Decided on November 06,1900

PANGA Appellant
UNNIKUTTI Respondents


- (1.) We agree with the District Judge that the suit is barred both as res judicata and by Section 42, Specific Relief Act. In the unreported decision of the Court in Krishnan Nambiar v. Chathu Nambiar Appeal No. 135 of 1885 (unreported) it was held that "the value of a suit to have it declared that certain persons are or are not members of a tarwad is the value of the share of the tarwad property which would be allotted to them if a partition were made by common consent."
(2.) In this view the value of the plaintiffs suit would be 39/38ths, i.e., two-thirds of Rs. 3,000 which is the value of the whole property. In other words the value of the suit for purposes of jurisdiction is only Rs. 2,000, and the suit was therefore triable by a District Munsif Consequently the decision in Original Suit No. 428 of 1894, Shernad District Munsif's Court, that there was a community of interest, is conclusive between the parties in the present suit.
(3.) As regards Section 42, Specific Relief Act, we think that the plaintiffs, in addition to the declaration asked for, were in a position to ask for the further relief of possession of the portion of the property which was in the enjoyment of the defendants on a claim that they were members of the family. Not having done ho, plaintiffs suit for a bare declaration could not be sustained, with reference to Section 42, Specific Relief Act. In the result we dismiss this second appeal with costs of respondents Nos. 1 to 4.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.