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2018 DIGILAW 3686 (MAD)

Manokaran v. Kaliyaperumal

2018-10-10

T.RAVINDRAN

body2018
JUDGMENT : T. Ravindran, J. Challenge in this Second Appeal is made to the judgment and decree dated 23.08.2013 passed in A.S.No.140 of 2012 on the file of the Principal District and Sessions Court, Ariyalur, in respect of the property comprised in S.No.226/5, reversing the judgment and decree dated 07.03.2011 passed in O.S.No.379 of 2009 with reference to the abovesaid property comprised in Survey No.226/5, on the file of the District Munsif Court, Jayankondam. 2. The second appeal has been admitted on the following substantial questions of law. "a. Whether there has been a proper construction on the question of validity of the revocation of settlement deed and on the question as to whether the settlement deed is subject to revocation? b. Whether the proof of delivery of possession is necessary if the property settled under registered settlement deed and the settlee accepts the transfer? c. Whether the findings of the lower appellate court as to the possession merely based on the revenue records is correct? 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has been laid simplicitor for the relief of permanent injunction by the plaintiff against the defendants. It is not in dispute that the plaintiff and the defendants 1,3 and 4 are the brothers and the sons of Karuppapillai Konar and the second defendant is the son of the first defendant. It is only the defendants 1 and 2 who are contesting the plaintiff's suit. It is not in dispute that the plaintiff and the defendants 1,3 and 4 are the brothers and the sons of Karuppapillai Konar and the second defendant is the son of the first defendant. It is only the defendants 1 and 2 who are contesting the plaintiff's suit. The plaintiff claiming title to the suit properties based on the settlement deed said to have been executed in his favour by his father Karuppapillai Konar in respect of the suit properties and putting forth that pursuant to the abovesaid settlement deed, the suit properties have been in the possession and enjoyment of the plaintiff and the plaintiff is enjoying the suit properties by paying kists, etc., and the defendants have no right whatsoever in respect of the suit properties and never enjoyed the same at any point of time and on the other hand, in as much as they had been attempting to interfere with the possession and enjoyment of the plaintiff in respect of the suit properties, according to the plaintiff he has been necessitated to lay the suit for relief of permanent injunction. At this juncture, it is to be noted that the suit properties are found to be situated in survey number 226/5 measuring 0.83.5 ares (acres 2.06 cents) and survey number 226/6 measuring 0.10.5 ares (acres 0.26 cents) in toto measuring acres 2.32 cents. 5. At this juncture, it is to be noted that the suit properties are found to be situated in survey number 226/5 measuring 0.83.5 ares (acres 2.06 cents) and survey number 226/6 measuring 0.10.5 ares (acres 0.26 cents) in toto measuring acres 2.32 cents. 5. The defendants had resisted the plaintiff's case on various factors, particularly, disputed the character of the suit properties and contending that the suit properties are not the separate properties of the father Karuppapillai Konar and on the other hand according to them, the suit properties are the joint family properties of Karuppapillai Konar and his sons and it is stated by the defendants 1 and 2 that the case of the plaintiff that Karuppapillai Konar had executed the settlement deed dated 30.04.1997 in his favour in respect of the suit properties is false and no such settlement deed had been executed by their father and also the above settlement deed is not true and not come into force and the plaintiff has not been in the possession and enjoyment of the suit properties pursuant to the abovesaid settlement deed and the plaintiff has never enjoyed the suit properties by paying kists, etc., as claimed in the plaint and further it is also pleaded by the defendants 1 and 2 that the abovesaid settlement deed dated 30.04.1997 had been cancelled by Karuppapillai Konar by a deed of cancellation on 07.06.2002 and the plaintiff has knowledge about the deed of cancellation and accordingly it is stated by the defendants 1 and 2 that after the demise of Karuppapillai Konar on 12.01.2006, the suit properties had been in the possession and enjoyment of the plaintiff and the defendants 1,3 and 4 and enjoyed by them jointly and it is also stated that the properties had been entrusted to one Pari for cultivation by the plaintiff and his brothers and the second item of the suit properties had been enjoyed as kalam. Further, it is also pleaded that in the first item of the suit properties, the first defendant has been enjoying 0.5 acres of land separately and the remaining share has been in the possession and enjoyment of the plaintiff and the defendants 3 and 4, which they had left to Pari for cultivation and accordingly it is stated that following the death of Karuppapillai Konar, the plaintiff and the defendants 1,3 and 4 had been enjoying the suit properties as his legal representatives jointly and in such view of the matter, the plaintiff's claim of right in entirety to the suit properties is not maintainable and the defendants 1,3 and 4 are also the co-owners of the suit properties and therefore the plaintiff is not entitled to maintain the suit for permanent injunction against the co-owners and hence the suit is liable to be dismissed. 6. Considering the pleadings set out by the respective parties as above stated, it is evident that the defendants 1 and 2, in particular, have stoutly resisted and disputed the claim of title of the suit properties by the plaintiff as projected in the plaint. 