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2018 DIGILAW 2596 (MAD)

Dhanalakshmi v. Sanjeevi

2018-08-23

T.RAVINDRAN

body2018
JUDGMENT : In this second appeal, challenge is made to the judgment and decree passed in A.S.No.1 of 2002 dated 04.10.2002 on the file of Subordinate Court, Cheyyar, reversing the judgment and decree passed in O.S. No. 830 of 1995 dated 28.03.2001 on the file of Additional District Munsif Court, Cheyyar. 2. Parties are referred to as per their rankings in O.S. No.830 of 1995 dated 28.03.2001. 3. Suit has been laid by the Respondent / Plaintiff for the reliefs of declaration and permanent injunction. 4. The case of the plaintiff, in brief, is that the suit properties belong to the plaintiff absolutely and accordingly the plaintiff has obtained patta in respect of the suit properties and enjoying the same by paying kist, etc. and the defendant has no right, title or interest in respect of the suit properties and never enjoyed the same at any point of time, however, the defendant, without any legal entitlement as such, started interfering with the plaintiff's possession and enjoyment of suit properties and accordingly it is stated that the plaintiff has been necessiated to lay the suit for appropriate reliefs. 5. The Appellant/defendant has resisted the plaintiff's suit by contending that the suit laid by the plaintiff is not maintainable either in law or on facts. 5. The Appellant/defendant has resisted the plaintiff's suit by contending that the suit laid by the plaintiff is not maintainable either in law or on facts. The defendant is the sister of the Plaintiff and the suit properties originally belonged to the father of the parties, namely, Dharmalinga Maistry, as his self acquired properties and the said Dharmalinga Maistry had married one Kannammal as his second wife and after the demise of the Dhrmalinga Maistry, Kannammal relinquished her interest in respect of her properties in favour of the plaintiff and the defendant for a valid consideration and thereby it is stated that the suit properties jointly belong to the plaintiff and the defendant and the plaintiff refused to give income due to the defendant received from the suit properties and accordingly, it is stated that demanding her share in the suit properties, the defendant had laid a suit for partition against the plaintiff in O.S.No.744 of 1995 and the said suit is pending and suppressing the same, the plaintiff has laid the present suit falsely, claiming that the suit properties absolutely belonging to him exclusively without any basis and the suit laid by the plaintiff against the co-owner is not maintainable, particularly, as regards the relief of permanent injunction and hence the suit is liable to be dismissed. 6. As above noted, O.S. No.830 of 1995 has been laid by the plaintiff for the reliefs of declaration and permanent injunction. The defendant had already laid the suit against the plaintiff seeking partition in O.S.No.744 of 1995. Accordingly, it is found that the abovesaid two suits were jointly tried and common evidence has been recorded in both the suits. 7. In support of the plaintiff's case Pws.1 and 2 were examined, Exs.A1 to A4 were marked. On the side of the defendant Dws1 and 2 were examined, Exs.B1 to B3 were marked. 8. Accordingly, it is found that the abovesaid two suits were jointly tried and common evidence has been recorded in both the suits. 7. In support of the plaintiff's case Pws.1 and 2 were examined, Exs.A1 to A4 were marked. On the side of the defendant Dws1 and 2 were examined, Exs.B1 to B3 were marked. 8. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court, without giving any finality to the suit laid by the plaintiff in O.S.No.830 of 1995 as to whether the same had been decreed or dismissed or disposed of otherwise, however, disposed of the above said two suits by holding that on the basis of Exs.B1 to B3, the defendant is entitled to half share in items 1,5 and the property lying in survey No.208/4C described in O.S.No.744 of 1995 and accordingly disposed of the abovesaid suits. The defendant has not challenged the judgement and decree rendered in the abovesaid suits. However, it is found that the plaintiff has preferred the first appeal challenging the judgment and decree passed in O.S.No.830 of 1995. The first appellate court, on an appreciation of the materials placed on record, was pleased to allow the appeal preferred by the plaintiff and thereby reversed the judgment and decree of the trial court. Impugning the same, the present second appeal has been laid by the defendant. 9. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration : "(1) When there was a common judgment rendered in O.S.No.744 of 1995 filed by the appellant and O.S.No.830 of 1995 filed by the respondent herein on 28.03.2001, whether any appeal against the findings rendered in O.S.No.830 of 1995 alone will affect the principles of res judicata. (2) Whether the lower court erred in not holding that there cannot be adverse possession as against the co-owner? (3) Whether the lower appellate court erred in law in reversing the judgment and decree of the trial court and failed to decree the 1/2 share of the property covered by Exs.B1 to B3?" Courts below failed to appreciate the rarest possibility as a result of medical miracle while imposing compensation to the plaintiff? 10. The plaintiff and the defendant are the children of Dharmalingam Maistry. The plaintiff claims that the suit properties absolutely belong to him exclusively. 10. The plaintiff and the defendant are the children of Dharmalingam Maistry. The plaintiff claims that the suit properties absolutely belong to him exclusively. Per contra, the defendant claims that the suit properties are the self acquired properties of the father Dharmalingam Maistry and accordingly it is further stated by her that the second wife of Dharmalingam Maistry had relinquished her interest in respect of the suit properties in favour of the plaintiff and the defendant and thereby, it is the case of the defendant that both the plaintiff and the defendant are entitled to equal share in the suit properties and accordingly the defendant had claimed partition by laying the suit in O.S.No.744 of 1995. Per contra, the plaintiff claims that the suit properties absolutely belong to him. The plaintiff has laid the suit seeking the reliefs of declaration and permanent injunction in O.S.No.830 of 1995. 11. In the suit preferred by the plaintiff in O.S.No.830 of 1995, the plaintiff has not clearly avered as to how the suit properties belong to him. Very vaguely he has avered that the suit properties belong to him exclusively. Whether he had acquired the suit properties by inheritance or by way of purchase or by any other mode, there is no clear averment with reference to the same in the plaint. However, it is found that as per the evidence adduced by the plaintiff in the matter, he would claim that his father had not left him any property and on the other hand, he had acquired the suit properties about 30 years ago by way of purchase and accordingly enjoying the same and other than him, no one is enjoying the suit properties. However, as above noted, the plaintiff, in the plaint has not avered that he had acquired the suit properties by way of purchase from third parties. In the evidence, however, he has put forth a case that he has acquired the title to the suit properties by way of purchase. But, as rightly found by the trial court, the plaintiff has not endeavoured to produce the sale deeds under which he seeks to claim the title to the suit properties as projected during the course of evidence. Other than Ex.A1 patta, the plaintiff had not placed any other document to evidence his trace of title to the suit properties. But, as rightly found by the trial court, the plaintiff has not endeavoured to produce the sale deeds under which he seeks to claim the title to the suit properties as projected during the course of evidence. Other than Ex.A1 patta, the plaintiff had not placed any other document to evidence his trace of title to the suit properties. Apart from Ex.A1 patta, the plaintiff has marked three kist receipts pertaining to the Fasils 1398 and 1404. Other than the abovesaid documents, there is no other material placed by the plaintiff to evidence his claim of title, possession and enjoyment of the suit properties. On the basis of the abovesaid documents, we cannot conclude that the plaintiff has exclusive claim of title to the suit properties. The patta cannot be construed as a document to title. Similarly, the kist receipts cannot be treated as equivalent to the documents of title. Thus, it is found that, when there is no material worth acceptance placed by the plaintiff to hold that he has exclusive title to the suit properties, accordingly, it is seen that the plaintiff had not projected consistent case as to how he traces his title to the suit properties. 12. However, on the basis of the copies of the sale deeds marked on the side of the defendant as Exs.B1 and B2 dated 05.06.1943, 29.03.1948 and the settlement deed dated 12.07.1963, marked as Ex.B3, it is found that the defendant has established that items 1,5 of the suit properties had been acquired by the father of the defendant and from Ex.B3 settlement deed, it is seen that Dharmalingam Maistry had settled the property belonging to him i.e. the property shown lying in Survey No.208/4C described in O.S.No.744 of 1995 and when it is found that the plaintiff and the defendant are the children of Dharmalingam Maistry and when it is further noted that it is the case of the defendant that Kannammal had relinquished her interest in respect of the