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2016 DIGILAW 472 (MAD)

Suseela v. R. S. Murugesan

2016-02-08

C.S.KARNAN

body2016
JUDGMENT : The history of the case are as follows:- The suit in O.S. No. 9 of 2008 on the file of the Additional District Munsif was filed by M.R.S.R. Krishnan and 5 others for declaration of the patta issued by the defendant No. 3 & 4 in favour of defendant No.1 & 2 for the suit property are null and void and for permanent injunction restraining the defendant 1 to 4 and their men not to interfere in the peaceful possession and enjoyment of the suit property of the plaintiff. The 1st plaintiff is no more. In his place his legal heirs have added as plaintiff nos.7 to 12. Likewise 1st defendant namely S.K.R. Durairaj had died and in his place his legal heirs have been added as defendant nos. 23 to 26. The suit filed by the plaintiffs was dismissed by the trail court vide judgment and decree dated 30.11.2010. As against the same, appeal in A.S.No.54 of 2011 on the file of Sub court, Devakottai was filed. During the pendency of the appeal, the 2nd respondent/2nd defendant died. Therefore his legal heirs have been arrayed as respondents in the appeal as respondent nos.27 to 31. The appellate court by judgment dated 04.01.2013 allowed the appeal and decreed the suit. Therefore the unsuccessful respondents 24 to 28/defendants 24 to 26 who are the legal heirs of the 2nd defendant of the suit filed the second appeal. 2. The case of the plaintiff is that the suit properties are the ancestral properties purchased by their forefather namely Subbiah Chettiar and they are in continuous possession and enjoyment of the same. The Plaintiffs are the heirs of Diwan Bahadur Mr. Subiah Chettiyar and he had four sons namely Rethinavelu Chettiyar, Manickavel Chettiyar, Thangavel Chettiyar, Muthuvel Chettiyar. The above said Subbiah Chetiyar and his sons died and the plaintiffs and defendants 5 to 22 are the legal heirs of them. There was final decree for partition in I.A. No. 963/1949 in O.S. No. 102/1949 passed on 23.02.1950 in which the said Rethinavelu Chettiyar, S/o. Subiah Chetiyar was a party and the suit properties are described in tax filed by the Karaikudi Municipality on the file of Sub-Court, Devakottai the legal heirs of said Mr.Subiah Chettiyar were impleaded as defendant s 45 to 51. One Dhanalakshmi, and the family members of the plaintiff have filed a suit for partition in O.S. No. 22/1984 on the file of Sub Court, Sivagangai and they compromised the matter and the suit properties have been allotted to the plaintiffs and defendants 5 to 22 commonly. The plaintiffs came to know that the defendants 1 and 2 on the basis wrong information furnished by them. The alleged mutation of patta was made known to the plaintiffs in the month of July 2007 for which no notice was given to them and no due enquiry has been conducted by the defendants 3 and 4. Except the plaintiffs and defendants 5 to 22 none has any right or title over the suit properties. Therefore, they have filed the suit for declaring the patta issued in favour of D1 and D2 are null and void. On the side of the plaintiffs Ex.PW1 to Ex.PW3 as witnesses and Ex.A1 to Ex.A16 were marked as Exhibits. 3. Resisting the contention made in the plaint, the defendants filed their written statements. The 2nd respondent stated in his written statement that the civil court has no jurisdiction regarding the issuance or cancellation of patta, since it is barred under section 71 and 72 of Tamil Nadu Inam (Abolition and Conversion into Ryotari) Act, 1963. The plaintiffs were out of possession and they have no title over the suit of properties. The 1st defendant during his life time, alienated the suit of properties to various persons including the 2nd defendant. Therefore, without seeking declaration of title the present suit is not maintainable in law. Further he has contended in the written statement that he is in possession of property by putting up the fencing. Further the extend of the properties are more than 4 acres and worth about several Lakhs which is beyond the pecuniary jurisdiction of the trial court. it is specifically contended that the plaintiffs are well aware of the possession of the 2nd defendant in Survey No. 312/13. He is in possession of the subject property for over several decades. The 1st defendant and defendants 23 to 26 are not interested in Survey No.312/3 and the 2nd defendant alone has title over and possession of the property. The defendant No.25 filed separate written statement and the same was adopted by the defendants 24 and 26. He is in possession of the subject property for over several decades. The 1st defendant and defendants 23 to 26 are not interested in Survey No.312/3 and the 2nd defendant alone has title over and possession of the property. The defendant No.25 filed separate written statement and the same was adopted by the defendants 24 and 26. In the written statement they have reiterated the averments made in the written statement filed by the 2nd defendant and further contend that