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2005 DIGILAW 596 (MAD)

Abdul Saleem & Others v. Ramasamy Padayachi

2005-04-06

M.THANIKACHALAM

body2005
Judgment :- The defendants, though successful before the trial Court, unable to sustain the same before the first appellate Court and the result is this appeal. 2. The respondent herein as plaintiff has filed a suit against the appellants/defendants for declaration, mandatory injunction and for permanent injunction also in respect of the suit properties. 3. According to the plaintiff, he acquired title to the suit properties under two registered sale deeds dated 20.1.1971 and 27.10.1976 and from the said date onwards, he was in possession and enjoyment of the same, as rightful owner. It is the further case of the plaintiff that defendants 1 & 2 have encroached upon a portion of the suit properties and therefore, it is prayed for removal and possession. It is further contended, that the third defendant also, after trespass, had put up a superstructure, which should be removed by way of mandatory injunction. Thus claiming title over the suit properties, as well as labeling the appellants/defendants as trespassers, the suit was filed for the reliefs, as detailed in the prayer column. 4. Appellants 1 & 2 as well as the third defendant opposed the claim of the plaintiff contending, that the suit itself is not maintainable, since there was a decree for mandatory injunction in O.S.No.36/73, that the plaintiff having failed to execute the same, has filed the suit, which is not maintainable and that they have not encroached upon the properties of the plaintiff, whereas they are in possession and enjoyment of the properties as theirs', which are under their control for well over 40 years or so, and thereby, they have acquired title to the said portions by adverse possession also. Thus, the defendants denying the claim of the plaintiff under the sale deeds, have contended that the plaintiff is not entitled to any relief. 5. On the basis of the pleadings, the trial Court framing as many as 14 issues, including additional issues, took the case for trial. Before the trial Court, on behalf of the plaintiff, two witnesses have been examined, seeking aid from 11 documents, which were sought to be eclipsed by the examination of four witnesses, marking three documents on behalf of the appellants/defendants. To help the Court, to reach an unerring conclusion, on application a commission was appointed, who had also filed report and sketch, which were exhibited as Exs.C1 & C2. 6. To help the Court, to reach an unerring conclusion, on application a commission was appointed, who had also filed report and sketch, which were exhibited as Exs.C1 & C2. 6. The learned trial Judge, evaluating the above materials and considering the previous proceedings between the parties, came to the conclusion, that because of the previous proceedings in O.S.No.36/1973, the suit is not maintainable, probably on the basis of res judicata, that the parties were not enjoying the properties according to the documents and that the suit itself is not maintainable in addition to some other conclusions. Thus, taking the view the suit itself is not maintainable, it came to be dismissed on 11.4.1989, which was challenged by the plaintiff in A.S.No.196/91 on the file of the District Judge, Salem. 7. The plaintiff, when the first appeal was pending, had filed an interlocutory application, for the reception of additional evidence. The learned II Additional District Judge, Salem, by going through the Judgment of the trial Court, as well as the Commissioner's Report, came to the conclusion, that the defendants are in possession and enjoyment of some portion of the properties, belonged to the plaintiff, in which they have not prescribed any title by adverse possession, and that the plaintiff having established his title to the suit properties, and the defendants having failed to prove their interest over the said area, they are not entitled to retain possession. In this view, he set aside the decree and Judgment of the trial Court, by allowing the appeal, thereby granting a decree, as prayed for. 8. While considering the appeal, the learned II Addl. District Judge, was of the opinion that the documents produced along with interlocutory application viz., I.A.No.462/91 are necessary to decide the controversy and in this way, he allowed that I.A. marking Exs.A12 & A.13. Taking into consideration these documents also, the learned II Addl. District Judge has come to the conclusion, that the encroached portions are within the area comprised in the sale deeds of the plaintiff, preceded by the original documents of titles. Though the defendants have claimed adverse possession, according to the assessment and conclusion of the learned II Addl. District Judge, it is not proved by any satisfactory evidence, whereas the claim for possession for more than statutory period is belied by their own documents. Though the defendants have claimed adverse possession, according to the assessment and conclusion of the learned II Addl. District Judge, it is not proved by any satisfactory evidence, whereas the claim for possession for more than statutory period is belied by their own documents. It is the further conclusion of the learned II Additional District Judge, that as far as the vacant site is concerned, possession should follow title. In this view of the matter alone, the claim of the defendants regarding adverse possession had been negatived. 