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2013 DIGILAW 259 (MAD)

S. Chandra v. R. Chindathirai Arockiam Selvin

2013-01-09

G.RAJASURIA

body2013
Judgment :- 1. S.A.(MD)No.775 of 2009 has been focussed by the plaintiff as against the judgment and decree dated 31.08.2006 passed in A.S.No.212 of 2005 by the learned Subordinate Judge, Tuticorin, in reversing the declaratory relief granted as per the judgment and decree dated 02.08.2005 passed in O.S.No.432 of 2004 by the learned Additional District Munsif, Thoothukudi. 2. Cross Objection (MD)No.31 of 2012 has been filed against the judgment and decree dated 31.08.2006 passed in A.S.No.212 of 2005 by the learned Subordinate Judge, Tuticorin, in confirming the injunction granted by the judgment and decree dated 02.08.2005 passed in O.S.No.432 of 2004 by the learned Additional District Munsif, Thoothukudi. 3. The parties are referred to hereunder according to their litigative status before the trial Court. 4. A resume of facts absolutely necessary and germane for the disposal of this Second Appeal and the Cross Objection, as stood exposited from the records and the submissions of both sides, would run thus: (i) Chandra, the appellant herein filed the suit in O.S.No.432 of 2004, seeking the following reliefs: "(a) declaring that the plaint schedule property belongs to the plaintiff; (b) and in consequentially to pass the permanent injunction restraining the defendant from interfering with the plaintiff's exclusive possession and enjoyment of the schedule property." In respect of the immovable property bearing S.No.195/B. Sornammal, the first defendant remained exparte. The second defendant -the Cross Objector herein filed the written statement contesting the suit. The issues were framed. (ii) Up went the trial, during which, on the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.19 were marked and on the side of the defendant, D.W.1 was marked and Exs.B.1 to B.23 were marked. (iii) Ultimately, the lower Court decreed the suit in toto, as against which the second defendant preferred the appeal. Whereupon the lower appellate Court modified the judgment and decree of the lower Court by dismissing the prayer for declaration of title, but confirmed the injunction granted in favour of the plaintiff by recognising only her possession over the suit property. 5. Being aggrieved by and dissatisfied with the same, S.A.(MD)No.775 of 2009, has been filed by the plaintiff on various grounds. 6. Whereas the second defendant preferred Cross Objection (MD)No.31 of 2012. 7. 5. Being aggrieved by and dissatisfied with the same, S.A.(MD)No.775 of 2009, has been filed by the plaintiff on various grounds. 6. Whereas the second defendant preferred Cross Objection (MD)No.31 of 2012. 7. During the pendency of the second appeal, the second defendant/the first respondent herein namely the Cross Objector filed M.P(MD)No.2 of 2012 under Order 41 Rule 27 of the Code of Civil Procedure, seeking permission of this Court to permit him to file the following 21 additional documents: 8. Heard both sides. 9. The substantial questions of law as suggested by the appellant in the second appeal, would run thus: "1. Whether the Lower Appellate Court is right in finding that the plaintiff is not entitled to derive title by way of adverse possession, particularly when the plaintiff proved her continuous possession and enjoyment of the suit property from 4-6-1975 onwards the document marked as Ex.A.2 i.e. more than the statutory period? 2. Having accepted all the documents marked by the plaintiff, whether the finding rendered by the Lower Appellate Court that the plaintiff failed to implead either Arumugasamy Nadar or his legal heirs in the suit and hence the plaintiff is not entitled to relief of adverse possession is sustainable?" (extracted as such) 10. Based on the same, my learned Predecessor, framed the following substantial questions of law in second appeal: "1. Whether the Lower Appellate Court is right in finding that the plaintiff is not entitled to derive title by way of adverse possession, particularly when the plaintiff proved her continuous possession and enjoyment of the suit property from 4-6-1975 onwards the document marked as Ex.A.2 i.e. more than the statutory period? 