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Judgment located by a hyperlink.

Chidambaram v. Kannan, (Madras)(Madurai Bench) : Law Finder Doc Id # 2663876

2024(5) MLJ 785

MADRAS HIGH COURT

(Madurai Bench)

Before:-Mr. S. Sounthar, J.

S.A.(MD)No.366 of 2009 and M.P.(MD)No.2 of 2009. D/d. 01.08.2024.

Chidambaram and others - Petitioners

Versus

Kannan (Died), Sridevi and others - Respondents

For Appellants : Mr. S. Meenakshisundaram for Mr. D. Nallathambi

For Respondents : Mrs. P. Rajalakshmi for Mr. K. Govindarajan for R2 and R4

Mr. R.Murali for R3

Cases Referred :-

Chitivalasa Jute Mills v. Jaypee Rewa Cement (2004) 3 SCC 85

Dambar Singh v. Munwar Ali Khan (1915) 13 ALJ 764

Girija v. Rajan 2015 SCC Online Ker 3799

Idol of Sri. Renganathaswamy v. J.Sriram, 2023 (2) Lw577

M/s. DMY Creation SDN.BHD v. M/s. Lyca Production Private Limited 2024:MHC:891

Mallu Mal v. Jhamman Lall (1904) I ALJ 416

Moturi Seshayya v. Sri. Rajah Venkatadri Appa Row Bahadur (1916) 31 MLJ 219

Poulton v. Adjustable Cover and Boiler Block Co. (1908) 2. Ch. 430

Pritam Kaur v. State of Pepsu AIR 1963 P&H 9

Queen v. Hutchings (1881) 6. Q.B.D. 300

Rajani Kumar Mitra v. Ajmaddin Bhuiya AIR 1929 Calcutta 163

Seshayya v. Venhatadri Appa Row (1916) 31 MLJ 219

Simm v. Anglo-American Telegraph Co. (1879) 5 Q.B.D. 188

Sri. Gangai Vinayagar Temple v. Meenakshi Ammal, 2015 (3) SCC 624

V.Rajeshwari v. T.C.Saravanabava (2004) 1 SCC 551

JUDGMENT

Mr. S.Sounthar, J. - The defendants 1, 2, 4, 5 and the legal heirs of the third defendant

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are the appellants. The respondent herein filed a suit seeking declaration of title and
recovery of possession in respect of the encroached portion of the suit property. The
plaintiff also sought for injunction in respect of the remaining portions. The defendants
filed counter claim seeking declaration that suit items 1, 2, 3 (4 and 6) and 5 belonged to
the defendants 3, 4, 2, 1 and 5 respectively and for consequential injunction. The suit
was dismissed by the trial Court and the counter claim preferred by the defendants was
decreed as prayed for. Aggrieved by the same, the plaintiff preferred an appeal before
the first appellate Court and the first appellate Court allowed the appeal and granted
decree for recovery of possession. Aggrieved by the same, the defendants have come by
way of this Second Appeal.

2. According to the respondent/plaintiff, the suit property is ancestral property belonged

to the forefathers of the plaintiff. The suit property was enjoyed by the plaintiff's father
Ramasamy Reddiar with patta in his name. After death of plaintiff's father, he
succeeded to the suit property and patta was also transferred to his name. Thus, the
plaintiff has been enjoying the same, by paying tax to the Government. Since the
plaintiff went out of the suit village, in connection with his work, the suit property is
lying waste without any crop. The defendants were permitted by the plaintiff to store
hay sticks in the suit property. After plaintiff returned to his native place, permission
granted to the defendants was cancelled and the plaintiff has been enjoying the same.
The defendants made an attempt to encroach the suit property and hence, the present
suit was laid initially seeking injunction. Pending suit, the defendants trespassed into
the suit property and started collecting hay sticks and also laid stones in the suit
property. Therefore, the plaint was amended seeking declaration of title and recovery of
possession.

