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2019 DIGILAW 285 (MAD)

P. Balakrishnan v. P. Baskaran

2019-01-29

R.THARANI

body2019
JUDGMENT : 1. Heard Mr. A. Saravanan, learned counsel appearing for the appellant and Mr. T.C.S. Thillai Nayagam, learned counsel appearing for the first respondent. 2. This appeal is filed against the Judgment and Decree passed in O.S.No.218 of 2004 dated 22.04.2008 on the file of the learned Additional District and Sessions Judge(Fast Track Court No.3), Madurai. 3. The first respondent herein is the plaintiff and the appellant herein is the first defendant and the respondents 2 to 5 herein are the defendants 2 to 5 in the suit. The first respondent herein has filed a partition suit in O.S.No.218 of 2004 before the learned Additional District and Sessions Judge (Fast Track Court III), Madurai. Another suit in O.S.No.1 of 2007 was filed by the first respondent herein before the learned District Munsif, Madurai Town. The appellant herein filed a suit in O.S.No.1866 of 2004 for measne profits before the learned District Munsif, Madurai. The appellant herein has filed a petition in Tr.O.P.No.68 of 2005 before the learned Principal District Judge, Madurai to try all the three case in O.S.Nos.627 of 2004, 1866 of 2004 and 218 of 2004 jointly and the learned Principal District Judge, Madurai allowed the petition and transferred O.S.Nos.627 of 2004 and 1866 of 2004 to I Additional District Court, Madurai Town to be tried along with O.S.No.218 of 2004. Both the suits in O.S.No.627 and 1866 of 2004 were renumbered as O.S.No.1 of 2007 and 137 of 2006 respectively. Later all the three cases were transferred from the I Additional District Court to the Fast Track Court III, Madurai. 4. The first defendant in O.S.No.218 of 2004 filed a joint trial memo to try the suit along with O.S.Nos.137 of 2006 and 1 of 2007 together. The appellant herein has filed a petition in Tr.O.P.No.27 of 2008 to transfer the suits O.S.Nos.218 of 2004, 137 of 2006 and 1 of 2007 from Fast Track Court III to any other District Court. The petition was closed on 18.06.2008 stating that the Officer against whom the allegation were made has been transferred and the petition is closed. On 22.04.2008, the learned Additional District and Sessions Judge (Fast Track Court III), Madurai passed a common Judgment in O.S.Nos.218 of 2004 and 1 of 2007. The defendants 1, 3 to 5 remained ex-parte and both the suits were decreed in favour of the plaintiff. On 22.04.2008, the learned Additional District and Sessions Judge (Fast Track Court III), Madurai passed a common Judgment in O.S.Nos.218 of 2004 and 1 of 2007. The defendants 1, 3 to 5 remained ex-parte and both the suits were decreed in favour of the plaintiff. Against the Judgment and Decree, the appellant has filed this appeal suit. 5. The case of the plaintiff in O.S.No.218 of 2004 is that the plaintiff and the defendants 1 and 2 are brothers. The suit property was purchased by the plaintiff, defendants 1 and 2 and another brother of plaintiff namely P.Subramaniam on a registered sale deed dated 30.01.1992, 03.02.1992, 04.03.1992 and 04.03.1992 respectively from Radhakrishnan, Gnanambal and Sathyabama individually and jointly. The suit property was purchased for a valuable consideration by the plaintiff and defendants 1 and 2 and one Subramaniam and they contributed equal share in the sale price. The joint family property was sold away by the four brothers in December 1990 and from that funds and with their savings, the four brothers purchased the suit property. At the time of purchase, the building was in a dilapidated condition. The plaintiff, the defendants 1 and 2 purchased undivided ¼ share of the elder brother namely Subramaniam through sale deeds dated 19.11.1993, 22.11.1993 and 24.11.1993 for a valuable consideration by contributing equally. After the purchase, the plaintiff and the defendants have demolished the old building and they contributed Rs. 8,00,000/- (Rupees Eight Lakhs only) each and constructed a new building. The “Grapravesam” was conducted on 06.02.1995 by printing invitation by the plaintiff and the defendants 1 and 2. The suit property comprises three floors, ground floor, first floor and second floor. The first defendant was permitted to let out the portion of the plaintiff to tenants as he was working in TVS at Bangalore. The first defendant let out two non residental shops in the ground floor to tenants. One of the shops was now let out to Manjula Jewellers and was vacant for the past six months. Another shop was leased out to the third defendant for jewellery shop for a monthly rent of Rs.600/- (Rupees Six Hundred only). The back portion of the entire ground floor was leased out to the fourth defendant for residental purpose for a monthly rent of Rs.5,000/- (Rupees Five Thousand only) and the rent was collected by the first defendant. 6. Another shop was leased out to the third defendant for jewellery shop for a monthly rent of Rs.600/- (Rupees Six Hundred only). The back portion of the entire ground floor was leased out to the fourth defendant for residental purpose for a monthly rent of Rs.5,000/- (Rupees Five Thousand only) and the rent was collected by the first defendant. 