properties, namely in favour of the plaintiff and the defendant, accordingly it is found that as rightly contended by the defendant, the properties comprised in Ex.B1 to B3 are the separate properties of Dharmalingam Maistry. Accordingly, the trial court held that the defendant had not established that the other items of the suit properties belonged to the family and further noting that the plaintiff has failed to establish his exclusive claim of title to the suit properties and also failed to establish his plea of adverse title to the same and resultantly, proceeded to hold that the defendant is entitled to half share in items 1,5 and the property lying in survey No.208/4C described in O.S.No.744 of 1995 and accordingly disposed of the suits laid by the parties concerned. 13. The first appellate court, however, has negatived the relief of partition sought for by the defendant on the footing that the plaintiff had established his claim of title to the suit properties on the plea of adverse possession and accordingly allowed the appeal preferred by the plaintiff as above noted. 14. However, as rightly putforth by the defendant's counsel, when the plaintiff has not placed any document of title as such and also has only marked Ex.A1 patta and three Kist receipts and when the abovesaid documents could not in any manner, by any stretch of imagination, be considered to be the documents of adverse title beyond the statutory period, accordingly contended that the first appellate court had erroneously negatived the defendant's claim of share in the suit properties as determined by the trial court by erroneously holding that the plaintiff has prescribed title to the suit properties. 15. As rightly putforth by the defendant's counsel, the patta document and kist receipts put forth by the plaintiff could not, at any angle, be construed as the documents of adverse title. At the foremost, it has to be noted that there is no clear plea made by the plaintiff in his suit that he has prescribed title to the suit properties by way of adverse possession. At the foremost, it has to be noted that there is no clear plea made by the plaintiff in his suit that he has prescribed title to the suit properties by way of adverse possession. Though some averments had been made by him in an indistinct manner in the written statement filed by him in O.S.No.744 of 1995 as regards the claim of adverse title, still, the defendant has not established the said plea, by placing acceptable and reliable material that he had been exercising ownership over the suit properties adverse to the title of the defendant, openly, continuously and uninteruptedly beyond the statutory period by exhibiting hostile title to one and all including the defendant and thereby prescribed title to the suit properties by way of adverse possession. 16. When it is found that the plaintiff and the defendant are the children of Dharmalingam Maistry and when from the documents marked as Exs.B1 to B3, it is seen that the parties derived the suit properties only through Dharmalingam Maistry and Kannammal, the second wife and accordingly when it is further noted that by way of the same, both the defendant and the plaintiff would be entitled to equal share in the suit properties and in such view of the matter, when the plaintiff still claims adverse title to the suit properties as against the defendant, the plaintiff should have made clear averments with reference to the same as to when from his adverse title commenced, whether he has excluded the defendant's right to the suit properties by way of ouster and in what manner he is seeking the adverse title to the suit properties against the defendant. When with reference to the abovesaid essential factors, the plaintiff had not made clear averments in his pleadings and when during the course of trial, the plaintiff had not placed any acceptable materials to substantiate the abovesaid factors other than Ex.A1 patta and three kist receipts and when the abovesaid documents would not, in any manner, advance the case of the plaintiff as regards his claim of adverse title to the suit properties and when as above seen, the plaintiff has failed to establish that he has acquired the suit properties by way of purchase and the alleged sale deeds pertaining to the same having not been produced and accordingly when it is found that both the parties traces title to the suit properties only through Exs.B1 to B3, accordingly, it is found that both the parties would be entitled to equal share in the properties available. In such view of the matter, when the parties are found to be co-owners in respect of the suit properties, it is seen that unless the plaintiff establishes the case of ouster by placing acceptable materials, he cannot seek any adverse title against the defendant as regards the joint family properties. 