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2003 DIGILAW 689 (MAD)

A. Pankajam v. N. Kamatchi Mudaliar

2003-04-21

R.BANUMATHI

body2003
JUDGMENT: The plaintiff in O.S. No.72 of 1985 on the file of the District Munsif Court, Coimbatore, is the appellant. The suit O.S. No.72 of 1985 was filed for declaration and possession and the trial Court decreed the suit in the entirety. In A.S. No.3 of 1991, the lower appellate Court modified the decree partly allowing the appeal granting declaration and negativing relief of recovery of possession. Aggrieved over the same, the plaintiff has preferred this appeal. For convenience, the parties should be referred in their original rank in the suit. 2. The suit property relates to S.No.799/1 northern side of 0.79 1/3/ 1.19 acres of Kalapatti village. Case of the plaintiff is that the suit S.No.799/1 of Kalapatti village was sold in Court auction in execution of the decree in E.P. No.2694 of 1924. The same was purchased in Court auction by Gopal Naidu Educational Trust (Ex.A-6 sale certificate) by the Managing Trustee/ Balasubramanian. The said Balasubramanian sold the suit property to the plaintiff under Ex.A-2 sale deed. The plaintiff has totally purchased 3.76 acres from Gopal Naidu Trust in S.Nos.799/1 and 800/6. As per the scheme decree, (Ex.A-9) Gopal Naidu Trust was in possession and entitled to sell away the property. Exs.A-22 to A-24 are the kist receipts paid by Gopal Naidu Trust showing their possession. While selling the suit properties and the property in S.No.800/6 to the plaintiff under Ex.A-2, boundaries are mentioned. On the basis of Exs.A-6, A-9 and A-2, both the trial Court and the lower appellate Court upheld the title of the plaintiff. 3. While reversing the finding and allowing the appeal, the lower appellate Court granted declaration. It was declined the possession on the ground that the property is alienated to third parties and that the property is not in the possession of the defendant. In view of the lower appellate Court without impleading necessary parties, viz., the purchasers from the defendant, the decree cannot be executed and possession cannot be delivered to the plaintiff and accordingly the lower appellate Court dismissed the suit. 4. According to the defendant, the property in S.Nos.799/1, 800/14, 800/6 6.28 acres are in one stretch. Further case of the defendant is that under Ex.B-1 sale deed (1.5.1929), Karuppannasamy, Nanjappa Mudaliar, Irulappa Mudaliar, Arunachala Mudaliar have sold the southern side 3.14 acres in S.Nos.800/6, 800/14 and 799/1 to the defendant. 4. According to the defendant, the property in S.Nos.799/1, 800/14, 800/6 6.28 acres are in one stretch. Further case of the defendant is that under Ex.B-1 sale deed (1.5.1929), Karuppannasamy, Nanjappa Mudaliar, Irulappa Mudaliar, Arunachala Mudaliar have sold the southern side 3.14 acres in S.Nos.800/6, 800/14 and 799/1 to the defendant. Further, under Ex.B-2 sale deed (dated 1.5.1929) Karuppannasamy had sold further extent of land to defendant’s father Nanjappa Mudaliar. Thus, by virtue of Exs.B-1 and B-2 the defendant claims to be entitled to the entire extent in S.Nos.799/1, 800/6 and 800/14. The defendant relies upon Ex.B-3 mortgage Deed under which he is said to have mortgaged an extent of 3.14 acres on the southern side of the above said survey numbers. 5. Pointing out that the extent mortgaged is not mentioned in Ex.B-3 mortgage deed and that no boundaries are mentioned and further finding that Exs.B-3 and B-4 are subsequent to Ex.A-6 sale certificate in the name of Gopal Naidu Trust, the trial Court found that the defendant has not proved his entitlement to the entire extent of S.No.79 9/1, particularly the suit property 0.79 1/3 on the northern side. 6. Thus the concurrent findings of the Courts below is to the effect of upholding the plaintiff’s title against which the defendant has not preferred any cross appeal. Therefore, the only point that survives for consideration is whether the lower appellate Court was justified in declining the relief of recovery of possession to the plaintiff. 