ORD 9 RULE 9

BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT

DATED : 01/07/2005

CORAM
THE HONOURABLE MR. JUSTICE A. KULASEKARAN

C.R.P. (PD) No. 2790 of 2003
and
C.M.P. No. 21096 of 2003
V.C.M.P. No. 67 of 2005


V. Kandasamy .. Petitioner

Vs

1. C. Kandasamy
2. C. Srirangam
3. C. Marappan ... Respondents


Revision under Article 227 of The Constitution of India against the order
dated 31-10-2002 made in I.A. No. 555 of 2001 in O.S. No. 182 of 1998 on the
file of the Additional District Munsif Court, Karur.


!For Petitioner ... Mrs. Krishnaveni

^For Respondents ... Mr. Srinivasa Raghavan


:ORDER

The plaintiff is the revision petitioner, who has filed the suit in O.S.
No. 182 of 1998 before the District Munsif Court, Karur for declaration and for
other reliefs.  In the said suit, the first defendant has filed I.A. No.555 of
2001 praying to decide the preliminary issue as to whether the suit is barred by
resjudicata or not, which was allowed by the trial court by order dated 31-10-
2002 and the same is challenged in this revision petition invoking Article 227
of the Constitution of India.

2. The case of the respondents in the said interim application was that
the petitioner herein has already filed a suit in O.S. No. 587 of 1990 before
the District Munsif Court, Karur against them for permanent injunction from
interfering with their possession and enjoyment of the property; that the said
suit was dismissed and later, the petitioner herein has filed A.S. No. 78 of
1994 which was also dismissed and in view of the said fact that the issue
involved in the present suit was already adjudicated upon on merits finally in
an earlier litigation and that the present suit is hit by the principles of
rejudicata.

3. The petitioner herein contested the said interim application stating
that whether the issue involved in the present suit is directly and
substantially involved in the earlier suit or not be decided only at the time of
trial after adducing oral and documentary evidence and the subject matter of the
present suit is entirely different from the earlier proceedings, hence the plea
of resjudicata ought to have been rejected by the court below.

4. It is not in dispute that the parties and properties in both the
suit are same.

5. Now, we look into the provisions of Section 11 C.P.C. Which runs as
follows:-

"11. Res judicata. - No Court shall try any suit or issue in which the
matter directly and substantially in issue has been directly and substantially
in issue in a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such Court.

Explanation I : The expression 'former suit' shall denote a suit which has
been decided prior to the suit in question whether or not it was instituted
prior thereto.

Explanation II : For the purposes of this section, the competence of a
Court shall be determined irrespective of any provisions as to a right of appeal
from the decision of such Court.

Explanation III : The matter above referred to must in the former suit
have been alleged by one party and either denied or admitted, expressly or
impliedly, by the other.
Explanation IV : Any matter which might and ought to have been made ground
or defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.

Explanation V : Any relief claimed in the plaint, which is not expressly
granted by the decree, shall, for the purpose of this section, be deemed to have
been refused.

Explanation VI : Where persons litigate bona fide in respect of a public
right or of a private right claimed in common for themselves and others, all
persons interested in such right shall, for the purposes of this section, be
deemed to claim under the persons so litigating.

Explanation VII : The provisions of this section shall apply to a
proceeding for the execution of a decree and reference in this section to any
suit, issue or former suit shall be construed as references, respectively, to a
proceeding for the execution of the decree, question arising in such proceeding
and a former proceeding for the execution of that decree.
Explanation VIII : An issue heard and finally decided by a Court of
limited jurisdiction, competent to decide such issue, shall operate as
resjudicata in a subsequent suit notwithstanding that such Court of limited
jurisdiction was not competent to try such subsequent suit or the suit in which
such issue has been subsequently raised.

6. Explanation VII to the said section have been added by Amendment Act
1976.  Explanation VII has been added to ensure legislatively what had in
several decisions been recognised as the general principles of resjudicata apart
from this section applied to the proceedings in execution and Explanation VIII
has been incorporated to provide as against certain decisions to the contrary
that the decisions of a Court of limited jurisdiction shall in so far as it is
within the jurisdiction of such Courts operate as resjudicata, although such
Court was not competent to try the subsequent suit in which the same question is
subsequently raised.

7. Section 11 CPC contains the Rule of conclusiveness of the judgment
which is based partly on the maxim "interest reipublicae at sit finis litum" (it
concerns the state that there be an end to law suits) and partly on the maxim
"Nemo debet bis vexari pro una at eadem cause (no man should be vexed twice over
for the same cause).

8. The doctrine of resjudicata is principals of equity, good conscience
and justice.  It would neither be equitable nor fair nor in accordance with the
principles of natural justice that the issue concluded earlier ought to be
permitted to be raised later in a different proceedings.

9. The principles of resjudicata is intended not only to prevent a new
decision, but is also to prevent a new investigation so that the same person
cannot be harassed again and again in various proceedings upon the same question
of law.

10. The general principles of resjudicata has been incorporated in
Section 10, 11, 47, Order II Rule 2 and Order XXIII of the Code of Civil
Procedure, which has been made applicable in different situations.  However,
none of the aforesaid provisions are applicable to debar a person from getting
his claim adjudicated on merits.

11. The principles of resjudicata is based on the need of giving
finality to judicial decision.  Section 11 of CPC is not an exhaustive, it's
underlying doctrine is that none should be vexed twice on the same subject
matter.  Where Section 11 does not in terms apply, general principles of
resjudicata can be applied.

12. Resjudicata prevents coming into existence of two inconsistent
beginnings.

13. In the decision reported in (Syed Mohd. Salie Labbai (Dead) by L.R.s
and others Vs. Mohd. Hanifa (dead) by L.R.s and others) AIR 1976 SC 1569 the
Honourable Supreme Corut held in para Nos. 7 and 8 thus:-

"7. In the light of these arguments of the parties and the history of
the case, we would now proceed to decide the points in controversy in this case.
We would first deal with the question of res judicata.  In support of this plea,
the defendants have relied on Exts. B-5 to B-9, B-12, B-16, B-28, B-30, B-31 and
B-73 in support of their case that these judgments constitute and operate as res
judicata, and particularly judgments given in those suits which were brought in
representative capacity under Order I Rule 8 of the Code of Civil Procedure.
Before we analyse these judgments, it may be necessary to mention that before a
plea of res judicata can be given effect, the following conditions must be
proved:-

(1)that the litigating parties must be the same
(2)that the subject-matter of the suit also must be identical
(3)that the matter must be finally decided between the parties; and
(4)that the suit must be decided by a court of competent jurisdiction;.

8. In the instant case according to the plaintiffs/ respondents the
identity of the subject-matter in the present suit is quite different from the
one which was adjudicated upon in the suits which formed the basis of the
previous litigation.  In our opinion the best method to decide the question of
resjudicata is first to determine the case of the parties as put forward in
their respective pleadings of their previous suits and then to find out as to
what had been decided by the judgments which operate as res judicata.
Unfortunately, however in this case the pleadings of the suits instituted by the
parties have not at all been filed and we have to rely upon the facts as
mentioned in the judgments themselves.  It is well settled that pleadings cannot
be proved merely by recitals of the allegations mentioned in the judgment.  We
would also like to note what the High Court has said on the question of res
judicata.  The High Court found that although the litigation between the parties
lasted for a pretty long time it was never decided whether all or any of the
suit properties constituted a public trust.  Both the parties appear to have
taken extreme stands but even despite the fact that the previous judgments
contained an incidental finding that the mosque was a public property and so was
the burial ground, the effects of these findings were nullified in 1939 when the
High Court held that even if the properties in dispute were the exclusive
properties of the Labbais, this expression was not meant to indicate that they
were their private properties.  This, in our opinion, clearly shows that the
public character of the wakf or of the mosque was never in issue.  The High
Court on this point found as follows:-

'We are therefore of the view that the issue as to whether the properties
constituted a public trust having been never raised and decided between the
parties in any of the prior suits O.S. No. 9 of 1956 on that question was not
barred by res judicata.  The findings of the court below in this regard is
affirmed.'

The trial court had also negatived the plea of res judicata taken by the
defendants."

14. The test of resjudicata is the identity of title in two litigations
and not the identity of actual property involved in two suits.  (Ram Gobinda Daw
and others vs. Smt. H. Bhakta Bala Dassi etc.,) AIR 1971 SC 664 wherein in Para
Nos. 20, 24 and 25, it was held thus:-

"20. In our opinion, the decision of this Court referred to above does
not assist the appellants.  It is now well esablished that where a dispute as to
title to receive compensation amount has been referred to a Court, a decree
thereon not appealed from renders the question of title res judicata in a suit
between the same parties to the dispute.  A party in such circumstances cannot
be heard to say that the value of the subject-matter on which the former
decision was pronounced was comparatively so trifling that it was not worth
their while to appeal from it.  It is true that the test of res judicata is the
identity of title in the two litigations and not the identity of two actual
property involved in the two cases but the previous decision must be one on a
title in respect of which a dispute has been raised and which dispute was heard
and finally decided by the Court.

