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2002 DIGILAW 1218 (MAD)

Rajamani Nadar v. Subbulakshmi

2002-10-08

K.GOVINDARAJAN

body2002
Judgment : 1. The first respondent in S.A. No. 1017/1993, who is also by respondent in other Second Appeals, approached the Court by filing a suit in O.S. No.2/1986 on the file of the District Munsif Court, Kovilpatti on the basis that she is the owner of the suit properties, bearing S. No.42/1983, which is specifically mentioned in the I Schedule of the Plaint. 2. According to the plaintiff/1st respondent, the suit properties originally belonged to Ettayapuram Jamin. In 1952, the Zamindar leased out a portion of the said I Schedule property to one Yacob Reddiar for eight years. He agreed to hand over possession of the same with all superstructures, on completion of the said lease period. On 18.12.1961 under Ex.A8, the Zamindar sold the suit properties and the shops to his maternal uncle A.B. Karuppasamy Pillai. On 1.9.1969, the said Karuppasami Pillai under Ex.A. 14 gifted the suit properties to the plaintiff. 3. The plaintiff filed the said suit in O.S. No.2/1986 for a declaration that she is the owner of the suit properties, and for an injunction restraining defendants 1 to 3 therein from interfering with the rights of the plaintiff, and who had also filed suits in O.S. Nos.495, 476, 358, 492, 66, 496, 494 and 493 of 1980 for recovery of possession of the properties from the persons who are in occupation of the properties which form part of the I Schedule property in O.S. No.2/1986. It is relevant to mention here that the suit in O.S. No.2/1986 is the comprehensive suit, as in the said suit, the 1st respondent/plaintiff has sought for a declaration of her title to the suit properties by impleading the Government of Tamil Nadu, the Sub-Collector and the Tahsildar as defendants 1 to 3. 4. The appellants/defendants contested the suit contending inter alia , that the plaintiff has no right in the suit properties, but they are the Government-poromboke, and they have been in possession of the suit properties for a long number of years. According to them, they have been served with ‘B’ memos on assignments, as the case may be, by the Government. 5. According to them, they have been served with ‘B’ memos on assignments, as the case may be, by the Government. 5. The trial Court in the judgment dated 31.3.1989 decreed the suit in O.S. No.2/1986 holding that the plaintiff is entitled for a declaration of her title to the suit properties on the basis that they are not poromboke lands, and also she is entitled for injunction as prayed for against defendants 1 to 3 therein. Even the other suits filed by her for recovery of possession of the suit properties from the respective defendants, the trial Court decreed the suits for possession of the same. 6. The Government, the Sub-Collector and the Tahsildar filed an appeal in A.S. No.90/1989 against the judgment and decree passed in O.S. No.2/1986. The other defendants, namely, defendants 4 to 11 had also filed Appeals in A.S. Nos. 68/89 against the judgment and decree passed in O.S. No.2/1986. The other appellant filed the other Appeals in A.S. Nos.66, 67, 69 to 73 and 161 of 1989 against the judgment and decree passed in the respective suits. The lower appellate Court in the common judgment dated 20.4.1992 dismissed the Appeals, except A.S. No. 161/89 confirming the judgment and decree of the trial Court. Though the defendants who suffered decree for possession filed the above Second Appeals, the Government have not filed any Second Appeal though their Appeal in A.S. No.90/1989 was dismissed, confirming the decree in O.S. No.2/1986. The defendants 4 to 11 only filed S.A. No. 1017/1993. The other appellants filed S.A. Nos.1187, 1188, 1189, 1471 to 1475 and 335 of 1993. 7. Though substantial questions of law were framed at the time of admission, after hearing the arguments, I am inclined to frame the question of law, which has to be answered first, as follows: “Whether the appellants can sustain their claim in the above Second Appeals, though the judgment and decree passed in A.S.No.90/1989, confirming the decree passed in O.S.No.2/1986 has become final against the defendants 1 to 3 in O.S.No.2/1986 is concerned ?” 