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2012 DIGILAW 3034 (MAD)

Caroline v. A. S. Lilly Cahtharine

2012-07-16

T.RAJA

body2012
Judgment :- 1. The present Second Appeal has been directed against the concurrent finding of both the Courts below. 2. The brief facts, which led to the filing of this second appeal are as follows: (i) The unsuccessful plaintiffs filed a suit in O.S.No.10054 of 1996 for declaration of possessory title, recovery of possession and damages against the defendant/first respondent on the ground that the defendant was allowed to be a tenant and subsequently, vacated from the suit property in the year 1973. (ii) The first plaintiff is the widow and the plaintiffs 2 to 8 are the sons and daughters of Arokianathan who died in the year 1976. After death of the said Arokianathan, the defendant/first respondent, attempted to interfere with the suit property in the year 1979. (iii) The plaintiffs submitted that their family is living at No.19(Old No.1-A)Panakkara Theruveethiyan I Street, Makki's Garden, Madras -6 by constructing the superstructure for more than 60 years. The entire land belongs to the Arcot Nawab. (iv) When Arokianathan was alive, he let out some portions to tenants, in which, a portion to an extent of 20' x 15' was let out to his brother Iruthianathan, the father of the defendant . The father of the defendant vacated the place during the year 1973 due to the rent control petition filed by one Kannabiran and the same was also dismissed. As against the said rent control petition, he preferred an appeal and the said appeal was also dismissed. Hence, he attempted to trespass into the plaintiffs' property during the year 1979 taking advantage of his brother's death. Therefore, the plaintiffs issued a notice dated 18.9.79, Ex.A.4 to the father of the defendant. Again, during the year 1988, the father of the defendant attempted to enter into the suit property along with two others, hence, the plaintiffs filed a suit in O.S.No.3243 of 1988 on the file of the City Civil Court, Chennai against the father of the defendant, Samanthiammal and Salathamary and the same is pending. After filing the said suit, Samanthiammal and Salathamary have not interfered with the possession of the plaintiffs. The father of the defendant was only a tenant of the suit property and he has no right. After filing the said suit, Samanthiammal and Salathamary have not interfered with the possession of the plaintiffs. The father of the defendant was only a tenant of the suit property and he has no right. While so, the defendant obtained a settlement deed dated 31.8.1984 from her father on 31.8.1984 and according to the said settlement deed, the defendant has no right in the suit property. The property tax assessed by the Corporation of Madras has been paid by the husband of the first plaintiff and after his death, the same is being paid by the second plaintiff. Further, the plaintiffs submitted that the suit property is bearing Door No.19, Panakkara Thiruveethiyan Street and not 1A, Panakkara Arokiam Street. But, there is no such property bearing Door No.1A, Panakkara Arokiam Street. Since the father of the defendant left the place in 1973 itself as tenant, no right flows to the defendant and even if any right was there for the father of the defendant, the same was lost by him as the plaintiffs have perfected title to the suit property by adverse possession. (v) The plaintiffs further submitted that the defendant filed a suit in O.S.No.5692 of 1990 against the plaintiffs on the file of the City Civil Court, Chennai and obtained an order of injunction against the plaintiffs and then he tresspassed into a portion of the suit property along with his father. Hence, the plaintiffs were constrained to file the present suit for declaration of possessory title to the suit property and for delivery of vacant possession after removing the hut put up by her. (vi) Opposing the said prayer, a detailed written statement was filed stating that the suit filed for declaration of possessory title, delivery of vacant possession and for damages is not maintainable for the reason that the defendant had got suit property under the settlement deed dated 31.8.1984 Ex.B.1 executed by her father and since then, the defendant is in possession and enjoyment of the suit property. (vii) It was pleaded in the written statement that it was false to state that the father of the defendant was permitted to put up a hut in a portion of the suit property measuring to an extent of 20' x 15' and it was not correct to say that the father of the defendant had vacated from the suit property in question in the year 1973. (viii) It was further pleaded in the written statement that the father of the defendant had not attempted to enter into the suit property after demise of the father of the plaintiffs. The plaintiffs filed a suit in O.S.No.3243 of 1998 on the file of the VIII Judge, City Civil Court for injunction and the same was also dismissed. As against the dismissal of the said suit, no appeal was filed. Therefore, it is not open to the plaintiffs to file the present suit for declaration of possessory title, recovery of possession and damages. (ix) It was the further case of the defendant that when the plaintiffs attempted to dispossess the defendant from the suit property by force, she filed a suit in O.S.No.5962 of 1990 on the file of the V Judge, City Civil Court, Chennai for bare injunction. The trial Court after considering the case of both sides, decreed the suit on 23.10.1997 in favour of the defendant. No appeal was preferred by the plaintiffs as against the judgment and decree passed by the trial Court in O.S.No.5962 of 1990. Hence, the present suit filed by the plaintiffs is nothing but a grave misuse of the process of the Court. (x) Under this background, the trial Court has taken up the matter for trial. On considering the submissions of the learned counsel on either side and also considering the evidence adduced by both sides, it came to the conclusion that the plaintiffs have failed to prove when the