(Prayer : Second Appeal filed under Section 100 of the Civil Procedure Code, praying to set aside the judgment and decree passed by the Principal District Court, Sivagangai in A.S.No.18 of 2021 dated 28.08.2024, by upholding the judgment and decree passed by the Subordinate Court, Devakottai, in O.S.No.54 of 2014 dated 26.07.2021 and allow this Second Appeal.)

1. The plaintiff, aggrieved by concurrent findings rendered by the Trial Court as well as the First Appellate Court is before this Court by way of the present Second Appeal.

2. The Second Appeal was admitted by this Court on 30.01.2025, on the following substantial questions of law:

                     “(i) Whether the suit filed by the plaintiff is barred by limitation in terms of Articles 58 and 113 of the Limitation Act?

                     (ii) Whether the suit filed by the plaintiff is barred by res-judicata due to the suit filed against third party for permanent injunction?”

3. I have heard Mr.N.Tamilmani, learned Counsel for the appellant, Mr.Veerakathiravan, learned Senior Counsel for Mr.S.Ramsundar Vijayaraj for respondents 1 & 6 and Mr.R.Manoharan, learned Counsel for the respondents 4 & 5.

4. The brief facts which are necessary for adjudicating the Second Appeal are as hereunder:

                     4.1.The plaintiff claims that she had purchased the suit property under sale deed dated 03.01.1969 and has been in possession and enjoyment of the same, ever since. The suit filed in O.S.No.75 of 1996, before the Subordinate Court, Devakottai, is filed alleging that one Muthulakshmi was attempting to remove the name of the plaintiff from the revenue records. The said suit came to be dismissed on 20.06.1997 and as against the same, the plaintiff preferred A.S.No.141 of 1997, before the Additional District Court. The appeal was also dismissed and the matter was taken up by way of Second Appeal before this Court in S.A.No.1006 of 2001. The said Second Appeal has been disposed of, giving liberty to the plaintiff to institute an independent suit, seeking relief of declaration and permanent injunction.

                     4.2.In the meantime, since the plaintiff's name had been removed from the revenue records the plaintiff filed a Writ Petition in W.P.(MD)No.13223 of 2012. The said Writ Petition was dismissed and taking advantage of the same, the defendant in the earlier proceedings, Muthulakshmi sold the suit property to the first defendant and also entered into an agreement of sale with defendants 2 and 3, with respect to an extent of 91 cents. Plaintiff alleges that defendants 2 and 3 are influential persons in the locality and they were trying to encroach upon the suit property.

                     4.3.The plaintiff also states that the suit property originally belonged to Karaikudi Nattars and Iluppakudi Devasthanam and suit was filed before the Subordinate Court, Devakottai in O.S.No. 91 of 1927, in which proceedings the plaintiff's vendor one Solaimalai was arrayed as 277th defendant. The plaintiff claiming that defendants do not have any right over the suit property and are attempting to create encumbrance, filed the present suit for declaration and permanent injunction.

                     4.4.The suit was resisted by the first defendant, denying the plaint allegations and also contending that the judgment passed in the earlier round of litigation commencing from O.S.No.75 of 1996 and culminating in Second Appeal in S.A.No.1006 of 2001, which clearly are barring the present suit by principles of res judicata. The first defendant has also alienated 1 acre and 50 cents, retaining 21 cents in and by registered sale deeds. The remaining extent is under the enjoyment of the first defendant. The suit property originally belonged to one Narasimma Iyer and only in order to encroach into the suit property belonging to the first defendant, the suit has been filed with fraudulent intentions. The second defendant has no connection whatsoever with the suit property and on the ground of mis-joinder of proper and necessary parties, suit is sought to be dismissed.

                     4.5.An additional written statement was filed by the first defendant, contending that the first defendant's predecessor was one Muthulakshmi, against whom the allegations were made and the said Muthulakshmi, in turn, has purchased from Narasimma Iyer and patta was transferred pursuant to her purchase in her name. A suit was filed in O.S.No.125 of 1993 by one Meyyappan, where the suit property was declared to be the property of the first defendant's vendor Muthulakshmi. Suppressing the judgment in O.S.No.125 of 1993, the present suit has been filed and the suit is also hopelessly barred by Article 58 of the Limitation Act, since the suit has not been filed within three [3] years from the date on which the right to sue first accrues.

