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2015 DIGILAW 3611 (MAD)

Nainar v. Chelliah

2015-11-06

V.M.VELUMANI

body2015
JUDGMENT : V.M. Velumani, J. 1. The appellants are the plaintiffs and the respondents are the defendants in O.S. No. 126 of 2003 on the file of the Principal District Munsif, Thoothukudi. The suit filed by the appellants was decreed partly, by the judgment and decree, dated 04.02.2004. The respondents 2 to 4 filed A.S. No. 60 of 2004 and appellants filed Cross-appeal No. 60 of 2004 before the Subordinate Court, Thoothukudi. The lower appellate Court by the judgment and decree, dated 26.07.2005 allowed the A.S. No. 60 of 2004 filed by the respondents 2 to 4 and dismissed the cross-appeal No. 60 of 2004 filed by the appellants. Aggrieved by the said judgment and decree, the appellants have filed the present Second Appeal. 2. The case of the appellants:- The appellants have filed a suit in O.S. No. 126 of 2003 for partition of 2/3 share in the suit schedule property by metes and bounds and for mesne profits. The suit property originally belonged to one Periya Patchai Perumal, he having purchased the same by the deed of sale, dated 21.10.1923. He had 5 sons viz. Sud-alaimuthu, Chokkan @ Pachaiperumal, Sivananainthan, Oomaiyan and Karuppan. After the death of Periya Patchai Perumal his five sons were jointly in possession and enjoyment of the suit property. Two sons Sivananainthan and Oomaiyan died issue-less. The other three sons were in joint possession and enjoyment of the suit property. 3. The appellants 1 to 5 are legal heirs of Chokkan @ Patchai Perumal. Chokkan @ Patchai Perumal was having one son Chellaiah and one daughter Patchaiammal. Chellaiah, Son of Chokkan @ Patchai Perumal died leaving the appellants 1 to 5 as legal heirs. The 6th appellant is the legal heir of one Karuppan. Therefore, the appellants 1 to 5 have 1/3 share and 6th appellant is having 1/3 share in the suit property. Thus they are entitled to 2/3 share in the suit property. 4. The third son Sudalaimuthu is having two sons viz. Vallikannu and Chellaiah. Chellaiah, Son of Sudalaimuthu is the first respondent herein. The respondents 2 to 4 are the legal heirs of Vallikannu. Therefore, the respondents 1 to 4 are having 1/3 share in the suit schedule property. 5. The suit schedule property is the joint family property. The second respondent is residing very near to the suit property. Vallikannu and Chellaiah. Chellaiah, Son of Sudalaimuthu is the first respondent herein. The respondents 2 to 4 are the legal heirs of Vallikannu. Therefore, the respondents 1 to 4 are having 1/3 share in the suit schedule property. 5. The suit schedule property is the joint family property. The second respondent is residing very near to the suit property. Therefore, he was cultivating the same and giving shares to the appellants upto 2001. Thereafter, he failed to give their share inspite of repeated demands. He also failed to agree for partition as demanded by them on 10.03.2003. The suit property is joint family property. Hence, they filed a suit for partition. 6. The first respondent did not file any written statement. 7. The case of the respondents 2 to 4: The second respondent filed written statement and the same was adopted by the respondents 3 and 4. The suit schedule property was purchased by sale deed dated 21.10.1923 by Periya Patchai Perumal. The appellants and respondents were not in joint possession of suit property. After the death of Sivananainthan and Oomaiyan, the two sons of Periya Patchai Perumal, there was a family arrangements, whereby the suit schedule property was allotted to Sudalaimuthu and properties in Solapuram at Ettayapuram Taluk was allotted to Chokkan @ Patchai Perumal and Karuppan. From that date, Sudalaimuthu was in possession and enjoyment of the suit schedule property as owner. After his death, his eldest son Vallikannu was in possession and enjoyment of the suit property. He mortgaged the property with Central Bank of India on 05.11.1971 and 24.08.1973. He developed the property by digging a well. 8. After death of Sudalaimuthu, the second respondent is in possession and enjoyment of the suit property. The respondents 3 and 4 released their share in favour of second respondent. The second respondent was enjoying the property in open exclusively as owner to the knowledge of appellants for more than 12 years. Patta has been transferred in his name and he is paying gist. He discharged the mortgage. 9. The appellants and respondents are not in joint possession. At no point of time any share from the income of the suit property was paid to the appellants and therefore prayed for dismissal of suit. 10. Based on the pleadings, the learned Principal District Munsif, Thoothukudi framed the necessary issues. 11. He discharged the mortgage. 9. The appellants and respondents are not in joint possession. At no point of time any share from the income of the suit property was paid to the appellants and therefore prayed for dismissal of suit. 10. Based on the pleadings, the learned Principal District Munsif, Thoothukudi framed the necessary issues. 