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2018 DIGILAW 3340 (MAD)

K. Krishnan v. Pirakalanayaki

2018-09-27

C.V.KARTHIKEYAN

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JUDGMENT C.V. KARTHIKEYAN, J. 1. This second appeal had been filed by the plaintiff in O.S.No.836 of 1980. O.S.No.836 of 1980 had been filed by the plaintiff, K.Krishnan, against the five defendants seeking a judgment and decree for recovery of possession of the suit property by directing the defendants to hand over vacant possession and for a direction against the defendants to pay a sum of Rs. 15,000/- being the cost of super structure put up by him and for a direction against the defendants to pay damages for use of occupation and for cost of the suit. 2. This suit came up for consideration before the Subordinate Court, Dindigul. It was dismissed by judgment and decree dated 14.02.1986. The appeal filed against such dismissal judgment in A.S.No.22 of 1986 came up for consideration before the District Court, Dindigul also suffered a judgment of dismissal on 14.11.1991. The plaintiff has now filed the present second appeal. 3. The second appeal had been admitted on the following substantial questions of law: "(i) Whether the Judgments of the courts below are vitiated in, that they have held that the present suit is barred by limitation, inspite of the present suit for recovery of possession being within the ambit of Article 64 of the Limitation Act, having been filed within 12 years of the plaintiff's dispossession? (ii) Whether the Judgment of the lower appellate Court is vitiated in that it has held that the suit is barred by the provisions of Order II Rule 2 CPC? (iii) When it has been specifically found in the earlier suit that the defendants are liable to pay compensation for the superstructure and this finding having become final, whether the lower appellate Court was right in allowing the cross objections of the defendants inspite of it being barred by res judicata to re-open this issue?? O.S.No.836 of 1980: 4. The suit had been filed with respect to a vacant site measuring 85s cents in T.S.No.28, Block No.2, Ward No.4, Subramaniapuram Road, Palani Town, Dindigul District. It is claimed by the plaintiff that the fifth defendant M.Sathakathullah who claimed to be the owner of the property, orally leased out it to the plaintiff on a monthly rental of Rs. 30/- in the year 1967. The plaintiff had paid an advance of Rs. 50/-. The plaintiff had put up a superstructure at the cost of Rs. 15,000/-. It is claimed by the plaintiff that the fifth defendant M.Sathakathullah who claimed to be the owner of the property, orally leased out it to the plaintiff on a monthly rental of Rs. 30/- in the year 1967. The plaintiff had paid an advance of Rs. 50/-. The plaintiff had put up a superstructure at the cost of Rs. 15,000/-. He was running timber and fuel shop in the name of his brother-in-law A.S.Rajan till 1969. Thereafter he was running timber shop in the name of "Selvam Timber Depot". He also obtained Registration Certificate from Commercial Department and Licence from the Palani Municipality. He also put up a thatched shed, house and cattle shed and had fenced the suit property. He had been residing with his family in the house. 5. He claimed to have paid the rents regularly to the fifth defendant. There was a dispute among the rival claimants over the title of the suit property. O.S.No.53 of 1964 had been filed between the Palani Muslim Dharma Paripalana Sangam and other persons. In that suit, the second defendant Subbiah Gounder and the fifth defendant Sathakathullah were also parties. However, it was decided in the said suit that that 15th defendant therein namely, Mohammed Yousuf was the absolute owner of the suit property and that the 5th defendant herein had no title. That decision was confirmed in A.S.No.132 of 1970. The plaintiff claimed that Mohammed Yousuf attorned the tenancy of the plaintiff by deed dated 22.09.1971. The monthly rent was fixed at Rs. 35/-. The plaintiff continued to be in possession. Mohammed Yousuf died in 1972 leaving behind three daughters. Once again a dispute arose with respect to the title of the properties left behind by Mohammed Yousuf. The plaintiff was not able to pay the rent to any of the claimants to the title. The daughters of Mohammed Yousuf the sold the suit property to the first and third defendants namely, Pirakalanayaki and Zeenat Beevi. 6. The first defendant is the wife of the second defendant and the fourth defendant is the brother-in-law of the second defendant. The third defendant is the wife of the fifth defendant. After the purchase, the defendants joined together and threatened the plaintiff to vacate and handover the possession. The plaintiff claimed protection under the Tamil Nadu City Tenants Protection Act. The first defendant is the wife of the second defendant and the fourth defendant is the brother-in-law of the second defendant. The third defendant is the wife of the fifth defendant. After the purchase, the defendants joined together and threatened the plaintiff to vacate and handover the possession. The plaintiff claimed protection under the Tamil Nadu City Tenants Protection Act. On 29.06.1974, the second, fourth and fifth defendants along with many other persons, trespassed into the suit property and removed the movable items. The plaintiff's complaint to the police was of no avail. The plaintiff filed O.S.No.184 of 1974 seeking a declaration that he is a tenant entitled to the benefits of Tamil Nadu City Tenants Protection Act and for Permanent Injunction seeking protection of possession as he continued to be in possession. 