3. The defendants filed a written statement admitting the title and possession of
plaintiff's father Ramasamy Reddiar. However, the averments in the plaint as if plaintiff
succeeded to the suit property after death of his father and he has been in possession
and enjoyment of the same were specifically denied. The averments regarding
permission granted to the defendants and its subsequent cancellation were also denied.
It was claimed by the defendants that the plaintiff's father Ramasamy Reddiar wanted
to sell the suit property to meet the family necessity and approached one Chennappa
Reddiar of Nagampatti to sell the suit property. The said Chennapa Reddiar contacted
the defendants 1 to 4 and father in law of 5th defendant Kumarasamy Reddiar and
clinched the deal for purchase of the suit property by the defendants at the rate of Rs.
150/- per cent. The defendants claimed that the plaintiff orally sold the property to the
defendants as per consideration mentioned above. In support of the oral sale, a
document was executed in a stamp paper with a value of Rs. 2.50 paise. The plaintiff
agreed to execute the sale deed in respect of separate portions of the suit property sold
to each of the defendants. The defendants also filed a plan along with the written
statement depicting separate portions sold to the defendants 1 to 5 with common
pathway on the Southern side. After purchase, the defendants approached the Village
Administrative Officer and had put up boundary stone in respect of the portions
purchased by each of them. The defendants also claimed that they had been in
possession and enjoyment of the portions of the suit property purchased by them for
more than 12 years and hence, entitled to prescriptive title. Thus, by denying the title as
well as the possession of the plaintiff over the suit property and also claiming adverse
possession, the defendants sought for dismissal of the suit. They also filed a counter
claim seeking declaration and injunction in respect of suit property by dividing the
same as items 1, 2, 3 (4 and 6) and item 5, described in the schedule of the counter claim
in favour of defendants 3, 4, 2, 1 and 5 respectively.

4. The defendants also filed additional written statement subsequent to the amendment
of the plaint prayer by the plaintiff seeking inclusion of prayer for declaration and
possession. In the additional written statement, the defendants denied the title of the
plaintiff and disputed the maintainability of the suit against the defendants.

5. The plaintiff filed a reply statement denying the oral sale pleaded by the defendants
and the various averments contained in the written statement.

6. Before the trial Court, the plaintiff was examined as P.W.1 and 2 other witnesses were
examined as P.W.2 and P.W.3. On behalf of the plaintiffs, 13 documents were marked as
Ex.A1 to Ex.A13. The defendants 1 to 5 were examined as D.W.1 to D.W.5 and two other
witnesses were examined as D.W.6 and D.W.7. On behalf of the defendants, 7
documents were marked as Ex.B1 to Ex.B7. The Advocate Commissioner's report and
plan were marked as Ex.C1 and Ex.C2.

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7. The trial Court, on appreciation of oral and documentary evidence available on

record, came to the conclusion that the plaintiff was not entitled to any relief and
dismissed the suit. However, the trial Court decreed the counter claim by granting
declaration of title and injunction in favour of the defendants. Aggrieved by the same,
the plaintiff preferred an appeal in A.S.No.59 of 2006 on the file of the Sub Court,
Kovilpatti. The first appellate Court allowed the appeal and set aside the judgment and
decree passed by the trial Court. The first appellate Court, after setting aside the decree
in favour of the defendants in the counter claim, granted decree in favour of the
plaintiff by directing the defendants to hand over the possession of the suit property to
the plaintiff. Aggrieved by the same, the defendants 1, 2, 4 and 5 and the legal
representatives of the third defendant preferred this Second Appeal.

8. At the time of admission, this Court formulated the following substantial questions of
law by an order dated 12.06.2009:

"A) Whether the lower appellate Court is correct in entertaining the appeal in
A.S.No.59 of 2006 and allowing the same when the respondent/plaintiff did not
question the decree portion of the counter claim of the appellants/defendants in
O.S.No.208 of 2003 and thus the appeal before the lower appellate Court is hit by
Resjudicata?

B) Whether the finding of the lower appellate Court that the denial of title ought
to have been brought to the knowledge of the owner in spite of the open,
continuous, uninterrupted, long possession of the occupier is incorrect and hence
warrant inference?

C) Whether the judgment and decree of the lower appellate Court is liable to be
set aside since it is against a dead person namely the 6th respondent in A.S.No.59
of 2006?

D) When the judgment and decree of the lower appellate Court is against the law
that the plaintiff has to succeed only by proving his case and not on the basis of
the weakness of the defence case?

E) Whether this Hon'ble Court has to interfere with the judgment of the lower
appellate Court since the lower appellate Court has failed to give reasons how the
trial Court was wrong while reversing the judgment of the trial Court?"