6. Considering the pleadings set out by the respective parties as above stated, it is evident that the defendants 1 and 2, in particular, have stoutly resisted and disputed the claim of title of the suit properties by the plaintiff as projected in the plaint. They have disputed the character of the suit properties as such contending that the suit properties are not the separte properties of Karuppapillai Konar and also disputed the entitlement of Karuppapillai Konar to execute the settlement deed in favour of the plaintiff dated 30.04.1997 and also challenged the claim of the plaintiff that he has been in the possession and enjoyment of the suit properties pursuant to the abovesaid settlement deed and also in specific took the defence that the plaintiff has never been in the possession and enjoyment of the suit properties pursuant to the abovesaid settlement deed at any point of time and also taken the plea that Karuppapillai Konar had cancelled the abovesaid settlement deed by a deed of cancellation dated 07.06.2002 and also taken the plea that following the death of Karuppapillai Konar, his legal heirs namely, the plaintiff and the defendants 1,3 and 4 had been enjoying the suit properties jointly and accordingly it is the case of the defendants 1 and 2 that the plaintiff independently has no right whatsoever in respect of the suit properties and never enjoyed the same exclusively and the defendants 1,3 and 4 being the co-owners of the suit properties along with the plaintiff, the plaintiff is not entitled to maintain the suit for permanent injunction. 7. The above being the defence of the defendants, one would have expected the plaintiff, atleast thereafter, to amend the plaint and seek the relief of declaration of title in respect of the suit properties. Despite the stout denial of his title, the plaintiff has not endeavoured to amend the plaint for including the relief of declaration in respect of the suit properties and on the other hand, it is found that he had proceeded with the suit mainly on the footing that in as much as he has been in the possession and enjoyment of the suit properties pursuant to the settlement deed dated 30.04.1997 and the defendants are interfering with his possession, accordingly, he should be granted the relief of permanent injunction. 8. 8. Thus, it is seen that the suit laid by the plaintiff, being a suit simplicitor instituted for the relief of permanent injunction, accordingly the courts below should not have endeavoured to go into the question of title of the respective parties for seeking title to the suit properties. In such view of the matter, the endeavour of the trial court in proceeding with the title of the suit properties as projected by the respective parties, that too, without framing any issue on that point, is found to have overstepped its limits and erred in declaring that the settlement deed projected by the plaintiff is true and valid and that the deed of cancellation projected by the defendants is not true. Thus the abovesaid approach of the trial court is found to be not sustainable in the eyes of law, particularly, when the plaintiff has not endeavoured to amend the plaint seeking the relief of declaration, despite the resistance to his claim of title to the suit properties by the defendants 1 and 2 in the written statement. In my considered opinion, the courts below should have solely non-suited the plaintiff on the basis that the suit laid by the plaintiff without seeking the relief of declaration is not maintainable. 9. Be that as it may, in as much as the plaintiff is found to have proceeded with the suit praying the relief of permanent injunction alone and accordingly the trial court has also framed only two issues for consideration, namely, whether the suit properties are in the possession and enjoyment of the plaintiff and whether the plaintiff is entitled to obtain the relief of permanent injunction, in view of the framing of the abovesaid issues, should have confined to the point of possession and enjoyment of the plaintiff in respect of the suit properties. On the other hand, as above noted, the trial court proceeded and endeavoured to go into the question of title projected by the plaintiff for claiming the right to the suit properties on the basis of the settlement deed. On the other hand, as above noted, the trial court proceeded and endeavoured to go into the question of title projected by the plaintiff for claiming the right to the suit properties on the basis of the settlement deed. Accordingly, it is found that the trial court on the premise that the settlement deed had been executed by the father in favour of the plaintiff and the deed of cancellation projected by the defendants has not been established and that after the execution of the settlement deed, the father had no entitlement to cancel the same, on that basis and accordingly holding that the possession follows title, proceeded to upheld the plaintiff's suit of permanent injunction, despite there being no material at all placed by the plaintiff evidencing his claim of possession and enjoyment of the suit properties at any point of time pursuant to the settlement deed dated 30.04.1997 other than the kists receipt pertaining to the fasli 1417 marked as Ex.A3. No scrap of paper has been placed by the plaintiff to evidence that he has been in the possession and enjoyment of the suit properties pursuant to the settlement deed dated 30.04.1997 marked as Ex.A2. If really the plaintiff had been in the possession and enjoyment of the suit properties as put forth by him following Ex.A2 settlement deed, by this point of time, the plaintiff would have endeavoured to alter the patta in his favour in respect of the suit properties