24. ........It was further pointed out that none of those considerations
apply to a case where a decision is given on the merits by the trial court and
the matter is taken in appeal and the appeal is dismissed on some preliminary
ground, like limitation or default in printing.  It was held that such dismissal
by an appellate Court has the effect of confirming the decision of the trial
court on merits, and that it 'amounts to the appeal being heard and finally
decided on the merits whatever may be the ground for dismissal of the appeal'.

25. It will be seen from the above reasoning that in order to
operate as res judicata, the previous decision must have been given after the
matter was heard and finally decided on merits.  This Court has further held
that the High Court in that case, when it dismissed the two appeals in question,
though on a preliminary ground of limitation or default in printing, must be
considered to have heard and finally decided on merits........."

15. The parties in both the suit must be litigating in the same title.
It means and refers to the capacity and interest of a party, it has nothing to
do with the particular cause of action on which a party sues or be sued or is
sued.

16. A finding is different from mere isolated observation, which has not
called for either on the basis of the pleadings of the parties or on the basis
of evidence led by them.  Such isolated observation do not constitute
resjudicata.  Doctrine of resjudicata covers adjudication both on factual as
well as legal matters.

17. A decision on an issue of law will operate as resjudicata in a
subsequent pleading between the same parties, if the cause of action of the
subsequent proceeding be the same as in the previous proceeding, but not when
the cause of action is different, nor when the law has changed since earlier
decision by a competent authority nor when the decision relates to the
jurisdiction of the Court to try the earlier proceeding nor when the earlier
decision declared valid the transaction which is prohibited by Law.

18. In the decision reported in (Mathura Prasad Sarjoo Jaiswal and
otherss vs. Dossibai N.B. Jeejeebhoy) AIR 1971 SC 2355, the Honourable Supreme
Court held in Para Nos. 9 and 11 as follows:-

"9. A question of jurisdiction of the Court, or of procedure, or a pure
question of law unrelated to the right of the parties to a previous suit, is not
res judicata in the subsequent suit. Rankin C.J. Observed in Tarini Charank
Bhattacharjee's case, ILR 56 Cal 723 = (AIR 1928 Cal 777)
"The object of the doctrine of resjudicata is not to fasten upon the
parties special principles of law as applicable to them inter se, but to
ascertain their rights and the facts upon which these rights directly and
substantially depend; and to prevent this ascertainment from becoming nugatory
by precluding the parties from reopening or recontesting that which has been
finally decided."
A question relating to the jurisdiction of a Court cannot be deemed to
have been finally determined by an erroneous decision of the Court.  If by an
erroneous itnerpretation of the statute the Court holds that it has no
jurisdiction, the question would not, in our judgment, operate as res judicata.
Similarly, by an erroneous decision, if the Court assumes jurisdiction which it
does not possess under the statute the question cannot operate as res judicata
between the same parties.  Whether the cause of action in the subsequent
litigation is the same or otherwise.

11. In the present case the decision of the Civil Judge, Junior
Division, Borivli, that he had no jurisdiction to entertain the application for
determination of standard rent,  is, in view of the judgment of this Court
plainly erroneous, see (1962) 3 SCR 928 = AIR 1966 SC 1939).  If the decision in
the previous proceeding be regarded as conclusive it will assume the status of a
special rule of law applicable to the parties relating to the jurisdiction of
the Court in derogation of the rule declared by the Legislature."

19. The facts in the case on hand, as per the pleadings of the petition
is that an earlier suit was filed by the revision petitioner against the
respondents herein for injunction stating that the suit property is a joint
family property; that he, his father and brother were entitled to equal share;
that a registered deed of partition dated 07-02-1979 was entered into between
them thereby B schedule property mentioned therein was allotted to him; that in
the said property, the petitioner herein constructed a tiled building and
running a business of selling bed sheets; that while constructing the said
building, he left 1 ft. on the North eatern side and 1 . ft. on the Southern
side to use the same as passage for repairing and white washing purposes and the
respondents purchased one portion of the property from one of the sharers of the
petitioner's family and attempted to construct a building abetting the southern
side of the wall of the petitioner.

20. The respondents herein filed a written statement stating that no
space was left by the petitioner on the southern side; that the existing
building was constructed by the petitioner and his brother before the
construction of the building by them; that the respondents left 1 ft. between
his house and the petitioner's house to facilitate free flow of drain water;
that the respondents father has purchased the land in the year 1965 from one
Nachayee Ammal much prior to the purchase of the lands by the petitioner and his
family members and are in continuous possession from the said period and
perfected their title by adverse possession.

21. The trial court framed issues as to (i) whether the petitioner is
entitled to the injunction as prayed for (ii) whether 1 . ft. was left by the
petitioner on the southern side of his wall (iii) whether the respondents have
perfected their title by adverse possession and (iv) to what other relief the
petitioner is entitled to.  An advocate commissioner was also appointed by the
trial court.

22. The petitioner has marked Exs. A1 to A4 and the respondents have not
marked any document.  Exs. C1 to C6 were marked as court exhibits.  The
petitioner has examined himself as PW1 and the first respondent was examined as
DW1 and the Advocate Commissioner was examined as CW1.  The court below decided
the issues in favour of the respondents herein and dismissed the suit with
costs.  The first Appellate Court also confirmed the findings rendered by the
trial court and dismissed the appeal preferred by the petitioner herein.

23. The present suit is filed for declaration declaring that the red
coloured portion of 'A' schedule described property namely the lane one foot
width on the southern side of his property absolutely belonged to the petitioner
and for a consequent injunction and costs.  In the present suit also, the
petitioner has stated that the partition deed was entered into between him, his
father and brother on 07-03-1979 whereby 'A' schedule property in this suit was
allotted to him in which he constructed a tiled building, leaving some space on
the Southern side of his building for the purpose of repairing and white
washing.  The property of the respondents was shown as 'B' Schedule in the
plaint.

24. The respondents have taken the same defence, which they have taken
in the earlier suit and filed written statement in the present suit.

25. It is evident from the pleadings of both the parties that the
subject matter of the property in both the suit is one and the same.The matter
directly and substantially in issue in the former suit also directly and
substantially in issue in the later suit.  The competent Court has finally
decided the issue in the earlier suit after considering the oral and documentary
evidence let in by the parties.  The respondents have established the
ingredients of resjudicata as required under Section 11 CPC.

26. An argument was advanced by the learned counsel for the revision
petitioner that the court below ought not to have taken the issue as a
preliminary issue and if at all, it could have been decided after a fair trial.

27. The bar of resjudicata is an issue of law and it could be tried as a
preliminary issue under Order 14 Rule 2 CPC which contemplates that:-

"27. Court to pronounce judgment on all issues:- (1) Notwithstanding that
a case may be disposed of on preliminary issue, the Court shall, subject to the
provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the
Court is of opinion that the case or any part thereof may be disposed of on an
issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force.

and for that purpose may, if it thinks fit, postpone the settlement of the
other issues until after that issue has been determined, and may deal with the
suit in accordance with the decision on that issue."

28. In a case where a issue of law go to the very root of the case such
as resjudicata or jurisdiction or being barred on the face of it by any law etc
and the case or any part thereof may be disposed of on the issue of law only it
is incumbent upon the Court to determine the issues of law first as it save
unnecessary inconvenience and expenses to the party and waste of time and the
labour of the Court as well.

29. Though the trial court has not given requisite reasons for the
decision arrived at, which is absolutely essential, the conclusion arrived at by
it is justified by this Court, since the fact that the matter directly and
substantially in issue in the former suit also directly and substantially in
issue in the later suit.

30. Before parting with, this Court expresses its displeasure over the
lethargic approach of the trial court.

31. In the result, the revision is dismissed.  No costs.  Connected CMP
is closed.


rsh

IN THE HIGH COURT OF JUDICATURE AT MADRAS          

DATED: 17/09/2005

CORAM  

THE  HON'BLE MR.JUSTICE M.CHOCKALINGAM          

S.A. No.365 of 1994
and S.A.Nos. 366 and 367 of 1994

Poyyamozhi                     ..Appellant in S.A.No.365/1994

Arunachala Padayachi            ..Appellant in S.A.No.366/1994

1. Manimozhi Ammal      )
                        )
2. Pugalendi            )       ..Appellants in S.A.No.367/1994
                        )
3. Thamilayya           )
    Third appellant declared
    as major as per
    order dated 3.3.94 in
    C.M.P.Nos.3290 & 3291/94

-Vs-

1. Narayanasami Padayachi
2. Rajakannu
3. Mani                                 ..Respondents.

        These Second Appeals have been filed under Section 100 C.P.C.  against
the judgment and the decree dated 29.10.1993 made in  A.S.Nos.    28,  30  and
32/93  before  the  Addl.Sub-Court,  Cuddalore, reversing the judgment and the
decree dated 22.12.1992 in O.S.Nos.    532,  533  and  531/82  passed  by  the
District Munsif Court, Panruti.