9. The learned counsel for the appellants mainly submitted that the plaintiff filed the
first appeal only by questioning the dismissal of the suit and they have not questioned
the decree granted by the trail Court allowing the counter claim of the defendants.
Therefore, the declaration and injunction granted in favour of the defendants, by
allowing the counter claim, had attained finality and the same would operate as res
judicata against the appeal filed by the plaintiff, questioning the dismissal of the suit, as
the issues involved in the suit and counter claim are one and the same. In support of the
said contention, the learned counsel by referring to the valuation column of the first
appeal grounds submitted that Court fee on the first appeal was paid only on the suit
valuation and no separate Court fee was paid by valuing the counter claim. The learned
counsel also submitted that the memorandum of grounds of first appeal contains only
the schedule of the property as mentioned in the plaint and schedule of the property as
described in the counter claim was not at all included in the memorandum. Therefore,
in nutshell, it is the specific contention of the learned counsel for the appellants that
subject matter of the counter claim was not at all subject matter of the appeal before the
first appellate Court and hence, the decree passed in favour of the defendants in the
counter claim will bar the first appeal filed against the dismissal of the suit as per
doctrine of res judicata.

10. The learned counsel further submitted that 6th respondent in the first appeal viz.,
Lakshmana Perumal died on 25.10.2008 even prior to the hearing of the first appeal.
The appeal was disposed of on merits without impleading his legal representatives. In
such circumstances, the first appellate Court decree is a nullity as against the deceased
6th respondent in the first appeal. The learned counsel further submitted that the
plaintiff has to win the case based on his own strength and he cannot rely on the
weakness of the defendants and the said rudimentary principle was not followed by the
first appellate Court. In support of his contention, the learned counsel relied on the
following judgments:

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1. M/s.DMY Creation SDN.BHD v. M/s.Lyca Production Private Limited

reported in 2024:MHC:891;

2. Girija v. Rajan reported in 2015 SCC Online Ker 3799; and

3. Unreported judgment of High Court of Himachal Pradesh in Regular Second

Appeal No.57 of 2017.

11. Per contra, the learned counsel appearing for the respondents submitted that in the
memorandum of grounds of first appeal, the plaintiff challenged the correctness of the
decree granted by the trial Court allowing the counter claim and therefore, the first
appeal was filed challenging the dismissal of the suit as well as decree in the counter
claim. The learned counsel further submitted that the question of res judicata raised by
the appellants was not raised before the first appellate Court and both the parties
advanced arguments on the correctness of the decree passed in the suit as well as in the
counter claim before the first appellate Court. Therefore, it is not open to the appellants
to raise the question of res judicata for the first time in the Second Appeal. As far as the
point raised by the learned counsel for the appellants regarding death of 6th respondent
in the first appeal is concerned, the learned counsel for the respondents submitted that
the fact of death of 6th respondent was not at all brought to the notice of the respondent
(appellant before the first appellate Court) and hence, the arguments in first appeal was
advanced by both the parties without knowledge of the death of 6th respondent in first
appeal.

Answer to substantial question of law (A):

12. A perusal of all the original records would suggest that the trial Court has not given
any separate number for the counter claim filed by the defendants. The subject matter
of the suit and the subject matter of the counter claim are one and the same. However,
the defendants claimed that they purchased different portions of the suit property. The
portions purchased by the defendants are shown in the plan annexed with the written
statement. Therefore, it is not in dispute that the subject matter of the suit as well as
counter claim are one and the same. The defendants are admitting the title of the
plaintiff's father over the suit property. However, the defendants claimed that the
plaintiff's father orally sold the suit properties to the defendants by dividing the same
into 5 different portions. In the light of the averments contained in the plaint and
written statement, it is clear that the issues arising for consideration in the suit and
counter claim are inextricably linked with each other. In fact, the trial Court formulated
the following common issues in the suit as well as counter claim:

13. A perusal of the original records would suggest that the trial Court dismissed the suit
and decreed the counter claim. However, a single decree was drafted by the trial Court
by mentioning the suit number alone without mentioning the counter claim as well as
rank of the parties in the counter claim in the preamble portion. However, in the
valuation column, the valuation of the suit and counter claim were separately given.
Likewise in the schedule of property column also the suit schedule property and
counter claim schedule properties were separately described. The composite decree
drafted by the trial Court reads as follows:

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14. In the valuation slip appended with the decree only the suit claim was valued and
the details of the Court fee paid on suit valuation alone mentioned. The value of the
counter claim and the details of Court fee paid in the counter claim was not included in
the valuation slip. Since a composite decree was prepared by the trial Court in respect of
the suit as well as the counter claim by mentioning the suit number alone, the plaintiff
preferred only one appeal by mentioning the original suit number alone in the
preamble portion of the memorandum of first appeal. However, a perusal of the
grounds of appeal would suggest that the plaintiff challenged the decree passed in the
counter claim also in the first appeal. Grounds No.2, 3, 4, 10, 11, 12 and 13 in the
memorandum of grounds of first appeal would suggest that the plaintiff seriously
challenged the correctness of the decree passed in the counter claim. Therefore, the
submission made by the learned counsel for the appellants that the decree in the
counter claim was not subject matter of the appeal before the first appellate Court is not
acceptable to this Court, in the light of the various grounds raised by the plaintiff in the
memorandum of grounds of first appeal.

15. The learned counsel for the appellants by referring to the valuation column in the
memorandum of first appeal submitted that the plaintiff only valued the suit claim and
the value of the counter claim has not been included in the valuation column of the first
appeal and therefore, failure to include the value of the counter claim and failure to pay
Court fees thereon would disentitle the appellants from claiming that the first appeal
was filed against the counter claim also. As mentioned earlier, the trial Court prepared a
composite decree for suit as well as counter claim and in the valuation slip, only the suit
value was mentioned and the value of the counter claim was not mentioned. Therefore,
there is every reason to believe that the plaintiff as well as the appeal examiner who
scrutinized the appeal papers were carried away by the valuation slip appended with
the original decree. If the appeal is not properly valued, the subject matter of the appeal
has to be decided based on the body of the appeal viz., the grounds of challenge. The
scope and subject matter of the appeal cannot be decided solely based on the valuation
column alone. If memorandum of appeal is not properly valued and sufficient Court fee
is not paid, it is the duty of the Court to point out the same and return the
memorandum. In the case on hand, though in the grounds of appeal, the plaintiff
challenged the decree passed in the counter claim, failed to include the value of the
counter claim in the valuation column of the first appeal and pay sufficient Court fee.
The office of the first appellate Court also failed to note the improper valuation of the
appeal and numbered the first appeal. It is also seen from the records and discussion of
the first appellate Court in its judgment, both the counsel for the plaintiff and the
defendants advanced their arguments on the merits of the suit claim as well counter
claim, treating the appeal as the one against dismissal of the suit and allowing of the
counter claim. It is pertinent to note that points for determination 7 and 8 framed by the
first appellate Court relating to merits of the counter claim and the same are extracted
below: "7. gpujpthjpfs;

16. Therefore, it is very well clear that both the parties and their respective counsels
very well understood the scope of the appeal and advanced their arguments on the suit
claim as well as counter claim. Before the first appellate Court, the appellant
herein/defendants had not raised any objection based on doctrine of res judicata on the
ground that the plaintiff failed to challenge the decree passed in counter claim. The
failure of the appellants to raise that point and their active participation in the appeal
treating the same as one filed against the counter claim also would amount to waiver of
their rights to raise the question of res judicata. Whether the objection as to res judicata

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can be waived will be discussed by this Court in the following paragraphs.

17. The learned counsel for the appellants by relying on the judgments referred above
submitted that there is a need to file a separate appeal against the decree in the counter
claim. In M/s.DMY Creation SDN.BHD v. M/s.Lyca Production Private Limited
reported in 2024:MHC:891, while considering the necessity for filing separate appeal, a
Division Bench of this Court observed as follows:

"11.12. In the light of the aforesaid decisions, it can be easily concluded that
counter claim is in the nature of a cross-suit for all purposes, having a cause of
action that can be independently enforced and necessary court-fee has to be paid
on the relief sought for, both in the suit stage as well as in the appellate stage
separately. When the suit and counter claim are disposed of by a common
judgment, separate appeals have to be filed by the parties and failure to file
appeal on the common judgment passed either as against the suit or the counter
claim would result in attaining finality and the doctrine of res judicata would
apply."

