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2012 DIGILAW 3022 (MAD)

Ramasamy Gounder v. Uma Maheswari

2012-07-13

T.RAJA

body2012
Judgment :- 1. The present second appeal has been filed by the plaintiff as against the judgment and decree passed by the learned Principal Subordinate Judge, Gobichettipalayam, in A.S. No.33 of 2004, dated 25.11.2004, reversing the judgment and decree passed by the by the learned District Munsif, Sathyamangalam, in O.S.No.208 of 2002, dated 27.04.2004. 2. Brief facts leading to the filing of the second appeal are given as under:- The plaintiff/appellant herein filed a suit for declaration and permanent injunction against the defendants in respect of the suit property covered in Survey No.557/3 to an extent of 59.5 cents, which is covered within ABE portion. It was also his further case that he had purchased the property under sale deed-Ex.A1, dated 16.05.1984, in Survey No.557/4, to an extent of 59.5 cents from his vendor and thereby, he was in possession and enjoyment of both the lands bearing Survey Nos.557/3 and 557/4. When there was a dispute in respect of the suit properties, the plaintiff had filed earlier a suit in O.S.No.234/87 against the defendants' vendor. In the said suit, the defendants' vendor also admitted the possession of the plaintiff in the area covered within ABE portion. However, the suit was not contested and as a result, an exparte decree dated 12.04.1993 was passed against the defendants' vendor. Therefore, it was submitted that it is not open to the defendants to deny the title and possession of the suit land covered in ABE portion having an extent of 59.5 cents. Therefore, when the dispute in respect of ABE portion was already concluded between the plaintiff and the defendants' vendor, the defendants' cannot interfere with the suit property. As the defendants attempted to interfere with the peaceful possession and enjoyment of the plaintiff's property, he has filed a suit with the aforesaid prayer. 3. Opposing the said prayer, the defendants filed their written statement stating that there was no reference to the present suit property either in the Original Suit filed in O.S.No.453/84 or in the exparte decree passed in O.S.No.234/87, dated 12.04.1993 by the Civil Court against the defendants' vendor. In fact, the issue decided in the earlier suit was whether he had title to the land covered in Survey No.557/4 or not, but not the suit property at all. 4. In fact, the issue decided in the earlier suit was whether he had title to the land covered in Survey No.557/4 or not, but not the suit property at all. 4. On the side of the plaintiff, he himself was examined as P.W.1 and one Subramani was examined as P.W.2 and 11 exhibits were marked as Exs.A1 to A11. On the side of the defendants, the second defendant was examined as D.W.1 and one Thangavel was examined as D.W.2 and 9 exhibits were marked as Exs.B1 to 9. On the pleadings and the materials placed, the learned trial Judge framed the following issues: i. Whether the plaintiff is entitled to the relief of declaration? ii. Whether the plaintiff is entitled to the relief of permanent injunction? iii. To what other reliefs is the plaintiff entitled to? 5. The learned trail Judge, on appreciation of evidence produced by both sides, decreed the suit in favour of the plaintiff. Aggrieved by the same, when an appeal was filed by the defendants, learned first appellate Court, by giving a finding that the disputed suit property, namely, ABE portion, was not the subject matter of the earlier suit, nor the plaintiff was able to prove the trail Court that he was in possession of the suit property covered in ABE portion, reversed the judgment and decree passed by the learned trial Court. Aggrieved by the said judgment, the present second appeal has been filed by the plaintiff. 6. This Court, at the time of entertaining the second appeal, framed the following substantial question of law for consideration;- "i. Is not the decree in O.S.No.234/87 on the file of District Munsif, Sathyamangalam, between the appellant and the respondents vendor, binding on the respondents and thereby they are estopped from contending contrary to the decree in that suit?" 7. Learned counsel appearing for the appellant submitted that when the disputed suit property was not the subject matter of adjudication between the plaintiff and the defendants in the previous suit in O.S.No.234/87, the defendants had admitted the very fact of possession of the plaintiff/appellant herein in the disputed portion of the suit property, namely, ABE portion, however, the matter was not properly appreciated by the learned appellate Court for final adjudication, as the defendants' vendor failed to pursue the matter, therefore, the learned first appellate Court decreed the suit as exparte. As against the same, the defendants' vendor did not prefer any appeal and resultantly, the said exparte decree became final. Further, it was pleaded that when the plaintiff was able to prove, not only in the earlier suit, but also in the present suit, his continuous possession and enjoyment of the disputed suit property, covered in Survey No.557/3, learned first appellate Court misconceiving the evidence placed on record by the plaintiff erroneously reversed the judgment, therefore, the same is required to be interfered with by this Court. 