9. Aggrieved by the decree granted by the first appellate Court, the defendants have come to this Court as appellants, challenging the same on various grounds. 10. This Court, while admitting the second appeal formulated the following substantial question of law: "Whether the Judgment of the lower appellate Court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law?" 11. Heard the learned counsel for the appellants, Mr. S. Suresh Kumar and the learned counsel for the respondent, Mr. R. Subramaniam. 12. The learned counsel for the appellants submitted, that the first appellate Court cannot form a new opinion, having a new thinking, thereby deviating from the findings rendered by the trial Court, unless such findings are not supported by evidence, that the appellate Court had committed an error in allowing the interlocutory application, to receive additional evidence, despite the fact that there was no necessity to order additional evidence, that the trial Court had committed an error relying upon the Commissioner's Report, which is the reproduction of the recitals available in the documents, that the first appellate Court has not at all considered the defence, viz., the plaintiff having obtained a decree in O.S.No.36/1973 had failed to execute the same, which should be a bar for the second suit i.e. O.S.No.1540/1979 and that the first appellate Court had failed to consider the documentary evidence produced on behalf of the defendants viz., Exs.B1 to B3. On the above basis, further contending that the relief prayed for being in the nature of discretionary, the plaintiff is not entitled to such relief, in view of suppression of certain material facts. On the above basis, further contending that the relief prayed for being in the nature of discretionary, the plaintiff is not entitled to such relief, in view of suppression of certain material facts. Elaborating the above points, further urging that the suit is barred by res judicata also, a strenuous argument was made for allowing the second appeal, in order to restore the decree and Judgment of the trial Court. 13. The learned counsel for the plaintiff/respondent countering the above arguments submitted that the previous suit filed by the plaintiff was withdrawn with liberty to institute a fresh suit, in respect of the subject matter and in view of this fact, the contention of the appellants, that the suit is not maintainable or the suit is barred by the principle of res judicata, cannot be countenanced. It is the further submission of the learned counsel for the respondent, that only to reaffirm the existing case, the documents were produced as additional evidence, since the plaintiff was unable to produce the same before the trial Court, which cannot be found fault, since Order 41 Rule 27 C.P.C. permits the party to let in additional evidence also. In this way, it was urged further that the first appellate Court had properly considered the evidence available on record, including the additional documentary evidence, in accordance with law, not taking any view of its own deviating from evidence, which deserves acceptance, and the appeal deserves rejection. 14. The first prayer in the plaint is for declaration that X3 property belongs to the plaintiff with consequential relief and for mandatory injunction to remove the top put up by the third defendant by way of mandatory injunction. The second relief is for declaration that X2 property belongs to the plaintiff with consequential relief of possession from D1 & D2. According to the plaintiff, X3 property shown in the sketch forms part of X property and X2 property forms part of X1 property. The third defendant is owning property on the eastern side of X3 property. The first defendant is owning property on the southern side of X2 property, as well as on the eastern side of X2 property. It is the case of the plaintiff, that D3 had encroached upon X3 property, whereas D1 had encroached upon X2 property. The third defendant is owning property on the eastern side of X3 property. The first defendant is owning property on the southern side of X2 property, as well as on the eastern side of X2 property. It is the case of the plaintiff, that D3 had encroached upon X3 property, whereas D1 had encroached upon X2 property. For the above said items, title is traced under the sale deeds dated 29.1.1971 and 27.10.1976, which are exhibited as Exs.A1 & A5 respectively. When the plaintiff had claimed title under the above said sale deeds, as seen from the written statement of the appellants, though they have claimed that the plaintiff is not the owner of X2 & X3 properties and they are the owners of the above said portions, it is not their case that the sale deeds relied on by the plaintiff are not true, valid or something like that or they will not include X2 & X3 properties also or these properties are not covered under the deeds. It is the specific case of the first defendant in the additional written statement, that in view of the decree already granted in favour of the plaintiff, on 29.10.1975 in O.S.No.36/1973, the suit is not maintainable. It is the further contention in the