!For Appellant :  Mr.G.Rajagopalan, Senior Counsel for
                M/s.G.M.Associates

^For Respondents :  Mr.G.Kathirvelu


:C O M M O N J U D G M E N T  

        This judgment  shall  govern  the  above  three second appeals.  These
second  appeals  have  been  filed  challenging  a  common  judgment  of   the
Subordinate  Judge,  Cuddalore, made in A.S.Nos.28/93, 30/93 and 32/93 wherein
the judgment of the District Munsif, Cuddalore in O.S.No.531, 53 2 and  533/82
was reversed.
        2.  The appellants before this Cout were the plaintiffs, who filed the
said  three suits seeking for declaration of title and consequential permanent
injunction  or  in  the   alternate,   recovery   of   possession   from   the
defendants/respondents herein.    On  trial,  the  suits were decreed granting
declaration and consequential permanent injunction.  Aggrieved defendants took
them on appeals wherein the judgment of the trial Cout was  reversed  and  the
suits were  dismissed.    Hence, these three second appeals at the instance of
the plaintiffs.
        3.  As could be seen from  the  avements  in  the  plaints,  the  suit
property  originally belonged to one Chinnammal, wife of Muthulinga Padaiachi.
She executed a Will under Ex.A4 on 15.11.62.  On her death, the property  came
to the hands of the fourth defendant and the fourth defendant has executed the
sale  deeds in favour of the plaintiffs under Exs.A1 and A12 in respect of the
properties found in the plaint schedule in O.S.No.531/82  and  Ex.A13  is  the
sale  deed  executed in respect of the properties found in the plaint schedule
in O.S.No.532/82 and Ex.A46 is the  sale  deed  executed  in  respect  of  the
properties found   in  the  plaint  schedule  in  O.S.No.533/82.    Thus,  the
plaintiffs derived title  through  the  sale  deeds  executed  by  the  fourth
defendant and  that  they  have been in enjoyment of the same.  The defendants
would adumbrate that they have title to the property.  Hence,  there  arose  a
necessity for filing the suits.
        4.   The  first  defendant  contested  the  suit  by  filing a written
statement while the second and third defendants adopted the same.    What  was
all  contended  by  the  first  defendant  was  that the properties originally
belonged to the joint family consisting of Govinda  Padaiyachi  and  his  four
sons;  that  Muthulinga  Padaiyachi,  husband of Chinnammal had no independent
right to execute any sale deed.  Thus, the original  sale  deeds  executed  in
favour  of  Chinnammal under Exs.A2 and A3 did not pass on any title and thus,
Chinnammal had no right to execute the Will.  Added further, the Will  alleged
to  have  been executed by Chinnammal was not at all executed by her and there
were number of suspicious circumstances attending over the same  and  further,
since Muthulinga Padaiyachi, despite having two wives, had no issues, paid all
his  affection  on  the  first defendant and treated him as his son and on the
death  of  Muthulinga  Padaiyachi,  the  property  was  enjoyed  not  only  by
Chinnammal but also by the first defendant and on the death of Chinnammal, the
property came to the hands of the first defendant and thus, he continued to be
the  owner and he was in possession of the same and thus, the fourth defendant
never became the owner of the properties in question nor had he got the  right
to execute any sale deed in favour of the plaintiffs and thus, the case of the
plaintiffs has to be rejected.
        5.  The  trial Court framed necessary issues and tried the suit.  Both
sides adduced evidence both oral and documentary and the trial Court  answered
the issues in favour of the plaintiffs and granted a decree of declaration and
consequential permanent  injunction.    Aggrieved,  the  defendants took it on
appeals and on enquiry, the first appellate forum, rendered a common  judgment
wherein  the  judgments  of  the trial Court were set aside and the suits were
dismissed.  Hence, these second appeals at the instance of the  plaintiffs  in
the three original suits.
        6.   The  following  substantial  questions of law were framed by this
Court at the time of admission.
        1.  Whether in law the lower Appellate Court is wrong in holding  that
the  suit  properties did not belong to Chinnammal, inspite of ex.A2 7 A3 sale
deeds in her favour and thereby ignored  the  statutory  abolition  of  benami
transaction?
        2.   Whether  the  lower  Appellate Court is right in finding that the
decree in O.S.No.993 of 1996 would not operate as resjudicata in  the  present
suit?
`       7.   The  Court  heard the learned counsel for the appellants and also
the respondents.
        8.  Learned counsel for the appellants interalia would submit that the
plaintiffs have purchased the properties  under  four  registered  sale  deeds
marked as Exs.  A1, A12, A13 and A46 and those sale deeds were executed by the  
fourth  defendant  in  whose favour the original owner Chinnammal had executed
the Will, Ex.A4.  On her death, the  Will  came  into  force  and  the  fourth
defendant derived  title  and  had  executed the sale deeds.  In so far as the
Will Ex.A4 executed by Chinnammal was concerned,  the  original  of  the  same
could not be produced since the same was filed in the earlier suit between the
parties  and when the original Will was sent for, it could not be obtained but
a communication was received stating  that  the  said  original  document  was
destroyed.  Under such circumstances, the original Will could not be produced.
Whether  the will executed by Chi nnammal was true, valid or otherwise was the
subject matter in the earlier proceedings in which the first defendant  was  a
party  to  it  and he contested on the same lines and the judgment on the said
issue has become final and now, the first defendant cannot question the  same.
Added   further  learned  counsel,  as  to  the  contention  putforth  by  the
respondents' side that the properties originally belonged to the joint family,
there was no evidence at all and it is true  that  Muthulinga  Padaiyachi  had
executed  two  sale  deeds  in  favour  of his wife and from that time onwards
Chinnammal as the owner was in possession and enjoyment and she has executed a  
Will in favour of the fourth defendant and the fourth defendant  has  executed
four sale deeds in question through which the plaintiffs have claimed title to
the properties.    The  trial Court has marshalled the evidence proper and has
granted a decree but the appellate forum has set it aside erroneously.  On the
evidence adduced by the plaintiffs, they have proved the case and  hence,  all
the three second appeals have got to be allowed.
        9.   Contrary  to  the  above  contentions,  learned  counsel  for the
respondents would submit that the properties in question  originally  belonged
to the  joint  family consisting of Govinda Padaiyachi and his four sons.  The
sale deeds alleged to have been executed by Muthulinga Padaiyachi under Exs.A2
and A3, were not valid and apart from that though he was  the  Kartha  of  the
joint family even the recitals would clearly indicate that there was no reason
to  execute  such  sale deeds and thus, the property continued to be the joint
family property in the hands of the members of the joint family consisting  of
the   first  defendant  all  along  with  his  brothers  including  Muthulinga
Padaiyachi, the husband of the said Chinnammal and  thus,  Chinnammal  has  no
right of  alienation.    Added  further  learned counsel in so far as the Will
executed by Chinnammal  was  concerned,  since  she  has  no  right  over  the
property,  she  could  not  execute  such  a  Will and even the Will which was
executed was not produced in the instant  case  and  the  reliance  which  was
placed  by  the  appellants on the judgment rendered by the Civil forum in the
earlier proceedings would not bind the parties and  it  would  not  constitute
res-judicata in so far as the Will was not proved and the plaintiffs who claim
title  to  the  property  under the Will could not make a claim over the same.
Added further learned counsel it was the case where the  first  defendant  has
pleaded and   proved   adverse   possession  of  the  property.    Under  such
circumstances, without considering the evidence in the proper perspective, the
trial Court has granted the relief and on enquiry, the first  appellate  Court
had set  aside the same.  Hence, the judgment of the first appellate Court has
got to be confirmed and the second appeals have got to be dismissed.
        10.  The Court paid its full attention on the submissions made and had
a thorough scrutiny of the entire materials available.
        11.  As could be seen above, the plaintiffs have claimed title to  the
property in  all these three suits under four sale deeds namely Exs.  A1, A12,
A13 and A46.  Their case in gist was that the property belonged to the  fourth
defendant  and as the owner of the property, the fourth defendant had executed
sale deeds in favour of the plaintiffs in the three suits.  The only defendant
who contested the suit was the first defendant.   The  second  and  the  third
defendants had no separate defence to offer.
        12.   It is not in controversy that one Govindasamy Padaiachi had four
sons by name Muthulinga Padaiachi, Narayanasamy Padaiachi, Ramar and Muthusamy      
Padaiyachi.  Chinnammal was the wife of  Muthulinga  Padaiyachi.    Muthulinga
Padaiyachi has  executed two sale deeds in favour of Chinnammal under Exs.  A2
and A3 dated 25.1.1941 and 27.3.1943 respectively.  The first defendant in the
course of cross examination has clearly admitted that no documentary  evidence
is available  to  show that the properties belonged to Govinda Padaiyachi.  On
the date when those sale deeds were executed by Muthulinga Padaiyachi in  1941
and  1943,  those  documents have come into existence in favour of Chinnammal.
Admittedly, the first defendant was a major at that time.  It is not the  case
of the  first  defendant that he had no knowledge about the sale.  Had it been
true that Muthulinga Padaiyachi had no right to execute such a sale deed,  the
first  defendant  would  have challenged the same but has not done so, despite
the knowledge of  the  same.    Therefore,  the  contention  putforth  by  the
respondents  that  the  property  originally  belonged  to  the  joint  family
consisting of Govinda Padaiyachi and his four sons and continued to remain  as
such,  despite  the  execution  of  Exs.A2  and  A3  sale  deeds by Muthulinga
Padiayachi in favour of Chinnammal, has to be discountenanced at this stage.
        13.  The second contention that Chinnammal had  no  right  to  execute
such  a Will as found under Ex.A4 has got to be discountenanced for the simple
reason she derived title under Exs.A2 and A3 in the year 1941 and 1943  itself
and thus,  she  became  the  owner of the property.  So far as Ex.A4, Will was
concerned, the case of the plaintiff was that it was executed by Chinnammal in
favour of the fourth defendant on 15 .11.1962.  The  first  defendant  took  a
specific stand  that  she  had no right to execute a Will.  Even assuming that
she has executed a Will, such a Will is neither true nor valid because it  was
surrounded by  suspicious  circumstances.    In the instant case, it is not in
dispute that she executed the Will as found under Ex.A4.
        14.At this juncture it has to be pointed out that one of the  brothers
of   the   first   defendant  by  name  Ramar  Padaiyachi  has  already  filed
O.S.No.993/69 wherein the  first  defendant  and  the  fourth  defendant  were
parties.   It  was  a suit filed by one Ramar Padaiachi seeking declaration of
the property that the property belonged to himself and his brother, the  first
defendant  and  the  plaint copy of the said suit was marked as Ex.A58 and the
written statement filed by the fourth defendant was marked as Ex.B59  and  the
written  statement  filed  by  first  defendant  herein  who has contested the
instant suit was marked Ex.B60.  In that suit, a specific issue was framed  on
the  contention  putforth by the first defendant that the will was not true or
genuine.  The issue framed reads as follows:  " Whether the  Will  alleged  to
have  been  executed  by  Chinnammal  in  favour of the first defendant(fourth
defendant herein) on 15.11.62 is true, valid and was executed while she was in
a sound and disposing state of mind?".  In that case, sufficient  opportunites
were given  to all the parties to let in evidence.  The judgement of the trial
Court made in O.S.993/69 was marked as Ex.  A9.   A  perual  of  the  judgment
would  clearly  reveal  that the said Court had expatiated the entire evidence
including that of the contesting witness and found that the Will was true  and
valid and  acted  upon also.  It is to be noted that the very same defence was
taken out by the first defendant herein which was already taken in the earlier
proceedings.  Hence, it would be quite evident that the  first  defendant  has
questioned  the  truth  and validity of Ex.A4 Will and has reiterated the very
same defence in this case in which he has already failed.  From the  judgement
of  O.S.No.993/69  an  appeal  has  been  preferred  and  the  appeal was also
dismissed.  Under such circumstances, the finding of the Court in  respect  of
the  Will  would  be binding on the first defendant who took a defence against
the execution of the will and failed.  Now, it would be leading to reiteration
of the same defence.
        15.  Further, in the instant case, the contention of  the  respondents
that the Will was neither produced nor proved has to be discountenaced for the
simple  reason  that  the  plaintiff has taken serious attempt to sent for the
document namely, the original Will from the other proceedings,  but  the  same
was returned  as  the  original will was destroyed.  Now, the point is whether
the Will which was executed by Chinnammal in favour of the  4th  defendant  on
15.11.1962  is the subject matter between the same parties, who are members of
the joint family and found to be true.  No  question  of  re-adjudication  and
giving  a different finding would arise because, originally, in O.S.993/69 the
same issue was framed and decided that the will was  genuine  and  hence,  the
same has become final.  Thus, the Court has to accept the finding of the trial
Court that  the  Will was acted upon.  Further, if Chinnammal had transferable
right in the suit property in respect  of  which  she  executed  the  Will  on
15.11.1962  as  found  in Ex.A4, the property should come automatically to the
hands of the fourth defendant on the death of Chinnamma and hence, the  fourth
defendant in  turn  has  executed  four  sale  deeds  in question.  Under such
circumstances, the attempts made by the first defendant to defeat  the  rights
of Chinnammal  in  a  different  way failed.  Now, he has taken a stand in the
instant suit as he is the foster son of Muthulinga Padaiyachi and on his death
the property was enjoyed by all in the  joint  family  and  on  the  death  of
Chinnammal, the  property came to his hands.  The court is of the opinion that
the very defence pleaded  would  be  nothing  but  improper  and  unacceptable
because a feable attempt was made to get the property if possible.
        16.   The  further contention made by the first respondent's side that
he has been in possession of the property  by  adverse  possession  cannot  be
accepted  since  the trial Court, marshalling the evidence proper has rejected
the ownership of the first defendant.  In the instant case, a  feable  attempt
was  made  by  the first defendant pleading adverse possession and nothing has
been broughtforth to accept the said adverse possession because it was  not  a
case at all at any point of time.  Originally, he has claimed ownership of the
property  as  the  member  of joint family and hence, adverse possession at no
stretch of imagination could be accepted.  Hence, it has got to  be  rejected.
Under such circumstances, the first appellate forum without proper perspective
of  evidence  has  set  aside the judgment of the trial Court and it has to be
pointed out that the First Appellate Court has given a finding that  the  Will
is not proved forgetting the facts that the matter has already been decided in
the  earlier  suit  between the same parties and the same has become final and
the original will which was the subject matter has been destroyed.  It is  not
the  case  where  the parties were relying on the Will but were relying on the
sale deeds executed by the fourth defendant.  So far as the  fourth  defendant
is  concerned,  he derived title through the Will in question and the Will has
been proved in the earlier proceedings adjudicated between  the  same  parties
and it is not the main issue but a subsidiary issue.
        17.   Under  such  circumstances,  the Court is of the considered view
that the appeals have got to be allowed.  Hence, the judgement  of  the  first
appellant  Court  is  set  aside  and  the judgment made by the trial Court is
restored.  The Second Appeals are allowed.  No costs.