2. Having accepted all the documents marked by the plaintiff, whether the finding rendered by the Lower Appellate Court that the plaintiff failed to implead either Arumugasamy Nadar or his legal heirs in the suit and hence the plaintiff is not entitled to relief of adverse possession is sustainable?" (extracted as such) 11. The substantial questions of law as suggested by the Cross Objector would run thus: "A. The trial Court is deliberately suppressed the findings in para 10 of this Hon'ble High Court Order in Civil Revision Petition No.3464/2000 dated 22.04.2004. Marked as Ex.B.4(Pages 122 to 125). The substantial questions of law as suggested by the Cross Objector would run thus: "A. The trial Court is deliberately suppressed the findings in para 10 of this Hon'ble High Court Order in Civil Revision Petition No.3464/2000 dated 22.04.2004. Marked as Ex.B.4(Pages 122 to 125). B. The Judgment of the trial court and lower appellate court deliberately suppressed the findings of this Hon'ble High Court Order in CRP No.3464/2000 is the contempt of this Hon'ble Court too. C. As a matter of Resjudicata, My Father C.Rayappan was entitled for the scheduled property by the operation of law as per the findings in CRP No.3464/2000 dated 22.04.2004. D. The Order in I.A.No.545/2008 in O.S.No.49/2004 of Sub-Court, Thoothukudi dated 01.10.2009 was also confirmed the findings in 10th para of this Hon'ble High Court Order in CRP No.3464/2000 dated 22.04.2004. This Second Appeal is not maintainable as per Section 100A of C.P.C.(Pages 207 & 208). E. The cross objector got release deed bearing the registered document No.2917/2002 dated 24.12.2002 in GOOD FAITH from all the legal heirs of C.Rayappan is Valid in Law as per the second part of Section 43 of transfer of property Act 1882.(Pages 107 to 115). F. The Hon'ble Additional District Judge of Fast Track Court No.2, Thoothukudi remanded the case as per this Hon'ble High Court findings in para 10 of CRP NO.3464/2000 dated 22.04.2004 in A.S.No.2 of 2009 dated 06.07.2010.(Pages 231 to 236). G. This Hon'ble High Court confirmed the remanded order in CMA(MD)No.1407/2010 dated 12.01.2011.(pages 250 to 256). H. This Hon'ble High Court reconfirmed the Order of remand on 28.10.2011 in Rew.Aplc (MD)No.47 of 2011 in A.S.No.2 of 2009 of FTC No.2, Thoothukudi.(page 258)." 12. Based on the grounds of Cross Objection and the substantial questions of law suggested by the Cross Objector, the following substantial question of law is framed: "Whether both the Courts below failed to take into account the order of this Court dated 22.04.2004 in C.R.P.(NPD)No.3464 of 2000, which as per the Cross Objector would operate as against the claim of Chandra?" 13. The aforesaid all the substantial questions of law are taken together for discussion as they are inter-linked and interwoven with one other. Substantial Questions of law (1) and (2) in Second Appeal and the Substantial Question of law in Cross Objection: The indubitable and indisputable, incontrovertible and unarguable facts in nut shell would run thus: 14. The aforesaid all the substantial questions of law are taken together for discussion as they are inter-linked and interwoven with one other. Substantial Questions of law (1) and (2) in Second Appeal and the Substantial Question of law in Cross Objection: The indubitable and indisputable, incontrovertible and unarguable facts in nut shell would run thus: 14. There were certain items of properties including the suit property in S.No.195/B involved in this matter. Earlier, a litigation erupted between Antony Pattamkattiyar and his brother Chinthathurai Pattamkattiyar for partition. During the pendency of the suit, the first defendant - Sornammal, the second respondent herein allegedly got executed one sale deed from Chinthathurai Pattamkattiyar in respect of S.No.195/B which is the suit property herein, and also two other items which were the subject matter of the partition suit. Subsequently, it appears as per the version of the plaintiff that the said Sornammal sold the said property in favour of Arumugasamy Nadar by an unregistered sale deed, but the second defendant would contend that it was by a registered sale deed. 15. It is the contention of the learned Counsel for the appellant -Chandra that the said sale deed was not acted upon and in fact, the sale consideration paid by Arumugasamy Nadar was repaid by Sornammal who continued to be the owner, to Arasan Subbiah, the legal representative of Arumugasamy Nadar and she in turn, orally gifted it in favour of Chandra, her daughter, who is the plaintiff/appellant herein. 16. It is also the claim of Sornammal that she is the daughter of Chinthathurai Pattamkattiyar through his alleged second wife. As such, on the strength of such alleged title, Chandra filed the present suit in O.S.No.432 of 2004. 17. However, the learned Counsel for the first respondent in S.A.(MD)No.775 of 2009, would narrate that Sornammal cannot be termed as the daugther of Chinthathurai Pattamkattiyar born through his alleged second wife and she is a stranger to the family and in fact, she is the daughter of one Antony Fernando. The final decree was passed in the partition suit in O.S.No.66 of 1962 and in that, the suit property herein namely S.No.195/B and also other properties, were allotted to the share of the Cross Objector herein. The final decree was passed in the partition suit in O.S.No.66 of 1962 and in that, the suit property herein namely S.No.195/B and also other properties, were allotted to the share of the Cross Objector herein. As such, according to him, finality has been achieved in allotting the suit property in S.No.195/B in favour of the Cross Objector and the present litigation is hit by such a finding in the previous litigation in O.S.No.66 of 1962. 