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2011 DIGILAW 3971 (MAD)

Thanigaivel v. Govindarajan

2011-09-14

R.S.RAMANATHAN

body2011
Judgment :- 1. The first defendant, who lost in both the Courts belowis the appellant herein. 2. The first respondent filed the suit for the relief of declaration and for recovery of possession. The case of the first respondent was that one Mr.Goda Narayana Iyer, was the original owner of vast extent of land and in the family partition, as evidenced by koorrchit dated 01.07.1957, one of his sons by name G.Viswanathan, got 7.3 acres of land in S.No.199/2, 1 acre and 7 cents of land in S.No.200/1, 1 acre and 39 cents of land in S.No.199, 87 cents of land in S.No.197, 36 cents of land in S.No.120/1, 18 cents of land in S.No.119, and 1 acre and 42 cents of land in S.No.1/18/2 of Kerambakkam Village. 3. Thereafter, the said G.Viswanathan, along with his wife and children executed a sale deed dated 12.11.1982, in respect of 36 cents of land in S.No.120/1 to one V.R.Muthu. Thereafter, the said V.R.Muthu, under a registered sale deed dated 6.2.1984, sold 6.87 cents of land, out of total extent of 36 cents in S.No.120/1 to one Mrs.Thangam Thanunathan. Further, the sons of Mr.Goda Narayana Iyer, also formed a layout in respect of the land belonging to them and in that lay out, the plot No.117, comprised of 3.5 cents of land purchased by Thangam Thanunathan, out of total extent of 6.87 cents of land purchased by her from V.R.Muthu and 3.37 cents of land was forming part of S.No.199/2. 4. Later on, the said Mrs.Thangam Thanunathan, along with the legal heirs of Mr.Goda Narayana Iyer, sold plot No.117, having an extent of 6.87 cents to one Shanthi, under a registered sale deed dated 6.9.1991 and from the said Shanthi, the plaintiff/first respondent purchased plot No.117 under a registered sale deed dated 23.10.1996 and he was in peaceful possession and enjoyment of the property and the defendant viz., the appellant herein and other respondents attempted to interfere with his peaceful possession and enjoyment. Therefore, the first respondent filed a suit in O.S.No.537 of 2001, for injunction and later, the appellant and the other respondents trespassed into the property and hence, the suit in O.S.No.63 of 2002, was filed for declaration of title as well as for recovery of the property. 5. Therefore, the first respondent filed a suit in O.S.No.537 of 2001, for injunction and later, the appellant and the other respondents trespassed into the property and hence, the suit in O.S.No.63 of 2002, was filed for declaration of title as well as for recovery of the property. 5. The appellant contested the suit stating that Mrs.Thangam Thanunathan, had no right to sell 3 ½ cents of property and submitted that 36 cents of land in S.No.120/1 of Kerambakkam Village belonged to one V.R.Muthu and he purchased the same under the sale deed dated 12.11.1982 from G.Viswanathan, the son of Mr.Goda Narayana Iyer and the said V.R.Muthu, executed a general power of attorney in favour of one Lakshmi and on the basis of the power of attorney, the said Lakshmi, sold various extent of property and sold plot No.117 to the appellant under a sale deed dated 22.5.2001 and eversince from the date of sale, the appellant is in enjoyment of the suit property. Hence, the first respondent is not entitled to the decree of declaration and recovery of possession. 6. The appellant also filed a suit in O.S.No.516 of 2001, for the relief of injunction, restraining the first respondent from interfering with his possession of the very same property. All the suits viz., the suit in O.S.No.516 of 2001, filed by the appellant and the suits in O.S.No.537 of 2001, and O.S.No.63 of 2002 filed by the first respondent were heard together and a common judgment was rendered, wherein, the suit in O.S.No.63 of 2002, was decreed as prayed for and the suits in O.S.No.516 and 537 of 2001, filed by the appellant and the respondent were dismissed. The appeal filed by the appellant was also dismissed and hence, the Second Appeal. 7. Mr.R.P.Kabilan,the learned Senior Counsel for the appellant submitted that admittedly, the first respondent had filed a suit in O.S.No.537 of 2001, for the relief of injunction stating that he was in peaceful possession and enjoyment of the suit property and his possession was sought to be disturbed. Therefore, without obtaining the leave from the Court, by withdrawing the suit and during the pendency of the said suit in O.S.No.537 of 2001, filed another suit in O.S.No.63 of 2002, for declaration and recovery of possession in respect of the very same property. Therefore, without obtaining the leave from the Court, by withdrawing the suit and during the pendency of the said suit in O.S.No.537 of 2001, filed another suit in O.S.No.63 of 2002, for declaration and recovery of possession in respect of the very same property. Hence, the subsequent suit in O.S.No.63 of 2002, in respect of which, the Second Appeal is filed is barred under Order 2, Rule 2 of Code of Civil Procedure ( in short 'C.P.C.') 8. The learned Senior Counsel for the appellant further submitted that both the Courts below erred in holding that the first respondent has proved his title to the suit property, without properly appreciating the fact that in respect of 3 ½ cents in S.No.120/1, the first respondent had no title and the appellant had title and therefore, the Courts below ought not to have decreed the suit in respect of the entire schedule of property and in respect of S.No.120/1, the first respondent has no title. Hence, the decree of the Courts below in respect of the property in S.No.120/1, ought to be set aside. 