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2013 DIGILAW 2370 (MAD)

Kandasamy v. Selvam

2013-07-09

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focused by the plaintiff, inveighing the judgment and decree dated 15.11.2007 passed by the learned Additional District Judge (Fast Track Court), Gobichettipalayam in A.S.No.26 of 2007 in confirming the decree and judgment dated 23.08.2005 passed by the learned District Munsif, Sathyamangalam, Erode District in O.S.No.395 of 2004. 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. Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus: a) The gist and kernel of the averments in the plaint would run thus: The original plaintiff, Kandasamy, vide Ex.A1 sale deed dated 13.02.2002 purchased an extent of 1.30 acres in the larger extent of 10.37 = acres in old S.F.No.233 and 234, Pattavarthi Ayyampalayam Village and the details as per the plaint are extracted here under for ready reference: The suit property is in the northern half of S.F.233 and 234. At present out of acres 10.37 = in the northern half, plaintiff is entitled to acres 1.30, 1st defendant is entitled to acres 4.93 and 2nd defendant who is the wife of plaintiff is entitled to acres 4.00. Total comes to acres 10.37 =. There is a shortage of acres 0.17 =. During resurvey S.F.233 and 234 clubbed together were given R.S.No.100 and 101. The total acres as per resurvey comes to only 20.47 instead of 20.75. (extracted as such) The following persons are the pattadhars under patta No.304 in respect of R.S.No.101- (i) Chinniyan (ii) Subbannan (iii) Chinnari Gounder (iv) Chinnaponnal @ Ramathal Since the original plaintiff purchased the said Chinnari Gounder's share in that area, Chinnari Gounder's name has to be replaced by the name of the plaintiff. Wherefore, the plaintiff took steps to get his name incorporated in the joint patta; but that was rejected by the Tahsildar concerned and as against which, appeal was filed, which was also dismissed. The revenue authorities dismissed the request for inclusion of the plaintiff's name in the patta on the main ground that the earlier suit in O.S.No.18 of 1987 was dismissed and the appeal filed as against the judgment and decree of that suit in A.S.No.11 of 1988 was also dismissed. The revenue authorities dismissed the request for inclusion of the plaintiff's name in the patta on the main ground that the earlier suit in O.S.No.18 of 1987 was dismissed and the appeal filed as against the judgment and decree of that suit in A.S.No.11 of 1988 was also dismissed. In the previous suit, the 1/8 share measuring an extent of 1.30 acres belonging to Chinnari Gounder in the larger extent of 10.37 = acres, was not rejected or denied. In such a case, the purchase of the property by the original plaintiff from Chinnari Gounder vide sale deed Ex.A1 is valid; but the revenue authorities failed to understand the same. D1 is the purchaser of property from one Chinnaponnal @ Ramathal and Valliyammal is the wife of Kandasamy, who purchased certain items in the larger extent of the said 10.37 = acres and virtually there is no overlapping of title among the original plaintiff Kandasamy, D1 and D2. Hence the suit for obtaining the following reliefs: To pass a decree - (a) declaring the title of plaintiff to the suit property. (b) directing the defendants 3 and 4 by mandatory injunction to include the name of plaintiff as joint pattadhar for RS 101, Pattavarthi Ayyampalayam village in the place of Chinnari Gounder. (c) directing the defendants to pay the cost of the suit in respect of the following property: DESCRIPTION OF PROPERTY “TAMIL” (extracted as such) b) Disputing and challenging the claim of the plaintiff, D1 filed the written statement placing reliance on the earlier judgments and decrees passed in O.S.No.18 of 1987 and A.S.No.111 of 1988. Ex.A1, the document relied on by the plaintiff would not confer any title because his vendor himself had no title over the property. The said Chinnari Gounder was not recognised to be the owner of any extent of property as per the judgments and decrees emerged previously in O.S.No.18 of 1987 and A.S.No.111 of 1988. Accordingly, he prayed for the dismissal of the suit. c) On his behalf and on behalf of D3, D4 filed the written