7. While the second appeal was admitted the following substantial questions of law were formulated: (1) Whether the lower appellate Court is correct in law in coming to the conclusion that there cannot be a decree for possession against the respondent as proper parties have not been impleaded, especially when it has been categorically found that the plaintiff is entitled to the suit property. (2) When the appellant’s title to the suit property has been affirmed, is it open to the lower appellate Court to negative the relief of possession as against the respondent who has failed to establish his case on the ground that the parties in possession have not been impleaded overlooking the clear fact that there is nothing in record to show that the suit property has been alienated to third parties by the defendant? 8. 8. Learned counsel for the appellant submitted that when the plaintiff has proved his title to the northern side 0.79 1/3 acres, he is entitled to be in possession assailing the finding of the lower appellate Court. Learned counsel further submitted that even if any third parties are in possession, the obstruction by such third parties could very well be removed by filing an application under O.21, Rule 95, C.P.C. It is further submitted that any such application filed under O.21, Rule 95, C.P.C. and removal of obstruction has to be dealt with like the suit (O.21, Rule 101, C.P.C.) and that by declining the relief of recovery of possession, the lower appellate Court erred in driving the plaintiff to file a separate suit. In this regard, reliance is placed upon Indira v. Arugham, A.I.R. 1999 S.C. 1549. Learned counsel has also submitted when the defendant has not proved to be in possession of the suit property to 0.79 1/3 acres in S.No.799/1 he is only a rank trespasser who is to be evicted. 9. Supporting the findings of the lower appellate Court, learned counsel for the respondent/ defendant submitted that the suit property is already sub-divided into the house plots and when the same was sold away to third parties, there could be no direction for delivery of possession as against the defendant. It is further submitted that in para (8) of the written statement where the defendant has urged that the suit is bad in non-joinder of necessary parties, and the suit is liable to be dismissed. 10. From Exs.A-17 to A-21 it is seen that for fasli 1381 to 1385 (1970 to 1974) one Krishnan was in possession of the suit S.No.799/1. It is not explained as to how the said Krishnan happened to be in possession of the suit survey number. The contention of the defendant that he was granted patta (Exs.B-6 and B-7) cannot in any way confer title upon him. Exs.B-1 and B-2 would not in any way prove the title of the defendant to the suit property, particularly, the northern portion. As said earlier, the defendant has not preferred any cross appeal as against the concurrent findings of the Courts below upholding the title of the plaintiff. 11. The only point that survives for consideration is whether the suit is bad in non-joinder of necessary parties. As said earlier, the defendant has not preferred any cross appeal as against the concurrent findings of the Courts below upholding the title of the plaintiff. 11. The only point that survives for consideration is whether the suit is bad in non-joinder of necessary parties. In para (8) of the written statement though it is averred that “......the suit is bad for non-joinder other owners of the land in S.No.799/1” names of the purchasers are not stated. Only vague averment as to non-joinder of necessary parties is made in para 8. Names of the person whom the property was sold is not indicated in the written statement. The names of purchasers ought to have been set forth even in the trial Court to enable the plaintiff to decide whether to implead them or not. In fact even before the lower appellate Court, names of the purchasers were not indicated. Only in the second appeal while filing the counter statement in C.M.P. No.9510 of 1992, the defendant has indicated the names of the persons. In the counter statement, the defendant has averred that the properties are sold to persons as under: S.No.799/1C - 28 cents ... C.Narayanasamy S.No.799/1D - 6 1/4 cents ... C.Govindan S.No.799/1E - 6 1/4 cents ... Venkatesan S.No.799/1F - 6 1/4 cents ... Janakiammal S.No.799/1G - Ranganayakiammal 10 cents x Manickam and S.No.799/1G - 10 cents ... Chinnasamy 12. It is to be stated that the names of the purchasers ought to have been stated in the written statement before the trial Court or atleast must have indicated before the lower appellate Court which is the final Court on factual aspects to enable the plaintiff to take appropriate steps. Having not taken such steps in the Courts below, it is too late in the day for the defendant to urge that those purchasers ought to have been impleaded as parties and that the suit is bad for non-joinder of necessary parties. In this regard, the decision relied upon learned counsel for the appellant/ plaintiff Visalakshi Achi RM. AL. (died) v. RM.Seenivasan), (1999)3 C.T.C. 57 is relevant to be quoted. 