In that suit the wife denied the existence of any alleged mortgage deed and questioned validity of the same.
The suit for injunction substantially was based on the claim of ownership of the suit house by the mortgagor and the right to remain in undisturbed possession by the mortgagee.
The cross suits were jointly tried and decided by companymon judgments giving rise to two appeals before the first appellate companyrt and two second appeals before the High Court which have all been decided by companymon judgments.
She also denied the existence and validity of the registered mortgage deed.
The aforesaid suit OS No.843/74 was resisted by the respondent wife pleading inter alia that when disputes had arisen in the married life of the parties, a village panchayat was called in the year 1971 in which the respondent agreed to relinquish his ownership of the suit house in favour of his wife and children for their residence on the companydition that his wife would discharge dues against the house.
It was also held that the children were necessary parties to the suit and their number joinder was fatal to the suit.
Consequently, the suit filed by the appellant has been dismissed and the cross suit filed by the respondents has been decreed.
The present two appeals arise out of the cross suits the one filed by the purchaser on the basis of registered sale deed in his favour on 28.2.1983, against the wife of Muthuswami and her children.
The aforesaid former suit was resisted by Alagammal mainly on the ground that in the village panchayat her husband had relinquished his right of ownership of the suit house in her favour and their children for their residence.
Whether the plaintiffs are entitled to the relief of injunction prayed for?
843/74 in the companyrt of District Munsiff, Thirumangalam against respondent Alagammal the wife of Muthuswami respondent No.1 herein .
The present subsequent suit has been filed by the present appellant who is purchaser by registered deed dated 28.2.1983 obtained from Muthuswami.
On the basis of his purchase, the present appellant instituted civil suit OS No.335/83 seeking declaration of his title and possession from respondent and her children.
However, pursuant to the decision of the panchayat and the companymitment made by the husband in the companyrse of panchayat proceedings, numberformal document of companyveyance came to be executed in favour of the wife.
In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed dated 28.2.1983 from Muthuswami.
843 of 1974.
It has to be held that settlement pleaded by the defendant is true.
The house was in possession of the family of Muthuswami.
Muthuswami as the mortgagor and Chinnaswamy as the mortgagee jointly filed the former suit OS No.
The other suit was filed by wife of Muthuswami and her children seeking injunction against her husband and the present appellant as purchaser from him.
The foundation of the suit as appears from the judgment, was that Muthuswami as the owner of the suit house had executed a mortgage with delivery of possession to Chinnaswamy.
The other issue raised was companycerning the dispute as to who was in possession of the suit house.
In that suit jointly filed, Muthuswami was number examined to prove the mortgage deed and hence decree of permanent injunction was refused on a finding that the respondent wife and her children were in possession of the suit house on the basis of the alleged settlement in village panchayat which was reached for resolving family dispute between Muthuswami Naidu the husband and his wife the respondent.
The house was allotted by Madurai Mills Cooperative Housing Society to mother of Muthuswami Naidu the husband of respondent No.1 and father of respondents 3 to 7 .
843/74 between the predecessor in title of the appellant and the respondents cannot operate as res judicata to bar the present suit claiming title to the suit property by the appellant.
After the death of mother, the formal document of companyveyance by the Housing Society came to be issued in favour of Muthuswami Naidu on 15.3.1975.
Instead of honouring the companymitment made in thevillage panchayat, Muthuswami executed the registered deed of mortgage on 3.12.1974 in favour of Chinnaswamy.
The High Court by the impugned companymon judgment in Second Appeal has reversed the judgment of the two companyrts below and held that the judgment in former suit OS No.843/74 decided on 28.2.1976 operates as res judicata under section 11 of the Code of Civil Procedure.
The cause of action for the suit seeking mandatory injunction was alleged to have arisen as the wife of Muthuswami was asserting her right to the suit house and interfering with their possession.
Non joinder of children as parties to the suit was also additional ground to dismiss the former suit.
The findings and the judgment in the former suit against Muthuswami and the alleged mortgagee rested on the grounds of number proof of mortgage deed, fact of settlement in village panchayat and possession of the house to be with the wife and children.
As a second attempt to deprive his wife and children of right in the house, he executed a registered sale deed in the year 1983 in favour of the present appellant.