8. The 1st respondent/plaintiff claims title on the basis of Exs.A8 and A14, with respect to the suit properties. But the appellants have come forward with the plea that the suit properties are Government-poromboke and so the Government are the owner of the same and not the 1st respondent/plaintiff. The 1st respondent/plaintiff claims title on the basis of Exs.A8 and A14, with respect to the suit properties. But the appellants have come forward with the plea that the suit properties are Government-poromboke and so the Government are the owner of the same and not the 1st respondent/plaintiff. They came forward with the plea that with the permission of the Government, they have been in possession of the suit properties and so the 1st respondent/plaintiff cannot evict them. 9. It is not in dispute that the appellants are not claiming any independent title as against the claim of the 1st respondent/plaintiff. Learned counsel for the appellants fairly submitted that they are defending the case of the 1st respondent/plaintiff only on the basis that the Government is the owner of the properties and not the plaintiff. On the basis of the above said claim, we have to now deal with the sustainability of the Second Appeals filed by the appellants. In O.S. No.2/1986, the plaintiffs title with respect to the suit properties had been declared in the presence of the Government, as the Government have been impleaded as 1st defendant and the officials have been impleaded as defendants 2 and 3, and a decree for injunction also had been granted, as sought for by the 1st respondent/plaintiff, against them. Defendants 1 to 3 having aggrieved by the judgment and decree passed in O.S. No.2/1986 filed an Appeal in A.S. No.90/1989. As stated already, the said Appeal was dismissed by confirming the judgment and decree in O.S. No.2/1986. So the decree passed in O.S. No.2/1986 merged with the decree in A.S. No.90/1989. But the Government had accepted the said decree without filing any further appeal to this Court. Admittedly, no Second Appeal is filed against the decree passed in A.S. No.90/1989 by the Government, and the decree passed against the Government with reference to the title of the 1st respondent/plaintiff with respect to the suit properties has become final. 10. In view of the above, the appellants cannot now agitate that the Government are having title in the suit properties, and the 1st respondent/plaintiff cannot claim any right, and thereby their possession should be protected by setting aside the decree, granted by the lower Courts for possession. 10. In view of the above, the appellants cannot now agitate that the Government are having title in the suit properties, and the 1st respondent/plaintiff cannot claim any right, and thereby their possession should be protected by setting aside the decree, granted by the lower Courts for possession. This Court has come to such a conclusion only on the basis that the appellants are not claiming any independent right in the suit properties, but they are claiming right to be in possession only through the Government, and the Government have accepted the decree passed against them and in favour of the plaintiff. 11. Since the decree passed in O.S. No. 2/1986 against defendants 1 to 3 has become final, and the 1st respondent/plaintiff can enforce the same against those defendants 1 to 3, no inconsistent decree can be passed now at the instance of the appellants as they are not claiming any independent right. Moreover, unless the case of the appellants that the suit properties are the properties of the Government, is accepted, the appellants cannot succeed in the Second Appeals. 12. This view of mine is supported by the judgment reported in National Insurance Co. Ltd. v. V. Vasantha , AIR 1988 Mad. 146 , wherein the claim made by the claimants for compensation arising out of the death in the motor accident was allowed by the Tribunal against the insurance Company, but was dismissed against the driver and owner of the vehicle, and the Insurance Company alone filed an Appeal by impleading the claimants as respondents. It is held in the said Appeal that the claimants cannot ask for relief against the driver and owner of the vehicle. 13. The Apex Court, in the judgment reported in Nirmala Bala v. Bala Chand, AIR 1965 SC 1874 , has held as follows: “There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other. 13. The Apex Court, in the judgment reported in Nirmala Bala v. Bala Chand, AIR 1965 SC 1874 , has held as follows: “There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other. When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree to invoke the powers of the appellate Court under O.41, R.33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed.” 14. In view of the above discussion, the appellants cannot sustain their Second Appeals, as the plaintiff had got a decree declaring her title to the suit properties against the Government on whom the appellants are setting up a title and tracing out their right to be in possession, and the said decree has become final, without filing any Second Appeal challenging the same, by the Government. 15. Hence, without going into the merits of the case, these Second Appeals are liable to be dismissed, as the appellants cannot now sustain their Second Appeals stating that the 1st respondent/plaintiff has no right to get a decree for possession against them, as she is not having any title therein. Accordingly, these Second Appeals are dismissed, but there is no order as to cost. C.M.P. Nos.13993/97 and 18194/97 to 18199/97 are also dismissed.