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2012 DIGILAW 4026 (MAD)

Kalyani Ammal v. Arumbu Ammal

2012-09-28

G.RAJASURIA

body2012
Judgment :- This appeal is focussed animadverting upon the judgment and decree dated 08.12.2004 passed by the learned Subordinate Judge, Chidambaram in A.S.No.42 of 2004, reversing the judgment and decree of the learned Principal District Munsif, Chidambaram in O.S.No.56 of 1995 dated 09.07.2003. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: The plaintiffs filed the suit seeking the following reliefs in respect of the suit property which run thus: "(a) To pass a decree for permanent injunction thereby restraining the defendants and their men from in any way interfering with the plaintiff's possession and enjoyment of the suit property; and (b) For costs." SCHEDULE OF PROPERTY Chidambaram Town Jagajanandha Street(Arani Amman Koil Street) Ward No.1 Block No.4, T.S.No.79/2 Extent 0.2220 sq.feet with a thatched house bearing Door No.19-A with boundaries: To the North of T.S.No.79/3 belonging to Kalyani; To the west of Kannirama Pillai Street, To the east of Arunachalam's house; To the south of T.S.No.79/1 belonging to Kalyani Ammal." (extracted as such) 4. A summation and summarisation of the averments in the plaint would run thus: One Packiri Vathiar happenned to be the original owner of the suit property who had two wives, namely the first plaintiff and D1. The second plaintiff is the daughter of the first plaintiff and D2 to D5 are the sons of D1. During trial it transpired that there is also one other daughter for D1 born to same Packiri Vathiar. Since there was no understanding relating to sharing of six items of properties which originally belonged to the deceased Packiri Vathiar, at the instance of the same plaintiffs herein, a partition suit in O.S was filed, wherein, preliminary decree was passed virtually on consent, allotting shares in favour of the contesting parties. Subsequently, no final decree application was filed and no final decree proceedings also commenced. The parties entered into a compromise before Panchayatars and accordingly, the suit property was allotted to the share of the plaintiffs herein and the other items were amicably settled. While so, the plaintiffs had put up a thatched shed and started enjoying it ever since 1985 and they also acquired prescriptive title over it. The parties entered into a compromise before Panchayatars and accordingly, the suit property was allotted to the share of the plaintiffs herein and the other items were amicably settled. While so, the plaintiffs had put up a thatched shed and started enjoying it ever since 1985 and they also acquired prescriptive title over it. While so, some time before the filing of the present suit, the defendants started disputing the title of the plaintiffs and started disturbing their possession, which necessitated the plaintiffs to file the suit. 5. Challenging and refuting, impugning and gainsaying the averments/allegations in the plaint, the defendants filed the written statement, the nitty-gritty of it would run thus: The suit property was not allotted to the share of the plaintiffs in the panchayat. There were some arrangement, as per which, in the house property, the plaintiffs herein agreed to surrender their shares in consideration of receiving cash equal to that of their shares. However, the suit property was not agreed to be parted with, in whole in favour of the plaintiffs. In fact, as per the preliminary decree if the shares are calculated and assessed, it is quite obvious that the suit property would be disproportionately higher than the shares of the plaintiffs herein and for such arrangement, the defendants did not agree. In the panchayat it was not agreed by the defendants to part with the suit property as claimed by the plaintiffs. In the brick built house, as per the preliminary decree, the plaintiffs and the defendants are entitled to shares. However, in the same preliminary decree, it was contemplated, that in view of the share of the plaintiffs herein, the defendants should pay compensation/owelty. However, such compensation/owelty was not paid by the defendants to the plaintiffs, but in some other item of the joint property, excess share was given by the defendants in favour of the plaintiffs and the defendants did not agree for the plaintiffs to take the entire suit property described in the schedule of the present plaint. 6. The lower Court framed the relevant issues. 7. During enquiry, the second plaintiff/Sakunthala examined herself as P.W.1 and Exs.A1 to A20 were marked. On the side of the defendants, D.Ws.1 to 4 were examined and Exs.B1 to B12 were marked. 8. Ultimately the suit was dismissed. 6. The lower Court framed the relevant issues. 7. During enquiry, the second plaintiff/Sakunthala examined herself as P.W.1 and Exs.A1 to A20 were marked. On the side of the defendants, D.Ws.1 to 4 were examined and Exs.B1 to B12 were marked. 8. Ultimately the suit was dismissed. Being aggrieved by and dissatisfied with the same, the appeal was filed, whereupon, the appellate Court reversed the judgment and decree of the trial Court and decreed the suit. 9. Challenging and impugning the judgment and decree of the first appellate Court, this Second Appeal has been filed on various grounds suggesting also the substantial questions of law. 10. My learned Predecessor framed the following substantial questions of law: "1. Whether a suit for injunction would lie without the relief for declaration when the title of the property is disputed? 2. Whether the injunction would lie against the co-owner of the property? 3. Whether the parties to the partition suit O.S.No.233 of 1972 are not deemed to be co-owners in joint possession, until the passing of a final decree in the suit and engrossing thereof on stamp paper and whether until such time, any one party can resort to injunction suit in respect of the very same property against another? 4. Whether the burden of proof in a suit for bare injunction, to show exclusive possession on the date of the suit does not lie solely on the plaintiffs?" (extracted as such) 11. Heard both sides. 