7. During the pendency of O.S.No.184 of 1974 in October 1974, the defendants again entered into the property, removed the structure and forcibly evicted the plaintiff from the suit property. In O.S.No.184 of 1974 a Judgment was passed, holding that the plaintiff was a tenant in the suit property and that he was forcibly evicted. The plaintiff claims that he is entitled to recover the vacant possession of the suit property as a tenant and also to recover a sum of Rs. 15,000/- being the value of super structure put up by him. It was under these circumstances that he had instituted the suit. 8. The second defendant filed a written statement claiming that the Judgment in O.S.No.184 of 1974 would not confer any title on the plaintiff. It had also been stated that the plaintiff had no subsisting cause of action. The lessor of the plaintiff had no title over the property. The alleged deed of attornment would not give any additional right to the plaintiff. 9. It had been further stated that the suit is hit by Order II Rule 2 of CPC. The plaintiff filed I.A.No.1639 of 1978 to amend the plaint in O.S.No.184 of 1974 and that application was dismissed. The defendants claimed that the plaintiff had no cause of action and that he was not in possession and cannot also seek recovery of possession and therefore sought dismissal of the suit. 10. On the basis of the rival pleadings, the learned Subordinate Judge, Dindigul framed the following issues: "(i) Whether the plaintiff is entitled for recovery of suit property? The defendants claimed that the plaintiff had no cause of action and that he was not in possession and cannot also seek recovery of possession and therefore sought dismissal of the suit. 10. On the basis of the rival pleadings, the learned Subordinate Judge, Dindigul framed the following issues: "(i) Whether the plaintiff is entitled for recovery of suit property? (ii) Whether the plaintiff is entitled for the value of super structure put up by him. (iii) Whether the plaintiff is entitled to claim damages for use and occupation? (iv) Whether the suit is in time? (v) Whether the suit is barred under Order II Rule 2 of CPC? (vi)To what relief is the plaintiff is entitled?" 11. During trial, the plaintiff examined himself as PW-1. The 2nd and 5th defendants were examined as DW-1 and DW-2. The plaintiff filed Exs.A1 to A12. Ex.A1 is the copy of the commissioner's report with plan, dated 11.07.1974 in O.S.No.184 of 1974, Ex.A2 is the certified copy of the Judgment dated 17.09.1980 in O.S.No.184 of 1974 and Ex.A4 is the copy of the Judgment in A.S.No.9 of 1982 and Exs.A5 to A11 are portions in deposition of DW-1 in O.S.No.184 of 1974 and Ex.A12 is a portion of evidence of DW-3 in O.S.No.184 of 1974. 12. On consideration of the evidence, the Subordinate Judge held that the suit was filed after the period of limitation had expired. It was stated that the cause of action arose from the date when the plaintiff was said to have been evicted from the suit property and not from the date of Judgment in O.S.No.184 of 1974, which would not confer title to the plaintiff in respect of the property. It was stated that the plaintiff should have sought possession by amending the plaint in the earlier suit. The learned Judge also held that the suit is not only barred by limitation but also that it was barred under Order II Rule 2 of CPC. The suit was dismissed. A.S.No.22 of 1986: 13. The plaintiff then filed A.S.No.22 of 1986 against the said Judgment and Decree. This came up for consideration before the District Judge, Dindigul. The learned District Judge re-examined the evidence and framed points for consideration. The suit was dismissed. A.S.No.22 of 1986: 13. The plaintiff then filed A.S.No.22 of 1986 against the said Judgment and Decree. This came up for consideration before the District Judge, Dindigul. The learned District Judge re-examined the evidence and framed points for consideration. The learned District Judge specifically framed as points for consideration whether the suit was barred by limitation and whether the suit was barred by Order II Rule 2 of CPC. The learned Judge on examination of the evidence held that the suit was barred by limitation and also barred under Order II Rule 2 of CPC. He dismissed the appeal. S.A.No.709 of 1995: 14. Challenging the said Judgment and Decree the plaintiff had filed the present second appeal. The second appeal was admitted on the following substantial questions of law: "(i) Whether the