statement contending that in view of the judgments and decrees passed in O.S.No.18 of 1987 and A.S.No.111 of 1988, the plaintiff had no right to get his name incorporated in the joint patta. Accordingly, he prayed for the dismissal of the suit. c) On his behalf and on behalf of D3, D4 filed the written statement contending that in view of the judgments and decrees passed in O.S.No.18 of 1987 and A.S.No.111 of 1988, the plaintiff had no right to get his name incorporated in the joint patta. d) Issues were set down by the trial court for trial, during which, on the plaintiff's side, the original plaintiff-Kandasamy examined himself as P.W.1 and Exs.A1 to A6 were marked. On the side of the defendants' D1 examined himself as DW1 and marked Exs.B1 to B5. e] Ultimately, the trial court dismissed the suit; as against which, the plaintiff preferred the appeal for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court. f) After disposal of the first appeal, the original plaintiff-Kandasamy died; whereupon, his legal heirs were impleaded. g] Challenging and impugning the judgments and decrees of both the fora below, the legal heirs of the original plaintiff have preferred this second appeal on various grounds and also suggesting the following substantial questions of law: 1. Whether the decision made in earlier suit with regard to part of property is a bar to file another suit for declaration with regard to another part of the property in the same survey? 2. Whether the first appellate court has to follow the provisions under Order 41 Rule 31 of CPC., which are mandatory in nature? (extracted as such) 4. Heard all concerned. 5. On hearing both sides, I thought fit to formulate the following substantial questions of law to the knowledge of both sides. 1. Whether the courts below were justified in holding that the judgments and decrees in O.S.No.18 of 1987 and A.S.No.111 of 1988 were to the effect that Chinnari Gounder, the vendor of the original plaintiff himself had no right at all to an extent of 1/8 share to wit, 1.30 acres in the larger extent of 10.37 = acres, when in fact, the judgments and decrees in the previous proceedings recognised specifically the 1/8 share of Chinnaponnal @ Ramathal, the vendor of Chinnari Gounder? 2. Whether there is any perversity or illegality in the judgments and decrees of both the courts below? 6. 2. Whether there is any perversity or illegality in the judgments and decrees of both the courts below? 6. Indubitably and indisputably, the following are the facts, which emerged from the records as well as the submissions made by both sides. Originally, the entire extent of 10.37 = acres belonged to the following eight persons, jointly: 1. Senniappa Nadar 2. Rangasamy Nadar 3. Mariappa Nadar 4. Marappa Nadar 5. Kaliappan 6. Karukkayammal @ Karunaiammal 7. Nanjammal 8. Arunachala Pulavar As such, each of them had 1/8 share in the entire extent of 10.37 = acres. It appears that the legal heirs of Senniappa Nadar, Nanjammal and Arunachala Pulavar and Rangasamy's 4/8 shares were transferred in favour of Chinnaponnal @ Ramathal vide sale deeds dated 23.02.1962 [executed by Ayyavoo Nadar], 28.11.1961 [executed by Ramakkal], 27.02.1961[executed by Arumuga Nadar], 19.02.1962 [executed by Subbiah Nadar] and 13.11.1961[Nachimuthu Pulavar] respectively. However, one Chinnammal purchased the said Mariappa Nadar's share vide the sale deed dated 16.03.1961 an extent of 1.30 acres, so to say, 1/8 share of Mariappa Nadar. However, quite antithetical to the extent contemplated in that sale deed in favour of Chinnammal, her legal heir, so to say, her daughter Pappammal @ Karupayee Ammal sold an extent of 6.37 acres in favour of Subanna Gounder, Chinnaiya Gounder, Nallappa Gounder and Chinnari Gounder specifying various extents in their sale deeds. The said Chinnaponnal @ Ramathal filed a suit for declaration of her title to an extent of 4.92 acres in that larger extent of land and for partition of the same and consequently for permanent injunction citing the said Chinnari Gounder, Pappammal @ Karuppayammal, Nallappa Gounder, Chinnaiya Gounder and various others. After full trial, the trial court decreed the suit in favour of Chinnaponnal @ Ramathal; as against which, the said Chinnari Gounder preferred the appeal in A.S.No.111 of 1988 for nothing but to be dismissed and finality was achieved in the previous proceedings. It so happened that the said Chinnari Gounder thereafter executed the sale deed Ex.A1 dated 13.02.2002 in favour of the original plaintiff Kandasamy, the property described in the schedule of the plaint, which represents the 1/8 share virtually of the said Chinnammal who purchased it vide sale deed dated 16.03.1961 from Mariappa Gounder. 