and accordingly would have enjoyed the suit properties separately by paying kists and also would have produced the necessary kists receipts from 1997 onwards and also would have endeavoured to produce the adangal extracts, chit extracts, etc., for evidencing his claim of possession and enjoyment of the suit properties. On the other hand, other than Ex.A2 settlement deed and the kists receipt marked as Ex.A3, no other material is placed by the plaintiff to uphold his claim of possession and enjoyment of the suit properties. On the other hand, other than Ex.A2 settlement deed and the kists receipt marked as Ex.A3, no other material is placed by the plaintiff to uphold his claim of possession and enjoyment of the suit properties. The plaintiff having not endeavoured to seek the relief of declaration of title in respect of the suit properties, despite the vehement denial of his title to the suit properties by the defendants 1 and 2 and proceeded to continue with the suit only for the relief of permanent injunction, the plaintiff having failed to establish his claim of possession and enjoyment by projecting the necessary documents on his side, it does not stand to reason as to how the trial count had endeavoured to uphold his claim of the relief of permanent injunction as against the defendants. 10. The trial court seems to have upheld the plaintiff's case based on the weakness of the defendants' version on the footing that the defendants' documents evidencing the factum of possession had been obtained by them on the basis of the deed of cancellation. The defendants have placed various documents right from Exs.B2 to B16, namely, kists receipts, patta, adangal extracts, etc., for evidencing the joint possession and enjoyment of the suit properties one way or the other. But the trial court, at one stroke, on the footing that the abovesaid documents have been secured by the defendants based on the deed of cancellation, did not go into the merits of the abovesaid documents one way or the other and on the basis that the plaintiff has title to the suit properties based on Ex.A2 settlement deed and on the principle that possession follows title, proceeded to uphold the plaintiff's suit for permanent injunction. As above noted, the plaintiff has not filed any valid piece of document worth acceptance to substantiate his case of possession and enjoyment of the suit properties since Ex.A2 settlement deed. 11. The first appellate court finding the approach of the trial court in going into the question of determination of the character of the properties is beyond the scope of the suit and accordingly proceeded to hold that in a suit for permanent injunction, only the factum of possession and enjoyment of the suit properties by the parties concerned had to be ascertained for granting the relief prayed for. However, the first appellate court is found to have erred in projecting the reason for not going into the nature of the properties on the footing that the defendants had not prayed for the declaration that the settlement deed projected by the plaintiff is null and void. When the defendants have stoutly refused and challenged the truth and validity of Ex.A2 settlement deed and the duty is cast upon the plaintiff to establish the same, in my considered opinion, the abovesaid observation of the first appellate court is found to be totally erroneous and without proper appreciation of the position of law on the placement of burden of proof on the parties on whom the same lies. 12. Be that as it may, the first appellate court, considering the documents of possession placed by the defendants, finding that the adangal extracts marked as Ex.B7 to B11 pertaining to Survey No. 226/5 stand in the name of the first defendant and three others and further noting that the adangal extracts marked as Ex.B12 to B16 pertaining to Survey No.226/6 stand in the name of the plaintiff, accordingly on that reasonings, noting that the plaintiff has not placed any document to show his claim of possession and enjoyment of the first item of the suit properties as described in the plaint and considering the nature of the relief of permanent injunction prayed for and for the grant of which, only the factum of possession has to be determined, accordingly based on Exs.B7 to B11, adangal extracts, held that the abovesaid item of the suit properties is in the possession and enjoyment of the first defendant and three others and based on the adangal extracts Exs.B12 to B16 held that the second item of the suit properties in survey number 226/6 is in the possession and enjoyment of the plaintiff and accordingly partly allowed the appeal preferred by the first defendant challenging the judgment and decree of the trial court and resultantly set aside the judgment and decree of the trial court in granting the relief of permanent injunction in favour of the plaintiff in respect of Survey Number 226/5 and confirmed the judgment and decree of the trial court granting the relief of permanent injunction in respect of Survey number 226/6 only and accordingly disposed of the first appeal. Challenging the same, the present second appeal has been laid by the plaintiff. Challenging the same, the present second appeal has been laid by the plaintiff. 13. As far as the confirmation of the judgment and decree of the trial court in granting the relief of permanent injunction in favour of the plaintiff in respect of survey number 226/6 by the first appellate court, the defendants 1 and 2 have not preferred any challenge either by way of a seperate second appeal or by way of the cross objection in the second appeal of the plaintiff. 