TMI Blog2005 (7) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of res judicata are as under:- The property involved in the two cross suits is house door No.206 in Harvaipatt township in Madurai, South Taluk. The house was allotted by Madurai Mills Cooperative Housing Society to mother of Muthuswami Naidu (the husband of respondent No.1 and father of respondents 3 to 7). After the death of mother, the formal document of conveyance by the Housing Society came to be issued in favour of Muthuswami Naidu on 15.3.1975. Muthuswami Naidu executed a mortgage deed on 3.12.74 for raising a loan of Rupees three thousand from one Chhinnaswamy who was co-plaintiff with him in the former suit OS No. 843 of 1974. Muthuswami Naidu as the mortgagor under mortgage deed dated 3.12.1974 and Chinnaswamy as the mortgagee jointly filed civil suit as OS No. 843/74 in the court of District Munsiff, Thirumangalam against respondent Alagammal (the wife of Muthuswami respondent No.1 herein). The mortgagor and mortgagee filed suit simplicitor for seeking permanent injunction to restrain the respondent wife of Muthuswami from interfering with the possession of the suit house on the ground that it was owned and possessed by them. The aforesaid suit OS No.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant. Issue No.4 on non-joinder of children as parties to the suit, was also decided in favour of the defendant. It was held that in the Panchayat settlement, the husband relinquished the property in favour his wife and children. Therefore, children were necessary parties and the suit was bad for mis-joinder of a necessary party. The aforesaid judgment with decree of the trial court at Thirumangalam in suit OS No.843/74 was not appealed against by Muthuswami Naidu, the husband or his mortgagee and has attained finality. After the judgment and decree against him in the above mentioned suit OS No. 843/74, Muthuswami Naidu sold the suit house by registered sale-deed at 15.3.1975 in favour of Annaimuthu Thevar the appellant herein. On the basis of his purchase, the present appellant instituted civil suit OS No.335/83 seeking declaration of his title and possession from respondent and her children. The respondent wife jointly with her children filed cross suit registered OS No.202/84 seeking permanent injunction against the present appellant claiming ownership of the suit house under the settlement of the year 1971 in panchayat and the consequent judgment and decree pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit O.S. No. 843 of 1974 and therefore it has to be held that the issue in the earlier suit in which the matter was directly and substantially an issue constitutes res judicata. The High Court placed reliance on the decisions of this Court reported in Sulachana Amma vs. Narain Nair [1994 (2) SCC 14]; Ishar Singh vs. Sarwan Singh [AIR 1965 SC 948]; and Jumma Masjid vs. Kodimaniandra Deviah [AIR 1962 SC 847]. Learned counsel appearing for the appellant after taking us through the issues and findings recorded by the trial court in the former suit OS No.843/74 contended that question of title to the suit house was neither expressly nor substantially involved in the said suit and therefore the judgment cannot operate as res judicata in the subsequent suit. The contention advanced is that the suit was filed on the basis of a mortgage deed executed on 3.12.1974 by Muthuswami in favour of Chinnaswamy. In that suit jointly filed, Muthuswami was not examined to prove the mortgage deed and hence decree of permanent injunction was refused on a finding that the respondent wife and her children were in possession of the suit house on the basis of the alleged settlement in village pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Alagammal wife of Muthuswami, for seeking a decree of permanent injunction simplicitor. The foundation of the suit as appears from the judgment, was that Muthuswami as the owner of the suit house had executed a mortgage with delivery of possession to Chinnaswamy. The cause of action for the suit seeking mandatory injunction was alleged to have arisen as the wife of Muthuswami was asserting her right to the suit house and interfering with their possession. The aforesaid former suit was resisted by Alagammal mainly on the ground that in the village panchayat her husband had relinquished his right of ownership of the suit house in her favour and their children for their residence. She also denied the existence and validity of the registered mortgage deed. The issues framed in the former suit have been reproduced above. No specific issue seems to have been framed on title or ownership of the suit house but the issues raised on the existence and validity of the mortgage deed and the fact or otherwise of the alleged settlement pleaded by the defendant in the village panchayat substantially involved decision on claim of right and ownership of the house by the husband. The other issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ildren as parties to the suit was also additional ground to dismiss the former suit. The present subsequent suit is founded on the registered sale deed executed on 28.2.1983 by Muthuswami after he had obtained a saleable title under formal deed of conveyance from the Housing Society on 15.3.1975. On the other side, learned counsel appearing for the wife Alagammal and her children supported the judgment on doctrine of res judicata as applied by the High Court to the subsequent suits. He contends that in the issues framed in the former suits, the question of title and ownership of the suit house were substantially involved. In any case, the doctrine of constructive res judicata applies under explanation IV to section 11 of the Code of Civil Procedure to the present case. Section 11 of the Code which contains the doctrine of res judicata states :- 11. Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by him with his mortgagee, he did not prosecute the litigation any further and preferred no appeal. As a second attempt to deprive his wife and children of right in the house, he executed a registered sale deed in the year 1983 in favour of the present appellant. The aforementioned sale deed was executed after he had obtained a document of conveyance from the housing society and that he could obtain being an heir his late mother who was the original allottee of the house from the housing society. The present subsequent suit has been filed by the present appellant who is purchaser by registered deed dated 28.2.1983 obtained from Muthuswami. The former suit in which decree of permanent injunction was sought was clearly founded on the claim of Muthuswami as the owner of the suit house to execute a mortgage. The issue of title or ownership of the suit house was thus directly or substantially involved in the former suit. We find sufficient force in the alternative contention advanced on behalf of wife Alagammal and her children that doctrine of constructive res judicata, as contained in explanation IV to section 11 of the Code certainly, can be invoked against the present a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession and permanent injunction was available to Muthuswami against his wife in support of his joint claim with his mortgagee. The aforesaid plea founded on ownership and mortgage having not been raised in the former suit, the doctrine of constructive res judicata under explanation IV to section 11 of the Code is clearly attracted. We can not prepared to accept the argument advanced on behalf of the above appellant as the successor-in-title of Muthuswami that in the absence of formal deed of conveyance of the suit house by the housing society in favour of Muthuswami, the issue of title to the suit house could neither be raised nor was raised in the former suit. On the examination of case pleaded by the parties in the former suit and the judgment rendered therein we find that the plea of ownership to the suit house was substantially involved for seeking relief of permanent injunction. Undoubtedly, such plea of ownership could and ought to have been raised in the former suit. Therefore, this subsequent suit filed by the present appellant as purchaser from Muthuswami is barred by constructive res judicata and the High Court was right in holding accordingly. See the following obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