Index:Yes
Internet:  Yes

vsi

To

1.  The Additional Sub-Judge,Cuddalore.
2.  The District Munsif Court, Panruti.



IN THE HIGH COURT OF JUDICATURE AT MADRAS          

DATED: 10/09/2005

CORAM  

THE HON'BLE MR.JUSTICE M.CHOCKALINGAM          

S.A. NO.192 OF 1994

Rameswari
(Legal representative of the
first defendant impleaded
after the disposal of the suit)         ..  Appellant

-Vs-

1.R.Arumugham  
2.Gnanammal  
3.Samundeeswari
4.Sumathi (minor)
5.Jayakanthan (minor)
6.The Executive Officer,
  Kurichi Town Panchayat
  Pothanur Post,
  Coimbatore
  (RR4 and 5 minors
   rep. by Guardian R2)                         ..  Respondents

        This appeal is preferred under Section 100 CPC  against  the  judgment
and  decree  dated  20.12.1993  made  in  AS  No.2  of 1990 on the file of the
Principal Subordinate Judge, Coimbatore, reversing  the  judgment  and  decree
dated  17.11.1987  made  in  OS  No.75  of  1981  on the file of the Principal
District Munsif, Coimbatore.

!For Appellant :  Mr.T.R.Rajaraman

^For Respondents:  Mr.S.S.Mathivanan
                for M/s.V.V.Lakshmi Puh
                for RR1 to 5
                Mr.N.Subburayalu for R6

:JUDGMENT  

        This second appeal has been brought forth from  the  judgment  of  the
learned  I  Additional  Subordinate Judge, Coimbatore made in AS No.2 of 1990,
wherein the judgment of the trial court, namely  District  Munsif,  Coimbatore
made in OS No.75 of 1981 for permanent and mandatory injunction was reversed.

        2.The  plaintiffs/respondents  filed a suit seeking the said relief of
permanent injunction against the  first  defendant  and  mandatory  injunction
against the second defendant with following allegations:
        The  first  plaintiff  purchased  the  property  by a sale deed, dated
25.6.1945 under Ex.A.1 and from that time onwards, he was  in  continuous  and
uninterrupted possession  of the same.  Originally, there was an old house and
the same was demolished in the year 1957.  He  obtained  necessary  permission
from  the  second defendant Town Panchayat and he made certain modification in
the house and continue to enjoy the same.  While so, the first defendant  made
an  attempt  to trespass into the property three months prior to the filing of
the suit, but the same was thwarted.  In  view  of  the  old  age,  the  first
plaintiff was  living  with his son, who is having a residence nearby.  Taking
advantage of the said situation, the first  defendant  attempted  to  trespass
into the property.  Under the stated circumstances, the first plaintiff issued
notice, which  resulted in reply notice with false allegations.  The plaintiff
filed a plan for approval before the  second  respondent  Town  Panchayat  for
construction  of  a  house  and for the untenable objections made by the first
defendant, the second defendant has not issued approval yet.  Under the stated
circumstances, there arose a cause of action for the plaintiff to file a  suit
for  permanent  injunction  against the first defendant and also for mandatory
injunction against the second defendant, directing him to issue approval for a
new construction proposed by the plaintiff.

        3.The suit was resisted  by  the  first  defendant  stating  that  the
plaintiff  had  no  right  or interest over the properties, in question and it
belonged to the  first  defendant;  that  the  properties,  in  question,  are
situated  abutting  the  first  defendant's property and that these two plots,
which are situated on the West and North, formed part of the first defendant's
property and he has been in enjoyment of the same  all  along  and  under  the
stated  circumstances,  it  is a false case preferred by the plaintiff and the
plaintiff is not entitled for the reliefs asked for.    The  second  defendant
remained ex parte.

