Research › Browse › Judgment

Madras High Court · body

1998 DIGILAW 1022 (MAD)

Palani v. Perumal

1998-07-31

K.P.SIVASUBRAMANIAM

body1998
Judgment :- 1. This Second Appeal is directed against the judgment of the learned Subordinate Judge, Salem, in A.S. No. 7 of 1983 dated 30.8.1983, setting aside the judgment of the learned District Munsif, Salem in O.S. No. 496 of 1978, dated 14.10.1981. 2. According to the plaintiff, the suit property belongs to the plaintiff by virtue of the settlement deed dated 12.9.1973 and that his predecessors in title were in possession and enjoyment of the same in their own rights. The suit property is measuring 45-1/2 feet East-West and 16-1/4 feet South to North. According to the plaintiff, the suit house was built about 60 years ago and its southern and northern walls belong to the plaintiff absolutely. On the East of the property is Pachamuthu Mudali Street and on the West is Vannia Kula Kshatria Street. The defendants are undivided brothers of a Hindu Joint family and they are the owners of the house on the South of the plaintiffs house and they have no right in the house and in the southern wall of the suit house. The southern wall of the suit house was about 45-1/2 feet in length and the same was built by the grand-father of the plaintiff about 60 years ago to support his house and from that time it is in the exclusive use and enjoyment of the plaintiff and his predecessors in title and even otherwise the plaintiff was entitled to the suit wall by long use and enjoyment over a statutory period of 60 years and more. The defendants attempted to grab the house of the plaintiff and having failed in their attempts they began to give trouble to the plaintiff in the enjoyment of his house. On 27.5.1978 while the plaintiff was carrying out some repairs in the suit wall, the defendants and their family members obstructed the plaintiff and hence the suit. 3. In the written statement the defendants denied the pleadings of the plaintiff and contended that they are the absolute and exclusive owners of Door No. 72/1291 and New Door No. 88 in Pachamuthu Mudali Street as well as the entire walls on all the four sides and that they have been in continuous and uninterrupted possession of the suit property. It was the plaintiff who began to construct his house and attempted to encroach upon the properties of the defendants which was prevented by them. It was the plaintiff who began to construct his house and attempted to encroach upon the properties of the defendants which was prevented by them. But when the defendants had been to Erode with their family to attend a sick relative, the plaintiff had unlawfully and without any right encroached upon the properties belonging to the defendants by putting up construction. The defendants had pleaded several facts to substantiate their claim that the suit wall belongs to them and that the plaintiff was also estopped from raising contradictory pleas. 4. On the basis of the above said pleadings and the evidence both oral and documentary, the learned trial Judge held that the plaintiff was not entitled to the entire suit wall, but he is entitled to the wall coloured in violet colour as shown in Exhibit C.2 and consequently, the plaintiff was not entitled to the entire suit wall and dismissed the suiit. However, on appeal the learned appellate Judge allowed the appeal and decreed the suit as prayed for, regarding the A B C D E F portion of the suit wall and the rest of the suit wall marked in violet colour in Ex. C.2. Hence the above Second Appeal by defendants 1 and 3. 5. Learned Counsel Mr. R.M. Krishna Raju appearing for the appellants, was unable to point out any illegality or perversity in the judgment of the lower Appellate Court. He would however strenuously contend that the plaintiff ought not to have put forth inconsistent pleas and hence the suit was liable to be dismissed on that ground alone. Learned counsel for the appellants has raised the issue in the context of the pleadings by the plaintiff to the effect that the suit wall was built by his grandfather about 60 years ago for supporting his house, and that they have been in exclusive use and enjoyment and that even otherwise the plaintiff was entitled to the suit wall by long use and enjoyment over the statutory period of 60 years and more. According to the learned counsel for the appellants, such inconsistent pleadings are not maintainable. Learned counsel for the appellants relied on a judgment of Ramaprasada Rao, J. as he then was, reported in 1968-I M.LJ. 502 = 81 L.W. 95 ( Palaniswami Naicker v. Chinnaswami Naicker ). According to the learned counsel for the appellants, such inconsistent pleadings are not maintainable. Learned counsel for the appellants relied on a judgment of Ramaprasada Rao, J. as he then was, reported in 1968-I M.LJ. 502 = 81 L.W. 95 ( Palaniswami Naicker v. Chinnaswami Naicker ). In that case, the plaintiff asked for a declaration that he is entitled to use the pathway in question for taking his cart, cattle, etc. and consequently asked for a permanent injunction restraining the defendant or his men from obstructing such user by the plaintiff of the suit pathway. In paragraph Nos. 5 to 8 of the plaint in that case the plaintiff had claimed that he was entitled to an easementary right of way within the meaning of Section 15 of the Easements Act. But the contention of the opposite side was that in substance and in effect the suit was not one for declaration of ownership of the suit property. It was therefore, contended that such inconsistent plea cannot be maintained. In the said case reliance was placed on a judgment reported in A.I.R. 1933 Lahore 267 ( Imamdin v. Nizam Dian ) in which the Lahore High Court held that a right of ownership and a