additional written statement, that the third defendant had prescribed title to the portion X3 and the portion X2 is in the possession of the first defendant, from time immemorial, in which the plaintiff was never in possession. Though such a possession is claimed, as seen from the written statement of the first defendant, it is not the specific case, that he had prescribed title to the said portion by adverse possession. The third defendant in his written statement would contend, that he was not a party in O.S.No.36/1973 and therefore, proceedings if any, will not bind him. Further it is the case of the third defendant, that she is an unnecessary party to the suit. Thus from the reading of the written statement, one thing is made clear, that they have not questioned the title deeds, relied on by the plaintiff. Before the first appellate Court, the plaintiff had produced only the original title deeds for the properties covered under Exs.A1 & A5 and not in support of any new plea and in this view, it should come within the meaning of additional documentary evidence. Before the first appellate Court, the plaintiff had produced only the original title deeds for the properties covered under Exs.A1 & A5 and not in support of any new plea and in this view, it should come within the meaning of additional documentary evidence. Having the above facts in mind, we have to approach this case. 15. The submission of the learned counsel for the appellants, that the suit is barred by the principles of res judicata or the suit is not maintainable, in view of the decree granted by the trial Court in O.S.No.36/1973, is untenable. To appreciate the above point, we have to see the previous proceedings between the parties. Originally one A.Abdul Rasheed had filed O.S.No.36/73 against two appellants, by name Abdul Saleem, Beebee Jan and against this respondent on the file of the District Munsif Court, Namakkal. It seems, when the suit was pending, Ramasamy, the respondent herein i.e. the plaintiff in O.S.No.1540/79 had purchased the property of Abdul Rasheed. Abdul Rasheed filed the suit against Abdul Saleem and Bibi Jan and Ramasamy claiming common right in the suit properties alleging, that the defendants therein have trespassed into the property and in this view alone, the suit was filed for declaration and mandatory injunction. The first defendant in O.S.No.36/73 viz., the respondent herein, since purchased the property of Abdul Rasheed, no cause of action had survived against Ramasamy in O.S.36/1973. However, cause of action survived against other two defendants, which devolved upon Ramasamy on the basis of the purchase. Therefore, Ramasamy, with the permission of the Court, transposed himself as 2nd plaintiff in O.S.No.36/73. Thereafter, it seems, Ramasamy felt, that there is some defect, which may not lead to success in O.S.36/73. Taking such a view, Ramasamy filed a petition under Order XXIII Rule 3 C.P.C. seeking permission to withdraw the suit, at some point of time. The trial Court allowed that application and dismissed the suit as withdrawn, with liberty to file a fresh suit on the same cause of action on 28.2.1978, as seen from the decree copy in O.S.No.36/73, which is exhibited as Ex.A11. 16. The trial Court allowed that application and dismissed the suit as withdrawn, with liberty to file a fresh suit on the same cause of action on 28.2.1978, as seen from the decree copy in O.S.No.36/73, which is exhibited as Ex.A11. 16. On the other hand, it is the specific case of the appellants, that there was a decree after trial and the plaintiff therein viz., the respondent in the second appeal, in stead of executing the decree for mandatory injunction, failed to do so, for three years and realising thereafter that the decree cannot be executed, has filed the present suit, which is not maintainable. In support of the above contention, aid is sought from Ex.B.3 i.e. the Suit Register Extract in O.S.No.36/73. As seen from this document, there is an entry dated 29.10.1975 as if the suit was decreed after full trial. The appellants had not produced the decree copy, in pursuance of the Judgment said to have been rendered on merit on 29.10.1975. From the copy of suit register extract, it is not known, whether a decree has been granted after contest, against all the defendants or some of the defendants on 29.10.1975, which doubt is further strengthened from the other entries available in the Suit Register Extract. After 29.10.1975, it seems, a petition was filed to set aside the ex parte decree under Order IX Rule 13 C.P.C., which was allowed and the suit was restored to file on 16.8.1976, which would go to show, the decree said to have been granted on 29.10.1975 was non est. Therefore, it cannot be said that the decree dated 29.10.1975 was available for execution. After the suit was restored on 16.8.1976, there was another exparte decree on 5.8.1977, which was also set aside on application. Only thereafter, a petition was filed under Order XXIII Rule I C.P.C. on 28.2.1978, which was allowed, thereby permitting the petitioner therein to withdraw the suit, giving liberty to file a fresh suit on the same cause of action. This being the admitted position or established fact, as seen from Ex.B3, it is futile on the part of the appellants to contend, that there was a decree