18. In The Idol of Sri. Renganathaswamy v. J.Sriram and Ors reported in 2023-2-
Lw577, while considering the similar question, this Court held that single appeal against
unified decreed passed in suit as well as counter claim was very well maintainable
without separate appeal. The relevant observations reads as follows:

"28.5. From the combined reading of the above provisions, it is clear that one
appeal is maintainable for more than one reason that the suit as well as counter
claim commonly adjudicated upon preparing of common issues and unified
judgment was delivered and the operative portion of the said unified judgment
culminated to the consolidated decree with respect to the relief both in suit as
well as the counter claim, the judgment referred by the learned counsel for the
respondents reported in 2015 (3) SCC 624 also emphasised the above principle
impliedly. In the said case, tenant filed the suit for injunction claiming absolute
right over the property and the temple authority also filed the suit for recovery of
possession. Both suits were tried together. The temple suit was decreed and
tenant suit was dismissed. The tenant did not prefer any appeal against the
dismissal of his suit for injunction and only preferred the appeal against the
decree granted in favour of the temple. In the said circumstances, the Hon'ble
Supreme Court in Sri. Gangai Vinayagar Temple v. Meenakshi Ammal,
reported in 2015 (3) SCC 624 held as follows:

"27. Procedural norms, technicalities and procedural law evolve after years of
empirical experience, and to ignore them or give them short shrift inevitably
defeats justice. Where a common judgment has been delivered in cases in which
consolidation orders have specifically been passed, we think it irresistible that the
filing of a single appeal leads to the entire dispute becoming sub judice once
again. Consolidation orders are passed by virtue of the bestowal of inherent
powers on the courts by section 151 CPC, as clarified by this Court in Chitivalasa
Jute Mills v. Jaypee Rewa Cement [(2004) 3 SCC 85]. In the instance of suits in
which common issues have been framed and a common trial has been conducted,
the losing party must file appeals in respect of all adverse decrees founded even
on partially adverse or contrary speaking judgments. While so opining we do not
intend to whittle down the principle that the appeals are not expected to be filed
against every inconvenient or disagreeable or unpropitious or unfavourable
finding or observation contained in a judgment, but that this can be done by way
of cross-objections if the occasion arises. The decree not assailed thereupon
metamorphoses into the character of a "former suit". If this is not to be so viewed,
it would be possible to set at nought a decree passed in Suit A by only challenging
the decree in Suit B. Law considers it an anathema to allow a party to achieve a
result indirectly when it has deliberately or negligently failed to directly initiate
proceedings towards this purpose. Laws of procedure have picturesquely been
referred to as handmaidens to justice, but this does not mean that they can be
wantonly ignored because, if so done, a miscarriage of justice inevitably and
inexorably ensues. The statutory law and the processual law are two sides of the
judicial drachma, each being the obverse of the other. In the case in hand, had the
tenant diligently filed an appeal against the decree at least in respect of OS No. 5
of 1978, the legal conundrum that has manifested itself and exhausted so much
judicial time, would not have arisen at all."

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28.6. So the mandate of the precedent cited supra demands that if number of
decrees are passed arising out of common judgment where the number of suits
were commonly adjudicated, the judgment debtor legally required to be file
separate appeal against their disallowed portion. But, in the present case, there
was no such situation arise. Suit as well as counter claim are decided in the
unified proceedings and the operative portion of the judgment culminated into
single consolidated decree and hence, the appeal is maintainable. In result, the
common finding which was based for granting decree as well as dismissal of the
suit is subject matter of the present appeal and hence, there is no question of
application of the principle of res judicata.

28.7. So, the submission of the counsel that the present appeal is not
maintainable, is not accepted and also the plea of res judicata is also not accepted
and hence, the Question No.7 is answered negatively."

19. Therefore, it is clear that where a single decree is drafted for suit claim as well as
counter claim, a single appeal challenging the unified decree is very well maintainable
and there is no need for the aggrieved party to file two separate appeals against decree
in suit and counter claim. However, the appellant has to value the appeal in respect of
suit claim as well as counter claim and pay proper Court fee on both the claims. As
mentioned earlier, had the defect in the valuation been pointed out by the office of the
first appellate Court, the appellants therein would have got an opportunity to cure the
defect with regard to the valuation/Court fee. Before the first appellate Court, neither
the Court nor the appellants herein (Respondents therein) raised any objection with
regard to the valuation. Therefore, I feel the plaintiff need not be thrown out on the
technical objection of Court fees at this Second Appeal stage, without giving an
opportunity to pay the correct Court fee.