right of easement are totally distinct things, one being a personal right, and the other being annexed to the adjoining land of the property and runs with it and hence the relief was utterly inconsistent with the relief claimed. To the contrary, a judgment of a Full Bench of the Calcutta High Court was relied on before the learned Judge, in (1907) I.L.R. 34 Calcutta 51 ( Narendranath Barari v. Aboy Charan Chatopadhyaya ). The Full Bench of Calcutta High Court held that a suit for declaration that a ditch belonged to the plaintiff or in the alternative they have acquired a right of easement was not liable to be dismissed because the plaintiffs had claimed relief in the alternative over the plot namely both of ownership and of easement. Ramaprasada Rao, J. as he then was, agreed with the ratio of the Full Bench of the Calcutta High Court and held that such an alternative plea was permissible provided the plaintiff presses only one of them at the appropriate time. Ramaprasada Rao, J. as he then was, agreed with the ratio of the Full Bench of the Calcutta High Court and held that such an alternative plea was permissible provided the plaintiff presses only one of them at the appropriate time. In the present case, learned counsel for the respondent contended that while oral evidence was taken, the plea of adverse possession was given up and that therefore, the said ruling was in his favour. This statement on the part of the learned counsel for the respondent is not controverted by learned counsel for the appellants. Thus it has to be held that the ruling relied on by learned counsel for the appellants and the submissions put forth by him, cannot be sustained. 6. Yet, learned counsel for the appellants would submit that such prayers ought not to be allowed and the view of the learned single Judge of the Lahore High Court was preferable. 7. It is true that no party may be allowed to put forth inconsistent pleas which would be in fact, a principle consistent from the moral angle. But the law permits alternate pleas to be put forth where two parallel legal rights are available to the party. For instance, the plaintiff may be entitled to pray for title to the property by virtue of a sale obtained by him, bona fide and for valid consideration and incidentally he may have also continued to be possession of the suit property over the statutory, period, holding the property in his own right, asserting title in himself and in such a case there are two legal rights available to him, and there is nothing wrong either legally or morally to plead both the rights. An individual might have acquired easement by prescription within the parameters of Section 15 of the Easements Act and also simultaneously as an easement of necessity within Section 13 of the said Act or otherwise. In this case also, neither legally nor morally there is anything wrong in the party raising both the pleas. In fact in the very judgment relied on by learned counsel for the appellants, Ramaprasada Rao, J. as he then was has upheld two easementary rights namely, (i) easement of necessity, and (ii) easement by prescription. 8. In all these cases there can be no question of any inconsistency. 9. In fact in the very judgment relied on by learned counsel for the appellants, Ramaprasada Rao, J. as he then was has upheld two easementary rights namely, (i) easement of necessity, and (ii) easement by prescription. 8. In all these cases there can be no question of any inconsistency. 9. Another example will be that in a partition suit, the prayer is usually for a declarattion based on alleged earlier partitior or in the alternative for partition. The plea of declaration may be very genuine, but for want of evidence it may not be possible to prove earlier partition. But he does not lose his right at least for a partition through the Court by virtue of his inherent right in the property. There is no reason as to why he should be non-suited merely on the ground that he had put forth inconsistent pleas. 10. On the other hand, if in a suit on a promissory note, if the defendant would deny the signature in the promissory note and at the same time plead partial discharge of the amounts due or in a case where signature is admitted and consideration is denied, such pleas are not only statutorily frowned upon but would also be morally unjustified. So also in a case for ejectment if a tenant would plead on one hand that he himself is an owner of the land and at the same time plead that he is not in arrears of rent, such pleas become incompatible, both legally and morally. 11. In some cases, even if law permits the parties to put forth alternate pleas, if facts pleaded are so glaringly unpalatable, the Court will draw adverse inference about the genuineness or truth of the same. In such cases the result would be definitely against such a party. 12. Therefore, there cannot be any hard and fast rule preventing the parties putting forth alternate pleas and so long as law permits the parties to acquire different kinds of and parallel rights and there cannot be a prohibition for entertaining such pleas. 13. As stated earlier in the present case, the right by adverse possession was only alternatively pleaded and even otherwise the plaintiff having given up the alternative plea at the time of evidence, cannot be non-suited on the ground that he had put forth inconsistent pleas. 14. 13. As stated earlier in the present case, the right by adverse possession was only alternatively pleaded and even otherwise the plaintiff having given up the alternative plea at the time of evidence, cannot be non-suited on the ground that he had put forth inconsistent pleas. 14. Therefore, I do not see any grounds of interfere with the above Second Appeal and he same is dismissed. No costs.