defendant had vacated from the suit property. The trial Court has also held that a mere reading of the judgment in O.S.No.5692 of 1990 reveals that the defendant was in possession and enjoyment of the suit property bearing Door No.19A, Panakkara Arokkiam Street, but not the present suit property and accordingly, dismissed the suit against the plaintiffs. As against the same, when an appeal was preferred before the first appellate Court, the first appellate Court has also confirmed the same by giving another finding that when the earlier suit filed by the plaintiffs in O.S.No.3243 of 1988 dated 223.1997 was dismissed, the plaintiffs again filed the present suit for the same suit property against the same defendant. As against the same, when an appeal was preferred before the first appellate Court, the first appellate Court has also confirmed the same by giving another finding that when the earlier suit filed by the plaintiffs in O.S.No.3243 of 1988 dated 223.1997 was dismissed, the plaintiffs again filed the present suit for the same suit property against the same defendant. Hence the first appellate Court rejected the appeal filed by the plaintiffs as the suit filed by the plaintiffs is barred by Order 2 Rule 2 of the Code of Civil Procedure and it also upheld the finding rendered by the trial Court that the plaintiffs have miserably failed to establish the tenancy against the defendant. As against the same, the appellants/plaintiffs have filed the present second appeal. 3. Heard Mr.S.Balasubramanian, learned senior counsel appearing for the appellants and Mr.Ashokmenon, learned counsel appearing for the respondents. 4. At the time of admission of the above second appeal, the following substantial questions of law were formulated by this Court: "1. Whether the decree and judgment of the Courts below are legally sustainable inasmuch as having found that the street's name has been changed from Pannakkara Arokiyam to Pannakara Thiruveethiyabn Street, by Ex.A.6 and further property tax receipt standing in the name of the second respondent erred in not granting the decree as prayed for by the appellants? 2. Whether the decree and judgment of the Courts below are legally sustainable inasmuch as they have failed to note that the appellants have proved their title by Ex.A.1 to A.4? 3. Whether the decree and judgment of the Courts below are legally sustainable inasmuch as the respondent has not proved her title and the settlement deed Ex.B.1 is not a valid one as the father of the respondent had no title to the property as he is only a tenant?" 5. The learned counsel appearing for the appellants has submitted that both the trial Court and the first appellate Court have miserably failed to consider the vital aspect i.e. Ex.A.6, the certificate issued by Corporation of Chennai dated 09.1.2001, wherein it is clearly stated that the first plaintiff has to pay the property tax in respect of the suit property, therefore, the conclusion arrived at by the trial Court that the suit property does not belong to the plaintiffs absolutely warrants interference of this Court. 6. 6. This argument does not carry any merit on substance for the reason that in an earlier occasion, the plaintiffs have filed the suit in O.S.No.3248 of 1988 against the defendant in respect of the same suit property for injunction and the trial Court after considering the case of both sides, dismissed the earlier suit filed by the plaintiffs on 23.10.1997. Aggrieved by the said judgment and decree, the plaintiffs herein did not prefer any appeal. Therefore, the first appellate Court was perfectly in order in dismissing the appeal holding that the present suit filed for declaration of possessory title, recovery of possession and damages is hit by Order 2 Rule 2 of the Code of Civil Procedure. 7. That apart the arguments of the learned counsel for the respondents that the reasons given by both the Courts below are perfectly in order since the suit property mentioned in the plaint is completely different from the property, which belongs to the defendant, carrying merit deserves to be accepted. In fact, there are two suit properties mentioned in the suit namely, one bearing Door No.19, Panakkara Thiruveethiyan Street, Chennai and yet another property bearing Door No.1A, Panakkara Arokkiam Street, Chennai. The second property bearing Door No.1A, Panakkara Arokkiam Street, Chennai is situated just behind the other property bearing door No.19, Panakkara Thiruveethiyan Street, Chennai. Therefore, by merely showing a wrong certificate issued by the Corporation of Chennai dated 9.1.2001 marked as Ex.A.6, the plaintiffs cannot set up a new case for declaration of possessory title, recovery of the possession and damages. In any event, since the Courts below have rendered reasoned finding that the plaintiffs have miserably failed to prove that the suit property belongs to the plaintiffs, this Court finds no error or infirmity in the concurrent finding rendered by both the Courts below. When the plaintiff’s earlier suit in O.S.No.5962/1990 filed against the defendant in respect of the same suit property for injunction was already dismissed on 23.10.1997 accepting the said judgment the plaintiff did not challenge the same. Therefore, as I have held above, the present suit again filed for the same relief is hit by Order II Rule 2 of CPC. In that view of the matter since all the substantial questions of law are interconnected, the same are answered against the appellant. Accordingly, the concurrent findings rendered by both the Courts below are hereby confirmed. Therefore, as I have held above, the present suit again filed for the same relief is hit by Order II Rule 2 of CPC. In that view of the matter since all the substantial questions of law are interconnected, the same are answered against the appellant. Accordingly, the concurrent findings rendered by both the Courts below are hereby confirmed. Resultantly, this second appeal is hereby dismissed. 8. In the result, the second appeal fails and the same is dismissed. There is no order as to costs.