11. The first appellant examined himself as P.W.1 and first respondent was examined as P.W.2. Ex.A1 was marked. The second respondent examined himself as D.W.1 and marked Ex.B1 to B-23. 12. The learned Principal District Munsif considering pleadings, oral and documentary evidence held that appellants are entitled to 2/4 share in the suit schedule property instead of 2/3 share. Since legal heirs of the daughter of Peria Patchai perumal are alive. 13. Against the said judgment and decree, dated 04.02.2004, the respondents 2 to 4 filed A.S. No. 60 of 2004 and appellants filed cross-appeal No. 60 of 2004. The learned Sub Judge, Thoothukudi framed necessary points for consideration. 14. The learned Sub Judge considering the pleadings, evidence, Judgment of Trial Court and the arguments of the learned counsel for the appellants and respondents allowed the A.S. No. 60 of 2004 and dismissed the cross appeal No. 60 of 2004. 15. Against the said Judgment and decree, the present appeal has been filed by the appellants. 16. The learned counsel for the appellants contended that:- (i) The respondents 2 to 4 failed to prove the family arrangements as alleged by them. The respondents 2 to 4 cannot claim title over the suit property based on possession. (ii) Revenue records are not documents of title and the documents produced by the respondents 2 to 4 did not prove the title. (iii) Respondents 2 to 4 have not furnished the details of alleged properties of Periya Pat-chai Perumal at Solavaram Village. (iv) The learned Sub Judge having held that the suit property alone is available for partition ought to have dismissed the A.S. No. 60 of 2004 and allowed the Cross Appeal No. 60 of 2004. (v) The respondents 2 to 4 did not plead that the suit is liable to be dismissed for non-jointer of parties. They have not furnished the details of legal heirs of daughter of Periya Patchai Perumal. (vi) The respondents 2 to 5 failed to prove the family arrangement. On the other hand, the appellants have proved joint family status. (v) The respondents 2 to 4 did not plead that the suit is liable to be dismissed for non-jointer of parties. They have not furnished the details of legal heirs of daughter of Periya Patchai Perumal. (vi) The respondents 2 to 5 failed to prove the family arrangement. On the other hand, the appellants have proved joint family status. Hence, the learned Sub Judge ought to have dismissed the appeal in A.S. No. 60 of 2004 and allowed the cross appeal No. 60 of 2004. (vii) The legal heirs of daughter of Periya Patchai Perumal are not entitled to any share in the suit property as she got married 50 years ago before the amendment to Hindu Succession Act, 1956 and the Hindu Succession Amendment Act 1/90 which came into effect on 25.03.1989. 17. The learned counsel for the appellant relied on the following judgments:- (i) Citibank vs. Juggilal Kamlapat Jute Mills Co. Ltd. AIR 1982 Delhi 487 "54. It was then contended on behalf of the defendant that the defendant-surety was a necessary party in the Kanpur suit and by not adding it as a party to that suit, its right had been impaired. Non-joinder of the necessary party in the Kanpur suit, in my opinion, would not affect the present case, so far as the rights of the plaintiff are concerned. It may be stated that under O.1, R.13, C.P.C. all objections on account of non-joinder of the parties are required to be taken at the earliest possible opportunity and in all cases where issues are settled on or before such settlement, unless the ground of objection has subsequently arisen and any such objections not so taken, shall be deemed to have been waived. The objection of non-joinder of a necessary party was required to be taken by the Manufacturers Ltd., who was the only defendant in that case. The fact that it did not take this objection would have the effect of waiver of this right. In any case, this does not affect the rights of the defendant in the present suit. It may be stated that the provisions contained in O.2, R.2, Civil P.C. Are not at all attracted because the present suit is not in respect of the same cause of action. In any case, this does not affect the rights of the defendant in the present suit. It may be stated that the provisions contained in O.2, R.2, Civil P.C. Are not at all attracted because the present suit is not in respect of the same cause of action. The earlier suit was based on the mortgage created in favour of the plaintiff by the principal debtor Manufacturers Ltd. The claim in this suit is based on the deed of guarantee, which is entirely a different cause of action. The fact that the consideration was the same is of no consequence. An independent separate suit against the surety was competent." (ii) Laxmisankar Harishnkar Bhatt vs. Yashram Vasta (dead) by L.Rs. AIR 1993 SC 1587 "13. A careful reading of above clearly discloses that there is no clear averment as to who are the co-owners and what exactly is the nature of right claimed by them. A vague statement of this character, in our considered opinion, could hardly be sufficient to non-suit the appellant on the ground of non-joinder of parties. We are unable to comprehend as to how the trial Court has come to the conclusion that the