14. Be that as it may, now according to the plaintiff, the first appellate court erred in negativing the relief of permanent injunction granted by the trial court in respect of Survey No.226/5 of the suit properties and thereby prayed for setting aside the abovesaid determination of the first appellate court. It is found that the first appellate court has also observed that the plaintiff is at liberty to workout his remedies known to law as far as survey number 226/5 is concerned and on that basis, it is found that the plaintiff has come forward with the petition in CMP No.7941/16 seeking to amend the plaint for the grant of the recovery of possession of the first item of the suit properties i.e. survey number 226/5, alternatively. With reference to the same, according to the plaintiff, inasmuch as he had been advised to work out his remedies in respect of survey number 226/5 by the first appellate court on the footing the he has not established his possession and enjoyment of the abovesaid item of the suit properties and accordingly has come forward with the abovesaid amendment application contending that in case this court does not concur with the case of the plaintiff that he is in the possession and enjoyment of the first item of the suit properties i.e. survey number 226/5, accordingly prayed for the recovery of the possession of the same from the defendants, alternatively, as according to the plaintiff, by way of the same, no serious prejudice or hardship would be caused to the defendants and further if amendment is ordered, it would also avoid multiciplity of proceedings and hence prayed for amendment. 15. 15. The defendants strongly resisted the prayer of amendment sought for by the plaintiff for the recovery of possession of the first item of the suit properties and contended that the abovesaid amendment is hit by the law of limitation and the plaintiff knew very well even at the time of the laying of the suit that he is not in the possession and enjoyment of the suit properties in toto and cannot be allowed to seek the relief of the recovery of the possession at the stage of the second appeal on the basis of the observation of the first appellate court and accordingly it is contended that the abovesaid amendment, if ordered, would alter the nature and character of the suit and also would cause irreparable loss, hardship and prejudice to the defendants and accordingly prayed for the dismissal of the petition. 16. As above discussed, despite the challenge of his claim of title to the suit properties based on Ex.A2 settlement deed by the defendants, the plaintiff had not preferred to amend the suit for the relief of declaration. Furthermore, from the inception, the defendants have also challenged the claim of the possession and enjoyment of the suit properties by the plaintiff and accordingly as above discussed, the plaintiff has not placed any material worth acceptance evidencing his claim of possession and enjoyment based on Ex.A2 settlement deed. As further noted above, the trial court is found to have erred in going to the question of title of the properties, without the plaintiff endeavouring to amend the plaint seeking declaration of title and that too without framing the issue on that point. As further noted above, the trial court is found to have erred in going to the question of title of the properties, without the plaintiff endeavouring to amend the plaint seeking declaration of title and that too without framing the issue on that point. That apart, the evidence of plaintiff's witness PW2 would go to show that he has clearly admitted that after the demise of Karuppapillai Konar, the suit properties had been jointly enjoyed by the sons of Karuppapillai Konar without any division and that he does not know in whose name the patta stand in respect of the suit properties, and such being the evidence of PW2, the plaintiff's witness, when the suit properties are found to be in the joint possession and enjoyment of the parties concerned, it is found that the trial court has blindly accepted the plaintiff's case based on the settlement deed EX.A2, without there being any material on the part of the plaintiff evidencing his claim of possession and enjoyment of the suit properties. Even, the first appellate court is found to have upheld the plaintiff's case in respect of the second item of the suit properties based on the documents of possession projected by the defendants and not on the part of the plaintiff. Be that as it may, as above noted, the defendants have not preferred any appeal or cross objection challenging the abovesaid judgment and decree of the first appellate court. 17. Therefore, the present suit having been laid simplicitor for relief of permanent injunction and the plaintiff having not placed any scrap of document evidencing his claim of possession and enjoyment pursuant to Ex.A2 settlement deed, to say the plaintiff would be entitled to seek the alternative relief of possession based on the observation of the first appellate court, in my considered opinion, cannot at all, be countenanced, in any manner. It is not the case of the plaintiff that the defendants have admitted his claim of possession and enjoyment in the written statement or during the course of their evidence, on the otherhand, when from the inception, the defendants have, tooth and nail challenged the claim of the possession and enjoyment of the suit properties by the plaintiff, in the abovesaid view of the matter, if the plaintiff is allowed to amend the suit for including the relief of possession, indirectly the plaintiff thereby attempting to convert his suit into a suit for title as if he has got the entitlement of the recovery of possession of the suit properties from the defendants, on the other hand, as above noted, the defendants have, right from the commencement of the litigation between the parties, been challenging the claim of the possession and enjoyment of