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2013 DIGILAW 1515 (MAD)

Jabamalaimanickam v. Malaisamy

2013-04-03

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focused by the plaintiffs, animadverting upon the judgment and decree dated 10.12.2012 passed by the learned Subordinate Judge, Bhavani in A.S.No.8 of 2012 in reversing the judgment and decree dated 17.11.2011 passed by the learned Principal District Munsif, Bhavani in O.S.No.368 of 2009. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. 3. A 'resume' of facts, absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiffs, who are the brothers filed the suit for bare injunction as against the defendants, viz., Malaisamy and Egambaram in respect of the suit property measuring an extent of one acre as found described in the schedule of the plaint on the main ground that the plaintiffs' by virtue of the settlement deed vide Ex.A4 dated 02.09.2009 executed by their father Joseph, became the absolute owner of the suit property. In fact, Joseph got the property from his father Innasimuthu by inheritance, as Innasimuthu during his life time got the total extent of 1.5 acres including the suit property measuring one acre vide Exs.A1 and A2. While so, on 17.12.2009, the defendants' without any manner of right attempted to barge into the suit property; whereupon this suit was constrained to be filed by the plaintiffs. (b) Per contra, the defendants' by way of challenging and impugning the averments/allegations in the plaint, filed the written statement, a thumb nail sketch of the same would run thus: (i) On 29.04.1985, Joseph the father of the plaintiffs' on his behalf and on behalf of the then minors' the plaintiffs' herein, mortgaged the suit property in favour of Marappa Gounder in connection with the loan of Rs.5,000/-availed by the former from the latter. The present plaintiffs' who were minors, happened to be eo-nomini parties in the mortgage deed. (ii) The mortgagors also handed over delivery of possession of the suit property in connection with the mortgage. As such, the suit for injunction filed by the plaintiffs' presupposing as though the plaintiffs' were in possession and enjoyment of the suit property as on the date of the filing of the suit, was a misconceived one. (iii) The defendants' also pleaded adverse possession. (c) The trial Court framed the relevant issues. As such, the suit for injunction filed by the plaintiffs' presupposing as though the plaintiffs' were in possession and enjoyment of the suit property as on the date of the filing of the suit, was a misconceived one. (iii) The defendants' also pleaded adverse possession. (c) The trial Court framed the relevant issues. (d) Up went the trial, during which the the second plaintiff examined himself as P.W.1 along with P.W2 and marked Exs.A1 to A8; and on the defendants' side D1 examined himself as DW1 along with D.Ws.2 and 3 and marked Exs.B1 to B7. 4. Ultimately the trial Court decreed the suit; as against which the defendants' preferred the appeal, whereupon the first appellate court reversed the findings of the trial court and dismissed the original suit itself. 5. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate court, this second appeal has been filed by the plaintiffs' on various grounds, suggesting the following substantial questions of law: (i) Whether the defendants having set up the defence as the mortgagees, are legally entitled to claim title to the property, by way of adverse possession? (ii) Whether the first appellate court is correct in law in dismissing the suit for permanent injunction especially when the title of the plaintiffs is not disputed by the defendants in view of their plea of adverse possession? (iii) Whether the first appellate court erred in law in dismissing the suit for want of the prayer for declaration of title particularly when the suit for bare injunction is well maintainable as held in Anathula Sudhakar Case reported in 2008(6) CTC 237? (extracted as such) 6. Heard the learned counsel for the appellant. 7. The learned counsel for the appellants would pyramid his argument, which could succinctly and precisely be set out thus: (i) The defendants' were not justified in blowing hot and cold after pleading that they happened to be mortgagees cannot set up title by adverse possession over the suit property. (ii) The plaintiffs' title was not in dispute in view of the plea taken by the defendants' that they acquired title by adverse possession. In the plea of adverse possession, it is implied that the person, who took up such plea admitted the title of the other side and for the very same reason, the suit is not bad for want of a prayer for declaration. In the plea of adverse possession, it is implied that the person, who took up such plea admitted the title of the other side and for the very same reason, the suit is not bad for want of a prayer for declaration. Accordingly, the learned counsel for the appellants would pray for setting aside the judgment and decree of the first appellate court. 8. At the outset, I would like to fumigate my mind with the recent decision of the Hon'ble Court reported in 2012 (8) SCC 148 [Union of India v. Ibrahim Uddin and another]. 9. Keeping the aforesaid dictum of the Hon'ble Apex Court in mind, I analysed the records available before me. 10. It is glaringly clear that the plaint is as silent as silence could be. The plaintiffs' and their father Joseph happened to be the mortgagees as per Ex.B1, the mortgage deed, which would recite that the said Joseph on his behalf and on behalf of his the then minors sons, viz., the plaintiffs' herein, mortgaged the suit property in favour of the defendants. Suppressing the material fact, the plaint was filed and that itself would disentitle the plaintiffs' from getting the equitable remedy of injunction. 11. No doubt, the recital in Ex.B1 would not blatantly and pellucidly reveal that it is a usufructory mortgage. Even then, the defendants' would plead that in consonance with the mortgage as contained in Ex.B1, the delivery of possession was effected by the mortgagors in favour of the mortgagee. 12. Be that as it may, there should have been clear evidence to show that as on the date of the filing of the suit, the plaintiffs' were in possession and enjoyment of the suit property. 13. My mind is reminiscent and redolent of the following maxims: (i) affirmantis est probare – He who affirms must prove. (ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies. Accordingly, the burden of proof is on the plaintiffs' to prove their case. The first appellate court being the last court of fact, analysed the evidence and found out that precisely there is no evidence to show that the plaintiffs' were in effective possession of the suit property as on the date of filing of the suit. Accordingly, the burden of proof is on the plaintiffs' to prove their case. The first appellate court being the last court of fact, analysed the evidence and found out that precisely there is no evidence to show that the plaintiffs' were in effective possession of the suit property as on the date of filing of the suit. The first appellate court also correctly found fault with the trial court, that it was carried away by the fact that the plaintiffs' were having paramount title and that joint patta stood in the name of Joseph along with others. The first appellate court took care to point out that Exs.A4 and A5, the tax receipts were in the name of Joseph; but the plaintiffs' had not produced any chitta or adangal in their names; whereas the defendants' filed Exs.B3 and B4 the adangals to show their possession. 14. As such, the first appellate court, after analysing the facts held that the trial court was not justified in decreeing the suit. I am of the considered view that the first appellate court, being the last court of facts, properly dealt with the matter and in such a case, the question of entertaining the second appeal would not arise. 15. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that the plaintiffs' did not approach the court with clear pleadings in the plaint and as such, they are not entitled to equitable relief of permanent injunction and that too, in view of the maxim – He who seeks equity must do equity and he who comes to equity must come with clean hands. Wherefore, I could see no question of law much less substantial question of law is involved in this matter. 16. I would like to make the point clear that simply because the original suit is dismissed that it does not mean that the plea of adverse possession etc., pleaded by the defendants' have been upheld by any of the courts in these proceedings. 17. On hearing the judgment pronounced, the learned counsel for the appellants/plaintiffs would make an extempore submission to the effect that the plaintiffs' might be given liberty to file a fresh suit with appropriate relief. 18. It is open to the plaintiffs' to do so, if they are so advised, as per law. 19. 17. On hearing the judgment pronounced, the learned counsel for the appellants/plaintiffs would make an extempore submission to the effect that the plaintiffs' might be given liberty to file a fresh suit with appropriate relief. 18. It is open to the plaintiffs' to do so, if they are so advised, as per law. 19. With the above observation, this second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.