Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 1219 (MAD)

S. Kalaiarasi v. Sivanmalai

2013-03-05

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focussed by the plaintiff inveighing the judgment and decree dated 20.10.2008 passed by the learned Principal District Judge, Erode in A.S.No.108 of 2008 in reversing the judgment and decree dated 12.03.2008 passed by the learned Principal District Munsif, Erode in O.S.No.19 of 2007. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Heard both sides. 4. A summation and summarisation of the germane facts absolutely necessary for the disposal of this second appeal would run thus: [i] The appellant/plaintiff filed the suit seeking the following reliefs : - to pass a decree in favour of the plaintiff and as against the defendants:- a] restraining the defendants, their men, agents etc. from in any way and in any manner either trespassing into the suit properties or disturbing the peaceful possession and enjoyment of the plaintiff over the same by means of permanent injunction. b] directing the defendants to pay the costs of the suit to the plaintiff. (extracted as such) On the main ground that the two suit items of properties were purchased vide Exs.A1-Settlement deed dated 25.04.2001 and Ex.A2 sale deed dated 07.09.2006, which are adjacent to each other and to the West of those two items, the defendants' property is situated. The defendants' attempted to trespass into the suit property; whereupon, the suit was filed. Earlier the defendants' filed the suit in O.S.No.485 of 2002 and that suit was dismissed for default on 05.11.2003. [ii] Whereas the defendants' filed the written statement resisting the suit on various grounds, the gist and kernel of it would run thus: Suppressing the compromise, which emerged pending the earlier suit O.S.No.485 of 2002 and also the factum of the dismissal of such suit for default, the present suit was filed as though the defendants' were trying to trespass into the plaintiff's property. [iii] Whereupon issues were framed. [iv] Up went the trial, during which, the plaintiff examined herself as PW1 along with PW2 and marked Exs.A1 to A6. On the defendants' side D2 examined herself as DW1 along with DW2 and marked Exs.B1to B11 and the court document Ex.C1 was also marked. [v] Ultimately, the trial court, decreed the suit. As against which, appeal was filed by the defendants. On the defendants' side D2 examined herself as DW1 along with DW2 and marked Exs.B1to B11 and the court document Ex.C1 was also marked. [v] Ultimately, the trial court, decreed the suit. As against which, appeal was filed by the defendants. Whereupon, the first appellate court reversed the judgment and decree of the trial court and dismissed the original suit itself. [vi] Challenging and impugning the judgment and decree of the first appellate court, the plaintiff has preferred this second appeal on various grounds and also suggesting the following substantial questions of law: (a) Whether the first appellate court is correct in law in dismissing the suit on the basis of Ex.B4 to Ex.B6 especially when they were prepared in the police station by threat and coercion as admitted by DW1, more so they have not been proved in the manner known to law? (b) Whether the first appellate court has properly appreciated and applied the principle of res judicata particularly when the respondents herein who are the plaintiffs in O.S.No.485 of 2002 are debarred from defending the present suit in O.S.No.19 of 2007 filed by the appellant, in view of the dismissal of their suit in O.S.No.485 of 2002 for default? (c) Whether the first appellate court is right in law in dismissing the suit for permanent injunction even without assigning any reasons to differ from the view taken by the trial court especially when the first appellate court is expected to meet the findings of the trial court as held in 2001(2) MLJ 69 (SC)? (extracted as such) 5. The learned counsel for the appellant/plaintiff would pyramid his argument, the warp and woof of it would run thus: (i) The trial court correctly decided the lis understanding the real dispute between the parties and also disbelieving the said police station compromise as found embodied in Exs.B4 to B6. (ii) The first appellate court also virtually confirmed the finding relating to Exs.B4 to B6, however, it took a tangent view as though the suit was filed suppressing the material facts without even disclosing anything about the real dispute relating to the alleged common wall. (ii) The first appellate court also virtually confirmed the finding relating to Exs.B4 to B6, however, it took a tangent view as though the suit was filed suppressing the material facts without even disclosing anything about the real dispute relating to the alleged common wall. (iii) Curiously enough, the first appellate court invoked Section 11 of the Code of Civil Procedure, so to say, the principle of res judicata as against the plaintiff, when in fact, it was the defendants' who met with their waterloo in the previous litigation as plaintiffs in O.S.No.485 of 2002 because they failed to prosecute that suit; whereupon, the embargo as contemplated under Order 9 Rule 9 of the Code of Civil Procedure was operating as against them. However, the first appellate court without really appreciating the factual matrix, applied Section11 of the Code of Civil Procedure as against the present plaintiff and dismissed the original suit, warranting interference in this second appeal. (iv) The defendants' have not chosen to file appeal or cross appeal challenging the finding as against them with regard to Exs.B4 to B6. Accordingly, he would pray for setting aside the judgment and decree of the first appellate court. 