8. Per contra, learned counsel appearing for the respondents submitted that if this Court compares the schedule of property shown in the earlier suit filed in O.S.No.453/84 and the schedule of property shown in the present suit, it is clear that the plaintiff's survey no. is nothing to do with the case involved in the earlier suit, namely, O.S.No.453/84. 9. For better appreciation, description of property of both the suits, namely, earlier suit filed in O.S.No.453/1984 and the present suit filed in O.S.No.208/2002, are extracted hereunder: "Description of Property in O.S.No.453/1984 – Gopichettipalayam Registration District, Sathyamangalam Sub Registration District, Sathyamangalam Taluk, Pudupeerkadavu village, S.F.No.557/4, measuring 1.20.0 hectares (2.97 acres) assessment Rs.6.00, A Bridge, Maool pathway pasanavar and all rights and appurtenance attached thereto boundaries. North: Defendant's land; South: Ramasamy Goundar land and Saragammal's land East : Road West : Another Ramasamy's land Description of Property in O.S.No.208/2002 -- An extent of 0.59.5 acre (0.24 hectares) situated in Sathyamangalam Taluk, Puthupeerkadavu Village, (Survey No.557/3, 2.97 acres/1.20 hectares), located south to the land of first defendant, west to south-north road, east to the land purchased by the second defendant in Survey No.556/3 and north to land of the plaintiff in Survey No.557/4 -- shown as ABE in the plaint schedule, BAE boundary along with coconut trees -- within the jurisdiction of Sub-Registrar's of Gopichettipalayam." 10. A mere perusal of the above mentioned schedule properties involving both suits go to show that the suit property filed in earlier suit in O.S.No.453/1984 is completely different from the present suit property. Further, a mere comparison of above schedule properties both in the plaint filed in O.S.No.453/84 and the plaint filed in the present suit, as rightly submitted by the learned counsel for the respondents, make it clear that in the earlier suit filed in O.S.No.453/84, the schedule of property shows only ABE portion. Further, a mere comparison of above schedule properties both in the plaint filed in O.S.No.453/84 and the plaint filed in the present suit, as rightly submitted by the learned counsel for the respondents, make it clear that in the earlier suit filed in O.S.No.453/84, the schedule of property shows only ABE portion. Again, if we look at the exparte decree passed in O.S.No.234/87, there also this Court is clearly able to see only AB portion. Again, it is also significant to note that in the earlier suit filed by the plaintiff, no reference was made in the pleadings with regard to ABE portion covered in Survey No.557/3. That apart, the extent of the present suit i.e. 59.5 cents was also not mentioned by the plaintiff in the earlier suit, therefore, the trial Court was not legally correct in giving a finding that the defendant had admitted the case of the plaintiff or to say that the plaintiff has established his case for grant of declaration and permanent injunction. When these material facts were fully ignored by the trial Court, learned first appellate Court in its judgment has unambiguously indicated the error committed by the learned trial Court. 11. Further, the plaintiff has also admitted in the earlier suit filed in O.S.No.453/1984 that the new survey no.557/3 was not subject matter of the suit property. Again, it is admitted in the earlier suit of O.S.No.453/984 that the land covered in new survey no.557/4 having an extent of 2.97 acres is the subject matter of that suit and further admitted that there was a 3' pathway between the Survey Nos.557/3 and 557/4. On perusing these admissions admitted by the plaintiff in the earlier suit filed in O.S.No.453/1984, I fail to understand any good reason given by the trial Court in decreeing the suit. Therefore, the learned first appellate was right in holding that the disputed land in the earlier suit is different from the suit of the present case, and as such, the judgment and decree passed in O.S.No.234/87 will not bind the defendants/respondents herein. Hence, the contention of the appellant that the respondents are estopped from contending contrary to the decree is totally untenable. Accordingly, by answering the substantial question of law against the appellant, this Court is inclined to dismiss the second appeal. 12. In result, the second appeal is dismissed. Hence, the contention of the appellant that the respondents are estopped from contending contrary to the decree is totally untenable. Accordingly, by answering the substantial question of law against the appellant, this Court is inclined to dismiss the second appeal. 12. In result, the second appeal is dismissed. Consequently, the judgment and decree passed by the learned first appellate Court is hereby confirmed and the judgment and decree passed by the learned trial Court is set aside. No Costs.