Judgments of the courts below are vitiated in, that they have held that the present suit is barred by limitation, inspite of the present suit for recovery of possession being within the ambit of Article 64 of the Limitation Act, having been filed within 12 years of the plaintiff's dispossession? (ii) Whether the Judgment of the lower appellate Court is vitiated in that it has held that the suit is barred by the provisions of Order II Rule 2 CPC? (iii) When it has been specifically found in the earlier suit that the defendants are liable to pay compensation for the superstructure and this finding having become final, whether the lower appellate Court was right in allowing the cross objections of the defendants inspite of it being barred by res judicata to re-open this issue?" 15. Pending the appeal, the third and fifth respondents died and their legal heirs representatives were also brought on record. 16. Heard arguments advanced by Mr.K.Balasubramanian learned counsel for M/s.P.Thiagarajan, learned counsel for the appellant and Mr.S.Anand Chandrasekar learned counsel for M/s.Sarvabhauman Associates for R1 and R2 and Mr.M.P.Senthil, learned counsel for respondents 11, 13 and 14. The appeal had been dismissed against respondents 4 and 6 to 10 by order dated 13.04.2007. 17. 16. Heard arguments advanced by Mr.K.Balasubramanian learned counsel for M/s.P.Thiagarajan, learned counsel for the appellant and Mr.S.Anand Chandrasekar learned counsel for M/s.Sarvabhauman Associates for R1 and R2 and Mr.M.P.Senthil, learned counsel for respondents 11, 13 and 14. The appeal had been dismissed against respondents 4 and 6 to 10 by order dated 13.04.2007. 17. Pending the second appeal a memo was also filed stating that the first and second respondents had sold an extent of 70 cents to P. Kumarasamy and in view of an agreement between P.Kumarasamy and the appellant, the appellant is confining his claim only with respect to an extent of 15 s cents in the suit property. It was further endorsed in the memo that the appellant was not pressing the relief (b) sought in the plaint for claim of Rs. 15,000/- and also relief (c) for a direction to the defendants to pay damages for use and occupation. 18. Consequently, the only relief which now survives is the one claimed for recovery of possession and that has been restricted to 15 s cents out of 5 cents. The parties shall be referred to as plaintiff and defendants. The plaintiff is the appellant and the defendants/legal representatives of defendants are the respondents. 19. The plaintiff claims to have taken possession of the suit property which originally measured 85 s cents in T.S.No.28, Block No.2, Ward No.4, Subramaniapuram Road, Palani Town, Dindigul District, as a lessee under the fifth defendant M. Sathakathullah on an oral lease agreement in the year 1967. He claims to have paid an advance amount of Rs. 50/- and that the monthly rental was Rs. 30/-. 20. There was dispute regarding the title over the suit property. This was decided in O.S.No.53 of 1964 by the Subordinate Court Dindigul, a suit between Palani Muslim Dharma Paripalana Sangam and other persons. The fifteenth defendant therein, Mohammed Yousuf was declared to be the owner of the suit property. The plaintiff claims that his tendency was attorned by Mohammed Yousuf and the monthly rent was increased to Rs. 35/-. The attornment of tendency was on 22.09.1971. The plaintiff claims to have paid month rents to the said Mohammed Yousuf. Mohammed Yousuf died in 1972. He left behind three daughters. There were disputes among his daughters, sisters and brothers' children over the title to the suit property. 35/-. The attornment of tendency was on 22.09.1971. The plaintiff claims to have paid month rents to the said Mohammed Yousuf. Mohammed Yousuf died in 1972. He left behind three daughters. There were disputes among his daughters, sisters and brothers' children over the title to the suit property. The plaintiff admittedly did not pay any rent to any of the legal heirs to Mohammed Yousuf. The daughters of Mohammed Yousuf then sold the suit property to the first and third defendants namely Pirakalanayaki and Zeenat Beevi. 21. The plaintiff claimed protection under the Tamil Nadu City Tenants Protection Act. He was however threatened to handover the possession. In the plaint, it had been specifically stated that on 29.06.1974, defendants 2, 4 and 5 entered into the suit property and removed the firewood and other articles. The plaintiff had therefore filed O.S.No.184 of 1974 for a declaration that he is a tenant entitled to the benefits of Tamil Nadu City Tenants Protection Act. Pending the suit, in October 1974, the tenants again entered into the property and evicted the plaintiff. 