        4.Pending suit, the first plaintiff died and her legal representatives
were added  as  plaintiffs 2 to 7.  Likewise, the first defendant died and her
legal representative was added as third defendant.   The  trial  court  framed
necessary issues.  On trial, the suit was dismissed.  Aggrieved the plaintiffs
took it  on  appeal in AS No.2 of 1990.  On enquiry, the first appellate Court
reversed the judgment of the trial court and granted decree in favour  of  the
plaintiffs.  Hence, this second appeal at the instance of the third defendant,
who was added as legal representative of the first defendant.

        5.At the time of admission, the following substantial questions of law
were formulated for consideration:
        "1.When   the  boundary  description  found  in  the  plaintiffs'  own
documents namely Ex.A-2 and Ex.A-11 and the oral evidence of P.Ws.2 and 3  are
clear  that  the  defendant is entitled to the property in the eastern side of
the plaintiffs, is not the learned Subordinate Judge wrong  in  decreeing  the
suit  in  toto  depriving  the  defendant's well recognised right and title in
respect of the portion to suit property in front of her own house?
        2.Is the learned Principal Subordinate Judge right  in  decreeing  the
suit  based  on Ex.A-1 when it is not established how the vendors who executed
the document Ex.A-1 derived their title to the suit properties?
        3.Is the learned Principal Subordinate Judge right  in  accepting  the
measurements  found  in  the  documents  without  adverting  to the well known
principle of law that the boundary will prevail over the extent?
        4.When the documents Ex.B-1  and  the  oral  evidence  of  defendant's
witnesses  and  plaintiff's  witnesses clearly establish that the defendant is
entitled to the portion of suit property, in front of her house and  that  the
same  is  being  enjoyed by the defendant as per separate lane, is the learned
Principal Subordinate Judge wrong in negativing the case of the defendant?
        5.When the plaintiffs plead adverse possession,  is  not  the  learned
Principal Subordinate Judge wrong in decreeing the suit without any proof that
the  plaintiffs  are  in  exclusive  possession  of the suit properties to the
knowledge of the defendant for more than the suit property?"

        6.This Court has heard the learned counsel for the appellant and  also
the respondents.

        7.As  could  be  seen  above,  it  was a suit for permanent injunction
against the first defendant, whose legal representative  was  added  as  third
defendant   and   mandatory  injunction  against  the  second  defendant  Town
Panchayat.  The case of the plaintiffs was that the first plaintiff  purchased
the  property,  in  question,  in  the  year 1945 under Ex.A.1 sale deed; that
originally, there was a house property and he made certain modification in the
year 1957 on permission granted by the second defendant and  he  has  been  in
continuous  enjoyment  of the same; that taking advantage of the fact that the
property of the first defendant is situated abutting  the  suit  property,  he
attempted  to  interfere  with  the  possession and enjoyment and the same was
thwarted.  Before filing the suit, the first plaintiff  filed  an  application
before  the second defendant, seeking permission for a new construction in the
site belonged to him, but on the untenable  objections  raised  by  the  first
defendant, the  second  defendant  has  not  issued  approval.    The case was
resisted by the first defendant stating that the suit property did not  belong
to the  first  plaintiff,  but it belonged to the first defendant.  The second
defendant remained ex parte.

        8.This Court made a thorough scrutiny of the materials available.  The
first plaintiff has sought for the relief of permanent injunction against  the
first  defendant,  stating  that he purchased the property under Ex.A.1 in the
year 1945 and he got title to the property  and  he  has  been  in  continuous
possession of  the  same.    The first appellate Court has clearly pointed out
that both the description of the property under Ex.A.1  and  the  property  in
respect  of  which the relief was sought for, on comparison, found to be same.
Apart from that, in the instant case, originally there was an occasion for the
first plaintiff to file an application before the  second  defendant  and  got
permission for  modification.    Insofar  as  the  first  defendant's case was
concerned, there was a denial of title of the plaintiff.  From  the  available
materials,  it could be seen that the suit properties are situated on the West
and North of the first defendant's property and the first defendant, as D.W.1,
has categorically admitted that originally, the first plaintiff's property  is
a  house  and  the same was situated on the West of his house and the property
covered under Ex.B.1 is situated on the East of the suit property and thus, it
was a clear admission made by the first defendant at the time  of  examination
in Court.

        9.Added  circumstance  is  that  it  was  brought to the notice in the
judgment of the first appellate court that  though  the  first  defendant  has
claimed  that  the  property belonged to him and he is having his house and he
has been paying tax, he has not produced any receipt  in  that  regard.    The
learned  counsel  for  the  appellant  would  submit  that the application for
appointment of Commissioner was filed by the first defendant and the same  was
dismissed.   If  the first defendant was aggrieved over the order of dismissal
of the said application  for  appointment  of  Commissioner,  he  should  have
approached this  Court by filing revision, but not done so.  Equally, when the
suit was originally filed, no door number was  given  by  the  plaintiff,  but
subsequently an application for amendment was filed to include the door number
and on  contest, the application was allowed.  The plaint was also amended and
the door number was included.  The first appellate Court  has  marshalled  the
evidence proper and has come to the conclusion that the property, in question,
belonged to  the plaintiff.  On perusal of the materials available, this Court
is of the considered opinion that the judgment of the  first  appellate  Court
has got  to  be  sustained.    This  Court  is  unable to notice any reason to
interfere with the judgment of the first appellate court and the second appeal
has got to be dismissed.

        10.In the result, this second appeal is dismissed, leaving the parties
to bear their costs.

Index :  Yes
Internet :  Yes

vvk

To

1.The Principal Subordinate Judge,
Coimbatore.

2.The Principal District Munsif,
Coimbatore.









IN THE HIGH COURT OF JUDICATURE AT MADRAS          

DATED: 10/09/2005

CORAM  

THE HON'BLE MR.JUSTICE M.CHOCKALINGAM          

S.A.NO.252 OF 1994  

1.Gopalakrishnan
2.B.Srinivasan                                  ..  Appellants

-Vs-

Balasubramaniam                                ..  Respondent

        This second appeal is preferred under Section 100 of CPC  against  the
judgment and decree dated 28.7.1993 passed in AS No.193 of 1991 on the file of
the  learned  Additional District Judge, Salem against the judgment and decree
dated 12.10.1988 passed in OS No.1421 of 1986  on  the  file  of  the  learned
District Munsif at Namakkal.

!For Appellants :  Mr.J.R.K.Bhavanandam

^For Respondent :  Mr.Subramanian
                for Mr.K.Jayaram

:JUDGMENT  

        Aggrieved  over  the  judgment  of  the  learned I Additional District
Judge, Salem made in AS No.193 of 1991, wherein  the  judgment  of  the  trial
court,  namely  the Principal District Munsif, Namakkal, made in OS No.1421 of
1986 was affirmed, the defendants have preferred this second appeal.

        2.It was a suit filed by the respondent/plaintiff, seeking declaration
of title in respect of landed property shown in  the  'A'  schedule  and  also
declaration  in  respect  of  +  share in the pooja right of Varadarajaperumal
temple shown as 'B' schedule and consequently, for partition.  The plaintiff's
case as could be seen from the pleadings can be stated shortly thus:
        The plaint described 'A' schedule property originally belonged to  one
Appasamy Iyer @ Eswara Iyer and in the year 1919, he executed a Will in favour
of  plaintiff's  father Padmanaba Iyer and his wife Maragadammal and following
the same, on the death of Eswara Iyer, the  property  came  to  the  hands  of
Padmanaba Iyer  and his wife Maragadammal.  Since Padmanaba Iyer had no issues  
through Maragadammal, he married Dhanalakshmi in the year 1944 as  the  second
wife.  Maragadammal  died  intestate.  Thus, the property came to the hands of
Padmanaba Iyer.  In the year 1953, the plaintiff was born  to  Padmanaba  Iyer
and  his  second  wife  Dhanalakshmi  and  on the death of Padmanaba Iyer, the
property came to the hands of his wife Dhanalakshmi.    The  lands  originally
belonged to Temple.  Since the property could not be cultivated and in view of
the  fact that the plaintiff was a child, the immovable properties, which were
given to the plaintiff's family for the service rendered to temple and  the  +
share  in the pooja ri ght, which was being enjoyed by the plaintiff's family,
were entrusted to the defendants for being taken care of till the  plaintiff's
mother returns  to  the  village  with  the  plaintiff.  Then, the plaintiff's
mother took the plaintiff to outside the place and  on  return,  there  was  a
demand  and exchange of notices and on refusal, the plaintiff filed a suit for
declaration asked for and stated above.

