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2015 DIGILAW 2969 (MAD)

M. Panchavarnam v. M. Jeyanthi

2015-09-03

M.DURAISWAMY

body2015
JUDGMENT : The above Second Appeal arises against the judgment and decree passed in A.S.No.67 of 2014, on the file of the Principal Subordinate Court, Dindigul, confirming the judgment and decree passed in O.S.No.298 of 2011, on the file of the Additional District Munsif, Dindigul. The defendant is the appellant and the respondent was the plaintiff in the suit. The plaintiff filed the suit in O.S.No.298 of 2011 for declaration and for recovery of possession. 2.The brief case of the plaintiff is as follows: According to the plaintiff, the suit property originally belonged to one Subbiah and Kumaralingam. They sold the suit property to the plaintiff under a registered sale deed dated 24.06.2003. The plaintiff also purchased a vacant land near the suit property from the legal heirs of Chinnasamy on 17.11.2003. Since the defendant tried to interfere with the plaintiff's possession over the suit property, she filed a suit in O.S.No.126 of 2005, on the file of the Additional District Munsif No.II, Dindigul and the suit was decreed in favour of the plaintiff on 23.01.2009. Aggrieved over the judgment and decree of the trial Court, the defendant preferred an appeal in A.S.No.75 of 2006 and the lower Appellate Court set aside the judgment and decree of the trial Court and allowed the appeal, against which, the plaintiff preferred the Second Appeal in S.A.(MD)No.337 of 2010 and this Court by its judgment dated 09.11.2010, while dismissing the Second Appeal gave liberty to the plaintiff to file a suit for declaration and recovery of possession. After the disposal of the Second Appeal, the plaintiff has filed the present suit for declaration and for recovery of possession. 3.The brief case of the defendant is as follows: The defendant mainly contended that the plaintiff is not the absolute owner of the property; that her vendors have no title over the suit property; that by virtue of a demand promissory note executed by Subbiah and Kumaralingam in her favour, she was put in possession of the suit property. Further the defendant contended that there was an oral agreement between the vendors of the plaintiff to the purchase of the suit property. The defendant also contended that she has prescribed title by adverse possession. 4. Before the trial Court, on the side of the plaintiff, two witnesses were examined and 11 documents Exs.A.1 to A.11 were marked. Further the defendant contended that there was an oral agreement between the vendors of the plaintiff to the purchase of the suit property. The defendant also contended that she has prescribed title by adverse possession. 4. Before the trial Court, on the side of the plaintiff, two witnesses were examined and 11 documents Exs.A.1 to A.11 were marked. On the side of the defendant, three documents were marked, however no witness was examined. The trial Court, after taking into consideration of the case of both parties, decreed the suit. Aggrieved over the same, the defendant preferred an appeal in A.S.No.67 of 2014. In the first appeal, the plaintiff filed an application in I.A.No.3 of 2015 under Order 41 Rule 27 C.P.C., to produce additional documents. Similarly the defendant also filed an application in I.A.No.122 of 2014 under Order 41 Rule 27 C.P.C., to produce additional documents. The lower Appellate Court, taking into consideration the case of both parties, confirmed the judgment and decree of the trial Court and dismissed the appeal. The lower Appellate Court allowed the application in I.A.No.3 of 2015 and partly allowed the application in I.A.No. 122 of 2014. Aggrieved over the concurrent findings of the Courts below, the defendant has filed the above Second Appeal. 5.Heard Mr.A.Hariharan, learned Counsel appearing for the appellant and Mr.J.Suresh Kumar, learned Counsel appearing for the respondent. 6.The appellant has raised the following Substantial Questions of Law in the Second Appeal: “1.Whether the Decree and Judgment of the lower Appellate Court is legally sustainable in as much as it has not framed the issues properly to be decided in the Appeal as per Order 41 of the Code of Civil Procedure? 2.Whether the Courts below were right in decreeing the suit of the plaintiff when the respondent/plaintiff has failed to prove her title by adducing evidence by examining their predecessor in title? 3.Whether the Courts below were right in rendering a finding in favour of the respondent/plaintiff based on the weakness of appellant/defendant's case, when the same is opposed to the dictum laid down by the Honourable Supreme Court in Union of India V. Vasavi Co-op. Housing Society Ltd., (2014(4) CTC 471)? 3.Whether the Courts below were right in rendering a finding in favour of the respondent/plaintiff based on the weakness of appellant/defendant's case, when the same is opposed to the dictum laid down by the Honourable Supreme Court in Union of India V. Vasavi Co-op. Housing Society Ltd., (2014(4) CTC 471)? 4.Whether the Courts below were right in decreeing the suit for declaration and recovery of possession when the same is filed beyond the period of limitation, namely, after three years prescribed under Article 58 of the Limitation Act, 1963, when the title of the respondent has been denied in the written statement filed in the previous suit instituted for permanent injunction in O.S.No.126 of 2005 filed by the respondent/plaintiff, as per the dictum laid down by this Honourable Court in Rajapalayam Municipality V. Jayabhaskaran (2013)1 MLJ 758 )? 