12. A summation and summarisation of the arguments of the learned counsel for the appellants/defendants would run thus: (a) So far no steps have been taken to obtain final decree, however, the plaintiffs have chosen to file this present separate suit, without even praying for declaration of their alleged title over the suit property. (b) The plea of adverse possession as put forth by the plaintiffs is something quite antithetical to the well established principles of law. (c) When the defendants have not agreed in the pleadings or even during trial that the suit property belonged to the plaintiffs, then the only course open for the plaintiffs was to seek for final decree. (d) This Court cannot here probe into all the details, contrary to the preliminary decree, which is binding on both parties. Only during final decree proceedings, the parties could get their remedy as per law. (d) This Court cannot here probe into all the details, contrary to the preliminary decree, which is binding on both parties. Only during final decree proceedings, the parties could get their remedy as per law. Accordingly, he would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court in dismissing the suit. 13. Per contra, the learned counsel for the respondents/plaintiffs would pyramid his argument, which could tersely and briefly be set out thus: (a) There is no embargo for the parties to a partition suit, even after a preliminary decree, to enter into a compromise and accordingly getting their disputes settled. In this case, preliminary decree was passed on 28.06.1973. Thereafter, no steps have been taken to get any final decree at the instance of either of the parties. However, a panchayat was held during the year 1975 and minutes of it also was recorded which is sought to be filed as additional document, by filing C.M.P.No.6802 of 2006. The defendants also would admit about the conduct of the panchayatars, but they would challenge and impugn the terms and conditions arrived at during the panchayat. (b) In fact, no compensation was paid by the defendants to the plaintiffs as per the preliminary decree in the house property concerned. Wherefore, the defendants agreed to part with the western portion in the plot adjacent to the eastern portion, which was allotted even in the preliminary decree in favour of the plaintiffs. Now the defendants are having a volte face and disputing the same, which cannot be countenanced, and the appellate Court appropriately and appositely saw the realities and decreed the suit, warranting no interference in the Second Appeal. (c) The embargo of one co-owner getting injunction as against another co-owner, does not arise in this case, in view of the main plea that the plaintiffs have become the absolute owners of the suit and ultimately they prayed for injunction. (d) There was also no necessity for praying for declaration of title because in the panchayat, it was agreed that the plaintiffs should be the owner of the suit property. Accordingly, he would pray for the dismissal of the Second Appeal. 14. All the substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another. 15. Accordingly, he would pray for the dismissal of the Second Appeal. 14. All the substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another. 15. The whole kit and caboodle of facts and figures as found transpired from the records, could succinctly and precisely be set out thus: Indubitably and indisputably, a preliminary decree was passed by the trial Court concerned on 28.06.1973 relating to six items of joint properties. In unison, both sides would submit fair and square that only relating to the suit property there exists a dispute. However, the learned counsel for the defendants would advance his argument by pointing out that the compensation or owelty as contemplated in the preliminary decree to be paid by the defendants in favour of the plaintiffs in respect of the house property, was not paid, but in lieu of the same, excess extent was given in one other item, which is not the suit property herein. 16. Whereas, gainsaying and challenging such submission on the side of the defendants, the learned counsel for the plaintiffs would try to highlight and spotlight that the western portion referred to supra was agreed to be parted with by the defendants in favour of the plaintiffs, because it is quite adjacent to the eastern portion of the vacant site, which was already allotted to the plaintiffs as per the preliminary decree and no excess area was allotted in any other item in favour of them other than the western portion referred to supra. 17. What I could understand from the submissions on both sides and the records is that there is a title dispute relating to the suit property, is concerned. On the one hand, the plaintiffs would contend that after the preliminary decree they became the owner of the portion of the sixth item of the suit property as agreed to in the panchayat, whereas, the defendants would gainsay the said fact and contest the matter. It is imperceptible from the available evidence as to what actually transpired between the rival parties after the preliminary decree. 18. At this juncture, my mind is redolent and reminiscent of the following decision of this Court, reported in 2007(4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan],an excerpt from it would run thus: "14. It is imperceptible from the available evidence as to what actually transpired between the rival parties after the preliminary decree. 18. At this juncture, my mind is redolent and reminiscent of the following decision of this Court, reported in 2007(4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan],an excerpt from it would run thus: "14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the averments in the plaint at paragraph Nos.4,5,6,7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted hereunder for ready reference: "Though joint patta had been issued to the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff." 15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a Suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference: "2. Suit to include the whole claim – 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." 16. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original Suit is bad for absence of a prayer for declaration of title." 19. A plain reading of the same would demonstrate and display that when the plaint itself discloses a title dispute, it is incumbent upon the plaintiffs to pray for declaration of title over the suit property, but for reasons best known to the plaintiffs, there is no prayer in the plaint relating to declaration of their title. A plain reading of the same would demonstrate and display that when the plaint itself discloses a title dispute, it is incumbent upon the plaintiffs to pray for declaration of title over the suit property, but for reasons best known to the plaintiffs, there is no prayer in the plaint relating to declaration of their title. Over and above that, there is no knowing of the fact as to why after getting the panchayat proceedings recorded in the form of minutes, the very same trial Court which passed the preliminary decree, was not approached under Order XXI Rule 2 of CPC. 20. I would like to extract hereunder the relevant provisions of Order XXI Rule 2 of CPC.: "2. Payment out of Court to decree-holder.-(1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) the judgment-debtor or any person who has become surety for the judgment-debtor also my inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified the Court shall record the same accordingly. (a) the payment is made in the manner provided in Rule 1; or (b) the payment or adjustment is proved by documentary evidence; or (c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of Rule 1, or before the Court (2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless- 21. It is glaringly and pellucidly clear that by virtue of the Central Act No.104 of 1976 which amended CPC., it is not only relating to money decree compromise the same should be got recorded, even in respect of other adjustments of decree, the Court which passed the decree should be approached for getting it recorded. The object behind it is a wholesome one. Before passing of the decree, the parties are at variance and that is being decided by the decree. Even after passing of the decree, if once again the parties are allowed to fight over the same issue, that would not be proper. That is why, in the interest of justice, law contemplates under Order XXI Rule 2 of CPC, that whenever there is any adjustment or compromise subsequent to the passing of the decree, the parties should approach the Court and get it recorded. In this case, admittedly the plaintiffs did not choose to do so. Ignoring a posteriori approach in getting remedy, so far, no application for final decree has been filed. However the learned counsel for the plaintiffs in all fairness cited the decision of the Hon'ble Apex Court in SLP(C) No.17932 of 2009 dated 21.08.2009, an excerpt from it would run thus: "9.3 As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is division by metes and bounds, takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion." and it would clearly highlight that there is no question of limitation for seeking final decree and in fact, it is the duty of the Court to pass a final decree initiating proceedings. The suit is deemed to be pending even after the passing of the decree. The suit is deemed to be pending even after the passing of the decree. When such is the legal position, I am at a loss to understand as to why the plaintiffs instead of filing the present suit did not approach the trial Court itself with a petition to get a final decree in parimateria or in concinnity with the terms of compromise. Wherefore, the first appellate Court without resorting to the aforesaid provisions of law, simply went on dilating on various contentious issues in the absence of adequate evidence placed before the Court. In fact, the defendants would specifically contend that in some other item which is not the suit property, excess area was given in favour of the plaintiffs. Relating to such plea, the plaintiffs would not agree. The fresh suit filed by the plaintiffs herein turned out to be an ill-wind that blew no one any good. Albeit the appellant filed the petition under Order 41, Rule 27 of CPC for entertaining the minutes of the panchayat at this stage, yet this Court cannot lose sight of the fact that this Second appellate Court cannot be converted into an trial Court dealing with final decree. In such a case, the proper approach on the part of the parties is to approach the Court which passed the preliminary decree itself and seek appropriate remedies, then only comprehensively their matter could be decided. Hence in view of my discussion supra, I hold that the suit has not been framed properly and accordingly, the aforesaid substantial questions of law are answered. 22. On balance, (i) The substantial question of law No.1 is decided to the effect that the suit O.S.No.56 of 1995 for injunction was not tenable, in view of the absence of a prayer for declaration of title, as there was title dispute. (ii) The substantial question of law No.2 is decided to the effect that no injunction would lie against the co-owner of the property. (iii) The substantial question of law No.3 is decided to the effect that the present suit filed by the plaintiffs without approaching the Court which passed the preliminary decree in O.S.No.233 of 1972 is not tenable. (iv) The substantial question of law No.4 is decided to the effect that the burden of proof is on the plaintiffs to prove their exclusive possession in a suit for injunction. 23. (iv) The substantial question of law No.4 is decided to the effect that the burden of proof is on the plaintiffs to prove their exclusive possession in a suit for injunction. 23. In the result, the Second Appeal is allowed and the judgment and decree of the appellate Court is set aside and the ultimate decision of the trial Court in dismissing the suit alone, is confirmed with the observation that it is open for the plaintiffs or the defendants to approach the Court which passed the preliminary decree and seek appropriate remedy. No costs. Consequently, connected miscellaneous petitions are closed.