after contest on 29.10.1975 and the plaintiff without executing that decree, is not entitled to maintain a fresh suit, is untenable and frivolous. This being the admitted position or established fact, as seen from Ex.B3, it is futile on the part of the appellants to contend, that there was a decree after contest on 29.10.1975 and the plaintiff without executing that decree, is not entitled to maintain a fresh suit, is untenable and frivolous. If the suit register does not indicate the subsequent proceedings, including the restoration of the suit, after setting aside the exparte decree, not only once, but also twice, and withdrawal also, then only the contention could be accepted. Taking advantage of some mistake, as if the suit was decreed on 29.10.1975 after contest, an argument was advanced before the trial Court, which was unfortunately accepted by the trial Court, but set aside by the first appellate Court otherwise. It seems, before the first appellate Court, this point has not been raised at all and that is why, the learned first appellate Judge has also not considered it elaborately. But the learned counsel for the appellants, at present, taking advantage of the entry available in Ex.B3, emboldened to contend, that the suit is not maintainable or the same is barred by res judicata and this plea is raised only for out right rejection. Thus, the maintainability of the suit, as well as the res judicata raised, on behalf of the appellants has no legs to stand and these points are rejected. 17. The further submission of the learned counsel for the appellants, that the suit is not based on the same cause of action is also not acceptable to me. Order 23 Rule 1(3) C.P.C. says, when the Court is satisfied that a suit must fail by reason of some formal defect, or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit on such terms as it thinks fit, the plaintiff may be permitted to withdraw the suit or part of the claim, as the case may be, with liberty to institute a fresh suit, in respect of the subject matter of such suit, which should include the cause of action also. Before me, no dispute had been raised regarding the identity of the properties. The properties, which were the subject matter in O.S.No.36/73 are the properties described in this suit also though by different letters. Before me, no dispute had been raised regarding the identity of the properties. The properties, which were the subject matter in O.S.No.36/73 are the properties described in this suit also though by different letters. In the written statement also, no such plea has been raised as if the subject matter of the previous suit is different from the subject matter of the present suit. In that suit also, as far as these defendants/appellants are concerned, they are described as trespassers, from whom possession was sought for after removal of the top said to have been put up by the third defendant. The position being so, it should be held, that in pursuance of the permission granted by the trial Court in O.S.No.36/73, the second suit viz., O.S.No.1540/79 has been filed, in which I am unable to find any defect, in order to say that the suit is barred or it is not in accordance with the permission granted by the trial Court in O.S.No.36/73. In this view of the matter, neither res judicata comes into operation, nor the question of violation of permission granted by the trial Court in O.S.No.36/73 arise for consideration. 18. The submission of the learned counsel for the appellants that the first appellate Court had committed the error in allowing additional evidence placing reliance upon a decision of Gauhati Court in Md. Saifur Rahman v. State of Assam (AIR 1985 Gauhati 107) is also not acceptable to me, since that ruling is distinguishable on facts. The additional evidence produced in this case before the first appellate Court is not in support of any new plea. No new plea has been introduced before the first appellate Court and therefore, it cannot be the case of additional plea, for which additional evidence was introduced. The plaintiff had produced title deeds, for the suit properties i.e. Ex.A1 & A5. For the suit properties, prior title deeds were sought to be produced by filing the same, which cannot be described as fresh evidence, and it should be construed only as additional evidence. In the case involved in the above decision, it seems, the appellant therein attempted to take an additional plea, for the first time, at the appellate stage and in support of the same, they wanted to let in fresh evidence, under the guise of additional evidence. In the case involved in the above decision, it seems, the appellant therein attempted to take an additional plea, for the first time, at the appellate stage and in support of the same, they wanted to let in fresh evidence, under the guise of additional evidence. Considering the above facts, the division bench has held as follows: "The provisions of the O.41, R.27(aa) are applicable when a party contests a point, makes some averments and adduces some evidence at the trial stage. Then and then alone the Court can exercise jurisdiction under O.41 R.27(aa). It is a case of allowing a party to take an "additional plea" for the first time at the appellate stage and to lead "fresh evidence" and surely not a case of adducing "additional evidence". This is impermissible. The term "additional evidence" means extra or added evidence. The word 'Additional' embraces the idea of joining or uniting one thing to another so as thereby to form one aggregate". 