                     4.6.The second defendant in his written statement denies the plaintiff's claim that the plaintiff purchased suit property from C.T.Solaimalai on 03.01.1969. According to the second defendant, Solaimalai Ambalam had no connection to the suit property. The second defendant also refers to earlier proceedings commencing from O.S.No.75 of 1996 and culminating in S.A.No.1006 of 2001 and contends that the suit is barred by res judicata. The second defendant also contends that Muthulakshmi's predecessor in interest, namely Narasimma Iyer was issued with patta No.584 in respect of the suit property and further in a suit filed by one Meyyappan in O.S.No.125 of 1993, Muthulakshmi's right has been declared in respect of 81 cents and the second defendant has entered into an agreement after paying substantial advance for purchasing the suit property. The second defendant also claims that the suit has been filed only to extract money from the defendants and the suit is also under-valued.

                     4.7.Before the trial Court, plaintiff examined three witnesses and marked Exs.A1 to A26. On the side of the defendants, the first defendant examined himself as D.W.1, the second defendant examined himself as D.W.2 and Exs.B.1 to B.24 were marked.

                     4.8.After considering the oral and documentary evidence, the Trial Court found that the plaintiff is not entitled to a decree of declaration of title to the suit property and dismissed the suit. The Trial Court also held that the suit is barred by res judicata and also by law of limitation.

                     4.9.The plaintiff preferred A.S.No.18 of 2021 and the First Appellate Court concurred with the findings of the Trial Court and negatived the plea of res judicata and dismissed the appeal, as against which, the present Second Appeal has been filed.

5. Arguments of Mr.N.Tamilmani, learned Counsel appearing for the appellant:

                     5.1.Mr.N.Tamilmani, learned Counsel appearing for the appellant would, apart from narrating the trajectory of the earlier litigation as well as the present litigation, would contend that the suit, which is put against the plaintiff, was filed by one Meyyappan and not by the plaintiff or the predecessors in interest of the plaintiff and therefore, the Courts below ought not to have held the said decree to be binding on the plaintiff, when the plaintiff does not claim under any of the litigating parties to the said proceedings. It is also the argument of Mr.N.Tamilmani, learned Counsel for the appellant that the Courts below have not appreciated the documentary evidence filed by the appellant / plaintiff, especially the revenue records marked as Exs.A.7 and A.8, as well as the order passed by this Court in Ex.A.6, giving liberty to the appellant to file the suit. He would therefore, state that when this Court had permitted filing of a fresh suit to claim the relief of declaration and consequential reliefs, neither the plea of limitation nor the plea of res judicata, can be put against the plaintiff.

                     5.2.Even otherwise it is contended by Mr.N.Tamilmani, that the present suit is only for declaration of title and injunction and not for relief of possession and in such circumstances, the suit, by no stretch of imagination can be held to be barred by res judicata. He would further state that despite Muthulakshmi having succeeded in the earlier round of litigation up to this court, even in 2001, no steps were taken to recover possession from the plaintiff and the purchaser from the said Muthulakshmi, cannot now seek to recover possession of the property from the appellant / plaintiff. He would also state that the defendants have not exhibited their title documents before the Court and they did not also choose to make any counter-claim for necessary reliefs, especially, the relief of recovery of possession. In such circumstances, it is the submission of Mr.N.Tamilmani, learned Counsel for the appellant, that the Courts below have clearly not appreciated the liberty granted by this court to file a fresh suit and the factum of comprehensive suit being filed immediately thereafter, within a period of 3 years.

                     5.3.Mr.N.Tamilmani, also contends that the burden was only upon the defendants to lead satisfactory rebuttal evidence, at least in the absence of an admitted counter-claim to non-suit the plaintiff. As long as the plaintiff is in possession and the suit is filed only for the relief of declaration and injunction, the said reliefs can never be claimed to be time barred. He would therefore state that when the plaintiff had been in possession for several decades, the Courts below ought not to have declined relief to the plaintiff. Learned Counsel therefore, prays for the Second Appeal being allowed, answering the substantial questions of law in favour of the appellant.