6. The 2 portions in the first floor was occupied by the second defendant and Rs.4000/- was paid as rent. Another portion in first floor has been leased out to the fifth defendant for residental purpose for a monthly rent of Rs.4,000/-. The first defendant refused to furnish accounts and failed to give the shares of the rent to the plaintiff. The loan was discharged by the first defendant with respect of purchase of house no.28 in his name. In August 2001, when the plaintiff came to Madurai, he was residing in a rental house. The first defendant was requested to divide the suit properties into three equal shares and the first defendant was insisted to furnish accounts for the period from June 2001. The first defendant gave evasive reply. The second defendant is also not willing to divide the properties as he is in enjoyment of the second floor of the property. 7. The case of the first defendant in O.S.No.218 of 2004 is that the entire sale consideration was not paid by the plaintiff and the second defendant. They have no source of income. Entire construction cost was borne by the first defendant. The plaintiff and the second defendant never contributed any amount for the construction of the building. The plaintiff and the second defendant did not pay any amount to the first defendant. The first defendant filed a suit in O.S.No.1866 of 2004 for collecting the same and the suit properties in Door No.28, East Chetty Street, Madurai, South Avani Moola Street was purchased by the first defendant out of the profits from his own business. In O.S.No.627 of 2004, the plaintiff has stated that he is in occupation of the second floor of the suit property. In the suit, he has claimed that it was occupied by the tenants. The suit is not filed within the period of limitation and it is time bared. The first defendant had spent more than Rs.36,00,000/- (Rupees Thirty Six Thousand only) for constructing the suit property. 8. In the suit, he has claimed that it was occupied by the tenants. The suit is not filed within the period of limitation and it is time bared. The first defendant had spent more than Rs.36,00,000/- (Rupees Thirty Six Thousand only) for constructing the suit property. 8. It is stated that the seventh defendant had vacated the premises and handed over the key to the second defendant and it was handed over to the plaintiff in turn and the second defendant and plaintiff are colluding and usurping in the building and the construction cost was paid by the first defendant alone. 9. Based on the above said pleadings, five issues were framed by the trial Court. They are as follows: Issues: “(1) Whether the plaintiff is entitled to 1/3rd share as mentioned in the plaint? (2) Whether the second defendant is entitled to 1/3rd share as mentioned in the written statement cum counter claim? (3) Whether the first defendant is liable to render the amount? (4) Whether the plaintiff and the second defendant did not pay their share to the construction cost of the building as mentioned in the first defendant's written statement? (5) To what other relief if any the plaintiff is entitled to?” 10. The parties went for trial based on the framing of the above said issues. On the side of the plaintiff, one witness was examined as P.W.1 and 21 documents were marked as Exs.A1 to A21 on the side of the appellant/first defendant, one witness was examined as D.W.1 and 3 documents were marked Exs.B1 to B3. 11. The learned trial Judge, heard the arguments advanced on both sides and considered the pleadings and evidence in the light of the points urged in the arguments submitted on behalf of the parties. On an appreciation of evidence, the learned trial Judge answered all the issues in favour of the first respondent herein/plaintiff and decreed the suit with costs and passed a preliminary decree for partition of plaintiff's 1/3rd share by a common judgment and decree dated 22.04.2008. Against the Judgment and Decree, the present appeal has been filed on various grounds set out in the memorandum of grounds of appeal. 12. The points that arise for consideration in the appeal are: “(1)Whether the plaintiff is entitled to 1/3rd share? (2)Whether the second defendant is entitled to 1/3rd share? Against the Judgment and Decree, the present appeal has been filed on various grounds set out in the memorandum of grounds of appeal. 12. The points that arise for consideration in the appeal are: “(1)Whether the plaintiff is entitled to 1/3rd share? (2)Whether the second defendant is entitled to 1/3rd share? (3)Whether entire cost for construction of the building was spent by the appellant herein? (4)Whether the Judgment of the trial Court is not in confirmity with Order 7 Rule 2? (5)Whether the trial Court conducted by the Court is vitated by Section 24 of C.P.C.? (6)Whether the lower Court has altered the jurisdiction of Tr.O.P.No.68 of 2005?” Issue No.1: 13. On the side of the appellant, it is stated that the plaintiff is not having any share in the property and that the entire cost of construction was paid only by the appellant and that the plaintiff was not having any source of income and that the property was purchased by the appellant from the income derived from his own business. 14. On the side of the first respondent, it is stated that Exs.A11 to A21 receipts are filed to prove possession and ownership and that Exs.A11 to A13 and A20 and A21 are E.B. Receipts in the name of the plaintiffs and that Ex.A4 is the family card and that Exs.A5 to A19 are receipts for payment of telephone bills in the name of the plaintiff and that Exs.B5 and B6 reveals that the first respondent/plaintiff is having 1/3th share in the property. 