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2011 DIGILAW 2402 (MAD)

Radha Ammal v. Ramachandran Pillai

2011-04-27

R.SUBBIAH

body2011
Judgment :- 1. The Second Appeal is directed against the judgment and decree dated 14.03.1996 passed by the learned Principal District Judge, Villupuram, in A.S.No.143 of 1994, whereby the judgment and decree passed by the learned Subordinate Judge, Tindivanam, dated 28.03.1994 in O.S.No.148 of 1990, were confirmed. 2. The deceased 1st appellant was the sole plaintiff and the respondent was the sole defendant before the trial court and appellants 2 and 3 are the legal heirs of the deceased 1st appellant. The plaintiff (since deceased) filed the suit for a declaration of her title to the suit property and also for a permanent injunction restraining the defendant and his men from interfering with her possession and enjoyment of the suit property. 3. The case of the plaintiff was that the husband of the plaintiff late Adikesava Pillai and the defendant are the brothers and they are the sons of Rathina Pillai and they lived separately, enjoying the properties that belonged to them. The suit property originally belonged to one Mangathayammal, who is the mother of Adikesava Pillai and the defendant, after being purchased the same by her from one Thayarammal, vide registered document dated 13.03.1945. The said property was the separate property of Mangathayammal and it was never belonged to the joint family and her sons had no right to the said property and they also had never claimed any share or interest in the said property on the basis that it belonged to the joint family. Even in the partition that took place in the family, the suit property was excluded as it did not belong to the joint family. While so, Mangathayammal sold the said property to her son Adikesava Pillai, the husband of the plaintiff, in the year 1947 and in pursuance of the oral purchase, Adikesava Pillai took possession of the same and enjoyed it in his own right. Out of love and affection, Adikesava Pillai settled the said property to his wife i.e.the plaintiff under a registered settlement deed dated 27.09.1977 and pursuant to which, the plaintiff took possession of the suit property and was in enjoyment of the same. In 1978, the defendant claiming false title to the suit property, attempted to take forcible possession of the same, which was successfully prevented by the plaintiff. In 1978, the defendant claiming false title to the suit property, attempted to take forcible possession of the same, which was successfully prevented by the plaintiff. Immediately, she sent a legal notice to the defendant and the defendant sent a reply notice containing false averments as if the suit property originally belonged to their joint family and that in the partition that took place in the family in 1959, it was allotted to his share and hence, the suit property belongs to him and that the property lying south of Vellalar Street originally belonged to the family, was allotted to the share of Adikesava Pillai. 4. It was the further case of the plaintiff that actually the so-called share allotted to her husband was the property purchased by her husband from one Hakim Sahib under a registered sale deed dated 19.07.1974. The plaintiff and her predecessor-in-title have been enjoying the suit property as owners of the same continuously, openly and without any interruption for more than the statutory period and the plaintiff has acquired title to the suit property by adverse possession. Even if the defendant had any right or interest in the property, it had become extinguished by operation of law. Hence, the suit. 5. The defendant resisted the suit and filed a written statement stating that the mother of the defendant as well as his brother Adikesava Pillai is one Thaiyalnayaki Ammal and not Mangathayammal, as alleged by the plaintiff. The suit property was purchased by their mother from Mangathayammal. Since the property was purchased by their mother from the income derived from the joint family, the suit property is their joint family property and it was enjoyed commonly. On 22.01.1959, there was a partition and in which, the suit property was allotted to the share of the defendant and since then, he is in possession and enjoyment. Hence, in view of continuous possession for more than 30 years, the defendant acquired title by prescription over the suit property and the plaintiff has no title or interest over the same 6. Hence, in view of continuous possession for more than 30 years, the defendant acquired title by prescription over the suit property and the plaintiff has no title or interest over the same 6. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiff, she examined herself as P.W.1 besides examining four witnesses as P.Ws.2 to 5 and marked ten documents as Exs.A-1 to A-10 and on the side of the defendant, the 1st defendant examined himself as D.W.1 besides examining one Abdul Peg as D.W.2 and marked 4 documents as Exs.B-1 to B-4. The trial court, after considering the entire evidence on record, both oral and documentary, had dismissed the suit. Challenging the said finding, the plaintiff filed A.S.No.143 of 1994 on the file of Principal District Court, Villupuram, wherein the appeal was dismissed by confirming the judgment and decree of the trial court. Against which, the plaintiff filed the present second appeal. During pendency of the second appeal, the sole plaintiff died and her legal heirs were brought on record as appellants 2 and 3. 7. At the time of admission of the second appeal, this Court has framed the following substantial questions of law for consideration: (1) Is it not legal and against law to attach any evidentiary value to Ex.B-1 when the recitals therein effect partition of immovable properties without the same being registered ? (2) Is not the finding of the lower appellate Court that the suit property has been allotted to the share of the respondent/defendant illegal being contrary to the finding of the trial court particularly because there is no evidence that this property was so and so item in Ex.B-1 ? (3) Is not the conclusion of the lower appellate court completely ignoring the boundary description in Ex.A-10 and the legal effect of the alienation made by brothers under Ex.A-9 in 1961, perverse ? 8. Learned Counsel for appellants 2 and 3/the legal heirs of the deceased plaintiff would submit that the courts below have rejected the case put forth by the plaintiff that the property was orally sold by the plaintiff's mother-in-law in favour of the plaintiff's husband. Admittedly, in the plaint, the name of the mother of the plaintiff's husband and the defendant was mentioned as Mangathayammal, but actually the name of the mother is Thaiyalnayaki Ammal. Admittedly, in the plaint, the name of the mother of the plaintiff's husband and the defendant was mentioned as Mangathayammal, but actually the name of the mother is Thaiyalnayaki Ammal. The suit property originally belonged to the said Thaiyalnayaki Ammal, who purchased the same from one Mangathayammal. Since Thaiyalnayaki Ammal purchased the suit property from her own funds, it is the separate property of her. It is the specific case of the plaintiff that Thaiyalnayaki Ammal subsequently sold the same in favour of one of her sons Adhikesava Pillai, the husband of the plaintiff orally and pursuant to which, Adhikesava Pillai and the plaintiff have been in possession and enjoyment of the suit property and subsequently Adhikesavalu settled the property in favour of the plaintiff in and by a settlement deed dated 27.09.1977, marked as Ex.A-1. Hence, by virtue of the settlement deed, the plaintiff has become the absolute owner of the suit property, and in which, the defendant has no right whatsoever. But the defendant, by falsely claiming right over the suit property, made attempts to interfere with the possession of the property. Hence, the plaintiff issued a legal notice to the respondent, and thereafter, she filed the present suit in 1990 for declaration of her title and also for an injunction. 9. It is the further submission of the learned counsel for the appellants that according to the respondent/defendant, there was a partition in the year 1959 between the husband of the plaintiff and himself; in which, the suit property was allotted to his share. But, actually, there was no registered partnership deed in this regard and on the side of the respondent, Ex.B-1 list dated 22.07.1959 was marked, which contains the properties allotted to the share of the respondent. But, the courts below have rejected the case of the plaintiff that there was an oral sale by the mother of the husband of the plaintiff in favour of Adhikesava Pillai and similarly, the courts below have rejected the case of the respondent that there was a partition in the year 1959. Thus, the courts below, by rejecting the case put forth by both the parties with regard to the suit property, dismissed the suit. Thus, the courts below, by rejecting the case put forth by both the parties with regard to the suit property, dismissed the suit. It is the further submission that since the courts below have rejected the case put forth on either side, now the suit property has to be construed as a separate property of Thaiyalnayaki Ammal, the mother of plaintiff's brother and the respondent. When that being the position, the husband of the plaintiff and the respondent were entitled to each half share in the same and under such circumstances, by moulding the prayer, this Curt can pass a preliminary decree for partition in favour of both parties by virtue of Order 7 Rule 7 of C.P.C. though the suit was filed for declaration and title. In support of his contentions, the learned counsel relied upon the decisions reported in NEELAWWA .VS. SHIVAWWA (AIR 1989 KARNATAKA 45), ASIRVADAM SAMUEL NADAR ..vs. RAJA JOTHI AND ANOTHER (1997-3-L.W.78), KASHI PRASAD vs. BANSHIDHAR AND OTHERS (AIR 2001 M.P.185) and U.P.STATE BRASSWARE CORPN.LTD., .vs. UDAI NARAIN PANDEY (AIR 2006 SC 586(1). 