6. Arguments of Mr.Veerakathiravan, learned Senior Counsel appearing for the respondents 1 & 6:

                     6.1.Mr.Veerakathiravan, learned Senior Counsel would firstly contend that the plaintiff having been unsuccessful in the earlier round of litigation, is now attempting a second round of litigation. In this regard, he takes me through the judgement passed in the earlier suit, marked as Ex.A.4 and relying on the same, it is the submission of Mr.Veerakathiravan, learned Senior Counsel that even though it was a suit for an injunction, the issue of title had incidentally been gone into and decided against the plaintiff and when the Court had assertively held that the plaintiff neither had title nor possession, it is not open to the appellant to contend, without any justification that the appellant is in possession and therefore, the question of invoking the bar of limitation does not arise.

                     6.2.Mr.Veerakathiravan, learned Senior Counsel would also state that the cause of action commenced even in the year 1996 and sale in favour of the first defendant has not been questioned ever since and at least after the dismissal of the earlier suit in O.S.No.75 of 1996, the appellant should have, in 2001, filed a regular suit for declaration and other reliefs. Insofar as the order in the Writ Petition, Mr.Veerakathiravan, learned Senior Counsel would state that the liberty granted will have to be read as to be only subject to the law of limitation.

                     6.3.Mr.Veerakathiravan, learned Senior Counsel would further state that Article 58 provides a window period of three years to seek the relief of declaration and admittedly, the suit has been filed in 2014, beyond the period of limitation, especially, when the defendants were able to establish that the plaintiff had knowledge that there was a cloud of title at least from 1996 onwards. He would further state that it was for the plaintiff to establish his case, having come to Court, seeking relief of declaration and he cannot pich holes in the weakness of the defendants' case and contend that the defendants have not filed a counter-claim or sought for the possession and therefore, the balance should tilt in favour of the appellant / plaintiff.

7. I have carefully considered the submissions advanced by the learned Counsel for the parties.

ANALYSIS:

8. From the above discussion, it is clear that the parties are not at variance with regard to filing the earlier suit, the appeal therefrom and also the Second Appeal. No doubt, the earlier suit in O.S.No.75 of 1996 was filed for bare injunction against the vendor of the first defendant Muthulakshmi. On perusal of Ex.A.4 as well as A.5, it is noticed that, while deciding the suit for injunction, incidentally the Courts have gone into the issue of title and the plaintiff was unsuccessful not only before the Trial Court but also up to the Second Appellate stage before this Court. In order to establish that the plaintiff is in possession of the property, he has filed revenue records, notices issued by the municipality as well as tax and kist receipts. Though the plaintiff claims that there was a decree passed in O.S.No.91 of 1927 and a receiver appointed in the said proceedings, for administering the property and one of the Nattars of Devakkottai had originally alienated the suit property in favour of the predecessors in title of the plaintiff and no steps have been taken by the defendants to challenge the said sale deed in favour of the plaintiff, I find from the judgement of the Trial Court and confirmed up to this Court in Second Appeal, the appellant's case of being in possession has been rejected and disbelieved. The relief of injunction has been denied and the Courts have incidentally gone into the question of title as well and found that the plaintiff did not have any right or title to the suit property. Even at that point of time, the plaintiff did not choose to initiate a regular suit seeking comprehensive reliefs. Instead, he only moved the Writ Court.

9. In fact, in the Second Appeal, this court categorically held that the plaintiff has failed to prove the alleged obstruction on the part of the defendant and that even the plea of possession and enjoyment of the suit property has not been accepted by the Courts below. The relief which was sought was also only to restrain the defendant therein from interfering with the plaintiff's peaceful possession and enjoyment of suit property or causing obstruction. When the plaintiff has lost up to this Court and the Courts have concurrently held that the plaintiff has not established or proved possession, it is not open to the appellant to now contend that the plaintiff has been put in possession pursuant to the purchase and has been in possession for over several decades and therefore, the onus was on the defendant to have filed a counter-claim or taken independent proceedings for recovery of possession from the plaintiff.

