NAGAPPA GOUNDER Vs. KASI GOUNDER AND ORS.
LAWS(MAD)-1970-2-30
HIGH COURT OF MADRAS
Decided on February 18,1970

Nagappa Gounder Appellant
VERSUS
Kasi Gounder And Ors. Respondents

JUDGEMENT

G.Ramanujam, J. - (1.) THE only point for consideration in this second appeal is whether the suit O.S. No. 608 of 1961 on the file of the District Munsif of Erode out of which this second appeal arises is not barred by res judicata as regards S. No. 292 and the third defendant by reason of the decision in O.S. No. 106 of 1955 on the file of the District Munsif's Court, Erode.
(2.) THE suit O.S. No. 106 of 1955 was filed by the first defendant in this suit for partition of his 1/3rd share in S.F. No. 292 against the third defendant who had by then purchased 2/3rd share in the said S.F. number from other sharers and who was in possession of the entirety of the survey field. The suit was dismissed by the trial Court and the dismissal was confirmed by the appellate Court and by this Court in S.A. No. 516 of 1957. In the said second appeal, this Court had held that though the third defendant contended that he had purchased the first defendant's 1/3rd share orally, he has not established that contention, but that the facts established in that case clearly showed that the third defendant had prescribed title to the 1/3rd share by adverse possession for well over 20 years. Therefore, the result of the earlier litigation was that the third defendant was entitled to the entirety of the survey field 292. The present suit has been filed by the plaintiff who is one of the sons of the first defendant claiming partition of his 1/3rd share in the family properties including the 1/3rd share in survey field 292. We are not here concerned with the plaintiff's right to the 1/3rd share in properties other than survey field 292. The third defendant who is in possession of survey field 292 contended that the earlier suit O.S. No. 106 of 1955 bars the present suit by the principle of res judicata. The trial Court as well as the lower appellate Court had held that the suit in so far as it relates to the third defendant cannot be maintained by the plaintiff in view of the decision in O.S. No. 106 of 1955 upholding the title of the third defendant to survey field 292.
(3.) IN this second appeal the learned Counsel for the appellant submits that the earlier suit can be construed and will operate as res judicata only as against the first defendant but the same cannot bar the present suit filed by the plaintiff who was not a party in the earlier suit. It is said that the decision in the earlier suit will not bind the plaintiff and that the principle of res judicata can be applied only as between the parties to the earlier litigation and not persons like the plaintiff who was not eo nomine a party to the earlier suit. It is also said that the earlier suit was filed by the first defendant in his individual capacity and not as a representative of the family. I am not in a position to agree with the above submission of the learned Counsel. In the earlier suit the first defendant claimed a 1/3rd share in survey field 292 only on behalf of the family consisting of himself, the plaintiff and the second defendant, and he was admittedly the manager of the family at that time. Though the suit was not specifically filed in a representative capacity, having regard to the claim made in that suit the suit could be considered to have been filed by the first defendant as a manager of the family and in a representative capacity.;


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