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2015 DIGILAW 2915 (MAD)

N. J. Rozy v. Lawrence

2015-08-31

PUSHPA SATHYANARAYANA

body2015
JUDGMENT : This is an appeal by the plaintiffs against the judgment and decree dated 30.06.2008 passed by the II Additional Judge, City Civil Court, Chennai, in A.S. No. 566 of 2006 confirming the judgment and decree of the trial Court / V Assistant Judge, City Civil Court, Chennai, dated 20.04.2006 in O.S. No. 7325 of 2000 wherein and by which the suit filed for delivery of vacant possession after removing the unauthorised superstructure and for mandatory injunction to demolish the superstructure put up the defendant, was dismissed. 2. The suit filed by the unsuccessful plaintiffs before the Courts below was based on the allegation that the suit property was originally belonged to one M/s V. Ramachandran and V. Madanagopal, and pursuant to the assignment of the same to one Visalakshi Ammal, Secretary of Gokul Slum Workers Committee, by the Government of Madras, under the Scheme of Welfare and Development of Slum People, she secured it by virtue of sale deed dated 27.8.1938 in favour of Collector of Chengalpattu. It is the case of the plaintiffs that when the suit property was sub-divided among other down-trodden and depressed inhabitants of the locality, one Cruz Natesan, father-in-law of the first plaintiff was one of the beneficiaries in which he secured land of 2196 sq.ft. in T.S. No. 35, Block No. 35, under S. No. 19/2 in No. 115 Kotturpuram Village, Chengalpet District, where he lived with his family till death by putting up a thatched roof. The further case of the plaintiffs is that after the death of Cruz Natesan, the suit property was partitioned among his two sons, viz., late Das and late C.N. Nicholos, viz., husband of the first plaintiff and father of plaintiffs 2 to 7. It is also stated that while the defendant, who used to live with their family as servant boy, was allowed by the plaintiffs even after his marriage, to occupy a portion of the premises as a permissive occupant, with an ulterior motive and with the mala fide intention to convert himself as legal heir of late Cruz Natesan so as to claim ownership and title over the suit property, manipulated certain documents and created payment receipts for the property tax in his name. It is also the case of the plaintiffs that late C.N. Nicholos, his elder brother Das, Philomina and Theresa alone are the legal heirs of late Cruz Natesan and since the daughters Philomina and Theresa executed deed of Release in favour of the two brothers even before the execution of the partition deed, relinquishing their right over the suit property, according to the plaintiffs, they are in absolute possession and enjoyment of the same. As the defendant has no authority or right to claim ownership or to extend his occupation by putting up any construction in the vacant site, the suit was filed. 3. Resisting the suit, the defendant filed written statement denying the allegations made in the plaint. It is contended that though the defendant is residing at Door No. 15, Govindarajapurm 1st Street, Adyar, the door Number is mentioned by the plaintiffs as 15/1 and hence, the suit is liable to be dismissed as the suit property is not clearly mentioned in the plaint. According to the defendant, he is also the legal heir of late Cruz Natesan as he was born through his wife second wife Krishnammal alias Christina Ammal. It is stated that after the expiry of the first wife's death, Cruz Natesan married his mother as second wife and they were all living in the same house till the death of his father in 1972 after which he has been living in Door No. 15 by putting up a small tiled house. Besides denying the partition averred by the plaintiffs, he contended that the suit itself is based on misconception and hence, sought for dismissal of the same. 4. Before the trial Court, the first plaintiff examined herself as P.W.1 and marked Exs. A.1 to A.22. To nullify the case of the plaintiffs, the defendant examined himself as D.W.1 besides examining one Caroline as D.W.2 and marked Exs. B.1 to B.15 5. The trial Court, on consideration of the evidence adduced by the parties and the submissions made by the learned counsels, by judgment dated 20.04.2006, holding that the defendant is also a co-sharer in the suit property, dismissed the suit for delivery of vacant possession and for mandatory injunction to demolish the superstructure put up by him. B.1 to B.15 5. The trial Court, on consideration of the evidence adduced by the parties and the submissions made by the learned counsels, by judgment dated 20.04.2006, holding that the defendant is also a co-sharer in the suit property, dismissed the suit for delivery of vacant possession and for mandatory injunction to demolish the superstructure put up by him. Aggrieved by the same, the plaintiffs preferred A.S. No. 566 of 2006 before the First Appellate Court / II Additional Judge, City Civil Court, Chennai, and the same was dismissed confirming the judgment and decree of the trial Court. Aggrieved by the concurrent finding of the Courts below, the plaintiff is before this Court. 6. Heard Mr. R. Thiagarajan, learned counsel appearing for the appellants and Mr. S. Thirumavalavan, learned counsel for the respondent and perused the records. 7. At the time of admission of this Second Appeal, the following substantial questions of law were formulated for consideration:- 1. Whether the conclusion reached by the trial Court as well as the appellate Court with regard to the plea of Res judicata are sustainable in law? 2. Whether the conclusion reached by the trial Court as well as the appellate Court in the light of Exs. B.5, B.7, B.10 and B.12 would prove the parentage of the respondent? 