10. I am unable to accept the said line of argument put forth on the side of the appellant, for the simple reason that the plaintiff taking advantage of liberty granted by the Writ Court has filed a suit to establish his title. His attempt to project a case that he is in possession of the property was unsuccessful up to this Court. Therefore, no amount of evidence let in in the present proceedings can be factored or looked into to hold that the plaintiff has been in possession right through. The plaintiff should substantiate his right, title and interest to the suit property. Unfortunately for the plaintiff, the issue of title has been deliberated upon in the earlier round of litigation as well. In fact, having done such an exercise, the Courts also found that the plaintiff ought to have filed a suit for declaration and could not have maintained a bare suit for injunction. The plaintiff took a risk in taking up the judgment of the Trial Court on appeal and also again on further appeal to this court by way of Second Appeal. The observation made by the Trial Court were not taken advantage of by the plaintiff, by immediately filing a comprehensive suit for declaration and various other reliefs.

11. Though elaborate submissions were made by the learned Counsel for the parties regarding the liberty granted by this Court in S.A.No.1006 of 2001, on a perusal of the judgement of this Court in S.A.No.1006 of 2001, which has been exhibited as A.6, I find that the Second Appeal was dismissed even at the admission stage on 16.07.2001 and this Court only found that the Courts have concurrently dismissed the suit and no interference was warranted in the Second Appeal. I do not find that any liberty has been given to the plaintiff, to file any comprehensive suit. Curiously, even in the present proceedings in O.S.No.54 of 2014 as well, it has not even pleaded on the side of the plaintiff that liberty was granted to the plaintiff to file a comprehensive suit. It is only contended by the plaintiff that the suit in O.S.No.75 of 1996 was dismissed and confirmed in A.S.No. 141 of 1997 as well as S.A.No.1006 of 2001 and the said proceedings will not estop the plaintiff from preferring the present suit, since in the earlier legal proceedings, title was not at issue.

12. Even in the Writ Petition filed by the plaintiff / appellant challenging the orders of the revenue authorities, this Court only disposed of the Writ Petition, taking note of the fact that the civil suit was pending before the competent Court and therefore, the parties can work out their respective rights in the pending suit.

13. Thus, what remains to be seen is whether the present suit in O.S.No.54 of 2014, has been filed in time or whether it is barred by the law of limitation and also barred in view of the principles of res judicata. The Trial Court held that the suit was not barred by the principles of res judicata, since the earlier suit was only for bare injunction. The First Appellate Court, while confirming the dismissal decree, held that the issues framed in the earlier suit were also in respect of entitlement of the plaintiff in respect of title to the suit property and in such circumstances, when the issue had been found against the plaintiff, the principles of res judicata would apply to the present case to non-suit the plaintiff from seeking the relief of declaration.

14. In so far as the issue of limitation, the First Appellate Court concurring with the findings of the Trial Court held that the plaintiff was aware of the claim by the defendants over title to the suit property and did not approach the Court in time, seeking the relief of declaration and applying the mandate of Article 58 as well as Article 113 of the Limitation Act, the First Appellate Court held that the suit is barred by the law of limitation.

15. Insofar as the question of res judicata is concerned, the Trial Court gave a categorical finding that the earlier suit was instituted only for bare injunction to protect the standing crops on the land and there was no occasion for the plaintiff to seek the relief of declaration, as there was no denial of the plaintiff's title on the side of the defendants. However, the said findings have been overturned by the First Appellate Court, on the ground that in the earlier suit, though for a bare injunction, the issues framed by the Trial Court as well as the First Appellate Court were touching the title of the plaintiff to the suit property and in such circumstances, even on the ground of res judicata, the present suit will have to necessarily be dismissed.

16. I find from Ex.A.4, that the Trial Court in O.S.No.75 of 1996, has specifically framed an issue as to whether the suit property belongs to the plaintiff and while answering the said issue, the Trial Court has rendered a finding that despite the defendant Muthulakshmi, the vendor of the first defendant herein, specifically denying the plaintiff's title to the suit property, the plaintiff never took steps to amend the plaint for declaration. Even though the First Appellate Court also went into the entitlement of the plaintiff to the suit property and affirmed the findings of the Trial Court that the suit for bare injunction is not maintainable, the said findings, admittedly were confirmed by this Court in S.A.No. 1006 of 2021.