7. It so happened that the said Chinnari Gounder thereafter executed the sale deed Ex.A1 dated 13.02.2002 in favour of the original plaintiff Kandasamy, the property described in the schedule of the plaint, which represents the 1/8 share virtually of the said Chinnammal who purchased it vide sale deed dated 16.03.1961 from Mariappa Gounder. 7. The learned counsel for the appellants/plaintiffs would try to canvass the case of his clients to the effect that both the courts below failed to take note of the fact that the claim of the present plaintiffs, who represents the shares of Chinnari Gounder to an extent of 1.30 acres, was unjustifiably negatived by both the courts below. He would also stress upon the fact that the original plaintiff Kandasamy did not claim any share in the property belonging to Chinnammal. But without understanding the niceties of fact and law involved in the matter, both the courts below decided the lis. 8. Whereas the learned counsel for R1 Selvam would submit that Selvam purchased the property from Chinnaponnal @ Ramathal her share and as long as there is no interference by the said Kandasamy or his legal heirs in the share of Chinnaponnal @ Ramathal he would have no say with regard to the 1/8 share of Chinnari Gounder, which was alleged to have been purchased by others. 9. The learned Government Advocate appearing for respondents 3 and 4 would make his submission to the effect that depending upon the adjudication in the civil proceedings, the revenue officials would act accordingly. 10. The above narration of facts bespeaks and betokens that interpretation of the judgments and decrees emerged in the previous proceedings are all of paramount importance so far this case is concerned. 11. The learned counsel for the appellants/plaintiffs by inviting the attention of this court to Exs.B2 and B3, the certified copies of the judgments and decrees passed in O.S.No.18 of 1987 and A.S.No.111 of 1988 would pyramid his argument to the effect that there are findings in those judgments, which would clearly recognise the right of Chinnari Gounder over the 1/8 portion measuring an extent of 1.30 acres, which he purchased from Chinnammal's daughter Pappammal @ Karauppayammal. It is therefore just and necessary to extract the relevant portion in those judgments. It is therefore just and necessary to extract the relevant portion in those judgments. (i) Relevant portion from the judgment passed in O.S.No.18 of 1987: “TAMIL” (ii) Relevant portion from the judgment passed in A.S.No.111 of 1988: “TAMIL” The above excerpts from those judgments would unambiguously and unequivocally highlight and spotlight the fact that in the earlier proceedings, the courts did not hold that Chinnammal had no right over 1/8 share in the entire extent of 10.37 = acres; but both the courts below, in these proceedings, misunderstood the judgments of both the courts in the earlier proceedings and interpreted as though Chinnammal was declared to be not the owner of any extent in the entire extent of 10.37 = acres. As such, it is nothing but misreading of the earlier judgments and decrees as contained in Exs.B2 and B3, warranting interference in this second appeal. 12. I would like to point out that in the earlier proceedings Chinnari Gounder took up a larger plea to the effect that the said Chinnaponnal @ Ramathal's daughter Pappammal @ Karuppayammal was the owner of a larger extent of 6 acres and odd in the total extent of 10.37 acres and odd, ignoring the fact that Chinnammal herself as per sale deed dated 16.03.1961 purchased only an extent of 1.30 acres. In fact, the plea of prescription was pressed into service in respect of the entire extent of 6 acres and odd, which was negatived. In the present proceedings, both the courts below, virtually misunderstood the discussion in the previous proceedings and held as though Chinnammal had no title even with regard to the 1/8 share which she purchased from Mariappa Gounder. 