3. In the absence of proof of marriage between the deceased Cruz Nicholos and Krishnammal @ Christiana, whether the conclusion reached by the trial Court as well as the Appellate Court that Krishnammal @ Christiana is the wife of Cruz Nicholos has been conclusively proved in accordance with law? 8. Along with the Second Appeal, the appellants also filed petition M.P. No. 1 of 2009 seeking interim injunction restraining the defendant from altering or changing the physical features of the suit property at No. 15, 1st Street, Govindarajapuram, Adyar, Chennai – 20, forming the subject matter of the suit. On 30.4.2009, while admitting the Second Appeal, this Court granted interim injunction. However, the respondent filed M.P. No. 2 of 2009 praying to vacate the interim injunction. On 30.4.2009, while admitting the Second Appeal, this Court granted interim injunction. However, the respondent filed M.P. No. 2 of 2009 praying to vacate the interim injunction. The Court, on consideration of the materials placed and the statement made by the learned counsel for the parties, by order dated 03.8.2009, allowed the vacate interim petition and dismissed interim injunction petition M.P. No. 1 of 2009 observing that even if any construction is put up in the suit property and if ultimately the appellants succeed in the main appeal, it will enure to their benefit and no prejudice will be caused to them, if any alteration is made. 9. The first plaintiff is the wife of one C.N. Nicholos and the plaintiffs 2 to 7 are his sons and daughters. The fact remains that the suit property bearing Door Nos. 15 and 15/1, Govindarajapuram First Street, Adyar, Chennai, belonged to one V. Ramachandran and V. Madanagopal Naidu. 10. From the materials available on record, it is seen that earlier, the husband of the first plaintiff C.N. Nicholos filed suit O.S. No. 5963 of 1994 on the file of VI Assistant City Civil Court, for permanent injunction restraining the defendant from interfering into the lawful possession and enjoyment of the suit property and from putting up any construction and after contest, the same was dismissed on 24.12.1997 subsequent to which, on 01.01.1998, the first plaintiff's husband expired. Afterwards, the plaintiffs filed an appeal along with condone delay petition in C.M.P. No. 1210 of 2000 before the Principal District Court, Chennai and the Principal City Civil Judge, after hearing, dismissed the petition by order dated 21.11.2000 and the Civil Revision Petition No. 242 of 2001 filed as against the same, was allowed with a condition to deposit a sum of Rs. 1000/-towards costs. As such, the decree passed by the VI Assistant Judge, City Civil Court, Chennai, in O.S. No. 5963 of 1994, has become final. 11. It is also seen that even the question of paternity of the defendant raised by C.N. Nicholas was also rejected by the lower forums and the same remains unchallenged. 1000/-towards costs. As such, the decree passed by the VI Assistant Judge, City Civil Court, Chennai, in O.S. No. 5963 of 1994, has become final. 11. It is also seen that even the question of paternity of the defendant raised by C.N. Nicholas was also rejected by the lower forums and the same remains unchallenged. Since the Courts below, in the earlier round of litigation, held that defendant is also one of the sons of late Cruz Natesan through his second wife and he is also entitled to equal share in the suit properties left over by the said Cruz Natesan, the relationship between the parties cannot be raised again in this proceeding as it is hit by the principles of res judicata. It is also to be borne in mind that the plaintiffs, without effecting partition, cannot claim exclusive right. As such, I am of the view that the finding of the Courts below does not require any interference. Question Nos. 1 and 2 are answered accordingly 12. Insofar as the third question is concerned, a cogent reading of Ex. B.13 Marriage Certificate and Ex. B.8 Birth Certificate would go to show that the defendant was born to late Cruz Natesan and Krishnammal. In Ex. B.8, his father's name is mentioned as Cruz Natesan. Apart from this, the defendant has also produced Ex. B.15, order dated 05.01.2005 passed by this Court in W.P.M.P. No. 15 of 2005 in W.P. No. 17 of 2005, pursuant to which he obtained legal heirship certificate. Therefore, it is clear that the defendant was born to late Cruz Natesan and Krishnammal and the Courts below have rightly come to the conclusion that the defendant is also entitled to equal share in the suit property. The Courts below have rightly found that the defendant's mother was the second wife of the late Cruz Natesan. Question No. 3 is answered against the plaintiffs / appellants. 13. From a perusal of the materials placed before this Court, it is clear that the entire claim raised by the plaintiffs in the present proceeding has already been decided in the earlier round of litigation. It is also clear that the plaintiffs have not approached the Court with clean hands. 13. From a perusal of the materials placed before this Court, it is clear that the entire claim raised by the plaintiffs in the present proceeding has already been decided in the earlier round of litigation. It is also clear that the plaintiffs have not approached the Court with clean hands. Since the Courts below have clearly recorded a finding that the defendant is also entitled to equal share in the suit property, in this Second Appeal filed under Sec.100, C.P.C., against the concurrent judgments, no question of law, much less, substantial question of law, would arise for consideration. I do not find any reason to differ from the concurrent finding rendered by the courts below. For the foregoing reasons, the concurrent finding of the Courts below is confirmed and the Second Appeal is dismissed. However, there will be no order as to costs.