their father namely the deceased 1st defendant had fenced the suit properties and dug a well and put up a house. He had also planted eucalyptus trees and periodically cutting the same. Regarding the said property V. Chidambaram and his three brothers and all the sons of Vairavan Chettiyar filed a suit in O.S.No.46/1999 on the file of District Munsif Court Karaikudi through their power agent Thnappa Chettiyar against the 1st defendant and it was compromised and the same was recorded on 29.03.2004. After that 1st defendant sold many portion of the suit properties to several persons and they have also put up the houses therein. And they have specifically denied that the suit properties are vacant sites. The suit is bad for mis-jointer of parties. The defendants No.23 is an unnecessary party. The court fee paid is deficit. This court has no pecuniary jurisdiction. The suit property as purchased the 1st defendant herein on 05.01.1984 under proper stamp papers for valuable consideration from then onwards he had been in continuous possession and enjoyment of the same. The Patta No.1063 was issued in the name of the 1st defendant. The 3rd and 4th defendant have also supported the case of the other defendants. The plaintiffs filed a reply statement to the written statement of the 2nd defendant stating that as per G.O.No.1300 Revenue Department dated 20.04.1971, the civil court has the jurisdiction when the persons are claiming the right over the property, further the market value of the property need not to be taken into account and also stated that as per section 71 and 72 of the Tamil Nadu Act, 26 of 1963 the civil court got no jurisdiction is opposed for the reason that Kalanivasal Village is a minor Inam Village and not be Inam Estate. The order dated 30.12.1983 passed by the Assistant Settlement Officer was subsequently rectified on 14.08.1983 is biased and to avoid unnecessary problems the declaratory relief as against such order, a declaratory was sought for. In O.S.No.102/1946 the community share has been determined among which no one could raise objection and hence the plaintiff is entitled to the relief of declaration as prayed. On the side of the defendants, DW1 to DW4 were examined as witnesses and Ex B1 to Ex B 22 were marked. 4. Considering the facts and pleadings on the both side, the learned trial court dismissed the suit on 30.11.2010. The judgment and decree of the trial court was reversed by the 1st appellant court prayed by the judgment dated 04.01.2013. As against the same, the present second appeal has been filed by the defendants 24 to 26 who are the legal heirs of 2nd defendant with the following SUBSTANTIAL QUESTION OF LAW:- (a) Whether the suit as framed is maintainable in law in the absence of a prayer for declaration of title and recovery of possession?; (b) Whether the plaintiffs ought to have been non suited for having approach the court with unclean hands since they had already moved the settlement authorities for relief in the year 1983 and are withholding the information as to their outcome?; (c) Whether the judgment of the lower appellate court is vitiated for having ignored the testimony of PW1 which admits that the suit property was not in their possession since 1984?; (d) Whether the lower appellate court failed to note that the plaintiffs have filed to discharge the burden that the suit property is a part of Ex A1?; (e) Whether the suit is bad for non-joinder of necessary parties since the alienees who purchased the suit property prior to the filling of the suit were not made parties?; (f) Whether the lower appellate court was justified in relying on legal proceedings to the prejudice of the defendants even though they were not parties thereto?; (g) Whether the lower appellate court was justified in brushing aside the testimony adduced on the side of the defendant without assigning proper reasons?; (h) Whether the finding of the lower appellate court that except B7 no other documents were marked is perverse?'; (i) Whether the suit is barred by limitation? (j) Whether lower appellate court erroneously cast the burden of proof on the defendants? (k) Is not Ex B7 settlement patta issued after due enquiry and in accordance with the statutory scheme set out in Tamil Nadu Act No.26 of 1963 and therefore ought not to have been set aside?. 5. The learned counsels for the appellant and the respondents and also perused the records carefully. The learned counsel for the appellants would submit that from the evidence of the plaintiff it is crystal clear that they have approached the civil court with unclean hands. The relief of injunction is an equitable remedy. Therefore, a person approaching the court by suppressing material facts is not entitled to the relief sought for. Further they argued that the PW1 in his deposition, admitted that they have filed an appeal questioning the issuance of settlement patta. Secondly there is a serious dispute regarding title. Therefore the present suit is not maintainable in law when there is no relief sought for declaration of title. In order to support their argument, they relied the judgment of the Hon’ble Supreme Court of India in Anuthula Sudhakar v. Bucchi Reddy, 2008 4 SCC 594 , paragraph 21(a) as held by the Hon'ble Supreme Court is as follows: “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.” 