15. Both P.W.1 and D.W.1 have filed proof affidavits stating that the purchase was made by the brothers jointly. D.W.1 has admitted that service connection is in the name of the second defendant for the first floor and E.B. Connection was in the name of the plaintiff for the second floor. Exs.B1 to B3 are E.B. Receipts in the name of second defendant. Ex.B12 is the settlement deed executed by the second defendant in favour of the plaintiff. Exs.A1 to A4 clearly reveals that the property was purchased by the four brothers and Exs.A5 to A8 reveals that one of the brothers sold his 1/4th share to other three brothers and that consideration was equally paid by other three brothers. Exs.A9 to A24 reveals that the plaintiff is in enjoyment of the suit property. Exs.A1 to A4 clearly reveals that the property was purchased by the four brothers and Exs.A5 to A8 reveals that one of the brothers sold his 1/4th share to other three brothers and that consideration was equally paid by other three brothers. Exs.A9 to A24 reveals that the plaintiff is in enjoyment of the suit property. From the evidence of P.W.1, D.W.1 and from Exs.A1 to A8, A11 to A21 and from Exs.B1 to B3 and B12, it is decided that the plaintiff/first respondent is having 1/3th share in the property. From Exs.A1 to A8 and B12, it is clear that the first respondent and the plaintiff are having 1/3th right in the suit schedule property. Issue No.2: 16. On the side of the first respondent, it is stated that the second respondent is having 1/3th share in the property and that the second respondent accepted that the first respondent is also having 1/3th share in the property. On the side of the respondents Ex.B1, Consumption card of TNEB and Exs.B2 and B3, the electricity receipts stands in the name of the second respondent were marked. Though the appellant denied the title of the second respondent over the building, the appellant filed document in Ex.B12, settlement deed in favour of the appellant. Though this document is subsequent to the suit, this document reveals that the second respondent is having 1/3th share in the property which was admitted by the appellant. 17. It is seen that the appellant has obtained the share of the second respondent by way of a settlement. Hence, it is decided that at the time of the filing of the suit, the second respondent was having a right over 1/3th share of the suit property. Issue No.3: 18. On the side of the appellant, it is stated that the entire cost for construction of the building was spent by the appellant herein. It is stated that all the four brothers bought the suit properties through four sale deeds which are marked as Exs.A1 to A4. Subsequently, one of the elder brother, Subramaniyan executed four sale deeds in favour of the plaintiff and the defendants 1 and 2 which are marked as Exs.A5 to A8. 19. The contention of the appellant is that respondents 1 and 2 are having no income and they have not contributed any amount towards the sale consideration for Exs.A1 to A4. Subsequently, one of the elder brother, Subramaniyan executed four sale deeds in favour of the plaintiff and the defendants 1 and 2 which are marked as Exs.A5 to A8. 19. The contention of the appellant is that respondents 1 and 2 are having no income and they have not contributed any amount towards the sale consideration for Exs.A1 to A4. The case of the appellant is that the suit property was jointly purchased by the defendants 1 and 2 and by the plaintiff. Hence, there was no dispute regarding the purchase of the land by the three brothers on equal contribution. 20. On the side of the appellant, it is stated that the plaintiff and the second defendant did not contribute any amount towards the construction of the building and that the construction was done only by the appellant from the income derived from his own business and that both the plaintiff and the second defendant had no source of income for construction of the building. It is stated that the plaintiff and the second defendant have not paid the construction costs to the first defendant and they agreed that they are not entitled to possession of the suit property unless and until they paid their share in the cost of construction. 21. On the side of the appellant, it is stated that the respondents did not participate in the trial proceedings and he has not proved that he has contributed 1/3rd of the money for the construction. The case of the plaintiff/first respondent is that each brother contributed Rs.8,00,000/- (Rupees Eight Lakhs only) towards the construction of the building and that the building was constructed with the joint fund of the appellant and the respondents. 22. On the side of the appellant, it is stated that the appellant spent for the entire construction and to prove this, Exs.B4 to B12 were filed by the appellant. A perusal of the records reveals that there is nothing in Exs.B4 to B12 to show that the cost of construction was entirely paid by the appellant. Ex.B6 is the statement of accounts stated to have been given by one of the brothers in favour of the appellant. These accounts reveals that the elder brother received some amount and released his share in the property. Ex.B6 is the statement of accounts stated to have been given by one of the brothers in favour of the appellant. These accounts reveals that the elder brother received some amount and released his share in the property. This document cannot be taken into account as a document to show that the entire construction of the building was done by the appellant herein. 