17. In the light of the above discussion, it is found that the first appellate court, without any basis or materials, had upheld the plaintiff's case by holding that he has prescribed title to the suit properties on the strength of adverse title and thereby erroneously reversed the judgment and decree of the trial court in granting the relief of partition in favour of the defendant in respect of certain items of properties involved in the matter. In such view of the matter, it is found that the judgement and decree of the first appellate court are liable to be set aside. The substantial questions of law 2 and 3 formulated in this second appeal are accordingly answered against the plaintiff and in favour of the defendant. 18. As above seen, the defendant has not challenged the decree and judgment of the trial court rendered in O.S.No.744 of 1995 and O.S.No.830 of 1995. It is only the plaintiff who has preferred the first appeal against the judgment and decree passed in O.S.No.830 of 1995. Only as against the entertainment of the first appeal preferred by the plaintiff by the first appellate court, the defendant has preferred the second appeal. It is only the plaintiff who has preferred the first appeal against the judgment and decree passed in O.S.No.830 of 1995. Only as against the entertainment of the first appeal preferred by the plaintiff by the first appellate court, the defendant has preferred the second appeal. Accordingly, it is contended by the defendant's counsel that in as much as the trial court had rendered a common judgement in the said two suits, the defendant having failed to prefer any appeal challenging the same, it is his contention that the present second appeal preferred by the defendant, would be hit by the operation of res judicata and in this connection, he placed reliance upon decision reported in 2008 (4) CTC 589 (Muniammal Vs. Annadurai (deceased) and 7 others). However, the above contention does not merit acceptance as such. No doubt, the trial court had rendered a common judgment in the abovesaid two suits, but as above pointed out, the trial court had not given a quietus one way or the other insofar as O.S.No.830 of 1995 is concerned, on the other hand, the trial court has only disposed of both the suits by giving a finding that the defendant is entitled to half share in items 1,5 and the property lying in survey No.208/4C as described in O.S.No.744 of 1995 and in such view of the matter, when the trial court has disposed of both the suits by rendering a common decision and accordingly no separate decree has been formulated or followed pursuant to the pronouncement of the common judgment by the trial court in the abovesaid two suits, accordingly, it is seen when by way of a common judgement, the trial court has granted the relief of partition in respect of certain items of properties involved in favour of the defendant, in my considered opinion, there is no need on the part of the defendant to prefer any appeal challenging the same. Accordingly, it is found that the plaintiff, being the aggrieved party in respect of the common judgment rendered by the trial court, is found to have preferred the first appeal. As the first appeal preferred by the plaintiff had been allowed, aggrieved over the same, it is found that the defendant has preferred the present second appeal. Accordingly, it is found that the plaintiff, being the aggrieved party in respect of the common judgment rendered by the trial court, is found to have preferred the first appeal. As the first appeal preferred by the plaintiff had been allowed, aggrieved over the same, it is found that the defendant has preferred the present second appeal. In the light of the abovesaid factual matrix, the principles of res judicata, as formulated in the abovesaid decision, following the Apex Court decision as regards the failure of a party in not preferring the appeal against the common judgemnt rendered in not or three suits whatsoever, is found to be not applicable to the case at hand and in such view of the matter, it is found that the present second appeal preferred by the defendant cannot be determined to be hit by the principle of res judicata as sought to be made out by the plaintiff's counsel and the first appellate court. Resultantly, it has to be held that the defendant's second appeal would not be hit by the operation of res judicata and accordingly the first substantial question of law formulated in this second appeal is answered. 19. In conclusion, the judgment and decree passed in A.S.No.1 of 2002 dated 04.10.2002 on the file of Subordinate Court, Cheyyar, are set aside and the judgment and decree passed in O.S. No.830 of 1995 dated 28.03.2001 on the file of Additional District Munsif Court, Cheyyar are confirmed and accordingly the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.