13. Then the question might arise as to whether the present suit filed by the plaintiff is tenable. Indubitably and indisputably, unarguably and incontrovertibly, in the previous proceedings, preliminary decree was passed for partition in favour of Chinnaponnal @ Ramathal. In fact, R1-Selvam, stepped into the shoes of the said Chinnaponnal @ Ramathal. But there is nothing to indicate and exemplify either Chinnaponnal @ Ramathal or Selvam approached the very same court for obtaining any final decree and for that matter, there is nothing to point up and show up that the original plaintiff Kandasamy or his legal heirs approached the very same court for partitioning their claim for 1.30 acres. 14. But there is nothing to indicate and exemplify either Chinnaponnal @ Ramathal or Selvam approached the very same court for obtaining any final decree and for that matter, there is nothing to point up and show up that the original plaintiff Kandasamy or his legal heirs approached the very same court for partitioning their claim for 1.30 acres. 14. There is also one other snag, which I could notice in this factual matrix. The records bespeaks and proclaims that Pappammal @ Karuppayammal, the daughter of Chinnammal while disposing of the properties, she executed two sale deeds, viz., (i) dated 08.03.1973 in respect of the said extent of 6 acres and odd in favour of Chinnari Gounder and (ii) dated 27.03.1966 two other persons, viz., Subbanna Gounder and Chinnaiya Gounder. Now then, as per the previous proceedings, it turned out that Pappammal @ Karuppayammal had no right for such a larger extent and she had the alienable capacity only in respect of 1.30 acres. If that be so, it has to be found out as to how among the three persons, viz., Chinnari Gounder, Subbanna Gounder and Chinnaiya Gounder the extent of 1.30 acres should be shared or who will have the priority over the other. These are all separate issues to be dealt with. The said Subbanna Gounder and Chinnaiya Gounder are not parties to this present proceedings. 15. Hence, with this observation, I would like to dispose of the second appeal by pointing out to the effect that the previous judgments passed in O.S.No.18 of 1987 and A.S.No.111 of 1988, would not operate as res judicata in respect of the claim of the original plaintiff Kandasamy and his legal heirs with regard to the 1/8 share, which Chinnammal got in the entire extent of 10.37 = acres. It is entirely a different issue as to how that 1/8 share should be apportioned among the original plaintiff-Kandasamy and his legal heirs, and Subbanna Gounder and Chinnaiya Gounder and it is for the plaintiffs in the present suit to work out their remedy in the way known to law. 16. It is entirely a different issue as to how that 1/8 share should be apportioned among the original plaintiff-Kandasamy and his legal heirs, and Subbanna Gounder and Chinnaiya Gounder and it is for the plaintiffs in the present suit to work out their remedy in the way known to law. 16. The substantial question of law No.1 is decided to the effect that the courts below were not justified in holding that the judgments and decrees in O.S.No.18 of 1987 and A.S.No.111 of 1988 were to the effect that Chinnari Gounder, the vendor of the original plaintiff himself had no right at all to an extent of 1/8 share to wit, 1.30 acres in the larger extent of 10.37 = acres, when in fact, the judgments and decrees in the previous proceedings recognised specifically the 1/8 right of Chinnaponnal @ Ramathal, the vendor of Chinnari Gounder. 17. To disambiguate the ambiguity, if any, I would clarify that the extent of 1.30 acres in the larger extent of 10.37 = acres belonged to Chinnammal and her daughter Pappammal @ Karupayammal. It is entirely a different issue as to how that 1/8 share should be apportioned among the original plaintiff-Kandasamy and his legal heirs, and Subbanna Gounder and Chinnaiya Gounder and it is for the plaintiffs in the present suit to work out their remedy in the way known to law. 18. In the result, this second appeal is disposed of. However there shall be no order as to costs.