6. Whereas in a bid to torpedo and pulverise and slap down the arguments as put forth on the side of the appellant/plaintiff, the learned counsel for the respondents/defendants would advance his argument, which could tersely and briefly be set out thus: (i) The suit itself is bad for want of a prayer for declaration, with regard to the right of the plaintiff over the alleged common wall. (ii) There is no iota or shred, miniscule or molecular extent of averment found set out in the plaint relating to the dispute concerning the common wall. The plaint proceeds on the footing as though the defendants' holus bolus attempted to trespass into the plaintiff's two items of suit properties and that he was in need of an injunction. (iii) The first appellate court correctly commented upon the scope of the suit and dismissed the original suit itself reversing the judgment and decree of the trial court, warranting no interference in this second appeal. 7. After hearing both sides, I thought it fit to formulate the following substantial questions of law to the knowledge of both sides. 1. (iii) The first appellate court correctly commented upon the scope of the suit and dismissed the original suit itself reversing the judgment and decree of the trial court, warranting no interference in this second appeal. 7. After hearing both sides, I thought it fit to formulate the following substantial questions of law to the knowledge of both sides. 1. Whether the suit was bad for want of a prayer for declaration of title and for averments concerning the right of the plaintiff over the alleged common wall and the consequential injunction? 2. Whether the first appellate court was justified in invoking Section 11 of the Code of Civil Procedure as against the plaintiff? 3. Whether there is any perversity or illegality in the judgment and decree of the first appellate court? 8. Both counsel advanced their arguments further on those substantial questions of law. 9. All these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with one another. 10. I would like to fumigate my mind with the relevant decision of the Hon'ble Apex Court reported in 2008(6) CTC 237 [Anathula Sudhakar v. P.Buchi Reddy (Dead) by Lrs. and others], an excerpt from it would run thus: "12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere Suit for injunction, and in such a Suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the Plaint and convert the Suit into one for declaration. Alternatively, he may withdraw the Suit for bare injunction, with permission of the Court to file a comprehensive Suit for declaration and injunction. He may file the Suit for declaration with consequential relief, even after the Suit for injunction is dismissed, where the Suit raised only the issue of possession and not any issue of title." 11. Accordingly if viewed, the Hon'ble Apex court clearly highlighted and spotlighted various categories of cases wherein, the prayer for declaration of title is a must on the part of the plaintiff. 12. My mind is redolent and reminiscent of one other decision of this Court reported in 2007 (4) CTC 70 [Chinna Nachiappan and another v. PL. Lakshmanan]. As such, I had on the earlier occasion, the chance of deciding the case, wherein, I held that even a trespasser in established possession could seek for injunction leaving the defendant to file a regular suit, if so advised. 13. I recollect and call up the following maxim: - judicis est judicare secundum allegata et probata -It is the duty of the judge to decide according to facts alleged and proved. Accordingly, if viewed, any amount of evidence without the back up of the pleadings should be eschewed. 14. It is the basic and fundamental principle of civil law that the litigant is expected to set out the relevant facts in the plaint. If the plaint is silent as silence could be relating to the real dispute then the plaintiff would not be permitted to adduce evidence in order to buttress and fortify his case, which is not having the back up of the pleadings. 15. If the plaint is silent as silence could be relating to the real dispute then the plaintiff would not be permitted to adduce evidence in order to buttress and fortify his case, which is not having the back up of the pleadings. 15. A thorough analysis of the available records would disclose and convey that earlier O.S.No.485 of 2002 was filed by the defendants herein with the prayer for injunction on the footing that the wall, which situates between the plaintiff's property and the defendants' property happened to be the common wall and that should not be demolished unilaterally by the defendant therein who is the plaintiff herein. However, earlier suit O.S.No.485 of 2002 was decreed exparte; subsequently, it was set aside; thereafter, for non-prosecution the suit was dismissed. As such, it is an admitted fact that the earlier suit was not decided on merits. 