(KATTEMPUDI) SUBBIAH CHETTY Vs. KANCHI NARAYANASWAMI

JUDGEMENT

(1.) The plaintiff sues as trus tee of a chatram for a declaration that the land concerned belongs to the chatram as part of its endowment, for an injunction restraining the defendants from raising any building on the land and directing the removal of any buildings raised already and for the recovery of possession of the land from the defendants. The learned Subordinate Judge and District Munsif have found that the question whether the land is the property of the chatram trust is res judicata by reason of the decision in O. S. 200 of 1925 on the District Munsif's file in which Ramanuja Rao the vendor of the defendant's vendor, sued for and obtained a decree for partition, making the present plaintiff a defendant, by which decree 1/4 of the land concerned in that suit, including the land now in question, was allotted to Ramanuja Rao and another 1/4 was allotted to the present plaintiff, the basis of that decree being that the whole property concerned was private property. I am unable to agree with the finding of the learned Subordinate Judge and District Munsif on this question, which is issue 3 in the present suit. From Ex. B, the judgment in O. S. 200 of 1925, it appears that the plaintiff was then sued in his personal capacity, not as trustee. It is true that he pleaded in his written statement in that suit that the property concerned was part of the endowment of the chatram, of which he claimed to be the trustee. Issue 1 in that suit was framed in consequence of that plea and ran: whether the suit immovable property is the private family property of the plaintiff, or is dedicated to the choultry.

(2.) But at the trial of the suit the present plaintiff did not appear, and the District Munsif did not think it necessary to record a finding on that issue. He made a decree for partition on the basis that all the property concerned was private property.

(3.) It will be seen that originally the present plaintiff was not brought into that suit in the same capacity in which he now sues; though he professed to have the capacity of trustee and contended that the property was trust property, he did not contest the suit to the end, and no finding on his contention regarding the property was recorded; after he ceased to contest the suit it proceeded, as it had begun on the basis that the property concerned was private property. The present plaintiff raised the question whether the property was trust property, but that question was never decided. Instead of that question being finally decided it was assumed for the decision of that case that the property was private property. The learned Subordinate Judge is of opinion that the partition decree which was made implied a finding that the property was private property. But that is not so. There was no one on record of that suit to represent the trust. The District Munsif who tried the suit pointedly and advisedly refrained from any finding whether the property was trust property and made a decree binding only on the parties to that suit on the assumption that the property was divisible private property. What the result of that decree would have been if the present plaintiff bad been on the record as trustee.of the chatram, we need not consider as he was not on the record in that capacity. The finding of issue 2 in that suit to the effect that the property had been treated as divisible and had been divided in 1892 does not carry the matter further.