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2005 DIGILAW 501 (MAD)

Nagaru Pillai S/o. Subramonia Pillai & Others v. Ram Ammal & Others

2005-03-22

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Sec.115 of C.P.C against the order of the First Additional District Munsif, Nagercoil dated 17.09.2002 made in I.A.No.767 of 2002 in O.S.No.74 of 1976, as stated therein.) This Civil Revision Petition is directed against the Order of the First Additional District Munsif, Nagercoil dated 17.09.2002 made in I.A.No.767 of 2002 in O.S.No.74 of 1976, dismissing the Petition to re-open the case and to examine the Second Defendant as Witness on the side of the Defendants. 2. For disposal of this Revision Petition, necessary brief facts are to be stated: - Plaintiffs filed O.S.No.74 of 1976 on the file of District Munsif, Nagercoil for Declaration of their Title and Possession of the ABCD Plot of 3 cents in the Plaint property and for an Injunction restraining the Defendants from putting up a fence and encroaching into the Plaintiffs property and for putting up a Demarcating Bund along AB line through Court and also for setting aside the resurvey proceedings and Plan prepared in respect of the Plaint Property. 3. According to the Plaintiffs, the Plaint Schedule property originally belonged to one Isaki Ammal. She had three Daughters by name Sellathammal, Ramuammal and Mookkathammal. Mookathammal died and she had three children by name Rajammal, Sankaranarayanan Pillai and Chondu Ammal. Ramu Ammal is the First Plaintiff. The Plaint survey Number has a total area of 31 cents. Esaki Ammal executed a Settlement deed in respect of the Plaint property and another property on 04.01.1116 M.E (18.08.1940). In that Settlement Deed, the Western 8 cents was gifted to Chellathammal and the balance 23 cents on the East was gifted to Ramu Ammal and Mookathammal Children. The portions gifted to Mookathammal's Children have been acquired by the First Plaintiff and so the First Plaintiff is the absolute owner of 23 cents. The Western most 8 cents gifted to Chellathammal has been acquired by one Malayammal alias Maria Ammal. She is dead and her rights have been inherited by Defendants 1 to 4. Plaintiffs and Defendants are relatives and hence no demarcating bund or fence has been put up. Prior to the filing Suit, the Defendants attempted to encroach the Eastern portion marked ABCD in the portion claiming that the resurvey authorities have included this portion with their plot. The resurvey authorities have no right to include that area with the Plaintiff's Property. Plaintiffs and Defendants are relatives and hence no demarcating bund or fence has been put up. Prior to the filing Suit, the Defendants attempted to encroach the Eastern portion marked ABCD in the portion claiming that the resurvey authorities have included this portion with their plot. The resurvey authorities have no right to include that area with the Plaintiff's Property. It is against the title and possession of the parties. On the intervention of some mediators, a bund was put up on a Dividing line. The Defendants demolished the same and attempted to encroach the Plaintiffs portion. Hence, the Suit. 4. The Defendants 1 to 4 resisted the Suit by filing a Written Statement wherein they contended that Chellammal was allotted 28 cents on the Southern Side, that Malayammal purchased those 28 cents and also another 8 cents in the Western Portion, and that eversince the date of purchase, they were in possession and enjoyment of the same and have converted the same into a coconut Garden. They further contended that their Mother executed a Will on 27.11.1970 by which she allotted the entire southern 28 cents in S.No.2483 to the Third Defendant, Southern 7 cents to the Second Defendant and the remaining 1 cent to the Third Defendant. The Fourth Defendant was not given any property and she is also an unnecessary party to the Suit. According to them, the Suit as framed is not maintainable and that the same is liable to be dismissed. 5. The Fifth Defendant / State of Tamil Nadu filed a Written Statement separately stating that the measurement of the resurvey authorities is correct and therefore the resurvey operations cannot be set aside. 6. After Trial, the Trial Court has found that the Defendants have demolished the Bund and that they have not perfected the Title to the disputed portion by way of adverse possession. The Trial Court also arrived at the conclusion that the Suit was not maintainable as the Plaintiffs have not prayed for recovery of possession of the disputed portion from the Defendants. Aggrieved over the same, the Plaintiffs have preferred Appeal in A.S.No.181 of 1979 on the file of the Subordinate Court, Nagercoil. Learned Subordinate Judge allowed the Application in I.A.No.47 of 1981, permitting the Plaintiffs to amend the Plaint for including the Prayer for recovery of possession and mesne profits. Aggrieved over the same, the Plaintiffs have preferred Appeal in A.S.No.181 of 1979 on the file of the Subordinate Court, Nagercoil. Learned Subordinate Judge allowed the Application in I.A.No.47 of 1981, permitting the Plaintiffs to amend the Plaint for including the Prayer for recovery of possession and mesne profits. Learned Appellate Judge has remanded the matter to the Trial Court for fresh disposal. 