5.Whether the lower Appellate Court has not followed the procedure contemplated under Order 41 Rule 27 and 28 of the Code of Civil Procedure in allowing I.A.No.3 of 2015 and marking Ex.A.12 and Ex.A.13 without examining any witness at the appellate side when the admissibility, genuineness and reliability of the documents produced along with the application has been challenged by the appellant/appellant/defendant? 6.When the judgment and decree of the lower Appellate Court is vitiated for not following the procedure contemplated under Order 41 Rule 28 of the Code of Civil Procedure as per the dictum laid down by this Honourable Court in Jayamoorthi V. Parani reported in (2013)7 MLJ 471 ? 7.Whether the judgment and decree of the lower Appellate Court is vitiated by not allowing five documents, namely, documents 5 to 10 filed along with I.A.No.122 of 2014 in A.S.NO.67 of 2014 on the file of the Principal Subordinate Judge, Dindigul filed under Order 41 Rule 27 of the Code of Civil Procedure by the appellant/appellant/defendant?” 7.The learned Counsel appearing for the appellant mainly contended that the vendors of the plaintiff have no title to sell the property to the plaintiff. Further the learned Counsel submitted that the lower Appellate Court erred in allowing the applications filed under Order 41 Rule 27 C.P.C., without giving an opportunity to prove the truth, genuineness and the admissibility of the documents. The learned Counsel further submitted that the Courts below erred in relying upon the weakness of the defendant's case instead of fastening the burden of proof on the plaintiff. The learned Counsel further submitted that the Courts below erred in relying upon the weakness of the defendant's case instead of fastening the burden of proof on the plaintiff. Further the learned Counsel contended that the suit filed by the plaintiff is barred by limitation under Article 58 of the Limitation Act. 8.In support of his contention, the learned Counsel appearing for the appellant relied upon the following judgments: (i) In Union of India and Others Vs. Vasavi Co-op Housing Society Ltd. , and Others reported in 2014 (4) CTC 471 , wherein the Honourable Apex Court held that the plaintiff can succeed in the suit only on the strength of its own case and not on the weakness of the defendant's case. (ii) In Jayamoorthy and Others Vs. Palani and Others reported in (2013) 7 MLJ 471 , wherein this Court held that the first Appellate Court should not simply mark the documents as Exhibits and proceed with the disposal of the appeal, without following the procedure for taking additional evidence in appellate stage. This Court further held that if the procedure under Order 41 Rule 28 C.P.C., is not followed, the judgment and decree of the first Appellate Court are liable to be set aside. (iii) In A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President etc., reported in ( 2012) 5 MLJ 618 (SC), wherein the Honourable Supreme Court held that the Court must be cautious in granting relief to a party who is guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. (iv) In Khatri Hotels Private Limited and Another Vs. Union of India and Another reported in (2011) 8 MLJ 369 (SC) , wherein the Honourable Supreme Court held as follows: “27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the day when the right to sue first accrued.” (v) In Rajapalayam Municipality through its Commissioner Vs. Jayabhaskaran and Others reported in (2013) 1 MLJ 758 , wherein this Court held that if a suit filed by the plaintiff is barred by limitation, the Court need not look into the merits and demerits of the case and the suit can be dismissed solely on the ground of limitation. (vi) In the Chairman and Managing Trustee, Krishnaswamy Educational Trust , Chennai-600034 Vs. C.V. Rajeswarwi Ammal (Deceased) , C.V.Sivaraman and Others reported in 2013 (4) CTC 586 , wherein the Division Bench of this Court held that when the plaintiff has satisfied all the five conditions, which have been laid down as broad tests, which a person claiming adverse possession should satisfy, the decree should be granted in favour of the plaintiff. 9.Countering the submissions made by the learned Counsel appearing for the appellant, the learned Counsel appearing for the respondent submitted that the plaintiff had established his case by oral and documentary evidences and that the contentions raised by the appellant are contrary to the settled principles of law. 10.On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, it could be seen that the plaintiff has filed the suit for declaration and permanent injunction. Earlier the suit filed by her for permanent injunction as against the respondent was decreed by the trial Court in O.S.NO.126 of 2005, however on appeal it was reversed. While dismissing the Second Appeal in S.A.(MD)No.337 of 2010, this Court by judgment dated 09.11.2010 gave liberty to the plaintiff to file a suit for the relief of declaration and recovery of possession in respect of the suit properties. While dismissing the Second Appeal in S.A.