has been said in Ex. B - 8 also. These are certified copies of chitta issued by Revenue authorities. The authenticity of the same cannot be disputed. The document which is now sought to be produced as additional evidence in this case is only to substantiate the contention of the appellant that even in the year 1922 when assignment was made, there is specific condition that it should not be alienated to any person other than Panjamar (Harijan) and if it is done, it is liable for cancellation and the land would revert back to the Government. The learned Counsel for respondents 1 to 3 would submit that that condition is valid for ten years. We do not find any Standing Order of the Government to substantiate the said contention. On the other hand, it it clear from the very document that no period has been fixed. It is specifically stated that no alienation should be made to any person other than Panjamar and that if it is done, it is not valid and liable for cancellation and resumption by the Government. Now the question for consideration is what is the effect of the violation of the said condition. In this connection, the learned Counsel for the appellant drew our attention to the decision of the Supreme Court in The Revenue Officer and Ors. v. Prafulla Kumar Pati and Ors. (1990) 1 Judgments To-day 155, where their Lordships, while considering the scope of Sections 22 and 23 of the Orissa Land Reforms Act, 1960, with regard to restriction on alienation of land by Scheduled Tribes, held : "The transfer made in favour of persons belonging to Brahmin caste, without the prior permission of the Revenue Officer, by Scheduled caste persons in whose favour the assignment was made is void. On the other hand, the learned Counsel for respondents 1 to 3 drew our attention to the decision in Ayi Gounder v. Gabriel I.L.R. 1964 Mad. 728 and Sri Manchagowda v. State of Karnataka . In Ayi Gounder v. Gabriel I.L.R. 1964 Mad. 728, Veeraswami, J. (as he then was) held:
Though the grant was subject to prohibition against alienation in a particular manner, the grant certainly vested the ownership of the property in the grantee. The restraint against alienation merely applied to a transaction between parties and to a sale in invitum. In any case, a Court sale contrary to the prohibition against alienation cannot be said to be opposed to public policy.
Both on the ground that the restriction as to alienation will not prevail against a court - sale and on the ground that the objection had not been raised at the stage of execution, the sale cannot be as sailed as invalid, or not binding on the second defendant.
Even the said decision, as already pointed out, has tated that the restraint against alienation would apply to a transaction between parties and not court sale. In this case, the transaction is between parties and not, as we held in the above quoted case, a sale in invitum. In the above quoted case reference was made to an earlier decision in Lakshmadu v. Ramudu I.L.R. 1940 Mad. 123, where the alienation of dasabandham inam land was held to be against public policy and as such, the sale of such an inam would be a nullity. The said proposition is not disputed. As already stated, in the above quoted case, the sale was in invitum and the objection was not taken at the earlier point of time and since the objection was taken for the first time only in the appeal, it was held so. The said decision only supports the case of the appellant and not respondents; The decision in Sri Manchegowda v. State of Karnataka , is in respect of an appeal which arose out of a writ petition challenging the validity of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act (2 of 1979) it was held:
Where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land on the basis of the provisions contained in Section 4 of the Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable, unjust and arbitrary.
Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine of real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law.
It is also worthwhile to quote the observations of the Supreme Court in paras Hand 12 which reads as follows:
Even under the Contract Act any contract which is opposed to public policy is rendered void. The State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interests of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declarated policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society.
12. In pursuance of this policy, the Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant, will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted.
It is clear from the above quoted decision that the transfer in question is opposed to public policy and on that ground also, it can be said that it is void. In the above quoted case, the Karnataka State passed a legislation to protect the interest of the weaker section, namely, scheduled castes and scheduled tribes and the said Act is constitutionally sought to be valid that the transferees cannot have in law or equity, a genuine or real grievance that their defeasible title is being defeated and they are being dispossessed of such lands. The fact that the land was granted to the ninth defendant is not in dispute in this case. As already held, the plaintiffs have not established that they perfected title by adverse possession. Hence in the face of the mandatory condition in the assignment in favour of Alagan that the land in question cannot be alienated in favour of any person other than Panjamar, namely, Harijan, since, the alienation was made contrary to the conditional assignment, we have no hesitation in holding under point 3 that the alienation in favour of the father of the first defendant under Ex. B-30 is invalid for the reason that it is a Panjamar conditional assignment in favour of Alagan B/o the ninth defendant. This point is found in favour of the appellant. In view of the findings on points 1 to 3, the appeal is to be allowed.
18. In the result, the appeal is allowed, the judgment and decree passed by the Subordinate Judge inspect of item 42 along are hereby set aside and the suit filed by respondents 1 to 3 plaintiffs inspect of item 42 is dismissed. However, in the peculiar circumstances of this case, the parties are directed to bear their respective costs throughout.