9. On the basis of the submissions made by the learned Senior Counsel for the appellant, the following substantial questions of law arise for consideration:- i) Whether the suit in O.S.No.63 of 2002, is barred under Order 2, Rule 2 of C.P.C., as the first respondent had already filed the suit in O.S.No537 of 2001, in respect of the very same property for injunction? ii) Whether the Courts below were right in holding that the first respondent has got title in respect of 3 ½ cents of land in S.No.120/1? 10. It is not in dispute that Mr.Goda Narayana Iyer, was the owner of the suit property of a larger extent of land. It is also not in dispute that under a family partition, as evidenced by koorchit dated 1.7.1957, one of the sons of Mr.Goda Narayana Iyer viz., G.Viswanathan got 7.3 acres in various survey numbers, including the land in S.No.120/1, having an extent of 36 cents. The first respondent claimed title in respect of 1,472 sq.ft., equivalent to 3.37 cents in S.No.199/2 and 1,528 sq.ft., equivalent to 3.50 cents in S.No.120/1 which is comprised of in plot No.117 of Samayapuram layout. Insofar as the property in S.No.199/2 is concerned, there is no dispute that the first respondent has got right. The first respondent claimed title in respect of 1,472 sq.ft., equivalent to 3.37 cents in S.No.199/2 and 1,528 sq.ft., equivalent to 3.50 cents in S.No.120/1 which is comprised of in plot No.117 of Samayapuram layout. Insofar as the property in S.No.199/2 is concerned, there is no dispute that the first respondent has got right. The dispute is only in respect of property situate in S.No.120/1. 11. The case of the first respondent was that the property in S.No.120/1, consisting of 36 cents of land was sold to one V.R.Muthu, under a registered sale deed dated 12.11.1982. Thereafter, the said V.R.Muthu, through his power agent sold 6.87 cents of land in S.No.120/1, out of the total extent of 36 cents, situate in Kerambakkam Village, to one Thangam Thanunathan, under a registered sale deed dated 6.2.1984. Later on, the said Thangam Thanunathan and the sons of Mr.Goda Narayana Iyer viz., G.Viswanathan and their children conveyed plot No.117, consisting of land in S.Nos.199/2 and 120/1 to one Shanthi and from the said Shanthi, plot No.117 was purchased by the first respondent. 12. Therefore, according to the first respondent, the entire extent of the land belonging to Mr.Goda Narayana Iyer, were divided into various plots and layout was also approved and as per the approved layout, the plot No.117 includes 3.5 cents of land in S.No.120/1 and 3.37 cents of land in respect of S.No.199/2 of Karambakkam Village. 13. The appellant contended that one V.R.Muthu, the owner of 36 cents of land situate in S.No.120/1, appointed Lakshmi, as his power agent and under the registered sale deed dated 22.5.2001, the power agent sold plot No.117 to the appellant. Therefore, the appellant has got title and he is in possession of the property. 14. The Trial Court discussed the title of the parties in detail in Paragraph No.20 of the judgment and held that under Ex.B1, the said V.R.Muthu, sold the suit property through his power agent to the appellant and on the date of execution of the power in favour of one Lakshmi by V.R.Muthu, the V.R.Muthu, had no title to 36 cents of property in S.No.120/1, as she had already sold the same to the appellant, as evidenced by Ex.A6. Ex.A6, is the encumbrance certificate in respect of the property in S.No.120/1. 15. Ex.A6, is the encumbrance certificate in respect of the property in S.No.120/1. 15. It is seen from Ex.A6, that V.R.Muthu, sold various extent of property in S.No.120/1, having a total extent of 36 cents to various persons and the sale deeds were marked as Exs.B17 to B20 in the first appeal. Therefore, as seen from Ex.A6, various extent of land, out of 36 cents of land were sold by V.R.Muthu, to various persons under five sale deeds and thereafter, under the sale deed dated 6.2.1984, he sold the remaining extent to one Mrs.Thangam Thanunathan, under Ex.A1. Therefore, only after selling the extent of 36 cents of land in S.No.120/1, during the year 1984, the said V.R.Muthu, appointed Lakshmi, as power agent in the year 1994 and from the said Lakshmi, the appellant purchased the property under Ex.B1 dated 22.5.2001. 16. Therefore, the trial Court has rightly held that when the appellant purchased the property under Ex.B1, through his vendor, the said V.R.Muthu, had no title to the property, as he had already sold the entire extent of property in the year 1984 itself and the last sale deed was in favour of Mrs.Thangam Thanunathan, from whom, the first respondent vendors had purchased the property, along with the original owners of Mr.Goda Narayana Iyer. 17. Therefore, the trial Court held that the first respondent obtained valid title to the suit property and hence, he is entitled to the relief of declaration and as the appellant is found to be in possession of the property, the appellant is bound to deliver the possession to the first respondent and decreed the suit. The same was also rightly appreciated by the Lower Appellate Court and the judgment and decree of the trial Court was confirmed. 