Judgment:
M. Jaichandren, J.
1. This second appeal has been filed against the judgment and decree dated 23.08.2005, made in A.S. No. 11 of 2004, on the file of the Subordinate Judge, Ponneri, confirming the judgment and decree, dated 30.01.2004, made in O.S. No. 403 of 1993, on the file of the District Munsif, Ponneri.
2. For the sake of convenience the parties in the appeal are referred to as they have been arrayed in the suit in O.S. No. 403 of 1993.
3. The plaintiff, who is the appellant in the present second appeal has filed the suit in O.S. No. 403 of 1993, on the file of the District Munsif, Ponneri, praying for the relief of declaration of title and for permanent injunction. Since the appellant had died during the pendency of the present second appeal, his legal representatives have been brought on record by an order of this Court, dated 11.02.2008, made in M.P. No. 1 of 2008 in S.A. No. 933 of 2006.
4. The brief facts of the case, as stated by the plaintiff in the plaint, are as follows:
a) The plaintiff is the absolute owner of an extent of 1.65 acres of agricultural land situate in Marambedu village of Ponneri Taluk comprised in S. No. 8/3 (45 cents) and in S. No. 8/4 (1.20 cents). The plaintiff had purchased the lands from one V. Kanniah Raju, his wife and son, by a registered sale deed, dated 11.04.1977, registered as Document No. 676/1977 at the Sub Registrar's Office, Ponneri. The said property described in the schedule to the plaint, referred to as the suit property, was purchased by the vendor of the plaintiff from one Munusamy Raju by a sale deed, dated 4.11.1957, registered as Document No. 3828/1957, in the office of the District Registrar, North Madras, among other properties. The said Munusamy Raju had purchased the suit property in S. No. 8/4 by a sale deed, dated 9.11.1953, from one Gajapathy Naidu and the other suit property with an extent of 45 cents was purchased by Munusamy Raju from one Venugopal Naidu, under a sale deed, dated 30.01.1954.
b) The vendor of the plaintiff, namely, Kanniah Raju, was in possession and enjoyment of the suit property from the time of its purchase in the year 1957. The vendor had leased out the property along with other properties to one Bakthavachalu Budhur Kandigai by a lease agreement, dated 14.10.1970. Thus, the vendor of the plaintiff was in possession and enjoyment of the suit property till it was conveyed to the plaintiff in the year 1977. From the date of his purchase, the plaintiff had continued to enjoy the property without any hindrance from anyone. The patta of the suit property had been transferred in the plaintiff's name and he had paid the kist for the suit property. Therefore, no other person excepting the plaintiff has exclusive title over the suit property.
c) The defendant, who is a resident of the same village as that of the plaintiff, wanted to purchase the suit property and since the plaintiff had refused to sell the property to the defendant, he had attempted to trespass in the suit property to commit acts of waste. Since the defendant had denied the title of the plaintiff in his written statement, the plaintiff had filed an amended plaint praying for the relief of declaration of title to the suit property, along with the earlier relief of permanent injunction as sought for, initially. It is also the case of the plaintiff that he has prescribed title to the suit property, by adverse possession, as he has been in open, continuous and uninterrupted possession and enjoyment of the suit property for more than the required statutory period.
5. The defendant had filed a written statement denying the claims made by the plaintiff. The defendant had stated that the sale deed, dated 11.04.1977, said to have been executed by Kanniah Raju, his wife and son, in favour of the plaintiff is not binding on the defendant, since the vendors in the said sale deed had no title over the suit property to convey the same to the plaintiff. The vendors of the plaintiff had not been in possession and enjoyment of the suit property at any point of time and they had no right to sell the said property in favour of the plaintiff. It was also stated that Munusamy Raju, is not the owner of the property. Munusamy Raju, who is the brother-in-law of Chinnaswamy Raju, the father of the defendant, was living with the defendant and his father and he was cultivating the suit lands for their benefit. The property mentioned in the plaint schedule was acquired by the defendant's father, Chinnaswamy Raju, with his own funds and he has been in possession and enjoyment of the same for a very long time. The defendant and his father have been paying the kist for the land and they have been deriving the benefits from the land for nearly five decades.