6. Therefore the suit deserves to be dismissed on the ground of not maintainable in law. Resisting the argument put forth by the appellant, the respondents here in argued that issuance of Patta is also a title. Therefore, the suit has been correctly filed for declaration declaring the Patta issued in favour of defendants 1 and 2 are null and void. Further, they argued that Pattas were granted in favour defendant No.1 and 2 in an arbitrary manner and without holding due enquiry before issuance of Patta. Therefore, the suit has been correctly filed for declaration declaring the Patta issued in favour of defendants 1 and 2 are null and void. Further, they argued that Pattas were granted in favour defendant No.1 and 2 in an arbitrary manner and without holding due enquiry before issuance of Patta. But Ex.B7 were marked which is the settlement order of the Assistant Settlement Officer, Madurai by the defendants. From the said Exhibit it can be culled out that after thorough enquiry, Patta was issued in favour of defendants 1 and 2. In the said Exhibit it has been clearly mentioned that the appeal would be prepared against such order within three months. during the course of examination of PW1 for he had proposed that appeal was filed against the said order. Therefore, the plaintiffs had the knowledge about the issuance of Patta in favour of defendants 1 and 2. This fact was not elucidated in the plaint in the suit. The plaintiffs have suppressed the above material facts and filed the suit. They approached the court with unclean hands. It was specifically pleaded by the appellant herein that the suit property had been alienated long prior to the filing of the suit. Houses have been put up by the alienees. To prove the same, Ex. B14, B17 Encumbrance Certificate was marked. Ex. B15, B20, B21, B22, a letter issued by the Sankarayapuram Panchayat President. It is settled principle of law that when there is a serious dispute of title, suit for declaration of title is alone maintainable in law. In the present case, the defendants have specifically taken an stand by disputing the title of the plaintiffs. Therefore it is necessary to prove the title of the plaintiffs by way of producing evidence. The burden lies on the plaintiffs to prove their title. Therefore, the suit is not maintainable in law. In this case, the appellant's have proved that the plaintiff's are not in possession and that third parties are in possession. They have not been made parties to the suit. There are houses in the suit property. The plaintiff's themselves admitted through PW that they are not in possession. They have made a false claim that the suit property is a vacant site (Tharisu). But, Ex. B21 and B22 are copies of plan approval and extract of House Tax Assessment Register. There is also EB connection. There are houses in the suit property. The plaintiff's themselves admitted through PW that they are not in possession. They have made a false claim that the suit property is a vacant site (Tharisu). But, Ex. B21 and B22 are copies of plan approval and extract of House Tax Assessment Register. There is also EB connection. DW4, the President of Sankarayapuram Panchayat, Thiru. Mangudi was examined and the official documents were marked through him. Therefore, the Trial Court held in paragraph 28 that the existence of houses even prior to the suit has been examined in a clinching manner and therefore, a suit is instituted without relief of recovery of possession will not lie. It is also admitted by PW1 the said Kunjarammal was in possession of the suit properties from 1982 to 1986 after that the plaintiff were out of possession. Further the PW1 admitted that there are houses in the suit properties. However they have filed a suit as if suit properties are vacant site. When the plaintiff himself admitted that they were not in possession and there are houses in the suit property the question of granting injunction in favour of the plaintiff does not arise. The plaintiffs suppressed all the material facts in their pleadings. Considering the facts and materials available on records, the trial court rightly come to the conclusion that the plaintiffs are not entitled for the relief of injunction. However, the lower appellate court erroneously reversed the well considered judgment of the trial court. In view of the above facts and circumstances of the case, the appellant court erred in allowing the appeal. 7. In the result the second appeal is allowed, the decree and judgment of the lower appellate court in A.S. No. 54/2011 on the file of the Sub court Devakottai dated 04.01.2013 is set aside the decree and judgment of the trail court in O.S. No. 9 of 2008 is dated 30.11.2011 by dismissing the suit is restored. No cost. Consequently, connected M.P is also closed.