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2006 DIGILAW 2141 (MAD)

K. Kallan (Died) & Others v. M. Kallan & Another

2006-08-24

M.THANIKACHALAM

body2006
Judgment :- 1. The defendant, who suffered a decree for permanent injunction, concurrently, is the appellant originally, on whose death, his legal representatives have been brought on record as appellants 2 to 5. 2. The respondents 1 and 2, claiming that they are the owners of the suit properties, have filed the Suit for permanent injunction. It is their case that the suit properties belong to them, as joint properties, in which the defendant, by name K. Kallan, has no interest and this fact is decided by the Court in O.S.Mo.11 of 1979 on the file of the sub-Court, Ooty, which reached finality. It is their further case, pursuant to the preliminary decree granted in that case, in the final decree proceedings, the suit properties were allotted to the share of the plaintiffs. However, the original appellant/defendant, who has no right over the suit properties, taking advantage of his position in the politics, is attempting to disturb their possession and in this way, a Suit came to be filed, seeking protection, by way of permanent injunction. 3. The original appellant/sole defendant, opposed the claim of plaintiffs, inter alia, contending that he had purchased the suit properties from the original owner under a registered sale deed dated 27.2.1974; that from the said date onwards, taking possession of the suit properties, he continues to be in possession and therefore, there is no chance for him to disturb the alleged possession of the plaintiffs and if at all, the plaintiffs e entitled only for partition and certainly not for injunction. 4. On the above basis, the parties went on trial before the, Trial Coup where the first plaintiff was examined as P.W.1, seeking aid from Exs.A-1 to A-4. On behalf of the appellant/defendant, no oral or documentary evidence has been produced. 5. The learned trial Judge, evaluating the materials and scanning the effect of the judgment in O.S. No. 11 of 1979, came to the conclusion that as per Ex.A-1 the judgment in O.S. No. 11 of 1979, the defendants predecessors-in-interest ceased to have any interest in the suit properties and therefore, the defendant is not entitled to resist the Suit. 5. The learned trial Judge, evaluating the materials and scanning the effect of the judgment in O.S. No. 11 of 1979, came to the conclusion that as per Ex.A-1 the judgment in O.S. No. 11 of 1979, the defendants predecessors-in-interest ceased to have any interest in the suit properties and therefore, the defendant is not entitled to resist the Suit. It is further held, pursuant to the decree in O.S. No. 11 of 1979, the suit properties are allotted to the share of the plaintiffs and therefore, they are entitled to be in possession and that possession should be protected, by the grant of injunction. 6. The defendant, though had not contested the case, by producing any document or examining any witness, preferred an Appeal before the District Court, Nilgiris in A.S.No.17 of 1993. It seems, when the First appeal was pending, Ex.B.1 was marked, probably, invoking Order 41, Rule 27, C.P.C. The learned District Judge, considering once again, as did by the Trial Court, the effect of the judgment in O.S.No.11 of 1979, as well as the subsequent document produced by the defendant, felt, no case has been made out by the appellant/defendant, calling for interference in the findings of the Trial Court. Therefore, it dismissed the Appeal, confirming the decree and judgment of the Trial Court, as per the Judgment dated 31.10.1994, which is impugned in this Second Appeal. 7. This Court, while admitting the Second Appeal, had formulated the only Substantial Question of Law as follows: "Whether it is open to the Court below in dealing with a Suit for injunction to record a finding that the defendant has no right, title or interest in the suit property on the basis of Ex.A-1?" 8. Heard Mr. R.M. Krishna Raju, the learned counsel for the appellants Mr. V. Nicholas, the learned counsel for the respondents. 9. In this Court, the appellant, once again invoking Order 41, Rule 27, C.P.C., has filed certain documents, for the reception of the same as additional evidence, in C.M.P. No. 1440 of 1995, as if these documents are absolutely necessary to prove his right, which he had failed to produce before the Courts below, because of the unavoidable situation prevailed then, beyond his control. This Application is also opposed. Before going into the merits of the Appeal, first we have to give disposal for the C.M.P. No. 1440 of 1995. 