19. In the case on hand, it is not the case of any new plea, whereas only in respect of the existing case, without raising any new plea or additional plea, documents were produced, which were admitted excusing or condoning the lapses committed by the plaintiff, in not producing those documents, before the trial Court. In the process adopted by the first appellate Court, I am unable to find any defect, violating Order 41 Rule 27 C.P.C. The documents marked are dated 5.6.1947 and 22.7.1934. Though they are certified copies, I am unable to see any material, to say, these documents were challenged. The first appellate Court, considering the origin of title and the subsequent Court proceedings and purchase, admitted these documents and therefore, the fact that none, connected with the documents, has been examined, will not be a ground to negative the contents of the documents. Hence, the conclusion of the first appellate Court that Exs.A12 & A13 are material documents, to decide the point in issue, is well acceptable, since the said documents also relate to the suit properties, over which the plaintiff/respondent claimed title. 20. The first appellate Court had framed proper points while deciding the dispute. As indicated above, the disputed portions are X3 and X2. According to plaintiff, X3 forms part of X, X2 forms part of X1. Reflecting the above case, points 1 & 5 were framed by the first appellate Court. 20. The first appellate Court had framed proper points while deciding the dispute. As indicated above, the disputed portions are X3 and X2. According to plaintiff, X3 forms part of X, X2 forms part of X1. Reflecting the above case, points 1 & 5 were framed by the first appellate Court. Further regarding the adverse possession claimed by the third defendant also, point No.2 was also framed. The first appellate Court has considered the documents, measurements given therein and how the measurements tally with the Commissioner Report. The learned II Addl. District Judge considered the case of the third defendant, in paragraph-9 as well as the case of the first defendant in paragraph-10 of the judgment. The first appellate Court has given a finding, based on fact, that Exs.A12 & A13 properties were brought for sale, through Court auction, which was purchased by Rahimabi under Ex.A4. That is why, I said it is not a new plea or additional plea and therefore, admitting Ex.A12 & A13 is well within the permissible limit of Order 41 Rule 27 C.P.C. Considering the measurement available in Ex.A1, under which right is claimed by the plaintiff for X property, the first appellate Court has come to the conclusion, that X3 portion also comes within the property covered under Ex.A1. 21. Regarding the possession for well over 40 years, claimed by the third defendant, the first appellate Court has given a finding that in the document of the year 1957, there is no reference regarding the top or temporary shed and the right over a Thadam alone is given, which would indicate that in the year 1957, there was no encroachment. Considering this fact, adverse possession was also negatived as far as D3 is concerned, which is well acceptable to me. The first appellate Court has also concluded taking into account, the previous Commissioner's Report, where there was no observation regarding the existence of the temporary shed, which was sought to be removed by mandatory injunction. As on 30.6.1973, there was no superstructure, and if at all, it should have been put up thereafter, thereby belying the case of the third defendant's 40 years continuous possession of X3 property with superstructure. As far as the claim of D1 & D2 is concerned, the learned Additional District Judge dealt with in paragraph-11 of his Judgment, where he had considered the measurements, physical features, boundaries, etc. As far as the claim of D1 & D2 is concerned, the learned Additional District Judge dealt with in paragraph-11 of his Judgment, where he had considered the measurements, physical features, boundaries, etc. He had also considered the documentary evidence of defendants 1 & 2, under which they have purchased only 16½ ft., which is in their occupation, as per the observation made in Ex.C2. Thus taking into consideration, the measurements available in the documents, as well as the Commissioner's Report, the learned Additional District Judge has come to an unerring conclusion that X2 property also comes within the measurement of the plaintiff's property, thereby concluding that the title is proved, which does not warrant any interference. The further conclusion of the learned District Judge that possession should follow the title, is the trite law, cannot be disturbed. For the foregoing reasons, the well considered Judgment of the first appellate Court, which had taken into consideration, the entire evidence, assessed the same from proper perspective cannot be disturbed, the further fact being, no substantial question of law also involved in this case. Thus answering this point, I conclude that the appeal deserves dismissal. In the result, the appeal is dismissed with costs.