16. A mere running of the eye over the pleadings as well as the evidence adduced before the trial court would exemplify and demonstrate, portray and parody that the real dispute is with regard to the wall, which exists between the house of the plaintiff and the defendants. According to the plaintiff, it is the exclusive wall of the plaintiff; whereas the defendants' would contend that it is the common wall for both. In such a case, I am at a loss to understand and there is also no knowing of the fact as to why there is no whisper at all about the said fact in the plaint. The first appellate court was right in commenting upon the drafting of the plaint. No doubt, a litigant is not expected to lay the averments on with a trowel and there should not be any embellishing or down playing of facts; but necessary facts should be found set out in the plaint. Here, thorough out the plaint, there is no iota or shred of averment relating to the common wall dispute. From the evidence adduced, it is crystal clear and that too pellucidly and palpably obvious and axiomatic that the plaintiff approached the court only for the purpose of getting the relief with regard to the said wall and not with regard to the entire plot area as well as the house found described in the two items of the schedule of the plaint. In such a case, the plaintiff can rightly be found fault with for having not pleaded properly in the plaint her case. 17. No doubt, the defendants' would try to resist the suit of the plaintiff herein by placing reliance on Exs.B4 to B6, certain compromise, which allegedly took place in the police station. However, the plaintiff would submit that such compromise erupted because of coercion and threat. 18. It is also indisputable that after the emergence of such Exs.B4 to B6, no complaint was given to higher officials by the plaintiff herein. 19. Be that as it may, this court is concerned particularly, with regard to the framing of the suit, which is the main substantial question of law in this factual scenario. 20. The precedents cited supra also would unequivocally and unambiguously, highlight and spotlight the proposition that if there are no sufficient evidence available on record, then certainly the party concerned should not be allowed to adduce evidence so as to fill up the lacunae and that too quite contrary to what he pleaded in his pleadings. 21. I could notice that the defendants' have not produced their title deed; whereas the plaintiff produced her title deeds referring to linear measurements. Even though Commissioner was appointed, no step was undertaken by him to measure the properties of the respective parties and find out as with whose document the disputed wall falls. There is also nothing to evince and evidence the nature of the foundation of the alleged common wall. 22. It is a common or garden principle that if a wall happens to be a common wall, the foundation would be pyramidical in shape and if it is the exclusive wall of one party, it will be otherwise. This fact has not been considered at all by any one. There is also no smudgeon or jot of evidence to show-up as to whose building was constructed earlier. It is not known whether the plaintiff's building was raised earlier or the defendants'. Indubitably and indisputably, both of them were only purchasers from their respective vendors and the said disputed wall was not constructed by the present owners. In such a case, the aforesaid analysis as envisaged by me supra would be of immense importance; but scant regard was attributed towards such investigation and approach. 23. Indubitably and indisputably, both of them were only purchasers from their respective vendors and the said disputed wall was not constructed by the present owners. In such a case, the aforesaid analysis as envisaged by me supra would be of immense importance; but scant regard was attributed towards such investigation and approach. 23. The learned counsel for the defendants' would submit that there is no reference to the police station compromise as per Exs.B4 to B6 in the plaint. However, the plaintiff did choose to ignore those documents because according to the plaintiff, she was bulldozed and bludgeoned, dragooned and badgered into entering into such documents owing to communal pressure. 24. Be that as it may, the basic requirements of pleadings are not to be found in the plaint, warranting interference in this second appeal. Accordingly, the suit has to be held as one not sustainable in law. In view of the above discussion, I would like to hold that the ultimate conclusion of the first appellate court in dismissing the suit, warrants no interference. 25. In order to disambiguate the ambiguity if any, I would like to clarify that this court, while confirming the dismissal of the original suit does not uphold the discussion and reasoning of the first appellate court, only on the technical ground that the suit was not properly instituted. The proper suit to be instituted is one for declaration of title over the disputed wall and for consequential injunction and in that suit as envisaged supra by me, necessary steps should be taken to adduce evidence. Hence, I am of the considered view that this second appeal should be disposed of with a finding that no interference with the ultimate dismissal of the suit by the first appellate court is warranted; however, liberty is given to the plaintiff to file fresh suit for declaration of title over the disputed wall and for consequential injunction. 26. On balance, (i) The substantial question of law No.1 is decided to the effect that the suit was bad for want of a prayer for declaration of title and for averments concerning the right of the plaintiff over the alleged common wall and the consequential injunction. (ii) The substantial question of law No.2 is decided to the effect that the first appellate court was not justified in invoking Section 11 of the Code of Civil Procedure as against the plaintiff. (ii) The substantial question of law No.2 is decided to the effect that the first appellate court was not justified in invoking Section 11 of the Code of Civil Procedure as against the plaintiff. 27. In the result, this second appeal is disposed of with the aforesaid direction. No costs. Consequently, the connected miscellaneous petition is closed.