6. Kanniah Raju S/o Duraiswamy Raju, the vendor of the plaintiff had conspired to obtain a sham conveyance as though Munusamy Raju was entitled to the property. Kanniah Raju had filed a suit in O.S. No. 929 of 1973 before the District Munsif Court, Tiruvallur, with regard to the house site in S. No. 1/2 in the Marambedu village. However, he had not taken any steps with regard to the suit property. The sale deed, dated 4.11.1957, by Munusamy Raju and the vendor of the plaintiff is not valid and Munusamy Raju had no right to the property. The defendant had also denied that Kanniah Raju was not in possession and enjoyment of the property from the date of his purchase. The alleged lease in favour of Bakthavachalu, on 14.10.1970, is also denied as false. The plaintiff had no right in the suit property and he has not been in possession and enjoyment of the suit property at any point of time.
7. It has been further stated that the suit in O.S. No. 929 of 1973 on the file of the District Munsif, Tiruvallur, filed by Kanniah Raju and his wife Saradammal, who was added subsequently as the legal heir, seeking for the declaration of title and possession against the Munusamy Chetty and the defendant in the present suit, had been dismissed. The appeal filed against the judgment and decree of the trial Court had also been dismissed and the sale deed, dated 4.11.1975, was declared as not valid, holding that he had no title to convey. It was also held that the defendant is the owner of the property. Supressing the said fact the plaintiff had filed the present suit with the ulterior motive of dispossessing the defendant from the suit property.
8. Considering the rival claims of the plaintiff, as well as the defendant and after the amendment of the plaint by the plaintiff and based on the additional written statement filed on behalf of the defendant, the following issues were framed by the trial Court for consideration:
i) Whether the plaintiff is the absolute owner of the suit properties?
ii) Whether the plaintiff is entitled to declaration of his title to the suit properties?
iii) Whether the plaintiff is entitled to permanent injunction as prayed for?
iv) To what relief is the plaintiff entitled?
9. Eight documents were marked as exhibits and one witness was examined in favour of the plaintiff and 13 exhibits were marked and two witnesses were examined on behalf of the defendant.
10. The plaintiff's son, who was examined as P.W.1, had stated in his evidence that the plaintiff had purchased the suit properties under Ex.A-1, sale deed, dated 11.4.1977, executed by Kanniah Raju and others in favour of the plaintiff Ganesa Reddiar. Kanniah Raju had purchased the properties from Munusamy Raju, who in turn had purchased the suit properties, under Ex.A-2 and three other sale deeds. Kanniah Raju was in possession and enjoyment of the suit properties and he had leased out the said property to Bakthavachalu under Ex.A-4 lease deed. The decree in the suit filed by Kanniah Raju was not against the plaintiff. Since the plaintiff has been in long, open and uninterrupted possession of the suit properties, he has prescribed title by adverse possession.
11. The defendant was examined as D.W.1. He had stated that the vendors of the plaintiff had no title to convey Ex.A-2, sale deed was neither true nor valid. The suit property belonged to the defendant's father and Munuswamy Raju was assisting his father in cultivating the lands. Taking advantage of the illness of his father, Ex.A-2 sale deed had been obtained. In the suit filed by Munusamy Raju, in O.S. No. 929 of 1973, it was held that Munusamy Raju has no title. The trial Court had found that P.W.1, examined on behalf of the plaintiff, had admitted in his evidence that the vendor of the plaintiff, Kanniah Raju, had filed a suit against the defendant and another in O.S. No. 929 of 1973 in respect of the suit property.
12. The learned Counsel appearing on behalf of the plaintiff had also conceded that the said suit related to the sale deed under which Kanniah Raju had purchased the suit property and under the said sale deed, some other properties had also been purchased. The judgment made in O.S. No. 929 of 1973 was marked by the defendant as Ex.B.3. In the said judgment, the District Munsif, Tiruvallur, had held that the plaintiff's vendor had purchased the said property involved in the present suit, under the sale deed, dated 04.11.1957, and the said sale deed was true but not valid.
13. It was contended before the trial Court by the learned Counsel appearing on behalf of the defendant that the sale deed, under which Kanniah Raju, the vendor of the plaintiff had purchased the suit property, was held to be invalid and that the person who had sold the property to Kanniah Raju had no title to convey the same. Therefore, the plaintiff could not derive any title to the suit property. It had also been contended that the suit was barred by the principle of resjudicata. Even though the earlier suit was in relation to some other properties the sale deed, under which the suit property was said to have been purchased was held to be invalid.
