TMI Blog2003 (12) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.5.1923. Damodaran in turn executed a sale deed in favour of Thiruneelkanda Nainar on 17.10.23. Thiruneelakanda executed a settlement deed on 1.5.1950 in favour of his wife Lakshmi and son Loga Ganapathi. They executed a sale deed on 3.3.1966 in favour of Mahadevan and his wife Saroja. The plaintiff, appellant herein, purchased the property from them as per sale deed dated 10.3.1980. The defendant was in occupation of the entire suit property on the date of the present suit. Prior to the commencement of the present suit, there had been two other rounds of litigation which are very relevant and need to be noted. In the year 1957, the defendant-respondent herein filed Original Suit No. 2512 of 1957 claiming a share in the suit property, alleging himself to be the adopted son of Thiruneelakanda. The suit was dismissed. That litigation achieved a finality on 8.1.1964 when an appeal preferred by the defendant was dismissed by the High Court of Madras. In the year 1965, one of the predecessors-in-title of the plaintiff (appellant herein) filed a suit for declaration of title and for possession over 240 sft. area (situated on the upper floor of the building standing over the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession over the upper floor of the building (240 sft. area) which was then in the possession of the defendant, to the plaintiff therein (i.e. predecessor-in-title of the present plaintiff). It appears that those judgment and decree have been brought on record by the plaintiff to provide additional support to his claim for entitlement to possession, and as a piece of evidence supporting the finding of the Trial Court which was already in his favour. The First Appellate court allowed the plaintiff's application, took the judgment and decree on record and then dismissed the appeal filed by the defendant. The defendant preferred a Second Appeal in the High Court. In the High Court, the plaintiff once again appears to have relied on the said judgment and decree to sustain the judgments and decrees of the two courts below in his favour and here, his step of placing reliance over the said judgment and decree boomeranged against him. The High Court formed an opinion that the issue as to title and possession over the suit property was already decided in the suit filed by the predecessor-in-title of the plaintiff (O.S. No.1907 of 1965) and therefore the present suit was barred by princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had through out been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. Ors. Vs. Mohd. Hanifa (Dead) by Lrs. Ors. (1976) 4 SCC 780, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, admittedly the plea as to res judicata was not taken in the Trial Court and the First Appellate Court by raising necessary pleadings. In the First Appellate Court the plaintiff sought to bring on record the judgment and decree in the previous suit, wherein his predecessor-in-title was a party, as a piece of evidence. He wanted to urge that not only he had succeeded in proving his title to the suit property by the series of documents but the previous judgment which related to a part of this very suit property had also upheld his predecessor's title which emboldened his case. The respondent thereat, apprised of the documents, did not still choose to raise the plea of res judicata. The High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and decided in the previous suit. The fact remains that the earlier suit was confined to a small portion of the entire property now in suit and a decision as to a specified part of the property could not have necessarily constituted res judicata for the entire property, which was now the subject matter of litigation. We cannot resist observing that if at all the plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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