10. Per contra, the learned counsel for the respondent/ defendant would submit that though the courts below came to the conclusion that the case of partition put forth by the respondent was not established, they held that the respondent is in possession of the suit property and not the plaintiff and by way of long and uninterrupted possession, the respondent prescribed title in the suit property. Moreover, the other legal heirs of Adhikesavalu were not impleaded as parties to the suit and there were mixed questions of fact and law and hence, by applying principle under Order 7 Rule 7 of CPC, the prayer could not be moulded at this stage. In support of his contentions, the learned counsel has relied upon the decisions reported in ARUNACHALAM PILLAI vs. RAMU MUDALIAR AND OTHERS (1998-2-L.W.439) and RAJESWARI AMMAL vs. ARUNACHALAM AND OTHERS (2010(1) MWN (CIVIL) 137. 11. This Court has carefully considered the submissions made by the learned counsel on either side and perused the materials available on record. 12. In support of his contentions, the learned counsel has relied upon the decisions reported in ARUNACHALAM PILLAI vs. RAMU MUDALIAR AND OTHERS (1998-2-L.W.439) and RAJESWARI AMMAL vs. ARUNACHALAM AND OTHERS (2010(1) MWN (CIVIL) 137. 11. This Court has carefully considered the submissions made by the learned counsel on either side and perused the materials available on record. 12. In view of the submissions made by the parties, I am of the view that the scope of the appeal is very limited and the only question that has to be decided is, whether the prayer made by the plaintiff in the suit could be moulded by granting preliminary decree of partition in the suit property. 13. To answer this question, it would appropriate to go through the judgments relied on by the appellants. In AIR 1989 KARNATAKA 45 (supra), it has been held as follows: "Where in a suit for declaration of title and for injunction restraining defendant from alienating suit property there was no specific prayer made by the plaintiff seeking partition and separate possession of her share in the suit land a preliminary decree for partition and separate possession of the share of the plaintiff can be passed. Once it is declared that the plaintiff is entitled to a half share in the suit land, the necessary consequence of it is to divide the suit land and give her half share. As all the persons entitled to a share in the suit land are parties to the suit, in a suit of this nature the relief for partition must be deemed to have been prayed for in the suit. It is also relevant to notice that the relief of partition and separate possession flows from the same cause of action which forms the basis for such a suit. Denial of such a relief would only lead to another suit. Multiplicity of proceedings should normally be avoided as the same tends to delay justice. In the facts and circumstances of the case the relief of partition and separate possession becomes a consequential relief. Moreover in the instant case the plaintiff had not also lost her right in the suit property because the suit was filed within 12 years from the date the property devolved upon her or the succession opened. Therefore, even if a separate suit was to be filed for partition, the defendant would not have any sustainable defence. Moreover in the instant case the plaintiff had not also lost her right in the suit property because the suit was filed within 12 years from the date the property devolved upon her or the succession opened. Therefore, even if a separate suit was to be filed for partition, the defendant would not have any sustainable defence. Therefore no prejudice would be caused to the defendant if a preliminary decree for partition and separate possession is passed in the suit itself". 14. In AIR 2001 M.P.185 (supra), the relevant paragraphs are extracted hereunder: "7. I am of the considered opinion that where, both the Courts below have recorded finding on the basis of evidence, available on record that plaintiff has 1/7th joint share in the property, the learned Appellate Court should not have refused the same on technical ground that it was not specifically sought for in the relief clause of plaint, particularly, in order to avoid further vexatious litigation between the parties, the First Appellate Court should have exercised discretion in the interest of justice. 8. For the reasons aforesaid, this appeal is partly allowed and the judgment and decree of First Appellate court is modified and it is declared that the plaintiff is entitled to 1/7th share in the disputed property". 15. In AIR 2006 SC 586(1), the Hon'ble Apex Court has held as follows: "It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as parties may be found to be entitled to in equity and justice. If that be so, the court's function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not be conferred always by a statute". 16. If that be so, the court's function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not be conferred always by a statute". 