14. The trial Court after considering the various decisions placed before it had come to the conclusion that since the sale deed, under the which the vendor of the plaintiff is said to have purchased the suit property, was held to be invalid, the plaintiff could not have acquired any title to the suit property. Therefore, the plaintiff cannot claim any ownership of the suit property based on Ex.A-1 sale deed.
15. The contention raised on behalf of the plaintiff that even if it was found that the plaintiff could not have derived title over the suit property under Ex.A-1 sale deed, the plaintiff had clear title by prescription as he had been in possession and enjoyment of the suit property for more than the statutory period. However, the trial Court had declined to accept the said contention by holding that in order to claim adverse possession, the plaintiff ought to have admitted the title of the defendant in the suit property. Since the plaintiff had not admitted the title of the defendant with regard to the suit property, he cannot claim adverse possession.
16. The trial Court had held that the claim of adverse possession by the plaintiff was not sufficiently proved even though there were some entries in the revenue records in favour of the plaintiff. Thus, the trial Court had dismissed the suit holding that it was hit by the principle of resjudicata and for the reason that the plaintiff had not successfully proved that he had prescribed title in the suit property by adverse possession.
17. Aggrieved by the judgment and decree of the trial Court, dated 30.01.2004, made in O.S. No. 403 of 1993, the plaintiff had filed an appeal in A.S. No. 11 of 2004, on the file of the Subordinate Judge, Ponneri.
18. The only point for consideration framed by the First Appellate Court is whether the appeal is to be allowed.
19. Considering the evidence on record and the contentions raised on behalf of the plaintiff as well as the defendant, the First Appellate Court had confirmed the judgment and decree of the trial Court, holding that the trial Court had come to the right conclusion that the suit was barred by the principle of resjudicata holding that once the sale deed, dated 11.4.1977, marked as Ex.A-1, was held to be invalid, the plaintiff cannot derive title relying on it. It was further held that the plaintiff was not entitled to claim adverse possession, since he had not accepted the title of the defendant in the suit property. Further, it was held that the plaintiff had not given sufficient details both in the plaint, as originally filed and in the amended plaint, with regard to his adverse possession of the suit property. The exhibits marked in favour of the plaintiff do not sufficiently support the claims made by the plaintiff with regard his long, open, uninterrupted possession of the suit property. In such circumstances, the First Appellate Court had confirmed the conclusion arrived at by the trial Court by its judgment and decree, dated 23.08.2005, made in A.S. No. 11 of 2004. In such circumstances, the plaintiff in the suit in O.S. No. 403 of 1993, had filed the present second appeal.
20. The second appeal had been admitted on the following substantial questions of law:
1) Whether the Courts below are correct in coming to the conclusion that by virtue of Ex.B-3, the Appellant's claim is barred by resjudicata.
2) Whether the findings given by the Courts below that the appellant has not perfected title by adverse possession is sustainable when he has proved his possession and enjoyment of the property for over the statutory period.
21. The learned Counsel Mr. V. Selvaraj, appearing on behalf of the appellant had contended that the earlier suit filed by Kanniah Raju in O.S. No. 929 of 1973, before the District Munsif, Tiruvallur, was in respect of a different property and it did not relate to the suit property. Even if the sale deed, dated 11.04.1977, marked as Ex.A-1, was held to be invalid, it was held to be so only in relation to some other properties and it was not declared to be invalid in so far as the suit property is concerned. Thus the principle of resjudicata cannot apply to the present case. Even if the sale deed, dated 11.04.1977, was held to be invalid, the suit ought to have been decreed in favour of the plaintiff, based on the plea of adverse possession. Since the issue in the earlier suit was relating to a particular property, title derived by the plaintiff in the suit property through the sale deed, dated 11.04.1977, cannot be held to be invalid or non existent.
22. The learned Counsel Mr.N.R.Gopalan had submitted that since, in the earlier suit in O.S. No. 929 of 1973 filed by Kanniah Raju, it had been held that Ex.A-1 sale deed, dated 11.04.1977, was invalid, the same issue cannot be reopened again by the plaintiff by claiming that he had got the title to the suit property through the said sale deed. Further, the plaintiff cannot prove both the pleas claiming title over the suit property through the sale deed, dated 11.4.1977, as well as the claim of adverse possession.
23. If the plaintiff could rely on the claim of title through adverse possession, he has to necessarily accept the title of the defendant in the suit property. Since he had not done so, his claim of title by adverse possession cannot be accepted. It was also pointed out by the learned Counsel appearing on behalf of the defendant that the plaintiff had opted to pursue his claim of adverse possession alone, during the first appeal in A.S. No. 11 of 2004.