22. The plaintiff did not take any steps to seek recovery of possession by filing recovery petition in the said suit. However, he filed a separate suit in O.S.No.836 of 1980, which suit is the subject matter of the present second appeal. Pending this suit, the plaintiff filed I.A.No.189 of 1989 in A.S.No.9 of 1982 which was the appeal suit filed against the Judgment in O.S.No.184 of 1974. That application which was filed seeking amendment of the relief claimed to include recovery of possession was dismissed on the ground that the plaintiff had already filed the present suit in O.S.No.836 of 1980 for recovery of possession. As against that order, the plaintiff filed CRP.No.1453 of 1990 and this Court dismissed that Civil Revision Petition, hold that he had filed a separate suit for recovery of possession and consequently, cannot seek amendment of the plaint. But it is pertinent to note that the amendment application was filed after the institution of the present suit in O.S.No.836 of 1980. The present suit in O.S.No.836 of 1980 is clearly barred under Order II Rule 2 of CPC. 23. But it is pertinent to note that the amendment application was filed after the institution of the present suit in O.S.No.836 of 1980. The present suit in O.S.No.836 of 1980 is clearly barred under Order II Rule 2 of CPC. 23. Order II Rule 2 of CPC reads as follows: Suit to include the whole claim:- (i) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (ii) Relinquishment of part of claim:-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. (iii) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation:- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. 24. The cause of action for recovery of possession arose in October 1974, when the plaintiff was dispossessed from possession. In October 1974, O.S.No.184 of 1974 was pending. The plaintiff should have filed an application seeking to amend the relief sought by including the relief of recovery of possession. He, however, filed the present suit claiming that the cause of action had arisen only on 17.09.1980 when Judgment was passed in O.S.No.184 of 1974. This stand of the plaintiff cannot be legally accepted. When he claims that a wrong had been done to him by being forcibly evicted, his cause to redress such wrong commences from the date the wrong was committed. A Judgment of Court is only a decision based on evidence while is always reversible till an final finding is given in the final appellate Court and that cannot give a rise to claim cause of action. 25. The recovery of possession is sought because the plaintiff was evicted. A Judgment of Court is only a decision based on evidence while is always reversible till an final finding is given in the final appellate Court and that cannot give a rise to claim cause of action. 25. The recovery of possession is sought because the plaintiff was evicted. The Judgment of a Court declaring that the plaintiff was a tenant is only an additional factor to reinforce the claim against wrongful dispossession. But the cause of action to seek relief against wrongful dispossession arose on the date of such dispossession. Moreover, O.S.No.184 of 1974 was pending, and when pending the suit, the plaintiff claims to have been dispossessed, he should have taken steps in that particular suit to include all reliefs. Having failed to do so, the plaintiff cannot plead ignorance and innocence and seek indulgence of this Court. 26. The substantial question of law which had arisen is whether the observations in the previous Judgment that the plaintiff was dispossessed during the pendency of the suit is binding upon the defendants. In any Judgment, the observations cannot be held to be binding. Those observations are made to help in arriving at a conclusion and to lay down the ratio and to give a finding on the issues raised. These findings are alone binding. 27. In O.S.No.184 of 1974, since the plaintiff had not complained about dispossession, there was no occasion for an issue to be raised regarding dispossession. The plaintiff cannot be permitted to drag the defendants to court after court for the same relief. The suit is barred by limitation since it had been filed after the lapse of statutory period of time. The plaintiff claimed that he was dispossessed in October 1974. He instituted the suit in 1980. He based his cause of action on the date of judgment in O.S.No.184 of 1974. Judgment in O.S.No.184 of 1974 cannot give rise to a cause of action for institution of any suit. 28. It is also found that the plaintiff had restricted his claim to 15 s cents out of 85 s cents. He has also given up the relief seeking damages for use and occupation. It is clear that the plaintiff is prosecuting a lost cause. There are no merits in the second appeal and I hold that Judgment and Decree of the Trial Court does not warrant any interference. He has also given up the relief seeking damages for use and occupation. It is clear that the plaintiff is prosecuting a lost cause. There are no merits in the second appeal and I hold that Judgment and Decree of the Trial Court does not warrant any interference. Accordingly, the second appeal is dismissed with costs. The judgment and decree passed in A.S.No.22 of 1986 dated 14.11.1991 by the District Judge, Dindigul, confirming the judgment and decree passed in O.S.No.836 of 1980 dated 14.02.1986 by the Subordinate Judge, Dindigul, is upheld.