20. It is also interesting to note that the appellants, who challenged the judgment and
decree passed by the first appellate Court, granting decree for recovery of possession as
claimed in the suit and dismissing the counter claim also failed to value the second
appeal properly. The appellants herein also valued the second appeal as per the suit
claim and paid the Court fee only for the suit claim. They failed to include the value of
the counter claim in the second appeal valuation column and pay Court fee on the
counter claim. Therefore, the objection raised by the learned counsel for the appellants
on the ground of res judicata is a double edged sword. If it is used to dismiss the first
appeal on the ground of res judicata, on the very same ground, the Second Appeal
should also be dismissed. If the valuation in the memorandum of appeal is considered
as the sole criterion for deciding the subject matter of the second appeal, there is a
danger of coming to the conclusion that the appellants herein failed to value the counter
claim and affix proper Court fee thereon and hence, Second Appeal is confined to suit
claim alone. Therefore, the hyper technical objection raised by the learned counsel for
the appellants is not acceptable to this Court.

21. Let us move on to decide whether the appellant is prevented by doctrine of waiver
from raising the plea of res judicata. Res judicata is a principle developed based on rule
of estoppel and the same has been developed to prevent multiplicity of proceedings and
to give a quietus to the issues which have been already adjudicated upon. The rule of
res judicata can be waived by the conduct of the parties.

22. In V.Rajeshwari v. T.C.Saravanabava reported in (2004) 1 SCC 551 equivalent to

the Hon'ble Apex Court held that the plea of res judicata can be treated as waived if the
same was not raised at an appropriate stage in an appropriate manner. The relevant
observation of the Hon'ble Apex Court reads as follows:

"14.That apart the plea, depending on the facts of a given case, is capable of being
waived, if not properly raised at an appropriate stage and in an appropriate
manner. The party adversely affected by the plea of res judicata may proceed on
an assumption that his opponent had waived the plea by his failure to raise the
same. Reference may be had to Pritam Kaur w/o S. Mukand Singh v. State of
Pepsu and Ors. and Rajani Kumar Mitra & Ors. v. Ajmaddin Bhuiya - AIR
1929 Calcutta 163, and we find ourselves in agreement with the view taken
therein on this point)."

23. In Moturi Seshayya and Ors. v. Sri. Rajah Venkatadri Appa Row Bahadur
reported in (1916) 31 MLJ 219 equivalent to a Division Bench of this Court held that the
plea of res judicata is not the one which affects the jurisdiction of the Court and hence, a

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party is at liberty to waive it. The relevant observation of the Division Bench reads as
follows:

"1. ......It must be remembered that the plea of res judicata is one which does not
affect the jurisdiction of the Court, but is a plea in bar of a trial of a suit or an
issue, as the case may be, which a party is at liberty to waive. It is quite easy to
conceive of cases in which the parties to a former adjudication dissatisfied with it
bring the matter again before the Courts without raising the plea of res judicata.
Suppose in this case the tenants deliberately omitted to plead the adjudication of
1893 with a view, if possible, of getting the Court to hold that the rate of rent
payable by them was less than what was found to be the rate in the previous
suits. If after having invited a decision on the merits, would they now be at liberty
to go behind the last adjudication and ask for a re-trial of the issue, because the
fresh finding was even, worse than the first against them. We certainly think not;
and on principle it is impossible to make a distinction between a case where the
plea is omitted to be taken by accident or mistake and where it is omitted to be
taken by design. The only test, therefore, is whether as a matter of fact there has
been an express decision on' a material issue, whatever maybe the materials on
which that adjudication was arrived at. This is the view taken in two cases
decided by the High Court of Allahabad in Mallu Mal v. Jhamman Lall (1904) I
ALJ 416 and Dambar Singh v. Munwar Ali Khan (1915) 13 ALJ 764.

2. It is contended for the appellant that this case invites the application of the
maxim of competing estoppels or that estoppel against estoppel sets the matter at
large. The exact meaning of that maxim or its scope is difficult of ascertainment,
and in the recent case of Poulton v. Adjustable Cover and Boiler Block Co.
(1908) 2. Ch. 430 Parker, J. as he then was, doubted the existence of any such
doctrine. There may be cases where a person who pleads an estoppel may be
prevented from pleading it by reason of his own representation or conduct, (see
Simm v. Anglo-American Telegraph Co. (1879) 5 Q.B.D. 188 and in that sense
an estoppel against' estoppel may be said to set the matter at large. We are not
aware of any instance where the maxim was applied to a case of what is called
estoppel by record, except a dictum of Lord Selborne in The Queen v. Hutchings
(1881) 6. Q.B.D. 300. It must be remembered that though former adjudications
are classified under the category of estoppels by English text-writers, the basis of
the doctrine is different from true estoppel."