24. All the grounds raised in the first appeal by the plaintiff were relating to his claim of adverse possession. Since the plaintiff had not accepted the title of the defendant to claim title by adverse possession, both the Courts below have rightly held that he is not entitled to such a relief. Further, the Courts below have rightly come to the conclusion that the suit filed by the plaintiff, in O.S. No. 403 of 1993, was hit by the principle of resjudicata as the issue relating to Ex.A-1 sale deed, dated 11.04.1977, had already been decided conclusively in the suit filed by Kanniah Raju in O.S. No. 929 of 1973, on the file of the District Munsif, Tiruvallur. While so, it is not open to the plaintiff to reopen the same issue once again in the present suit.
25. The learned Counsel appearing on behalf of the plaintiff/appellant had submitted that the plea of resjudicata had not been raised by the defendant in the written statement filed by the defendant, except for vague reference made in paragraph-5 of the said written statement. Further, no issues had been framed by the Courts below with regard to the issue of resjudicata. The issue of resjudicata could be decided only if all the connected documents, including the pleadings and evidence in the earlier suit, in O.S. No. 929 of 1973, had been marked in the present suit. The issue of resjudicata cannot be decided only based on the three documents, namely Ex.B-3, dated 29.11.1978, which is the judgment in O.S. No. 929 of 1973, Ex.A-8, dated 28.02.1981, the judgment in A.S. No. 47 of 1979, and Ex.B-4, dated 12.02.1993, the judgment and decree in S.A. No. 1037 of 1982.
26. The learned Counsel appearing for the plaintiff had relied on the following decisions in support of his contentions:
26.1 In the decision reported in Shri Jai Kishan Dass and Ors. v. Smt.Nirmala Devi and Ors. : AIR1984SC589 it has been held that the principle of res judicata would apply if the issues had been decided in earlier litigations between the parties and or their predecessors.
26.2 In the decision reported in Srimati Raj Lakshmi Dasi and Ors. v. Banamali Sen and Ors. : [1953]4SCR154 it has been held that the test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases.
26.3 In the decision reported in Mahalingeshwara Devaru and Anr. v. Seetharama Bhatta and Anr. AIR 1978 Karnataka 213, it has been held as follows:
The primary test of res judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in the two cases. Therefore, even if the property involved in the previous suit was different, that cannot be an impediment to invoke the principles of res judicata.
26.4 In the decision reported in Kadapurath Illam Khalid v. Beemapura Palamkakkada Sulekha and Ors. : AIR1986Ker251 it has been held as follows:
To press into service the doctrine of res judicata or estoppel by record it is enough if the party concerned shows that the parties to both the suits were the same, and are persons whose names are on the record at the time of the decision, even if a party may be a person who got intervened in the suit.
26.5 In the decision reported in Ram Gobinda Daw and Ors. v. Smt. H. Bhakta Bala Dassi etc. : [1971]3SCR340 it has been held as follows:
The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases but the previous decision must be one on a title in respect of which a dispute has been raised and which dispute was heard and finally decided by the Court. Once the decision on question of title becomes final it operates as resjudicata even if the value of the subject matter on which the former decision was pronounced was comparatively very trifling. When the decision was given by trial Court after contest it operates as res judicata even if appeal therefrom might have been dismissed on some preliminary grounds like limitation.
26.6 In the decision reported in Kunhayammed and Ors. v. State of Kerala and Anr. : [2000]245ITR360(SC) it has been held as follows:
The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, through the decree or order under challenge continues to be effective and binding nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way - Whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid shall have to be kept in view. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136. of the Constitution the Supreme Court may reverse, modify or affirm the judgment decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not the latter.
26.7 In the decision reported in Bhavani Amma and Ors. v. Narayana Acharya and Ors. AIR 1963 Mys 120 it has been held as follows:
When the judgment and decree of a Court are appealed against, the decree of the Court of first instance is merged in the decree of the appellate Court though the appellate Court may affirm the decree of the trial Court. What operates as res judicata is not only the decision but the grounds on which the decision is based. Where a judgment has been superseded by the decree and judgment made in the appeal, the former judgment cannot be pleaded in bar of res judicata.