the suit properties by the plaintiff and in such view of the matter, if the relief of possession, now sought for by the plaintiff, at the stage of second appeal is accepted, when it is seen that the abovesaid relief clearly being barred by the limitation, in such view of the matter, if the same is entertained, it would cause a serious loss and hardship to the defendants and also would prevent the defendants in taking the other pleas to resist the plaintiff's claim of possession of the suit properties, namely, the first item of the suit properties and in such view of the matter, the plaintiff's prayer for amending the plaint for recovery of possession of the first item of the suit properties alternatively, cannot be granted or accepted and if the same is entertained, it would only be shutting the doors of the defendants with reference to their entitlement to take the other pleas with reference to the said amendment in the manner known to law. Therefore, it is seen that the plaintiff's application for amendment is devoid of merits. In this connection, the decision relied upon by the plaintiff's counsel Nanduri Yogananda Lakshminarasimhachari and Others v. Sri Agastheswaraswamivaru, (1960) AIR SC 622 and the decision relied upon by the defendants' counsel L.C. Hanumanthappa (since dead) represented by his Lrs v. H.B. Shivakumar, (2016) 1 LW 998 are taken into consideration and the principles of law outlined in the same are followed as applicable to the case at the hand. 18. 18. Considering the materials placed on record as above noted, the plaintiff has miserably failed to establish his claim of possession and enjoyment of the suit properties, particularly, the first item of the suit properties. The first appellate court is found to have rejected the plaintiff's case based on the adangal extracts projected by the defendants, admittedly, the adangal extracts projected by the defendants in respect of the first item of the suit properties stand only in the name of the plaintiff and the defendants together. Now, according to the defendants in the written statement, after the demise of their father, they had been enjoying the suit properties in common jointly without any division and accordingly they are also the co-owners of the suit properties along with the plaintiff and hence the plaintiff is not entitled for the relief of permanent injunction as prayed for. Accordingly, it is noted that considering the position that the plaintiff has miserably failed to establish his claim of possession and enjoyment of the suit properties in toto, however, the first appellate court having come to the conclusion that the second item of the suit properties is in the possession and enjoyment of the plaintiff and with reference to the same, there had been no challenge by the defendants as above discussed and when the determination of the first appellate court that the plaintiff has not established his claim of possession and enjoyment of the first item of the suit properties, does not warrant any interference in this second appeal and as above pointed out, the plaintiff is also not entitled to seek the relief of recovery of possession of the same by way of amendment at the stage of second appeal as the same would cause a serious prejudice to the defence that may be available to the defendants with reference to the same in the manner known to law and the suit having been laid simplicitor for the relief of permanent injunction and any determination arrived in the suit either by this court or by the courts below as regards the question of title, would not, in any manner, be legally correct and binding upon the defendants, accordingly, the points of discussions made in the lis should be only taken as the finding to the question of possession and enjoyment of the respective parties of the suit properties. On the abovesaid reasonings, in my considered opinion, the first substantial question of law formulated in this second appeal does not arise for consideration in this matter, since the same is not relevant for the determination of the issues of possession and enjoyment of the suit properties as such, particularly, the suit not being the title suit by way of seeking the relief of declaration in respect of the suit properties and accordingly the first substantial question of law is left unanswered and considering the above discussions, the plaintiff having failed to establish his claim of possession of the suit properties pursuant to Ex.A2 settlement deed in any manner, on the other hand, only based on certain adangal extracts placed by the defendants, the first appellate court had come to the conclusion that the plaintiff is in the possession and enjoyment of the second item of the suit properties, it is seen that the possession of the first item of the suit properties in particular based on the settlement deed Ex.A2 solely cannot be determined for the simple reason that there is no material pointing to the same on the part of the plaintiff and in such view of the matter, on the basis of the available revenue records, it is seen that the first appellate court had come to the conclusion that only the second item of the suit properties is in the possession and enjoyment of the plaintiff and that the first item of the suit properties is not in the possession and enjoyment of the plaintiff and on the other hand the same is in the possession and enjoyment of the plaintiff and the defendants together, which do not call for any interference. The substantial questions of law 2 and 3 are accordingly answered against the plaintiff and in favour of the defendants. 19. In conclusion, the second appeal fails and is accordingly dismissed with costs. CMP No. 7941 of 2016 is dismissed. Consequently, connected miscellaneous petition, if any, is closed.