17. When the issue of title has been incidentally gone into, even though the suit was one for bare injunction, the findings in the said suit for permanent injunction would certainly have a binding effect on the parties to the present lis. The plaintiff, in fact is one and the same in the earlier suit for injunction as well as in the present suit. The plaintiff has also not obtained any leave at any stage, invoking Order 23 of CPC, to seek for filing of a comprehensive suit. The plaintiff invited adverse orders up to this Court in S.A.No.1006 of 2001. The Second Appeal was disposed of by this Court on 16.07.2001. For a period of 13 years thereafter, the plaintiff has not taken any steps to assert her alleged right, title and interest over the suit property. For the first time in 2014, after 13 long years, the suit has been filed.

18. Article 58 of the Limitation Act permits filing of a suit for declaration within a period of 3 years from the date on which the right to sue first accrues. Testing the facts of the present case in the light of Article 58, it is clear that even on the date of the judgement of the Trial Court in O.S.No.75 of 1996, the cause of action for seeking the relief of declaration had arisen. Even giving the benefit of the appeal and second appeal preferred by the plaintiff / appellant, at least when the Second Appeal was dismissed by this Court 16.07.2001, either the plaintiff / appellant ought to have obtained leave of this Court for seeking the relief of declaration or alternatively should have filed the suit. Even after dismissal of the Second Appeal, for 13 long years, the plaintiff has remained silent and has instituted the suit only in 2014. Thus, when the plaintiff's right to sue had first accrued even in 1996, when the earlier suit for injunction has been filed and in the said suit, the defendant who is the vendor of the first defendant herein had denied the title of the plaintiff, certainly the cause of action for seeking relief of declaration had first arisen for the appellant / plaintiff to have sought for the relief of declaration. The plaintiff has admittedly not sought for the relief of declaration by amending the plaintiff within a period of 3 years and consequently, the suit is certainly hopelessly barred by limitation.

19. Though an argument has been advanced by Mr.Tamilmani that as long as the plaintiff is in possession, the cause of action has not arisen for the plaintiff to seek the relief of declaration and injunction and in such circumstances, the suit cannot be hit by Article 58, I am unable to accept the arguments advanced in this regard, for the simple reason that the plaintiff's possession has been disbelieved even in the earlier round of litigation and the Courts up to this Court, concurrently found that the plaintiff is not entitled to the relief of injunction to restrain the vendor of the respondent herein from interfering with the alleged possession of the plaintiff. In such circumstances, this Court has to go by the settled legal position that possession would follow title.

20. Concurrently, the Courts have found that the plaintiff was not able to establish valid title to the suit property and taking into account the concurrent findings in this regard and the fact that the earlier attempt to get an injunction claiming to be in possession has been negatived, up to this Court, I am unable to interpret Article 58 in favour of the plaintiff and hold that the suit is in time, since the plaintiff is in possession and therefore, the cause of action was continuing and cannot be said to have accrued to the plaintiff in 1996. I am also unable to accept the arguments that the defendants have not filed a counter-claim or challenged the sale deed of the plaintiff. It is for the plaintiff to establish his entitlement to the suit property, especially when he had sought for the relief of declaration and a consequential relief of injunction. Merely because the defendant does not seek any counter-claim, it will not automatically entitle the plaintiff to the reliefs of declaration and injunction. As rightly contended by Mr.Veerakathiravan, the cause of action seeking relief of declaration has arose for the appellant / plaintiff even in the year 1996 and the suit has been filed after 18 years, since the said cause of action had first arisen for the plaintiff, when the vendor of the respondent namely Muthulakshmi, even according to the plaintiff, had removed the name of the plaintiff in the revenue records and had attempted to interfere with the plaintiff's possession. Thus, the suit was clearly barred by the law of Limitation and I do not find any infirmity in the findings of the Courts below in dismissing the suit and the First Appellate Court was right in non-suiting the plaintiff on the ground of res judicata as well as on the ground of limitation. Hence, the substantial questions of law are answered against the appellants.

21. Accordingly, the Second Appeal stands dismissed with costs. Consequently, the connected miscellaneous petition is closed.