        3.The suit was resisted by the  defendants  stating  that  the  landed
property  found  in the schedule to the plaint is an Inam land and belonged to
Varadarajaperumal temple, in which neither Easwara Iyer nor anybody, including
the plaintiff, could claim  any  right,  interest  or  title;  that  the  Will
executed  by  Easwara Iyer was not valid; that apart from that even as per the
allegation in the plaint, Padmanaba Iyer married Dhanalakshmi during the  life
time of his first wife and it was also illegal and patta has also been granted
in  favour  of  the temple, on enquiry and thus, the plaintiff cannot make any
claim over 'A' schedule landed properties and equally 'B' schedule pooja right
exclusively belonged to the defendants, in which  also  the  plaintiff  cannot
claim  any  right,  alleging that it was an ancestral one and under the stated
circumstances, the suit has got to be dismissed.

        4.The trial court has framed necessary issues and on trial,  the  suit
was decreed.  The aggrieved defendants have preferred an appeal and on appeal,
the judgment of the trial court was affirmed.  Hence, the second appeal at the
instance of the defendants.

        5.At  the time of admission, the following substantial question of law
was formulated for consideration:
        "Whether the suit is barred by limitation?"

        6.This Court has heard the learned counsel for the appellants and also
the respondent.

        7.The learned counsel for the appellant inter-alia would  submit  that
'A'  schedule  landed  property belonged to Varadarajaperumal temple, in which
the plaintiff cannot make any claim and patta has also been issued  in  favour
of  temple;  that  the  suit  was  also  barred  by limitation; that there was
exchange of notices, in which the right of the plaintiff was denied; and  that
specific  point  of time is prescribed in the Limitation law and the plaintiff
should have filed the suit within the time, but he has not  done  so.    Added
further  the  learned  counsel  that  insofar  as 'B' schedule pooja right was
concerned, the defendants have been enjoying the same all along, as of  right,
in which   the   plaintiff  cannot  make  any  claim.    But,  without  proper
appreciation of both factual  and  legal  positions,  the  courts  below  have
granted decree, which has got to be set aside by this Court.

        8.Heard   the   learned  counsel  for  the  respondent  on  the  above
contentions.

        9.It was a suit filed by the plaintiff, seeking declaration  of  title
in  respect  of  'A'  schedule  landed  property and 1/2 share in pooja right in
respect of 'B' schedule to the plaint.  It is not in controversy that the suit
land was originally belonged to Varadarajaperumal temple.  It is also  not  in
controversy  that  the  suit landed properties were under the enjoyment of the
defendants.  The specific case of the  plaintiff  is  that  the  property  was
actually  given  to the father-in-law of Padmanaba Iyer, by name Easwara Iyer,
for the service rendered by him  in  the  said  temple  and  he  has  been  in
enjoyment of  the  same.  In the year 1919, he executed a Will under Ex.A.1 in
favour of Padmanaba Iyer and Maragadammal.  It is pertinent to point  of  that
the  defendants  never questioned the truth, genuineness or validity of Ex.A.1
Will.  But, what were all contended was that the properties belonged to Temple
and Easwara Iyer had no right over the same.  Both the courts have pointed out
that there is sufficient evidence available, indicating the enjoyment of  same
by  Easwara Iyer and on his death, by Padmanaba Iyer and Maragadammal and even  
during the life time of Maragadammal,  Padmanaba  Iyer  married  Dhanalakshmi,
through whom  the  plaintiff  was  born.   On the death of Padmanaba Iyer, the
property devolved upon Dhanalakshmi.  Evidence has been recorded to the effect
that the said landed properties  were  handed  over  by  Dhanalakshmi  to  the
defendants,  taking  into  consideration the fact that the plaintiff was minor
then and that she could not carry on  cultivation  and  apart  from  that  the
plaintiff  could  not carry on pooja and she went away from the village and on
return, there was exchange of notices.

        10.It is pertinent to point out that even in the reply notice, it  has
been  specifically  admitted  by  the defendants that the property belonged to
Temple.  It is  also  pertinent  to  point  out  at  this  juncture  that  the
defendants  have  not  produced  any  material  to show that how they got into
possession of the land, except the mere allegations in the  written  statement
and  assertion through witnesses and they did not have any material except the
defence plea that they have been in possession on their own right.



        11.In the instant case, the contention put  forth  by  the  defendants
that  the  suit  was  barred  by  limitation has got to be stated only for the
purpose of  rejection.    The  possession  of  the  service  holder  was  only
permissive  possession  and  it cannot be adverse to that of true owner and in
the instant case, the plaintiff has not disputed the fact  that  the  property
belonged  to  Temple,  but  it  has  been  given to Easwara Iyer and he was in
enjoyment of same and thereafter, by his family and the plaintiff is  entitled
to be in possession and to continue the same.  The contention put forth by the
learned counsel for the appellants that they were appointed as Trustees by the
H.R.  &  C.E.  in respect of temple and therefore, they could contest the suit
would be of no avail, since there are specific allegations and proof that both
landed properties and the pooja right were handed over  by  the  plaintiff'  s
mother to  the defendants.  Under the stated circumstances, such a plea cannot
be raised by the defendants at any stretch of imagination.  Hence, this  Court
is  of  the  considered  opinion  that  all  the  contentions put forth by the
appellants' side have been rightly rejected by both  the  courts  below.    As
regards  the  question  of limitation, this Court is of the considered opinion
that the suit is not barred  by  limitation  for  the  reasons  stated  above.
Hence, the  second  appeal  fails  and the same is dismissed.  The parties are
directed to bear their costs.

Index :  Yes
Internet :  Yes

vvk

To
1.I Addl.  District Judge, Salem
2.District Munsif, Namakkal






IN THE HIGH COURT OF JUDICATURE AT MADRAS          

Dated: 20/06/2005

Coram

The Honourable Mr. Justice T.V. MASILAMANI  

S.A. No.745 of 1993

1. Sivakozhundu
2. Selvaraj
3. Sakunthala
4. Rajamani
5. Mallika                              .. Appellants

-VS-

1. Saraswathi
2. Sarada
3. Chakkubai (died)
4. S. Rajasekaran                                               .. Respondents
   [R4 is brought on record as L/Rs. Of
    the deceased R3 (vide) order dated 29.12.2004
    in C.M.P.no.20853 of 2004]


        Second Appeal against the judgment and decree dated 26.8.1992 made  in
A.S.No.16  of  1992 on the file of the Additional Subordinate Court, Cuddalore
confirming the judgment and decree dated 10.4.1991 in O.S.  No.769 of 1987  on
the file of the Additional District Munsif, Cuddalore.

!For Appellants :  Mrs.Hema Sampath

^For Respondents :  Mr.T.R.Rajaraman


:JUDGMENT  

        The defendants 2 to 6 in the suit are the appellants.

        2.   The  respondents/plaintiffs filed the suit through their power of
attorney for declaration and recovery of possession of the suit property after
removal of  the  superstructure  and   for   mesne   profits.      Since   the
appellants/defendants  resisted  the suit by filing the written statement, the
trial court having recorded the evidence, heard the arguments  of  both  sides
and decreed the suit as prayed for with costs and also directed the defendants
to pay Rs.300/- per month to the plaintiffs towards mense profits.

        3.   Aggrieved  by  the judgment and decree passed by the trial court,
the defendants filed the appeal before the  Subordinate  Court,  Cuddalore  in
A.S.No.16 of  1992.  The learned Subordinate Judge after perusing the recorded
evidence and upon hearing the arguments of both sides  rendered  a  concurrent
finding by confirming the judgment and
decree passed  by the trial court and dismissed the appeal with costs.  Hence,
the Second Appeal.

        4.  The averments in the plaint filed  by  the  respondents/plaintiffs
are briefly as follows:-

                (a)  The suit property originally belonged to Meenakshi Ammal,
mother of the plaintiffs and she was in possession and enjoyment of  the  suit
property  and  other  properties  in  her own right as absolute owner thereof.
While so, in a  sound  and  disposing  state  of  mind,  she  had  executed  a
registered  will  dated 14.11.1969 bequeathing her properties in favour of her
daughters, the plaintiffs herein.  The said will and testament came into force
after the death of  Meenakshi  Ammal  on  26.1  1.1969  and  since  then,  the
plaintiffs  have  become  absolute  owners  of  the  suit and other properties
bequeathed under the said will.  The plaintiffs executed the power of attorney
deed in favour of the 3rd plaintiff's husband Sivasubramania Chettiar  who  is
in actual management of the properties.

                (b) The suit sale agreement was entered into between the first
defendant and  the  power  of attorney representing the plaintiffs.  The first
defendant executed the agreement for sale on 29.11.1978 in respect of the suit
property whereby, the sale price was fixed at Rs.7,290/-  and  an  advance  of
Rs.1,000/- was  paid  on  that  date.    The first defendant agreed to pay the
balance of Rs.6,290/- within six months and get the sale deed  executed.    He
took  possession  of  the  suit  property on the date of the agreement itself,
i.e., 29.11.1978 and therefore the agreement for sale is true, legal and valid
in law.

                (c) In spite of repeated demands made by the plaintiffs' power
of attorney, the first defendant did not come forward to perform his  part  of
the contract and therefore notice was issued on 28.12.1979 calling upon him to
pay the  balance of sale consideration and get the sale deed executed.  Having
received the same, the first defendant has neither sent any reply nor complied
with the demand made by the plaintiffs.

