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2013 DIGILAW 2266 (MAD)

Sampath v. Perumal Pillai

2013-07-01

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focused by the plaintiffs 2 to 5, inveighing the judgment and decree dated 18.10.2012 passed by the learned Subordinate Judge, Arni, Tiruvannamalai in A.S.No.12 of 2005 in reversing the judgment and decree dated 28.06.2002 passed by the learned Principal District Munsif, Arni in O.S.No.543 of 1992. 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. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: a] The plaintiff filed the suit seeking the following reliefs: to pass a judgment and decree in favour of the plaintiff herein and as against the defendants : (i) declaring the title of the plaintiffs to the suit property and restrain the defendants, their men and agents from interfering or destroying the crops by means of a permanent injunction and (ii) directing the defendants to pay the plaintiffs the costs of this suit. (extracted as such) in respect of the property described in the schedule of the plaint: In Tiruvannamalai Sambuvarayar District, Vandawash Sub District, Wandawash Taluk in Karanai village: Nanja 42/2A-0.53 cents Asst.4.88 paise. (extracted as such) b] The gist and kernel of the averments in the plaint would be to the effect that the first plaintiff happened to be the absolute owner of the suit property and he was in possession and enjoyment of the same and he cultivated sugar cane crops and other crops. The patta stood in his name and he was paying the kist relating to the property. Earlier as many as three suits, viz., 1. O.S.No.254 of 1981 2. O.S.No.482 of 1981 3. O.S.No.1298 of 1981 emerged and all those suits were settled in view of the intervention of the panchayatars and the suit O.S.No.481 of 1981, which was one for declaration and for injunction, was decreed on 02.07.1992. The first and the third defendants are the sons of the divided brothers of the first plaintiff; the second defendant is the divided brother of the first plaintiff. The defendants are having no title over the suit property. On 14.07.1992, the defendants attempted to trespass into the suit property; whereupon, this suit was came to be filed. The first and the third defendants are the sons of the divided brothers of the first plaintiff; the second defendant is the divided brother of the first plaintiff. The defendants are having no title over the suit property. On 14.07.1992, the defendants attempted to trespass into the suit property; whereupon, this suit was came to be filed. c] Per contra, refuting and contradicting the averments/allegations in the plaint, the defendants filed the written statement, the warp and woof of the same would run thus: The averments in the plaint are rebarbative ones, fraught with falsity and mendacity and it is nothing but a load of baloney. The plaintiffs are not the owners of the property and they are not even in possession and enjoyment of it. Accordingly, they prayed for the dismissal of the suit. d] Issues were set down for trial, wherein on the plaintiff's side, P.Ws.1 and 2 were examined and Exs.A1 to A8 were examined and on the defendants' side, D1 examined himself as DW1 and marked Exs.B1 and B2. e] Ultimately, the trial court decreed the suit; as against which, the defendants filed the appeal; whereupon, the first appellate court reversed the findings of the trial court and dismissed the original suit itself. f] Challenging and impugning the judgment and decree of the first appellate court, the plaintiffs 2 to 5 have preferred this second appeal on various grounds and also suggesting the following substantial questions of law: (i) Whether the appellate court is right in applying the doctrine of estoppel? (ii) Whether the appellate court has properly appreciated the evidence let in by the plaintiff to prove the possession of the plaintiff A6- to A-8? (iii) Whether the appellate court is correct in ignoring the decree passed in O.S.No.482/91 Ex.A-6, declaratory decree in favour of the plaintiff? (iv) Whether the appellate court decree based on Ex.B1 decree in O.S.No.1456/79, wherein admittedly only 1/5th of the suit property was declared in favour of the defendant? (extracted as such) 4. Heard the learned counsel for the appellant. 5. At the outset, I would like to fumigate my mind with the recent decision of the Hon'ble Apex Court reported in 2012 (8) SCC 148 [Union of India v. Ibrahim Uddin and another]. 6. (extracted as such) 4. Heard the learned counsel for the appellant. 5. At the outset, I would like to fumigate my mind with the recent decision of the Hon'ble Apex Court reported in 2012 (8) SCC 148 [Union of India v. Ibrahim Uddin and another]. 6. Keeping this dictum in mind, I proceed to analyse the records to find out as to whether any substantial question of law is involved in this matter. 7. The learned counsel for the plaintiff would draw the attention of this court to the judgment of the trial court and develop his argument to the effect that the trial court placing reliance on Ex.A6, the exparte decree passed in O.S.No.481 of 1981 decreed the suit. 8. In response to the query raised by this court, the learned counsel for the plaintiffs, in all fairness, would submit that the defendants in the previous suit are different from the defendants herein. In such a case, the trial court was not justified in simply placing reliance on the exparte decree in the previous suit. 9. My mind is reminiscent and redolent of the following maxim: Res inter alios judicatae nullum aliis praejudicium faciunt – Matters adjudged in the law suits of others do not prejudice those who were not parties to them. Accordingly, if viewed, the judgment in personam passed in the earlier suit would have no binding effect on the defendants in this suit unless the plaintiffs could prove that they are claiming derivative title from the defendants therein; but there is no such finding to that effect by the trial court in this matter. 10. I also recollect the maxim - Favorabiliores rei potius quam actores habentur – Defendants are held to be in a more favourable position than pursuers. However, the plaintiff is bound by the following maxims- (i) affirmantis est probare – He who affirms must prove. (ii) Affirmanti non neganti incumbent probation: The burden of proof lies upon him who asserts and not upon him who denies. Accordingly, the burden of proof is on the plaintiffs and the first appellate court au fait with law and au courant with facts correctly adverted to the relevant law points as well as the factual position, decided the case that the plaintiffs did not prove their case. Accordingly, the burden of proof is on the plaintiffs and the first appellate court au fait with law and au courant with facts correctly adverted to the relevant law points as well as the factual position, decided the case that the plaintiffs did not prove their case. As such, I am of the considered view that absolutely there is no question of law much less substantial question of law is involved in this matter. 11. Accordingly, I could see no merit in this second appeal and the same is dismissed. However, there shall be no order as to costs.