24. In Rajani Kumar Mitra and Ors. v. Ajmaddin Bhuiya reported in AIR 1929
Calcutta 163, a Division Bench of Calcutta High Court following the above referred
Division Bench judgment of this Court held that the plea of res judicata is capable of
being waived by the parties. The relevant observation reads as follows:

"3......As has been observed by the learned Judges of the Madras High Court in
Seshayya v. Venhatadri Appa Row (1916) 31 MLJ 219 the effect of not pleading
the previous decree in answer to the plaintiff's claim in a suit stands on the same
footing as if the defence was raised by the defendant and disallowed by the Court.
It cannot be placed on a higher footing on any reasoning based upon common
sense or law. The bar of res judicata is one which does not affect the jurisdiction
of the Court but is a plea in bar which a party is at liberty to waive. If a party does
not put forward his plea of res judicata in a suit he must be taken to have waived
it or it must be taken to be a matter which ought to have been made a ground of
attack and deemed to have been a matter directly and substantially in issue in the
suit under Expl. (4), Section 11, Civil P.C. The party omitting to plead res judicata
intentionally invites the Court to decide the case on the merits and having failed
to secure a decision in his favour he should not be allowed to go behind the last
adjudication and ask for the trial of an issue which he could have raised at the
previous trial."

25. In Pritam Kaur v. State of Pepsu and Ors. reported in AIR 1963 P&H 9 equivalent
to the Full Bench of Punjab High Court also expressed the view that the plea of res
judicata can be waived. The relevant observation reads as follows:

"13. There is also a third ground on which the preliminary objection must fail.
When the matter came up for decision before Khosla C. J. and myself on 13-9-
1960, the objection as to res judicata was raised and in spite of it the matter as to
the reconsideration of the vires of the Act was referred to the Full Bench with the
observation that Chopra J. proceeded to decide the question after he had held that

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the decision on the same was not necessary. If that decision concluded the matter
as is now contended, the reference to the Full Bench would have been
meaningless and in any case the question would not arise. As the opposite party
did not object to this course, it must be deemed to have waived the objection. It is
not disputed and indeed cannot be that objection based on the rule of res judicata
can be waived. Thus on this ground also the objection I fails."

26. A close scrutiny of the above mentioned judgments would make it clear that the plea
of res judicata shall be raised by the party in an appropriate stage in an appropriate
manner. Otherwise his failure to raise the same would amount to waiver of his right to
raise the plea of res judicata. The appropriate stage to raise the plea of res judicata
means earliest opportunity to raise the plea. In the case on hand, as soon as appellants
herein received notice in the first appeal should have raised the plea of res judicata.
They failed to raise the said plea and argued the matter on the merits of the suit claim as
well as counter claim. Therefore, the first appellate Court framed points for
determination on the merits of the counter claim and disposed of the appeal as if it was
preferred against the decree passed in the suit claim as well as counter claim. In such
circumstances, it is not open to the appellants, who failed to raise the plea of res
judicata in the first appeal stage and invited an order on merits, to turnaround and try
to raise the plea in the second appellate stage. In view of the discussion made earlier, I
hold that the appellants waived the plea of res judicata by their failure to raise the plea
of res judicata before the first appellate Court. Therefore, the substantial question of law
(A) is answered against the appellants and in favour of the respondents.

Answer to substantial question of law (C):

27. The learned counsel for the appellants vehemently contended that the 6th
respondent in the first appeal viz., Lakshmana Perumal died on 25.10.2008 before
hearing of the appeal and hence, the judgment and decree passed by the first appellate
Court is a nullity as against his estate. The legal representatives of deceased Lakshmana
Perumal have filed this appeal as appellants 7 to 10 along with other appellants. A
perusal of the records would suggest that the appeal was taken up for hearing on
17.11.2008 and judgment was delivered on 26.11.2008. Therefore, it is clear that even
before the first appeal is taken up for hearing, the 6th respondent in the first appeal
Lakshmana Perumal had died. It is also seen from the records that Lakshmana Perumal
was brought on record in the first appeal as legal representatives of the deceased third
defendant Perumal Reddiar. The first appellate Court after recording the death of
deceased third defendant Perumal Reddiar, by an order passed in I.A.No.129 of 2006,
dated 10.12.2007, brought on record the respondents 6 to 8 therein as legal
representatives of deceased Perumal Reddiar. 8th respondent before the first appellate
Court viz., Sivakami Ammal is the wife of deceased Perumal Reddiar and mother of
Lakshmana Perumal. Therefore, one of the Class - I legal heir of Lakshmana Perumal
viz., his mother Sivagami Ammal was already on record before the first appellate Court,
when the appeal was disposed.