26.8 In the decision reported in Venkateswarlu v. Venkata Narasimham and Ors. AIR 1957 AP 557 it has been held as follows:
Where the matter went up on appeal the appeal destroyed the finality of the judgment of the trial Court and the appellate, judgment superseded that of the trial Court. It is the appellate judgment that has to be looked to determine the question of res judicata.
26.9 In the decision reported in Munshi Mohammad Abdul Aziz v. Gulam Julani : AIR1937Mad709 it has been held as follows:
Where in a former suit between the same parties an issue was decided by the trial Court but the appellate Court refrained from deciding it, the issue cannot be deemed to have been finally decided and it can be raised in a subsequent suit between the same parties.
26.10 In the decision reported in Syed Mohd. Salie Labbai (Dead) by L.Rs and Ors. v. Mohd. Hanifa (Dead) by L.Rs. and Ors. : [1976]3SCR721 it has been held as follows:
Before a plea of res judicata can be given effect, the following conditions must be proved-
(1) that the litigating parties must be the same. (2) that the subject-matter of the suit also must be identical; (3) that the matter must be finally decided between the parties and (4) that the suit must be decided by a Court of competent jurisdiction.
26.11 In the decision reported in A.M.K. Mariam Bibi and Ors. v. M.A. Abdul Rahim and Ors. 2000 AIHC 661 it has been held that where pleadings in the suit between the same parties have not been filed and when only a judgment was filed, the question of res judicata cannot be decided since pleadings cannot be proved merely by recitals of allegations mentioned in the judgment.
26.12 In the decision reported in Kuppusamy Gounder and Ors. v. Kannammal and Ors. 2001 3 L.W 483 it has been held that for urging a plea of res judicata merely filing of a final decree in the earlier suit is not sufficient, since necessary ingredients such as identity of the properties, issues etc. have to be shown. The pleadings and the judgment in the earlier suit have to be marked in the trial Court.
26.13 In the decision reported in Shantaben Naranbhai Dalvadi and Ors. v.Vadilal Kacharabhai Prajapati 2000 AIHC 717 it has been held that when there is a substantial difference between the nature of the property, extent of the property and distribution of the property amongst the various floors in the earlier suit and the subsequent suit and since the identity of the property cannot be urged to be the same, the bar of res judicata will not apply.
27. The learned Counsel appearing on behalf of the respondent had submitted that the plea of adverse possession was raised by the plaintiff, belatedly, only after eight years. While the plaint in O.S. No. 403 of 1993 had been filed on 20.04.1993, praying for the relief of permanent injunction, the amendment was made as per the order in I.A. No. 773 of 2001, dated 12.09.2001. The plaintiff had pursued only the plea of adverse possession at the stage of the first appeal. The First Appellate Court had considered all the issues relating to the matter and had come to the right conclusion of confirming the judgment and decree of the trial Court.
28. The learned Counsel appearing for the defendant had relied on the following decisions in support of his contentions:
28.1 In the decision reported in R. Samudra Vijayam Chettiar v. Srinivsa Alwar and Ors. AIR 1956 Mad 301 it has been held as follows:
Where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other which after the first choice is by reason of the inconsistency no longer open to him. Such cases do not require detriment to the other party as foundation for their application.
28.2 In the decision reported in Union of India v. Bharat Fire and General Insurance Ltd. New Delhi it has been held as follows:
Where a person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both, and he adopts the one he cannot afterwards assert the other.
28.3 In the decision reported in P. Dasa Muni Reddy v. P. Appa Rao : [1975]2SCR32 it has been held as follows:
Abandonment of right is much more than mere waiver, acquiescence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed.
28.4 In the decision reported in Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and Ors. : [1979]118ITR326(SC) it has been held as follows:
Waiver means abandonment of a right and it may be either express or implied from conduct, but is basic requirement is that it must be an intentional act with knowledge.
28.5 In the decision reported in Marisami Brothers by its Managing Partner M. Marisami v. Bluemount Switchgears Assocaites (Pte.) Ltd. represented by its Managing Director S.Palaniswami and Ors. : (1969)1MLJ573 it has been held as follows:
As a matter of fact, it is significant that the defendants have raised the question of res judicata with regard to the maintainability of the suit itself on the basis of the decision in the earlier suit. The plaintiff had ample opportunity to put forward any such plea of res judicata in relation to the genuineness of Exhibit A-1, and they did not do so. Under these circumstances, I am of the view that they cannot be permitted to raise the question for the first time in this second appeal.