18. In the order dated 22.04.2004, passed in C.R.P.(NPD)No.3464 of 2000, this Court held that the property bearing S.No.195/B belongs to Royappan, son of Chinthathurai Pattamkattiyar and his wife, thus: "On the death of Chinthathurai Pattamkattiyar, the properties allotted to his share, viz., Door No.195/B, fell to the share of his son C.Royappan and daughter Amma Ponnu and as per Release Deed executed on 02.5.1975 by Amma Ponnu in favour of her brother C.Royappan, C.Royappan became entitled to the said property and also the properties bearing Door Nos.195/A and 195/B/1 by virtue of the Will executed in his favour by his senior paternal uncle Antony Pattamkattiyar, who filed O.S.No.66 of 1962, to whom as per the final decree, the said properties were allotted. Therefore, considering all these facts and also the decree in the suit in O.S.No.66 of 1962 filed by Antony Pattamkattiyar against Chinthathurai Pattamkattiyar, the learned Principal District Munsif, Tuticorin, rightly dismissed the claim petition E.A.No.158 of 2000. As such the order of the Executing Court does not call for any interference by this Court." 19. Whereas the learned Counsel for the appellant -Chandra, would submit that in the previous litigation, there was no issue framed relating to the validity or otherwise of the sale deed executed by Chinthathurai Pattamkattyar in favour of Sornammal and also the gift given by her in favour of Chandra. As such, the principle of res judicata cannot be pressed into service. 20. I would like to observe that both sides have expressed their desire to adduce additional evidence. Over and above that, the learned Counsel for the appellant in second appeal would also proceed to state that the first appellate Court remarked that the suit was bad for want of adding Arasan Subbiah as one of the parties to the suit also; in such a case, her client is intending of adding him also as a party, etc. 21. 21. The learned Counsel for the second defendant/the first respondent in S.A.(MD) No.775 of 2009, would pyramid his argument by stating that Chinthathurai Pattamkattiyar himself had no capacity to sell away any property allegedly in favour of Sornammal as the property which was allotted in the partition was got by him in his representative capacity, so to say, representing himself and his descendants. 22. When this Court raised a question as to whether the said plea was taken before the trial Court, the learned Counsel for the second defendant/the first respondent in S.A. (MD)No.775 of 2009 would submit that he is yet to take such a plea. 23. Be that as it may, now then, one fact is clear that in the previously instituted litigation, namely O.S.No.66 of 1962, a final decree was passed by the lower Court with certain findings and it is a fact that Sornammal and Chandra were the parties therein. No doubt, Chandra was added only on the death of Sornammal. The second defendant herein also was added as the legal representative of the deceased Chinthathurai Pattamkattiyar as he claims to be the son of Royappan, who happened to be the son of the deceased Chinthathurai Pattamkattiyar. The effect of the findings in the previous litigation has to be seen necessarily by entertaining additional evidence by marking those relevant certified copies of the final decree and the orders passed in those proceedings. 24. In the meanwhile, the said Chandra would also try to press into service the plea of prescriptive title and in support of the same, she wants to adduce additional evidence. 25. Whereas the learned Counsel for the first respondent in S.A.(MD)No.775 of 2009, would try to oppose it by stating that in view of the decision of the Honourable Apex Court in P.T.MunichikkannaReddy and others v. Revamma and others reported in (2007) 6 SCC 59 , such a plea of prescription, is untenable. 26. In my considered opinion, it appears that no proper issues were framed in this regard. My discussion supra would indicate that both sides got the matter processed before the lower fora without properly taking their respective pleas and adducing clinching evidence after getting framed the relevant issues. 