7. C.M.A.No.472 of 1981:- As against the Order of remand, the Revision Petitioners / Defendants 1 to 3 have preferred an Appeal before the High Court in C.M.A.No.472 of 1981. The said Appeal was allowed with the following directions: - "... The appeal is allowed in part, in that, the portion of the Judgment of the learned appellate Judge allowing I.A.No.47 of 1981 permitting the Plaintiffs to amend the Plaint and amended the Suit to the lower Court alone are confirmed. In other respects, the Judgments of both the trial Court and the lower Appellate Court are set aside, and the matter is remanded to the Trial Court for fresh disposal on merits on all the issues after giving opportunity to both parties to adduce evidence both oral and documentary and without being influenced by the observations made either by the lower appellate Court. There will be no order as to costs in this Appeal. Since the matter is of the year 1976, the Trial Court is directed to dispose of the Suit expeditiously by giving top priority to this Suit...." 8. After allowing C.M.A.No.472 of 1981, the Suit in O.S.No.74 of 1976 came up for Trial. Sufficient opportunities were afforded to the parties. From the typed set of papers filed by the Revision Petitioners, it is seen that Defendants 1 to 3 have filed Additional Written Statement. The Parties have adduced evidence. After remand order was confirmed by this Court in C.M.A.No.472 of 1981, the Suit was pending in the Trial Court for about five years. During that time, the Second Defendant did not choose to examine himself as Witness. D-1 to D-3 have filed Common Written Statement; after the remand, they have filed common Additional Written Statement. When they have filed Common Written Statement, question of examining D-2 separately does not arise. If the parties have thought it necessary to examine the Second Defendant as the Witness on their side, they ought to have availed the opportunity when the case was pending about five years. When they have filed Common Written Statement, question of examining D-2 separately does not arise. If the parties have thought it necessary to examine the Second Defendant as the Witness on their side, they ought to have availed the opportunity when the case was pending about five years. 9. The Second Defendant – Muthiah Pillai has not chosen to examine himself as Witness though the Suit was pending for about Five years after remand in C.M.A.No.472 of 1981. Onbehalf of the Defendants 1 to 3 common Written Statement and Common Additional Written Statement was filed. The case was posted for arguments. On behalf of the Plaintiff, arguments were submitted. When the case was pending for arguments, on 06.09.2002, the Revision Petitioner / D-2 has filed the Petition in I.A.No.769 of 2002 to re-open the case and to examine him as Witness onbehalf of the Defendants. In the Affidavit, the Petitioner has stated that as per the Order in C.M.A.No.472 of 1981, an opportunity is to be given to him and that he is to be examined in respect of the contentions raised in the amendment and subsequent events. As rightly contended by the Plaintiffs in the Trial Court, the Second Defendant has not chosen to examine himself as Witness though the Suit was pending for nearly Five years after the order of remand. The other Defendants viz., D-1 and D-3 are none other than the Brothers of Revision Petitioner – D-2. As noted earlier, they have filed Common Written Statement and Common Additional Written Statement. In that view of the matter, the question of examining the Second Defendant separately does not arise; more so, at the belated stage when the Suit has been posted for arguments. In dismissing the Petition, learned District Munsif has rightly taken note of the dilatory tactics adopted by the Defendants. 10. As against the Order of Remand made in A.S.No.181 of 1979, the Defendants 1 to 3 have preferred C.M.A.No.474 of 1981. As noted earlier, in the C.M.A, this Court has directed the Trial Court to expedite the Trial. After remand, the Suit was pending for more than Five years. At that time, Defendants 1 to 3 have filed the Application to examine Commissioner as Witness. As against the dismissal of the Petition, a Revision was preferred by the Defendants 1 to 3. After remand, the Suit was pending for more than Five years. At that time, Defendants 1 to 3 have filed the Application to examine Commissioner as Witness. As against the dismissal of the Petition, a Revision was preferred by the Defendants 1 to 3. From the Counter Statement filed by the Defendants, it is seen that in the said Revision Petition, this Court has passed strictures against the Defendants in delaying the Trial Proceedings. (Vide Counter Statement filed by the Plaintiffs in I.A.No.769 of 2002). The Civil Revision Petition preferred by the Defendants against the dismissal of the Application to examine the Commissioner and to issue a second Commission was dismissed. In the Counter Statement, the Plaintiffs have definitely alleged that Defendants 1 to 3 are adopting the dilatory tactics to delay the Trial Proceedings. 11. The Suit in O.S.No.74 of 1976 was posted for arguments. At that stage, only on 06.09.2002, the Revision Petitioner / D-2 has filed I.A.No.769 of 2002 to examine himself as a Witness on the side of the Defendants. There seems to be no bonafide in filing such application. The Respondents / Plaintiffs have contested the Application, stating on the ground that sufficient opportunity was already given to the Defendants 1 to 3. The contention advanced onbehalf of the Revision Petitioner / D-2 that no opportunity was afforded to the Revision Petitioner / D-2 to examine himself has no basis. Learned District Munsif has rightly dismissed the Application in I.A.No.769 of 2002. The order does not suffer from any infirmity warranting interference. This Revision is bereft of merits and is bound to fail. 12. For the reasons stated above, the order of the First Additional District Munsif, Nagercoil dated 17.09.2002 made in I.A.No.767 of 2002 in O.S.No.74 of 1976, dismissing the Application filed to re-open the case and to examine the Revision Petitioner-D-2 is confirmed and this Revision Petition is dismissed. Consequently, the connected C.M.P.No.13981 of 2002 is closed. However, there is no order as to costs. Since the Suit is of the year 1976, learned District Munsif is directed to dispose of the Suit within one month from the date of receipt of a copy of this Order.