16. By relying upon the above decisions, the learned counsel for the appellants submitted that when the courts below came to the conclusion that neither the plaintiff's case nor the defendant's case has been established, the fact remains that the suit property is the property of the mother of the plaintiff's husband as well as the respondent; therefore, in the interest of equity and justice, by moulding the prayer under Order 7 Rule 7, a preliminary decree for partition has to be granted. It is further submitted that in case the Court comes to the conclusion that the other legal heirs are not parties to the suit, this Court can remand the suit by setting aside the findings of the courts below, so that appellants 2 and 3 can implead the other legal heirs, who are all necessary to the parties and seek the prayer for partition. In support of the same, the learned counsel has relied on the decision reported in 1997-3-L.W.78 (supra), wherein this Court has held as follows: "36. The first respondent claimed relief as if she is the widow and legal heir of deceased Kovil Pillai Nadar. That was in two capacities. Even if she is not a widow, she is a legal heir. The claim is based only as a person claiming under the deceased plaintiff, who is the brother of the appellant. By giving a relief on that basis, I do not think, the appellant will be prejudiced in any way. But even though such a relief could be granted, I do not think that this Court will be in a position to grant the same since on admitted evidence, some more parties will have to be added in the case. While narrating the facts, I said that in Ex. A10, there are three attestors, of whom attestors 2 and 3 are relations of the first respondent, and the second attestor is none other than her own brother. Under Section 47 of the Indian Succession Act, the brother also will be a legal heir along with the first appellant. If he is alive, naturally, those persons also will have to be impleaded in the suit, without which an effective adjudication cannot be had. Under Section 47 of the Indian Succession Act, the brother also will be a legal heir along with the first appellant. If he is alive, naturally, those persons also will have to be impleaded in the suit, without which an effective adjudication cannot be had. But, since I am holding that the first respondent is also a legal heir, I do not want to dismiss the suit for the reason that she is not the widow of Kovil Pillai Nadar. I feel that interests of justice will be met if the suit is remanded to the Trial Court, and the first respondent is given an opportunity to implead the other legal heirs of the deceased Kovil Pillai Nadar and accordingly amend the plaint. Even though the suit is fairly old, the same being of the year 1981, I feel that if the first respondent is driven to file another litigation, that will not be in the interest of justice, to protect her right. At the same time, I confirm the decisions of the Trial Court as well as the lower Appellate Court regarding the identity of the original plaintiff and also the finding that the suit is also barred by adverse possession and limitation. Those findings are confirmed. 37. In the result, I set aside the judgments of both the Courts below, and remand O.S. No. 757 of 1981, on the file of District Munsif's Court, Srivaikuntam, to that Court. The Trial Court, on receipt a copy of this judgment, shall restore the suit to its file and permit the first respondent herein to implead the other legal heirs of deceased Kovil Pillai Nadar under Section 47 of the Indian Succession Act and also permit the first respondent herein to effect necessary amendments to the plaint, in consequence thereof. Thereafter, the Trial Court shall decide the suit in accordance with law...." 17. On the contrary, the learned counsel for the respondent/defendant submitted that there is no alternative prayer in the plaint and in the absence of any specific plea for partition, at this stage, the prayer could not be moulded and in support of the same, the learned counsel has relied on the decision reported in 2010(1) MWN (Civil) 137, wherein this Court has held as follows: "25. In so far as the alternative plea is concerned, i.e., for directing the third defendant to execute the sale deed with a condition to repurchase, the same also cannot be accepted. The suit has been filed by the plaintiff informa pauperis and there is no evidence to show that the plaintiff has approached the defendants expressing her intention to make the payment. Further, such a plea cannot be accepted, since the same is totally contrary to the earlier plea, that is to set aside Ex.A1, sale deed on the ground of fraud and misrepresentation. The learned counsel for the respondent has relied upon the judgment reported in Prem Raj Vs. The D.L.F. Housing and Construction (Private) Ltd., and another, AIR 1968 SC 1355 (V 55 C. 262) and Roop Chand Chaudhari Vs. Smt. Ranjit Kumari, AIR 1991 Punjab