28. It is settled law, one legal heir is sufficient to represent the estate of the deceased. In
the case on hand, the estate of the deceased Perumal Reddiar was represented by
Perumalakal and Sivagamiammal respondents 7 and 8 before the first appellate Court.
The estate of the deceased Lakshmana Perumal was represented by his mother
Sivagamiammal, 8th respondent before the first appellate Court. Therefore, the
submission made by the learned counsel for the appellants that the decree passed by
the first appellate Court against the deceased 6th respondent therein Lakshmana
perumal was a nullity is not acceptable to this Court in view of the fact that his estate
was represented by 8th respondent therein. It is true, 8th respondent was not formally
recorded as legal heir of 6th respondent. However, she was represented by her counsel,
who also filed vakalat for deceased Lakshmana Perumal and actively participated in the
appeal. When one of the legal heirs of deceased Lakshmana Perumal was on record,
there is no abatement of appeal against Lakshmana Perumal's estate. Therefore, I hold
that the estate of deceased Lakshmana Perumal was represented by one of his heirs viz.,
Sivagamiammal before the first appellate Court and hence, the judgment and decree
passed by the first appellate Court cannot be held as a nullity. The question of law (C) is
accordingly answered against the appellants and in favour of the respondents.

Answer to substantial questions of law B, D and E:

29. The defendants in their pleadings clearly admitted the title of plaintiff's father
Ramasamy Reddiar. It was their case that Ramasamy Reddiar sold the suit property to

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the defendants orally and executed an agreement agreeing to execute separate sale
deeds in respect of separate portions of the suit property orally sold to the defendants.
The said document was marked as Ex.B6. Ex.B6 is an unregistered document and it is
only an agreement to execute the sale deed in favour of defendants. Therefore, title will
not pass on to the defendants under Ex.B6. The witnesses examined on behalf of the
defendants clearly admitted that no registered document was executed in their favour
except Ex.B6. The attestor of Ex.B6 were examined as D.W.6 and D.W.7. D.W.6 clearly
admitted in his evidence that there was a police case against him in connection with
assault of uncle of plaintiff, one Kumarasamy. Therefore, based on the evidence of
D.W.6 alone, we cannot come to a conclusion that Ex.B6 was a genuine document. The
first appellate Court also noted that the evidence of other attestor D.W.7 was not useful
to prove due execution of Ex.B6 as he deposed that he did not see Ramasamy Reddiar
signing Ex.B6.

30. Therefore, taking into consideration all these aspects, the first appellate Court came
to a factual conclusion that the defendants failed to prove that Ex.B6 document was
actually executed by plaintiff's father Ramasamy Reddiar. Therefore, the defendants
cannot rely on Ex.B6 as a source for their possession over the suit property. The first
appellate Court by relying on the evidence of defendants as D.W.1 to D.W.4 held that
defendants had been approaching the plaintiff, requesting him to execute a regular sale
deed in their favour, knowing fully well that Ex.B6 agreement will not confer any title to
them. Therefore, it is clear, the defendants never exhibited any hostile possession
denying the title of the plaintiff. If really they have been in enjoyment of the property
with necessary animus to deny the title of the plaintiff, there was no necessity for them
to approach the plaintiff and request him to execute a regular sale deed. Further, the
defendants claim possession over the suit property only under Ex.B6 agreement.
Therefore, at the most, their possession can only be permissive not hostile to the
plaintiff. The first appellate Court on proper appreciation of the entire evidence
available on record held that defendants failed to establish their hostile possession over
the suit property for more than a statutory period. The said conclusion reached by the
first appellate Court is not vitiated by any perversity. Therefore, the substantial
questions of law B, D and E are also answered against the appellants and in favour of
the respondents.

31. In view of the answer to substantial questions of law framed at the time of
admission, this Second Appeal fails and the same is dismissed by confirming the
judgment and decree passed by the first appellate Court. There shall be no order as to
costs. However, the respondents are directed to pay a court fee of Rs. 588/- payable by
them on value of counter claim before the first appellate court within a period of eight
weeks from the date of receipt of this judgment. Consequently, connected miscellaneous
petition is closed.

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