(MD)No.337 of 2010, this Court by judgment dated 09.11.2010 gave liberty to the plaintiff to file a suit for the relief of declaration and recovery of possession in respect of the suit properties. Pursuant to the liberty given by this Court in the Second Appeal, the plaintiff filed the present suit in O.S.No.298 of 2011, for declaration and for recovery of possession. Since the present suit has been filed by the plaintiff based on the liberty given by this Court, the contention raised by the appellant/defendant with regard to the question of limitation cannot be accepted. The Second Appeal was dismissed in the year 2010 and the present suit was filed in the year 2011. Therefore, the contention raised by the appellant with regard to the limitation is liable to be rejected. Accordingly, the same is rejected. 11.The next point contended by the Counsel for the appellant was that the vendors of the plaintiff have no title over the suit property, therefore, the sale made in favour of the plaintiff is invalid. This contention raised by the learned Counsel appearing for the appellant also cannot stand for the reason that the very case of the defendant is that he was put in possession of the suit property by the vendors of the plaintiff and that there was a oral agreement between the vendors of the plaintiff and herself. When the defendant contended that there was oral agreement between the vendors of the plaintiff and herself, she cannot now take a stand that the vendors have no right to sell the property to the plaintiff. 12.In respect of the alleged oral agreement between the vendors of the plaintiff and the defendant, the defendant chose not to file any suit for specific performance as against the vendors of the plaintiff. The defendant contended that she was put in possession of the property for the reason that the vendors of the plaintiff borrowed a sum of Rs.3,000/-and executed a promissory note in her favour. Even for recovery of the money due under the promissory note, the defendant has not filed any suit. The defendant kept quiet without initiating any proceedings against the plaintiff's vendors, but claimed right in the suit property. That apart, the defendant also claimed right over the property by pleading adverse possession. Even for recovery of the money due under the promissory note, the defendant has not filed any suit. The defendant kept quiet without initiating any proceedings against the plaintiff's vendors, but claimed right in the suit property. That apart, the defendant also claimed right over the property by pleading adverse possession. 13.In paragraph No.9 of the written statement, the defendant has specifically pleaded that he has been possession of the suit property, for well over the statutory period. When it is a settled position that the adverse possession can be pleaded only against the true owner. When the defendant had pleaded adverse possession against the plaintiff, it implies that she is admitting the title of the plaintiff. By pleading adverse possession also, the defendant admitted the title of the plaintiff. The defendant has taken contrary stand in the written statement. No doubt, as a defendant he can take mutually inconsistent pleas in the written statement, but the pleas taken by the defendant are mutually destructive to each other. Having admitted the title of the plaintiff she cannot be allowed to take a contrary stand, by disputing the title of the plaintiff. When it was alleged that the defendant had entered into an oral agreement of sale with the plaintiff's vendors, she cannot now contend that the plaintiff's vendors have no title over the suit property. In these circumstances, the contention raised by the appellant/defendant is liable to be rejected. Accordingly, the same is rejected. 14.The Courts below have rightly taken into consideration the case of both parties and accepted the case of the plaintiff and decreed the suit. The plaintiff had established her case by oral and documentary evidences, whereas the defendant did not even enter the witness box to prove her case. So far as the application filed by the parties under Order 41 Rule 27 C.P.C., are concerned, it is true that if an application under Order 41 Rule 27 C.P.C., is allowed, inspite of objections raised by either side with regard to the production of the additional documents, the lower Appellate Court should give an opportunity to the parties to prove the documents under Order 41 Rule 28 C.P.C. In the case on hand, even in the absence of the additional documents sought to be produced by the respondent/plaintiff, the suit has to be decreed. 15.In these circumstances, since the appellant/defendant is contending that he was not given an opportunity to cross-examine the witnesses with regard to the additional documents sought to be marked by the respondent/plaintiff, I am of the view that the order passed in I.A.No.3 of 2015 in A.S.No.67 of 2014 is liable to be set aside. Accordingly, the same is set aside. Since the respondent/plaintiff has not filed any separate appeal with regard to the application filed by the appellant/defendant in I.A.No.122 of 2014, I am not giving any finding with regard to the said application. The Courts below have rightly decreed the suit in favour of the plaintiff. 16.In these circumstances, I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. However there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is also dismissed.