10. This Application is also opposed. Before going into the merits of the Appeal, first we have to give disposal for the C.M.P. No. 1440 of 1995. 10. Order 41, Rule 27, C.P.C., can be invoked in case, the Courts below have refused to admit evidence, which ought to have been admitted or when it is established that despite exercising due diligence, the documents now produced were unable to be produced before the Courts below. My endeavour, in searching the affidavit of the petitioner/deceased first appellant, to find out the above ingredients, ended in vain, which could be seen from the conduct of the petitioner also. Admittedly, the appellant has not filed any document before the Trial Court and when he had a chance to invoke this provision, he filed only one document before the First Appellate Court. As indicated above, nothing would have prevented the appellant from producing the documents sought to be produced now, at least before the First Appellate Court. For not producing the same, except the bare allegation that the situation then prevailed was beyond the control of the petitioner/appellant, no case has been made out. In this view, on the basis of the allegations in the affidavit, invoking Order 41, Rule 7, C.P.C. may not be desirable. Assuming, in order to meet the ends of justice, parties must be heard fully, giving opportunities for them to produce the evidence, in rare cases even before the Second Appeal, let me see whether the Petition deserves acceptance. 11. All the documents sought to be produced by the appellant are neither the originals of the documents nor the certified copies of the documents. As far as the sale deed dated 27.2.1974, in favour of the defendant, is concerned, it is not in dispute. No explanation is offered on behalf of the petitioner/appellant, why the original of this sale deed is not filed or at least, if it is lost, why a registration copy was not obtained and filed. As seen from the document, a Xerox copy of a registration copy of the sale deed is filed, which is inadmissible in evidence, in the absence of explanation to let in secondary evidence. 12. As far as other documents are concerned, viz. Serial Nos. 2 to 4, they are all certificates issued by the VAO, who is incompetent to issue such certificates. 12. As far as other documents are concerned, viz. Serial Nos. 2 to 4, they are all certificates issued by the VAO, who is incompetent to issue such certificates. These certificates could not be marked as evidence, without testing their veracity, by examining the VAO, which is not possible. As far as documents at Serial Nos. 5 and 6 are also concerned, they are only certificates issued by the Secretary of Co-operative Bank as well as a D which are not relevant to decide the question of injunction, which should based upon actual possession, of course a right to be in possession of property. Thus, even on merit, considering the admissibility of documents, this Petition deserves only dismissal. Therefore, only on basis of the materials available, the rights of the parties have to be decided as per the Substantial Question of Law. 13. The submission of the learned counsel for the appellants, that the judgment and decree in O.S. No. 11 of 1979 is not binding upon the defendant and therefore, based upon that decision, exclusively, the decree granted by the Courts below, should go, is not acceptable to me, considering the finding entered therein, in which, it is seen, the defendant's predecessors in-interest were also parties through whom, it seems, the defendant's vender, had claimed title. In view of the alleged joint ownership claimed by the defendant, there is a defence in the written statement, as if this Suit is not maintainable for permanent injunction and, if at all, the plaintiff ought to have filed the Suit for partition. Whether the decree in O.S. No. 11/1979 is binding upon the defendant or not, in order to prove the plaintiffs right to be in possession, as a piece of evidence, the judgment in O.S. No. 11 of 1979, which is marked as Ex.A-1 in this case, is a relevant document and we cannot ignore the same totally. Both the Courts have held, on the basis of Ex.A-1, since Nanja Gounder had sold what all share he had in the suit Survey Numbers; his family had no right, whatsoever, in the suit Survey Numbers. 