and Haryana 212, to submit that when a plea of declaration that a particular contract is void is sought for, the plaintiff cannot alternatively pray for specific performance of the same contract. As rightly contended by the learned counsel for the respondent, the plaintiff cannot make such a plea in the teeth of order 7 Rule 7 of the Civil Procedure Code. Section 37 of the Specific Relief Act expressively provides for filing the suit for specific performance with an alternative plea for recession of the contract but the converse is not provided. Similarly, a mere reading of the Specific Relief Act would show that the plaintiff suing for recession of the contract may not sue in the alternative for specific performance. Therefore, this Court is of the opinion that the judgments relied upon by the learned counsel for the respondent are applicable to the present case on hand. Moreover, the plaintiff has not proved the factum of any panchayat held between the parties and she has approached the third defendant within the time specified." 18. In 1998-2-L.W.489 (supra), this Court has observed as follows: "14. It is clear from the above decisions, that the jurisdiction of the Court to grant a relief must be based on pleadings or at least the opposite party must have admitted the right of the plaintiff in respect of the portion of the same. In this case, both the plaintiff and 1st defendant claimed exclusive title. There is no alternative case for either of the parties. In this case, both the plaintiff and 1st defendant claimed exclusive title. There is no alternative case for either of the parties. The 1st defendant has also not filed any counter claim and he has filed only written statement denying the right of the plaintiff. He claim exclusive right only as a defence to the plaintiff's claim and what he prayed for is only the dismissal of the suit. The question whether the plaintiff and defendant are entitled to equal right over the suit lane was not a matter in issue nor evidence let in that regard. Only because the suit lane lies in between the properties of the plaintiff and the 1st defendant, the Lower Appellate Court though that it has been commonly enjoyed by both of them. When the parties are not at issue and the relief granted by the lower Appellate Court is neither incidental to the main relief, following the decisions cited supra, I think that the relief granted was in excess of its jurisdiction. The relief does not flow either from the plaint claim or on the basis of any admission of the defendants. In such cases, the Court cannot grant a relief, as has been granted by the lower Appellate Court. Consequently, the first substantial question of law raised in the Second Appeal has to be found in favour of the appellant. The lower Appellate Court has no jurisdiction to grant a declaration that the plaint lane is a common lane. On question No.2, it has to be held that when there is a finding that the plaintiff has failed to establish his case, it can only dismiss the suit and cannot grant a decree as has been done in this case. On question No.3, I hold that such question does not arise for consideration, since the suit has only to be dismissed". 19. A reading of the above judgments gives an apt answer to the arguments advanced by the appellants. There is no dispute with regard to the granting of relief by moulding the prayer under Order 7 Rule 7 C.P.C; but can it be done in all circumstances? 19. A reading of the above judgments gives an apt answer to the arguments advanced by the appellants. There is no dispute with regard to the granting of relief by moulding the prayer under Order 7 Rule 7 C.P.C; but can it be done in all circumstances? From the decisions relied on the by the respondent, it is clear that there should be an alternative plea with regard to the partition or there should be an admission on the side of the respondent with regard to the moulding of prayer, which the legal heirs of the plaintiff now sought for. 20. In the instant case, the plaintiff had asserted that she had been in possession and enjoyment right from the year 1947 (the oral sale of the year) and therefore, she prescribed title; whereas the respondent has also been claiming right over the same property right from the year 1959 (the partition of the year). Since the plaintiff has not established her case with regard to the alleged oral sale and the respondent has also not proved his case with regard to the alleged partition, till such issues, which are mixed questions of fact and law, are to be decided, by applying the provisions under Order 7 Rule 7, the grant of preliminary decree is not possible in this case. Moreover, I see no infirmity in the findings arrived by the courts below in dismissing the suit and I find that no substantial question of law is involved and under such circumstances, the second appeal is liable to be dismissed. For the reasons stated above, the second appeal is dismissed and the findings of the courts below are confirmed. No costs.