18. Hence, I am of the opinion that both the Courts below have rightly held that the first respondent proved title to the suit property and though the appellant claimed to have purchased the property in S.No.120/1 from the power agent of V.R.Muthu, on the date of the sale, the said V.R.Muthu, had no right or title over the property. Therefore, the appellant will not get any right/title to the extent of the property in S.No.120/1 and the second substantial question of law is answered against the appellant. 19. Therefore, the appellant will not get any right/title to the extent of the property in S.No.120/1 and the second substantial question of law is answered against the appellant. 19. It was submitted by the learned Senior Counsel for the appellant that the first respondent having filed the suit in O.S.No.537 of 2001, for injunction, cannot file another suit in O.S.No.63 of 2002, for declaration and recovery of possession, without obtaining the leave of the Court, by withdrawing the earlier suit in O.S.No.537 of 2001 and therefore, the subsequent suit in O.S.No.63 of 2002, filed by the first respondent is barred under Order 2, Rule 2 of C.P.C. 20. I am unable to accept the contention of the learned Senior counsel for the appellant and to appreciate his contention, we will have to see the provisions of Order 2, Rule 2 of C.P.C., which is extracted hereunder:- " ''Suit to include the whole claim– (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several relief:-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation- For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." 21. Therefore, as per Order 2, Rule 3 of C.P.C., " a person entitled to more then one relief in respect of the same cause of action, may sue for all or any of such reliefs, and if he omits, to sue for all such reliefs, he shall not be permitted to file a separate suit, except with the leave of the Court''. 22. 22. Therefore, we will have to see whether the relief prayed for by the first respondent in O.S.No.537 of 2001, and the relief prayed for in O.S.No.63 of 2002, are in respect of the same cause of action and whether the first respondent would have claimed the relief of declaration and for recovery of possession in a suit in O.S.No.537 of 2001. 23. As stated supra, the suit in O.S.No.537 of 2001, was filed by the first respondent on the basis of his title and as his possession was sought to be disturbed by the appellant and other respondents, he filed the suit for injunction. It is the specific case of the first respondent that he was in possession of the property and his possession was sought to be disturbed, and therefore, he filed the suit for bare injunction based on title. In the cause of action paragraph, the first respondent has stated that on 29.9.2001, the appellant attempted to interfere with his possession and therefore, the appellant must be restrained by an order of injunction. In the suit in O.S.No.63 of 2002, filed by the first respondent for declaration and recovery of possession, he has stated that subsequent to the filing of the suit in O.S.No.537 of 2001, the appellant trespassed into the suit property and therefore, the suit was filed for declaration and for recovery of possession. 24. Therefore, the cause of action for filing of the suit in O.S.No.537 of 2001, and cause of action for filing the suit in O.S.No.63 of 2002, are entirely different. When the suit in O.S.No.537 of 2001, was filed, the first respondent was in possession of the property and therefore, when his possession was sought to be disturbed, he filed the suit for injunction. Later on, when the appellant trespassed into the property and obtained forceful possession and questioned the title of the first respondent, he filed the subsequent suit in O.S.No.63 of 2002, for the relief of declaration and recovery of possession. 25. Therefore, the cause of action in both the suits are not identical and in O.S.No.537 of 2001, the first respondent could not have prayed for recovery of possession, as he was already in possession of the property at that time and hence, the provisions Order 2, Rule 2 C.P.C., will havenoapplication to the facts of the case. 25. Therefore, the cause of action in both the suits are not identical and in O.S.No.537 of 2001, the first respondent could not have prayed for recovery of possession, as he was already in possession of the property at that time and hence, the provisions Order 2, Rule 2 C.P.C., will havenoapplication to the facts of the case. Hence, the suit in O.S.No.63 of 2002 is not barred by Order 2, Rule 2 of C.P.C. 26. Further, the plea of Order 2, Rule 2 of C.P.C., was not raised before the Courts below and the same was raised for the first time in the Second Appeal and in the absence of any pleading to that effect, the same cannot be raised at the appellate stage. Therefore, the substantial question of law No.1 is also answered against the appellant. 27. In the result, the judgment and decree of the Courts below are confirmed and the Second Appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.