executants of the sale deed dated 12.02.1968 could not pass a full title when itself points out that the shares of the other co-owners were not known. May be the appellant took the stand that it was not necessary to implead others but that does not mean the appellant is liable to be non-suited. The stand of the appellant is consistent with his case that he has come to acquire the entire ownership of the suit property. Therefore, the Courts should have insisted on some material on record as to the existence of other co-owners and their rights pertaining to suit properties. Injuxt a position to revenue record, there must be some worthwhile evidence for the Court to conclude that there are other co-owners. Genealogical tree filed along with the written statement cannot point to the existence of co-owners without specific evidence in this regard. Such an evidence is totally lacking in this case. Therefore, we find it equally impossible to accept the finding of the High Court when it endorsed the view of the trial Court in this regard. Genealogical tree filed along with the written statement cannot point to the existence of co-owners without specific evidence in this regard. Such an evidence is totally lacking in this case. Therefore, we find it equally impossible to accept the finding of the High Court when it endorsed the view of the trial Court in this regard. Accordingly, we conclude that in the absence of a specific finding as to whether there are other co-owners and how they are necessary parties, the suit could not have been dismissed for non-joinder of necessary parties. On this conclusion, we think it is unnecessary to go into the legal aspect as to whether in the absence of other co-owners, on co-owner could maintain a suit." (iii) RM. AL. Visalakshi (died) and Others, 1999 (3) CTC 57 "16. In the instant case the non-joinder of Amirthavalli Achi has not been raised in the written statements and it must be held that the defence has been waived by the contesting respondents. (iv) Janaki Pandyani vs. Ganeshwar Panda (dead) by LRs. and Another, 2001 (1) CTC 109 "2. After we heard learned counsel for the appellant and perused the record, we are of the view that the judgment of the High Court is not sustainable in law. The High Court found that Ex.B/1 was not signed by Madhusudan Panda and was not proved. Therefore, the High Court cannot make Ex.B/1 as basis for acquisition of title by adverse possession. This approach of High Court in holding that defendants have acquired title to property by adverse possession was erroneous. Further, merely because defendants had converted the thatched house into a tiled house and also dug a well, it does not mean it was an ouster of the plaintiff. Admittedly, the property in dispute is joint family property and the plaintiff and the defendants are the co-sharers of the property. In fact, there is no partition of the property and so long as property is not partitioned, it continues to be a joint Hindu family property. Under such circumstances, one co-sharer cannot claim adverse possession against the other co-sharer. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession." (v) Judgment passed in A.S. No. 530 of 1992 "In Lakhi Prasad Togla vs. Murlidhar Narwari and Others, AIR 1973 Pat. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession." (v) Judgment passed in A.S. No. 530 of 1992 "In Lakhi Prasad Togla vs. Murlidhar Narwari and Others, AIR 1973 Pat. 250 it has been held that, all objections on the ground of non-joinder or mis-joinder of parties should be taken at the earliest opportunity or at least at the time of settlement of issues or before such settlement and in the absence of such objection raised at the earliest opportunity, it must be deemed that the non-joinder of party had been waived. To the identical effect is though the decision of the same High Court in Ramsurat Devi vs. Satraji Kuer, AIR 1957 Pat. 168 . It has been further held in that case that a plead not raised in pleadings cannot be cured by evidence." For the above reasons he prayed for allowing the Second Appeal. 18. Per contra, the learned counsel for the respondents 2 to4 contended that: (i) The appellants have not impleaded the necessary parties and the learned Sub Judge has rightly dismissed the suit. (ii) The appellants have suppressed the material fact that their ancestors were allotted the properties in Solapuram Village and failed to include all the properties of Periya Patchai Perumal for partition. (iii) By family arrangement in the year 1940, after the death of Periya Patchai Perumal and his two sons, Sudalaimuthu the ancestor of respondents 2 to 5 was allotted suit property and other two brothers were allotted properties in Solapuram Village. (iv) From the date of family arrangement, Sudalaimuthu was in possession and enjoyment of the suit property as owner. After his death, his son Vallikannu was in possession and was dealing with the property as owner by creating mortgages and improving the property. (v) After the death of Vallikannu, the second respondent is in possession and enjoyment of the suit schedule property openly and knowledge of appellants for more than 12 years. He is paying kist. (vi) Evidence was let in to show that the respondents and appellants have understood that necessary parties were not impleaded. Hence, the learned Sub Judge had allowed the appeal and dismissed the suit. 19. He is paying kist. (vi) Evidence was let in to show that the respondents and appellants have understood that necessary parties were not impleaded. Hence, the learned Sub Judge had allowed the appeal and dismissed the suit. 19. The learned counsel for the respondents 2 to 4 relied on the judgment reported in Kali Prasad vs. Bharat Coking Coal Limited, AIR 1989 SC 1530 in paragraph 18 of the order reads as follows:- "18. It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle. " Therefore, prayed for dismissal of the Second Appeal. 