14. The First Appellate Court, in its well-reasoned judgment, in paragraph No. 7, has clearly held that the appellants predecessors-in-interest had lost their right in the suit Survey Numbers even in the year 1915. 14. The First Appellate Court, in its well-reasoned judgment, in paragraph No. 7, has clearly held that the appellants predecessors-in-interest had lost their right in the suit Survey Numbers even in the year 1915. The defendant claims through Bellie Gouder and others, whose ancestor is Nanja Gouder; that Nanja Gouder conveyed his interest in the suit Survey Numbers in favour of one Rangasamy Iyengar under a document, which was exhibited as Ex.A-7 in O.S. No. 11 of 1979, which finding arrived on facts, is not at all challenged. Therefore, on the basis that Bellie Gouder had executed a sale deed in favour of Kallan, the appellant viz. the said Kallan, cannot claim any right. If the judgment of the Court below, which reached finality in O.S. No. 11 of 1979 has to be rejected, the defendant should have produced better evidence to prove, in spite of that decision, his vendor had subsisting title or interest in the suit Survey Numbers and therefore, the conveyance, certainly, would have the effect of transferring some interest in the suit property. As indicated above, no document has been produced before the Trial Court and one of the documents produced before the Appellate Court, also failed to indicate that the appellants predecessors-in-interest had any interest in the suit property, as concluded by the First Appellate Court, in which I am unable to find any error either on law or on facts. 15. By going through the pleadings, as well as Ex.A-2, I should say that the grant of decree, as prayed for, by the Court below, to the entire extent may not be correct and it may require some modification, since prima facie, is some mistake, not considered by the Courts below. The subject matter of the suit is 4.62 acres, i.e. 3.49 acres in S. No.779/A (R.S. No. 779) acres and 1.13 acres in S.No.779/B (R.S. No. 1141). If the above two items had been allotted to the share of the plaintiffs, then, they will have the right to be in possession and that could be recognised by this Court also. As seen from Ex.A-2, in the final decree for the petitioners in I.A. No.531 of 1985, including the first Plaintiff, an extent of 75 cents in Survey No. 1141 as well as an extent of 2.39 1/3 acres in S. No. 779 had been allotted. As seen from Ex.A-2, in the final decree for the petitioners in I.A. No.531 of 1985, including the first Plaintiff, an extent of 75 cents in Survey No. 1141 as well as an extent of 2.39 1/3 acres in S. No. 779 had been allotted. There is no evidence, to correlate Survey No. 1141 with Survey No.779/B, except in the description of property. When Survey No.779 was sub-divided, there is no evidence. Final decree came to be passed on 11.12.1986, which says petitioners therein are entitled to only an extent of 2.39 1/3 acres in S.No.779. When this discrepancy was pointed out and clarification was sought for from the learned counsel for the plaintiffs/respondents, he is unable to explain, how the Suit was laid based upon the decree in O.S. No. 11 of 1979, followed by final decree, for the suit properties. Therefore if at all, on the basis of the final decree, as spoken to by P.W.1, the plaintiffs are entitled to a decree for injunction only in respect of an extent of 2.39 1/3 acres in S. No. 779, as indicated in the plan attached to Ex.A-2, for Survey No.779. The Suit is not for the extent of 75 cents in Survey No. 1141, which was allotted as per Ex.A-2. Even assuming S. No. 1141 corresponds to 779/B, the total extent allotted in that Survey Number is only 75 cents, as per the final decree. Therefore, viewing the case from this angle, it should be held, in view of the non-availability of the evidence on the side of the defendant, the plaintiff is entitled to an order of permanent injunction only in respect of 2.39 1/3 acres i.e. a portion in the first item of the suit properties, indicated in Ex. A-2 plan, which shall form part of the decree in this Suit. Having regard to the facts and circumstances of the case, allowing the Appeal in part, the decree of the Trial Court, which was confirmed by the First Appellate Court also, is modified, granting a decree of injunction in favour of the plaintiffs, only in respect of 2.39 1 /3 acres in S.No.779 and the plan attached to Ex.A-2 for Survey No.779, shall form part of the decree in this case, in order to have effective enforcement, of the decree. For the foregoing reasons, C.M.P. No. 1440 of 1995 is dismissed.