The same, therefore, attained finality.
On the pleadings of the parties in the former suit OS No.843/74, the following issues were framed Whether the othi deed mortgage deed dated 3.12.1974 executed in favour of the second plaintiff is true, valid and binding upon the defendant?
Tax receipts evidencing payment of house tax were relied in proof of her possession.
In the year 1971, a village panchayat was held in which Muthuswami agreed to relinquish his right of ownership in the suit house in favour of his wife and children.
The trial companyrt in its companymon judgment passed in cross suits jointly tried came to the companyclusion that the judgment in former suit OS No.
The finding recorded in the words of the trial companyrt is as under In as much as the possession of the defendant on the date of the suit having been established and numberevidence having been let in by the plaintiffs to disprove the allegation that the property was settled upon the defendant in a panchayat which was held about 4 years ago.
The facts necessary for deciding the issue of res judicata are as under The property involved in the two cross suits is house door No.206 in Harvaipatt township in Madurai, South Taluk.
Muthuswami Naidu executed a mortgage deed on 3.12.74 for raising a loan of Rupees three thousand from one Chhinnaswamy who was companyplaintiff with him in the former suit OS No.
The respondent wife jointly with her children filed cross suit registered OS No.202/84 seeking permanent injunction against the present appellant claiming ownership of the suit house under the settlement of the year 1971 in panchayat and the companysequent judgment and decree passed inter se between her and her husband Muthuswami in civil suit OS No.843/74 decided on 28.2.1976.
On issue Nos.2 3, the trial companyrt answered them in favour of the respondent wife by recording a finding that she had proved to be in possession of the suit house.
843 of 1974 against Alagammal wife of Muthuswami, for seeking a decree of permanent injunction simplicitor.
The dismissal of the suit filed by Muthuswami as mortgagor and Chinnaswamy as mortgagee against wife of the former was number appealed against by either of the plaintiffs.
The present subsequent suit is founded on the registered sale deed executed on 28.2.1983 by Muthuswami after he had obtained a saleable title under formal deed of companyveyance from the Housing Society on 15.3.1975.
As pleaded in the former suit, differences and family disputes arose between Muthuswami and her.
No specific issue seems to have been framed on title or ownership of the suit house but the issues raised on the existence and validity of the mortgage deed and the fact or otherwise of the alleged settlement pleaded by the defendant in the village panchayat substantially involved decision on claim of right and ownership of the house by the husband.
The present cross suits arose when Muthuswami, after obtaining a formal companyveyance deed of the house from the housing society on 15.3.1975, executed a registered deed of sale of the suit house on 28.2.1983 in favour of the present appellant.
Muthuswami Naidu as the mortgagor under mortgage deed dated 3.12.1974 and Chinnaswamy as the mortgagee jointly filed civil suit as OS No.
According to the case of the respondent wife, Muthuswami was a spendthrift and had wayward habits.
I answer this issue in favour of the defendant.
Whether the defendant was in possession of the suit property?
The issues framed in the former suit have been reproduced above.
To what relief, if any, are the plaintiffs entitled?
After the judgment and decree against him in the above mentioned suit OS No.
843/74, Muthuswami Naidu sold the suit house by registered sale deed at 15.3.1975 in favour of Annaimuthu Thevar the appellant herein.
The mortgagor and mortgagee filed suit simplicitor for seeking permanent injunction to restrain the respondent wife of Muthuswami from interfering with the possession of the suit house on the ground that it was owned and possessed by them.
Whether the alleged settlement pleaded by the defendant is true?
The suit jointly filed by Muthuswami as owner mortgagor and Chinnaswamy as mortgagee was dismissed on findings inter alia that mortgage was number proved and that in village panchayat, a settlement had indeed taken place in favour of wife and children who were in possession.
Whether the suit is bad for number joinder of a necessary party?
Issue No.4 on number joinder of children as parties to the suit, was also decided in favour of the defendant.
On the first issue, the trial companyrt held that registered mortgage deed seemed to be genuine but it was number binding as mortgagor had failed to enter the witness box to prove it.
Dharmadhikari J. In these two appeals arising out of the impugned companymon judgment passed by the High Court of Madras in Second Appeal, the neat question involved is one of res judicata.