26. In my considered opinion, it appears that no proper issues were framed in this regard. My discussion supra would indicate that both sides got the matter processed before the lower fora without properly taking their respective pleas and adducing clinching evidence after getting framed the relevant issues. No doubt, the Courts below did not advert to the significance of the sale deed purported to have been executed by Chinthathurai Pattamkattiyar in favour of Sornammal and the sale deed executed by Sornammal in favour of Arasan Subbiah. Not to put too fine a point on it, before the second defendant, one obstacle is the sale deed in favour of the first defendant, and before the plaintiff, the obstacle is the sale deed in favour of Arasan Subbiah. However, the plaintiff and the second defendant would try to ignore their respective obstacles, unmindful of the legal consequence. To say the least, the issues framed by the trial Court and the points for consideration framed by the lower appellate Court were far from satisfactory. 27. The perusal of the judgments of both the Courts below would reveal and display that the lower Courts without referring to the burden of proof, simply discussed certain facts. The documents referred to by the parties were not produced by them in the way known to law. Ex.A.1 itself is a xerox copy and it is not known, how it was marked by the trial Court. The plaintiff ought to have produced the original or in the alternative as per Section 62 of the Indian Evidence Act, the certified copies of the sale deed in favour of Sornammal, the sale deed executed by Sornammal in favour of Arumugasamy Nadar, etc. The first appellate Court was not even sure whether the sale deed in favour of Arumugasamy Nadar is a registered sale deed or not. In respect of each material point of controversy, an issue should have been framed by the trial Court as per Order 14 of the Code of Civil Procedure and adhering to Order 41 Rule 31 of the Code of Civil Procedure, the first appellate Court should have framed the points for determination elaborately and discussed the same. But both the Courts below were wrong in that aspect. But both the Courts below were wrong in that aspect. The doctrine of lispendens was misunderstood by the second defendant as though pendentelite sale is void, but it is not so; such sale would be valid subject to the outcome of the verdict in the said litigation. Regarding settlement/gift allegedly given by Sornammal in favour of Chandra also, there is no clarity as to whether it is a registered one or not and no deed was produced by the plaintiff. The significance of registration or otherwise of a sale deed was not considered by the Courts below. On the other hand, the second defendant assumed as though his word of mouth challenging the registered sale deed in favour of Sornammal would be sufficient forgetting for a moment the existence of Sections 91 and 92 of the Indian Evidence Act. The parties and the Courts below did not take seriously the significance of Section 17 of the Registration Act. To say the least, the judgments of both the Courts below were not cogent and they belie logic and coherence. 28. The proceedings before the Courts below turned out to be an ill wind that blew no one any good, in view of the precedent of the Honourable Apex Court in Union of India v. Ibrahim Uddin and another reported in 2012 (8) Supreme Court Cases 148. 29. As such, taking into consideration the pro et contra, as prayed by the learned Counsel for the appellant in the second appeal, the matter could be remanded to the trial Court for formulating necessary and relevant additional issues in view of the discussion supra and also for adducing additional evidence by both sides. Accordingly, after framing necessary issues and entertaining the additional evidence and hearing the arguments, a judgment shall be passed as per law. 30. Wherefore, the Substantial Questions of Law are answered as under: Second Appeal: In view of the ratiocination adhered to by me in deciding this matter, the Substantial Questions of Law (1) and (2) are decided to the effect that both the Courts below ignoring the pleadings, documents and the actual scope of the suit and that too, without adhering to the Code of Civil Procedure, dealt with the matter, warranting interference in second appeal. Cross-Objection: The Substantial Question of Law is answered to the effect that both the Courts below failed to take into account the order of this Court, dated 22.04.2004 in C.R.P.(NPD) No.3464 of 2000. 31. On balance, the judgment and decree of both the Courts below are set aside and the matter is remitted back to the trial Court for deciding the case in the wake of the facts and circumstances highlighted supra and the lower Court shall dispose of the suit within a period of six months from the date of receipt of a copy of this judgment. The parties shall appear before the trial Court on 18.02.2013. 32. In the result, both the Second Appeal and the Cross Objection are disposed of as above. Consequently, the connected Miscellaneous Petition is closed. No costs.