23. Ex.B5 is the receipt signed by the first respondent for receiving rent advance from a tenant dated 01.11.1996. This document clearly reveals that the first respondent is also having a share in the property and in the building and this document cannot be taken as a document in favour of the appellant herein. Ex.B7 was an agreement said to have been executed by the first respondent agreeing to sell his 1/3rd share in the property in Door no.84/A, Meela Chettiyar Road, Madurai to the appellant herein. This agreement is dated 24.11.2002. This document also reveals that the first respondent is having 1/3rd share in the property. Ex.B7 document reveals that the contention of the appellant is wrong. The appellant by this document cannot claim that he has spent for entire construction. 24. It is stated that Ex.B8 is the FIR lodged by one Raghavathiran against the first respondent. Though Ragavathiran lodged a complaint against the first respondent's wife for breaking open the lock of the house, the FIR was registered only after a contempt petition was filed before this Court. Exs.B9 and B10 are paper publications regarding the contempt proceedings taken for non-registration of FIR. Exs.B8 to B10 are in contradiction to Ex.B5. The first respondent was in possession of the property on 01.11.1996 and Exs.B8 to B10 are regarding the forcible intervention of the first respondent in the suit property. Ex.B11 is a tenancy agreement executed between the appellant and one Kathiresan. It is the case of the plaintiff that suit property was left in the custody of the appellant and the appellant failed to maintain the accounts. Ex.B12 is a settlement deed executed by the second respondent in favour of the appellant. This document also reveals that the property belongs to the appellant and the respondents jointly and that the second appellant is having 1/3th share in the property. Hence, this document is also not supporting the case of the appellant. 25. Ex.B12 is a settlement deed executed by the second respondent in favour of the appellant. This document also reveals that the property belongs to the appellant and the respondents jointly and that the second appellant is having 1/3th share in the property. Hence, this document is also not supporting the case of the appellant. 25. On the side of the respondent, it is stated that all the three brothers have spent Rs.8,00,000/- (Rupees Eight Lakhs only) each towards the construction of the building. It is stated that in the ground floor, there are two shops and one is a residental house and in the first floor, there are two houses and in the second floor, two residential houses are constructed. It is stated that the appellant being the elder brother was entrusted with the collection of rent. The document filed by the appellant, Ex.B12 reveals that the house was rented by the appellant. The case of the first respondent is that one of the shops was rented to one Manjula Jewellers. At the time of filing the case, the shop was under lock and key and another shop was leased out to the third defendant for running a jewellery shop for a rent of Rs.600/- (Rupees Six Hundred only). The back portion of entire ground floor was leased out to the fourth defendant for a monthly rent of Rs.5,000/- (Rupees Five Thousand only) and the same was collected by the first defendant. The 2 portions in first floor was occupied by the second defendant. Another portion in the first floor was leased out to the fifth defendant for a monthly rent of Rs.4,000/-(Rupees Four Thousand only). The case of the first respondent is that the appellant refused to furnish the accounts and refused to give the share to the plaintiff. 26. Ex.B5 filed by the appellant reveals that the first respondent also leased out a portion of the building and he received an advance. Exs.B9 and 10 reveals that the first respondent has taken possession of the portion of the property. Ex.B8 reveals that there was some agreement between the appellant and the first respondent. The tenancy agreement Ex.B11, settlement deed and Ex.B12 reveals that the appellant and the first respondent and the second respondent are having equal 1/3th share in the building. 27. Exs.B9 and 10 reveals that the first respondent has taken possession of the portion of the property. Ex.B8 reveals that there was some agreement between the appellant and the first respondent. The tenancy agreement Ex.B11, settlement deed and Ex.B12 reveals that the appellant and the first respondent and the second respondent are having equal 1/3th share in the building. 27. A perusal of the records reveals that though sufficient opportunity was given to the appellant, he failed to appear before the lower Court at the time of trial and failed to produce witness and document on his side. Even before this Court, the documents filed by the appellant are not sufficient enough to prove that the construction was done only by the appellant and not by the first respondent. In the above circumstances, it is decided that the appellant failed to prove that the plaintiff and the second respondent did not pay any share for the construction as mentioned in the written statement. Issue No.4: 28. On the side of the appellant, it is stated that the first defendant was set as ex-parte and the suit was adjourned and that no such order was passed against the second defendant and that the suit was decreed ex parte on the adjourned date against both the defendants. On the side of the appellant, it is stated that the trial was conducted without giving any opportunity for the appellant to put-forth his case. In the absence of the defendant, instead of passing an ex-parte decree, the trial Court has passed a decree on merits. It is stated that the procedure is not in confirmity with Order 17 Rule 2. 