20. At the time of admission this Court framed following substantial questions of law. (i) Whether the first appellate Court was right in reversing the judgment and decree of the lower Court and in dismissing the suit by ignoring the erroneous and illegal plea of adverse possession by the respondents against the appellants who are co-owners? (ii) Whether the first appellate Court was right in reversing the finding of the lower Court that there was no proper evidence to establish that there were other properties belonging to Periapatchaiperumal when the first appellate Court had found factually that there was only property viz. the suit schedule property available for partition? 21. Heard the learned counsel appearing for the parties and carefully perused the pleadings, evidence, materials on record and judgments relied on by the counsel for the appellants and respondents 2 to 4 and their arguments. 22. Substantial Questions 1 and 2 The appellants have sought for partition and allotment of 2/3rd share in the suit property, on the specific plea that the suit property was purchased by Peria Patchai Perumal by the deed of sale dated 21.10.1923 and they are legal heirs of two sons of Periya Patchai Perumal viz. Chockan alias Patchaiperumal Karuppan. 22. Substantial Questions 1 and 2 The appellants have sought for partition and allotment of 2/3rd share in the suit property, on the specific plea that the suit property was purchased by Peria Patchai Perumal by the deed of sale dated 21.10.1923 and they are legal heirs of two sons of Periya Patchai Perumal viz. Chockan alias Patchaiperumal Karuppan. After death of Periya Patchai Perumal and his two sons, Sivananainthan and Oomayan, remaining three sons inherited the suit property and were in possession and enjoyment of suit property jointly. After their death, their legal heirs are in possession and enjoyment of the suit property. As legal heirs of two sons Periya Patchai Perumal, Chockan alias Patchaiperumal and Karuppan, they are entitled to 2/3 share in the suit property. The respondents 2 to 4 admitted that the Periya Patchai Perumal purchased the suit property by the sale deed dated 21.10.1923. According to respondents 2 to 4, after the death of Periya Patchai Perumal and his two sons Sivananainthan and Oomayan, there was a family arrangement. The suit schedule property was allotted to Sudalaimuthu ancestor of respondents 2 to 4. The ancestors of appellants were allotted properties in Solapuram village. From the date of family arrangements, Sudalaimuthu, subsequently, his legal heirs are in possession and enjoyment of the suit property openly and in a hostile manner as owner to the knowledge of the appellants for more than the statutory period of 12 years. 23. From the pleadings and Ex.A1, it is an admitted fact that Periya Patchai Perumal purchased the property by sale deed dated 21.10.1923 and after his death, his 5 children inherited the property. The respondents 2 to 4 have come out with a case that as per the family arrangement in 1940 after the death of Periya Patchai Perumal, the suit property was allotted to their ancestors Sudalaimuthu. The respondents 2 to 4 have failed to prove the family arrangement alleged to have taken place in the year 1940. They have alleged that the said family arrangement took place after the death of Periya Patchai Perumal. They have not furnished any details as to when Periya Patchai Perumal died. On the other hand, the first respondent as P.W.2 deposed that Periya Patchai Perumal died in the year 1958. They have alleged that the said family arrangement took place after the death of Periya Patchai Perumal. They have not furnished any details as to when Periya Patchai Perumal died. On the other hand, the first respondent as P.W.2 deposed that Periya Patchai Perumal died in the year 1958. The respondents 2 to 4 did not dispute this fact and did not let in any contra evidence and did not let any evidence to prove that Periya Patchai Perumal died in the year 1940 or earlier. In view of this, the revenue documents will not prove the family partition and ownership of suit schedule property. Further, the respondents 2 to 4 have not furnished any details of properties belonging to Periya Patchai Peruaml in Solapuram Village. In the cross-examination both the P.W.1 and P.W.2 denied the suggestion that lands were allotted to their ancestor in Solapuram Village. Further, P.W.2, the first respondent has stated that the land in Solapuram Village was acquired by the Government for the purpose of Kanmai (Lake). The respondents 2 to 4 have not denied this statement and have not filed any document to show that appellants are in possession and enjoyment of landed properties in Solapuram Village. 