28.6 In the decision reported in Washdev Singh Biji v. Union of India and Anr. : AIR1970Delhi85 , it has been held as follows:
Plea of res judicata - Plea negatived by trial Court - Plea not agitated in first appellate Court - Plea not allowed to be raised in second appeal, more particularly when the suit itself is held to be incompetent.
28.7 In the decision reported in Manak Lal v. Dr.Premchand Singhvi and Ors. : [1957]1SCR575 it has been held as follows:
Held that on the facts and circumstances of the case the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter and therefore his deliberate failure to raise the objection...at the earlier stage of the proceedings created an effective bar of waiver against him and he was precluded from raising it before the High Court for the first time.
28.8 In the decision reported in Seth Ghasiram Seth Dalch and Palliwal v. Mt. Kundambai W/o.Rameshwar Shukul and Ors. it has been held as follows:
New plea - Plea of res judicata not raised in Court below cannot be allowed in second appeal.
The plea of res judicata is not a pure plea of law and if it was not pleaded or raised in the lower Court, it cannot be agitated in second appeal.
28.9 In the decision reported in P.S.M. Ahamed Abdul Khader v. T.K.Mohammed Abubucker and Ors. : AIR2002Mad213 it has been held that to prove adverse possession, one has to plead and prove that a particular person is the true owner and he is holding the property in adverse possession openly.
28.10 In the decision reported in Annasaheb Bapusahep Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs and heirs etc. : [1995]1SCR88 it has been held as follows:
Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title.... Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
28.11 In the decision reported in Kadapurath Illam Khalid v. Beemapura Palamkakkada Sulekha and Ors. : AIR1986Ker251 ) it has been held as follows:
Resjudicata - Test - Identity of title in both earlier and subsequent suits is to be proved and not identity of actual properties involved.
28.12 In the decision reported in Mahalingeshwara Devaru and Anr. v. Seetharama Bhatta and Anr. AIR 1978 Kar 213 it has been held as follows:
The primary test of res judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in the two cases. Therefore, even if the property involved in the previous suit was different, that cannot be an impediment to invoke the principles of res judicata.
28.13 In the decision reported in Ram Mohan & Co rep. by its Proprietrix R.Renuka and Anr. v. Ganesar Ginning Co. P. Ltd., Coimbatore and twelve Ors. : (1999)3MLJ423 it has been held as follows:
Code of Civil Procedure, 1908, Order 43, Rule 1 - Appeal - No appeal can be filed against a finding by party in whose favour the proceedings have ended.
28.14 In (AIR Civil Court, Manual 451) the following illustration has been shown:
A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns the deed as fictitiuous. It is held that the deed is fictitious and the suit is dismissed. A subsequently brings another suit against B for certain other properties on the basis of the same sale deed. The suit is barred, as the issue about the character of the deed was actually in issue in the former suit directly and substantially.
29. Considering the contentions raised on behalf of the parties concerned and in view of the records available before this Court, it is clear that the Courts below have come to the right conclusion in dismissing the suit filed by the plaintiff as he has not been in a position to substantiate his claim of title in the suit property. Both the trial Court as well as the First Appellate Court had rejected his claim of title in the suit property, since the sale deed, dated 11.04.1977, marked as Ex.A-1, had been found to be invalid in the suit in O.S. No. 929 of 1973, filed by Kanniah Raju. Thus, it was rightly held by the Courts below that the claim of title in the suit property by the plaintiff is hit by the principle of resjudicata. Further, the plaintiff has not been in a position to prove his claim of title in the suit property by adverse possession. It is clear that unless the plaintiff had accepted the title of the defendant in the suit property, it was not open to him to claim title by adverse possession. It is also seen that the plaintiff had waived his claim for title through the sale deed, dated 11.04.1977, marked as Ex.A-1, at the stage of the first appeal. It is seen that all the grounds raised by the plaintiff in the first appeal relates only to the claim of adverse possession. As rightly contended by the learned Counsel for the defendant that once the plaintiff had opted to chose one of the pleas, between the two inconsistent pleas of title through the sale deed, dated 11.04.1977, and title by adverse possession, it is not open to the plaintiff to come before this Court by way of a second appeal, reopening both the pleas once again.
30. In such circumstances, this Court is of the considered view that the plaintiff in the suit in O.S. No. 403 of 1993, who had come before this Court by way of the present second appeal, has not shown sufficient cause or reason to set aside the judgment and decree of the Courts below. In such circumstances, the second appeal stands dismissed. No costs.