                (d) The first defendant is liable to pay damages for  use  and
occupation,  as  his  possession  of the suit property has become unlawful and
therefore the plaintiffs reserves their right  to  file  a  separate  suit  in
respect of other reliefs.  The suit property will fetch not less than Rs.400/-
per month  as rental income.  However, the plaintiffs restrict their claim for
past mesne  profits  at  Rs.1,000/-  representing  the  damages  for  use  and
occupation of the suit property.

        5.    Since   the   first  defendant  died  pending  suit,  his  legal
representatives are impleaded as defendants 2 to 6.    The  averments  in  the
written  statement  filed  by  the deceased first defendant and adopted by the
defendants 2 to 6/ appellants herein are briefly as follows:-

                (a) The suit property  is  a  tank  porampoke  and  the  first
defendant entered  into possession of the same in 1940.  He spent considerable
amount reclaiming the land and also built a  house  and  shop  at  a  cost  of
Rs.50,000/- in  the suit property.  He is in open and continuous possession of
the suit property and he is also running a grocery shop in the  suit  property
adjoining the road.

                (b)  The  first  defendant by his open, continuous and hostile
possession for over the statutory period has  prescribed  title  to  the  suit
property by  adverse possession.  The plaintiffs have suppressed the existence
of the  superstructure.    The  suit  without  a  prayer  for   removable   of
superstructure is  not maintainable.  The first defendant is assessed to sales
tax in respect of the said grocery shop in the suit property from 1952 and  he
was  running the said business for about 25 years and his sons are carrying on
the business for the last 10 years.  The suit is bad for  non-joinder  of  the
sons of this defendant.

                (c)  It is denied that the suit property belonged to Meenakshi
Ammal and that she had executed a will in respect of  the  suit  property  and
other properties in favour of the plaintiffs.  This defendant therefore denies
the  truth,  validity  and  due  execution and attestation of the alleged will
executed by Meenakshi Ammal.  

                (d) It is false to say that this defendant wanted to  purchase
the  suit  property from the plaintiffs and that he entered into the agreement
of sale deed dated 29.11.1978.  If there is any such agreement, it  may  be  a
forged document.   There was no necessity at all for this defendant to execute
any agreement of sale, as he is in possession of the suit property in his  own
right.

                (e)  The  plaintiffs  never demanded this defendant to perform
his part of the contract, as he was not put in possession of the  property  in
pursuance of  any agreement of sale.  He has not acknowledged the title of the
plaintiffs to the suit property at any time.  Further he has not received  any
notice from  the  plaintiffs.  This defendant is not liable to pay any damages
for use and occupation.  Hence the suit may be dismissed with costs.

        6.  On the above pleadings, the following issues were  framed  by  the
trial court for disposal of the suit:-

        (1)  Whether  the suit property belonged to Meenakshi Ammal as alleged
in the plaint?
        (2) Whether the last will and testament dated 14.11.1969 is  true  and
valid in law?
        (3) Whether the agreement of sale dated 29.11.1978 is true and valid?
        (4) Whether the plaintiffs are entitled to the suit property?
        (5)  Whether  the  defendants  acquired  title to the suit property by
adverse possession?
        (6)  Whether  the  suit  without  a  prayer   for   removal   of   the
superstructure is not maintainable in law?
        (7) Whether the suit is bad for non-joinder of necessary parties?
        (8)  Whether the plaintiffs are entitled to the relief of declaration,
recovery of possession and mense profits as prayed for?
        (9) To what relief, the plaintiffs are entitled to?

        7.  The plaintiffs who are respondents in this Second Appeal have  let
in  oral  evidence  by examining P.Ws.1 to 5 and produced documents Exs.A-1 to
A-27 in  support  of  their   claim.      But   on   the   other   hand,   the
appellants/defendants  have  not  produced  any  document,  but examined three
witnesses of whom the deceased first defendant deposed as D.W.1.  The  learned
Additional  District  Munsif having anlaysed the oral and documentary evidence
of the plaintiffs and the oral evidence of defendants and  upon  hearing  both
sides rendered the following findings on the above issues:-

"The  suit  property  originally  belonged  to Meenakshi Ammal; the will dated
14.11.1969 is true and valid in law; the agreement for sale  dated  29.11.1978
is  true  and  valid;  the  plaintiffs  are entitled to the suit property; the
defendants  have  not  prescribed  title  to  the  suit  property  by  adverse
possession;  the  suit is maintainable, as the plaint contained the prayer for
recovery of possession of the suit property after removal  of  superstructure;
the  suit is not bad for nonjoinder of the necessary party; the plaintiffs are
entitled to the reliefs of  declaration,  recovery  of  possession  and  mense
profits  at  Rs.300/- per month and therefore the plaintiffs are entitled to a
decree as prayed for with costs."

        8.  In the first appeal  preferred  by  the  defendants,  the  learned
Subordinate Judge framed the following issues for consideration:-

        (1)Whether  the  first defendant executed the agreement for sale dated
29.11.1978 as claimed in the plaint?
        (2)  Whether  the  relief  with  reference   to   the   removable   of
superstructure has to be dealt with separately for the purpose of court-fee?
        (3) Whether the appeal has to be allowed as prayed for?

        9.   After  analysing the recorded evidence and the arguments advanced
on either sides, the learned Subordinate Judge held on the above  issues  that
the  plaintiffs  have proved the execution of the agreement for sale marked as
Ex.A-15, that therefore the first defendant had  in  fact  executed  the  said
agreement  in  favour of the plaintiffs, that since the construction put up by
the first defendant was unauthorised, the suit without a separate  prayer  for
removable of the same is maintainable and payment of court-fee therefor is not
necessary,  and that ultimately the judgment and decree of the trial court are
confirmed and the appeal is dismissed with costs.



        10.   Heard  Mrs.Hema  Sampath,  learned  counsel  appearing  for  the
appellants   and   Mr.T.R.Rajaraman,   learned   counsel   appearing  for  the
respondents.

        11.  The learned counsel for the appellants  has  submitted  that  the
courts  below  failed to see that the plaintiffs failed to prove the agreement
of sale, Ex.A-15, as there was no necessity for the defendant to  execute  the
same.   Similarly,  both  the  courts  ought  to  have rendered a finding that
Ex.A-15 is concocted document, that the defendants were in possession  of  the
suit  property  in their own right and that the plaintiffs had no title to the
same.  Similarly, it should have been held that proper court-fee had not  been
paid  and  that  there  was  no  evidence for arriving at the quantum of mesne
profits.

        12.  In the above circumstances, the following substantial question of
law as well as additional substantial question of law were formulated by  this
court on 30.7.1993 and 29.12.2004:-

        (1)  Whether  the  courts below are right in decreeing the suit on the
basis of Ex.A-21 which has not been proved as required under Section 68 of the
Evidence Act?
        (2) Whether in law, have not the courts below omitted to see that when
the plaintiffs admit  that  possession  was  given  to  the  defendants  under
Ex.A-15,  the  defendants are entitled to protection under Section 53-A of the
Transfer of Property Act?

        13.  The parties to this Second Appeal may be referred to as they were
arrayed in the suit before the trial court for the sake of convenience.    The
plaintiffs  are the daughters of one Meenakshi Ammal and the power of attorney
who filed the suit on behalf of the plaintiffs  is  the  husband  of  the  3rd
plaintiff.   The  plaintiffs instituted the suit through the power of attorney
for declaration of title to the suit property and for recovery  of  possession
of  the same after removable of the superstructure and for mense profits based
on Ex.A-15, agreement dated 29.11.1978  entered  into  between  the  power  of
attorney  of  the  plaintiffs  on  the one hand and the first defendant (since
deceased) on the other.  Since the first defendant denied the execution of the
said agreement of sale, the plaintiffs examined P.Ws.1 to 3 in order to  prove
the execution of Ex.A-15 by the first defendant.  On this aspect of the matter
both  the  courts below have rendered the concurrent finding that the evidence
of P.Ws.1 to 3 has established that the first defendant executed the agreement
of sale under Ex.A-15.

        14.   Though  the  learned  counsel  appearing  for  the   appellants/
defendants  has  argued  that  the  courts below have failed to appreciate the
evidence on record so as to arrive  at  the  right  conclusion  regarding  the
execution  of  the  agreement  for  sale  under Ex.A-15, the evidence of first
defendant as D.W.1 has also been taken into account by both the  courts  below
to  arrive  at  the  finding that the first defendant had in fact executed the
agreement of sale under Ex.A-15.  A perusal of Ex.A-15 in  the  light  of  the
evidence of P.Ws.1 to 3 on the one hand and that of D.W.1, the first defendant
on  the  other  would reveal clearly that except the self serving testimony of
D.W .1 by denying the execution of Ex.A-15, no tangible evidence has been  let
in on the side of the first defendant to accept his defence.

        15.   But,  on  the contrary, the evidence of P.Ws.2 and 3, scribe and
attester respectively would go to show and prove that Ex.A-15 was executed  by
D.W.1,  the  first  defendant  and  attested  by P.W.3 and another witness and
thereafter completed by P.W.2, scribe and it is in  these  circumstances  that
the  learned  counsel  for  the  respondents/  plaintiffs has argued and in my
opinion rightly that the courts below have rendered the finding regarding  the
due  execution of Ex.A-15 agreement for sale having analysed the evidence in a
proper perspective.  Hence, this court is of the considered opinion that  such
concurrent  finding  of  fact  rendered  by  both  the  courts below has to be
sustained.