13. When the Commissioner has visited the suit locally, he has noted the residential quarters and workshop of one Narayanasamy. The house and the workshop were found to be with Asbestos roof. He has also noted one residential house with thatched roof. AL. (died) v. RM.Seenivasan), (1999)3 C.T.C. 57 is relevant to be quoted. 13. When the Commissioner has visited the suit locally, he has noted the residential quarters and workshop of one Narayanasamy. The house and the workshop were found to be with Asbestos roof. He has also noted one residential house with thatched roof. The Commissioner noted that impoverished structure being used as a bath room. Even if the third parties namely Narayanasamy and others are so found to be in possession, they cannot be said to be necessary parties to the suit. This Court finds that they are not necessary parties for complete adjudication and effective relief could be granted even if the said Narayanasamy and others are not made parties. After all, those persons are claiming only through the defendant who has no semblance of right or title in the suit property. 14. Learned counsel for the defendant relied upon Panchapakesan v. Peria Thambi Naicker, (1972)2 M.L.J. 59 and Kanakarathanammal v. Loganatha, A.I.R. 1965 S.C. 271 in support of his contention that the plaintiff ought to be non-suited for not impleading the necessary parties. The above said decisions could easily be distinguishable on facts since those cases relate to the partition cases where the Court had found that non-impleading of necessary parties is essential for complete and effective adjudication. Principles of those decisions cannot be of any assistance to the defendant in the case on hand. 15. As rightly submitted by the learned counsel for the plaintiff/ appellant, even if the third parties are found to be in possession, the decree-holder/ plaintiff can very well make out an application under O.21, Rule 95, C.P.C. for removal of obstruction in the executable stage. Any such application for removal of obstruction has to be determined like a suit and not by a separate proceeding/ suit. The relevant question for consideration to be determined between the judgment-debtor/ plaintiff and the persons in possession could very well be determined in that application as per O.21, Rule 101, C.P.C. By deciding the recovery of possession the lower appellate Court in driving the plaintiff to another round litigation which is contrary to O.21, Rule 101 Civil Procedure Code. The lower appellate Court has not properly considered the fact of admission by the defendant that he is in possession of 30 cents of the suit property after selling away a portion to the third parties. The lower appellate Court has not properly considered the fact of admission by the defendant that he is in possession of 30 cents of the suit property after selling away a portion to the third parties. 16. The lower appellate Court has not properly applied the provisions of O.21, Rule 95, C.P.C. and O.21, Rule 101, C.P.C. which are available to the plaintiff to the appropriate steps for removal of obstruction. The lower appellate Court has taken erroneous view of the law which cannot be sustained. If the recovery of possession is to be declined, the plaintiff would be driven to another round up litigation which cannot be permitted. Hence, this second appeal has to be allowed reversing the judgment of the lower appellate Court in A.S. No.3 of 1991. 17. Therefore, this second appeal is allowed. The judgment and decree of lower appellate Court/ Sub Court, Coimbatore in A.S. No.3 of 1991 (arising out of the judgment in O.S. No.72 of 1985 District Munsif Court, Coimbatore) is set aside to the extent “relief of recovery of possession”. It is held that the appellant/ plaintiff is entitled to the recovery of possession and the judgment of the trial Court is confirmed. In the circumstances of the case, there is no order as to costs.