24. After the death of Periya Patchai Perumal, the suit property admittedly, was inherited by his legal heirs including the appellants and the respondents. By this inheritance, all of them are in joint possession. Respondents 2 to 4 have failed to prove the family arrangement and division of joint possession. In view of failure on the part of the respondents 2 to 4 to prove the family arrangement under partition, the appellants and the respondents are co-sharers and the respondents 2 to 4 are not entitled to claim adverse possession against co-sharers. For this reason, the contention of the learned counsel for the respondents 2 to 4, has no force and is not acceptable. The learned Subordinate Judge noted that only the suit property was available for partition. Having held so, the learned Subordinate Judge erred in holding that the appellants suppressed the properties at Sholapuram Village. 25. In view of these facts, the finding of the learned Principal District Munsif, the Trial Judge that the respondents 2 to 4 failed to prove the family arrangement is valid and as per law. 26. The learned Sub Judge, the lower appellate judge failed to consider the issues on merits. 25. In view of these facts, the finding of the learned Principal District Munsif, the Trial Judge that the respondents 2 to 4 failed to prove the family arrangement is valid and as per law. 26. The learned Sub Judge, the lower appellate judge failed to consider the issues on merits. The learned Sub Judge allowed the appeal and dismissed the cross-appeal only on the ground that appellants have not approached the Court with clean hands and approached the court suppressing the material facts. The learned Sub Judge failed to see that the respondents 2 to 4 did not plead that necessary parties are not impleaded and the suit is barred for non-joinder of parties. They have also not furnished the details of legal heirs of daughter of Periya Patchai Perumal. The respondents 2 to 4 having failed to take the plea of non-joinder of proper parties at the earliest time viz., in the written statement cannot raise the plea during the trial. 27. The judgments relied on by the counsel for the appellants squarely apply to the facts of the present case. The contention of the learned counsel for the respondents 2 to 4 that parties were aware of the fact that issue of non-joinder was raised and appellants and first respondent admitted this fact and hence, the impugned judgment of lower appellate court is valid and legal is untenable and un-sustainable. The judgment relied on by the counsel for the respondents 2 to 4 is not applicable to the facts of the present case. It is well settled that plea of non-joinder of parties must be raised at the earliest and necessary issues must be framed and evidence must be let in and then only the issue can be decided. Therefore, the finding of learned Sub Judge that appellants have suppressed the material facts and have not approached the Court with clean hands, is without basis and contrary to the facts and law and is liable to be set aside. 28. The learned counsel for the appellants contended that the daughter of Periya Patchai Perumal is not entitled to any share in the suit property as she was married 50 years back and daughters became entitled to share only from 25.03.1989 as per the amendment to Hindu Succession Act 1956 by the amendment Act 1/1990. This contention is contrary to law. The learned counsel for the appellants contended that the daughter of Periya Patchai Perumal is not entitled to any share in the suit property as she was married 50 years back and daughters became entitled to share only from 25.03.1989 as per the amendment to Hindu Succession Act 1956 by the amendment Act 1/1990. This contention is contrary to law. The first respondent stated that Periya Patchai Perumal died in the year 1958. No contra evidence was produced either by appellants or by the respondents 2 to 4. Periya Patchai Perumal died in the year 1958 after coming into force of Hindu Succession Act 1956. As per the Provisions of this Act, children both male and female of Hindu died intestate have equal share in the estate of deceased. In view of Hindu Succession Act 1956, the learned Principal District Munsif has rightly held that the legal heirs of daughter of Periya Patchai Perumal have 1/4 share in the suit property. There is no infirmity in the said finding. 29. In the result, both the substantial questions of law are answered accordingly. 30. For the above reasons, the impugned judgment of learned Subordinate judge dated 26.07.2015 allowing the A.S. No. 60 of 2004 is set aside and dismissal of cross-appeal No. 60 of 2004 is confirmed. In the result, the second appeal is allowed. The judgment and decree of learned District Munsif, Thoothukudi, dated 04.02.2004 made in O.S. No. 126 of 2003 is restored. No costs.