        16.  Similarly, the learned counsel for the plaintiffs  has  drawn  my
attention to the documents under Exs.A-22 to A-27 and the evidence of P.W.5 to
show  that  in pursuance of the bequest under the will, Ex.A-21 the plaintiffs
became entitled to the suit property in their own right  and  that  they  have
also  acted  upon  such  bequest by alienating some of the items bequeathed in
their favour under Ex.A-21 to P.W.5 and others under the said  documents.    A
careful  perusal  of the evidence of P.W.5 and Exs.A-22 to A-27 would indicate
that the contention of the learned counsel for the plaintiffs in this  respect
is well founded and therefore the finding of the court below on this aspect of
the matter has to be affirmed.

        17.   The  learned counsel for the defendants has submitted that since
the plaintiffs have failed to prove the due execution of  Ex.A-21,  registered
will  dated  14.11.1969,  they  have  not  established  the  title to the suit
property.   In  answer  to  such  contention,  the  learned  counsel  for  the
plaintiffs  has  drawn  the  attention of this court to the concurrent finding
rendered by both the courts below on his aspect of the matter  to  the  effect
that  since  both  the attesters to the will, Ex.A-21 died and inasmuch as the
evidence of P.W.4, the scribe is on record, the execution  of  the  registered
will Ex.A-21  by Meenakshi Ammal has been amply proved.  It is in the evidence
of P.W.4, the scribe of the will that both the attesters are not alive and  in
view  of  such  evidence of P.W.4 coupled with the registration of the will in
accordance with law and production of the  same  by  P.W.1  before  the  trial
court,  the learned counsel for the plaintiffs has contended and in my opinion
rightly that the above circumstance would cumulatively prove the due execution
of Ex.A-21 by Menakshi Ammal.


        18.  Moreover as has been rightly argued by him, this court is of  the
opinion  that since the first defendant has not claimed any rival title to the
suit property through the said Meenakshi Ammal and inasmuch  as  the  evidence
adduced  by  the  plaintiffs has amply proved the due execution of the will by
the said Meenakshi Ammal, this court is of the  considered  opinion  that  the
concurrent  finding  rendered  by  the  courts  below does not suffer from any
illegality or perversity.  It follows necessarily that the submissions made by
the learned counsel for the defendants that the plaintiffs have  no  title  to
the suit property as they have not proved the execution of Ex.A-21, registered
will  is  not  acceptable in view of the evidence adduced by the plaintiffs on
this aspect of the matter.

        19.  The last contention of the learned counsel for the defendants  is
that  on  the  admitted ground of possession of the suit property by the first
defendant, under Section 53-A of  the  Transfer  of  Property  Act,  1882  the
defendants are entitled to retain the possession of the suit property.

        20.   Section  53-A  of  the  Transfer  of  Property  Act  1882 may be
extracted hereunder to appreciate the facts and evidence of the case:-

        "53-A.  Part performance.-- Where any person contracts to transfer for
consideration any immovable property by writing signed by him or on his behalf
from which the terms necessary to constitute the transfer can  be  ascertained
with reasonable certainty,
and  the transferee has, in part performance of the contract, taken possession
of the property or any part thereof,  or  the  transferee,  being  already  in
possession,  continues  in  possession in part performance of the contract and
has done some act in furtherance of the contract,
and the transferee has performed or is willing to  perform  his  part  of  the
contract, then, notwithstanding that where there is an instrument of transfer,
that  the transfer has not been completed in the manner prescribed therefor by
the law for the time being in force, the transferor  or  any  person  claiming
under  him shall be debarred from enforcing against the transferee and persons
claiming under him  any  right  in  respect  of  the  property  of  which  the
transferee  has taken or continued in possession, other than a right expressly
provided by the terms of the contract:


        Provided that nothing in this section shall affect  the  rights  of  a
transferee  for consideration who has no notice of the contract or of the part
performance thereof."

        21.  The learned counsel for the defendants  reiterated  the  decision
SADASHIV CHANDER  BHAMGARE  v.    EKNATH  PANDHARINATH NANGUDE (2004(4) C.T.C.                
465) in support of the  proposition  that  the  transferee  in  possession  is
entitled  to defend such possession under the provision of Section 53-A of the
said Act.  As has been rightly pointed out by  the  learned  counsel  for  the
plaintiffs,  in  view of the ratio laid down in the decision RAM KUMAR AGARWAL
v.  THAWAR DAS (AIR 1999 S.C.   3248),  the  defendants  who  have  failed  to
perform  their  part  of  the  contact under Ex.A-15 are not entitled to claim
protection of their possession of the suit property under Section 53-A of  the
said Act.

        22.  The ratio laid down in the said decision reads as follows:-

"Plea  under  Section  53-A  of  the  Transfer  of Property Act raises a mixed
question of law and fact and therefore cannot be permitted to be urged for the
first time at the  stage  of  second  appeal.    That  apart,  performance  or
willingness  to  perform  his  part  of  the  contract is one of the essential
ingredients of the plea of part performance.   Thawar  Das  having  failed  in
proving  such  willingness,  protection  to his possession could not have been
claimed by reference to Section 53-A of the Transfer of Property Act."

        23.  In view of the concurrent finding of  the  courts  below  on  the
basis  of  the  recorded  evidence that since the defendants failed to perform
their part of the contract under the agreement  Ex.A-15,  the  plaintiffs  are
entitled to the reliefs as prayed for, this Court finds that the contention of
the learned counsel for the plaintiffs is acceptable on the basis of the above
said decision.    It follows that the defendants are not entitled to raise any
plea under Section 53-A of the Transfer of  Property  Act  in  view  of  their
non-performance on their part of the contract.

        24.   On this aspect, the learned counsel for the plaintiffs has drawn
my attention to the decision ROOP SINGH v.  RAM SINGH (2000 (3) S.C.  C.  708)
in support of his contention that the plea of adverse possession adumbrated by
the first defendant in the written statement is inconsistent with the plea  of
right to possession on the basis of the part performance under Section 53-A of
the Transfer  of  Property  Act,  188  2.   It is no doubt true that the first
defendant has pleaded specifically  in  his  written  statement  that  he  has
perfected  title  to  the  suit  property  by  adverse possession by the open,
continuous and hostile possession of the same from 1940.  As has been found by
both the courts below on the basis of the evidence adduced on the side of  the
defendants, no document has been produced by the defendants to prove such plea
of adverse  possession.    As a matter of fact, it is seen from the records of
the case that apart from the evidence of the first defendant as D.W.1 and  two
other  witnesses  as  D.Ws.2  and  3,  no  document  had  been produced by the
defendants before  the  trial  court  to  establish  their  claim  of  adverse
possession  of  the suit property as pleaded in the written statement filed by
the first defendant.

        25.  In view of such circumstances, the claim  of  the  defendants  in
this Second Appeal that they are entitled to the protection under Section 53-A
of  the  Transfer  of Property Act cannot be countenanced in view of the ratio
laid down by the Apex Court in the decision referred supra and the same  reads
as follows:-

"It  is  also  to be stated that the pleas of adverse possession and retaining
the possession by operation of Section 53-A of the Transfer  of  Property  Act
are inconsistent with each other.  Once it is admitted by implication that the
plaintiff  came  into  possession of the land lawfully under the agreement and
continued to remain in possession till the date  of  the  suit,  the  plea  of
adverse  possession would not be available to the defendant unless it has been
asserted and pointed out hostile animus of retaining possession  as  an  owner
after getting in possession of the land."

        26.   Having  regard to the facts and circumstances of the case in the
light of the principle of law laid down in  the  decision  cited  above,  this
Court is of the considered view that the plea of adverse possession as well as
the  contention  that by operation of Section 53-A of the Transfer of Property
Act, the defendants are entitled to retain possession of the suit property are
mutually inconsistent and therefore on this aspect of the matter, I am  unable
to accept  the submission made by the learned counsel for the defendants.  For
the reasons stated above, this Court finds that  the  concurrent  findings  of
both  the  courts  below  that  the  plaintiffs  have proved title to the suit
property, that the first defendant executed the agreement of sale  Ex.A-15  in
favour  of  the plaintiffs and that the defendants have not perfected title to
the suit property by adverse possession are sustained.

        27.  Similarly, in respect of the question of law now raised  in  this
Second Appeal that the defendants are entitled to retain the possession of the
suit  property  by  operation  of Section 53-A of the Transfer of Property Act
1882, this Court finds that such an argument is not acceptable in view of  the
above finding.   For the reasons stated above, this Court is of the considered
view that the Second Appeal deserves no merit and is liable to be dismissed.

        28.  Thus, the Second Appeal is dismissed with costs by confirming the
judgment and decree passed by the Additional Subordinate Judge,  Cuddalore  in
A.S.No.16 of 1992 dated 26.8.1992.


Index:  Yes
Website:  Yes

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To
1.  The Additional Subordinate Court, Cuddalore.
2.  The Additional District Munsif, Cuddalore.
3.  The Section Officer, V.R.Section, High Court, Madras.