29. In the absence of the defendant, instead of passing an ex-parte decree, the trial Court has passed a decree on merits. It is stated that the procedure is not in confirmity with Order 17 Rule 2. 29. The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of M.Ramakrishnan v. K.Narasingam, in C.R.P. (MD)No.1923 of 2016, which reads as follows: “In view of the facts and circumstances of the case without expressing any opinion on merits, I am inclined to direct the petitioner to represent the application within a period of two weeks from the date of receipt of a copy of this order and thereafter, the trial Court is directed to number the said application, if the petitioner has complied with the other defects as pointed by the trial Court, within a period of two weeks and the respondent is at liberty to raise all his contentions with regard to maintainability after numbering the suit.” 30. In support of his contention, the Judgment passed by this Court in the case P.Chandran v. N.Murugananthi, reported in 2015-3-L.W. 305, which reads as follows: “The absenting party should have already adduced evidence in full or a substantial portion of his evidence, then only the explanation will enable the Court to proceed with the case as if such a party were present.” 31. A perusal of the records reveals that D.W.1 was examined and Exs.B1 to B3 were marked on the side of the second defendant and the first defendant has filed his written statement but failed to participate in the trial proceedings. The suit preliminary decree was passed only after full trial and the facts and circumstance stated in the citation are different and not applicable to this case and there is no infirmity in the procedure. Issue No.5: 32. On the side of the appellant, it is stated that the suit is vitiated under Section 24(3) of the C.P.C. It is stated that the learned Additional and Sessions Judge is deemed to be sub ordinate to the learned Principal District Judge and the learned Additional District Judge has no authority to over-look the order passed by the learned Principal District Judge and thereby, entire proceedings is to be vitiated. 33. 33. On the side of the first respondent, it is stated that already the appellant has filed Tr.O.P.No.27 of 2008 before the learned Principal District Judge on the very same reason and the petition was closed and the appellant has not taken any steps to file a revision or any appeal. It is not correct to say that the Principal District Court is a superior Court to the Additional District Court. Only administrative control is vested with the learned Principal District Judge and it is seen that the order of the learned Principal District Judge was not brought to the knowledge of the learned Additional District Judge. Hence, this ground raised by the appellant is not sustainable. Issue No.6: 34. On the side of the appellant, it is stated that though the Principal District Court in Tr.O.P.68 of 2005 has ordered for joint trial of three cases, the Fast Track Court III altered the order and conducted trial only in two cases. The appellant filed a memo that one more case is to be added and that without considering that all the three case are relating to the same subject matter of the suit property which takes place between brothers, the trial Court conducted trial only for two cases. It is submitted that the trial Court has no jurisdiction to alter the Judgment of the learned Principal District Judge. 35. On the side of the first respondent, it is stated that the first respondent filed a memo before the trial Court for joint trial of O.S.No.218 of 2004, 137 of 2006 and 1 of 2007 on 12.02.2008. On the same date, the appellant filed an objection memo by stating that one more case in O.S.No.137 of 2006 is to be included for joint trial and that the trial Court came to the conclusion that both the suits are different in nature and the issue in O.S.No.137 of 2006 is different from the issue in O.S.Nos.218 of 2004 and 1 of 2007 and the parties are also not the same and overruled the objection memo and take up both the cases for trial. 36. 36. The appellant failed to bring to the notice of the learned Additional District Judge regarding the order passed in I.A.No.68 of 2007 and copy of the memo filed by the appellant clearly proves that the order of the learned Principal District Judge was not brought to the knowledge of the trial Judge. Moreover O.S.No.136 of 2006 is only filed for meane profits and the matter in issue to be decided in other two suits in O.S.Nos.218 of 2004 and 1 of 2007 are different and these two cases would not be affected if O.S.No.136 of 2006 is not tried altogether. The right of the appellant can be decided only in O.S.Nos.218 of 2004 and 1 of 2007. O.S.No.136 of 2006 is depend upon the possession made in this suits and non-jointer of trial of O.S.No.136 of 2006 will not affect the trial of other cases. Even-though there was a procedural flaw, the same is not affecting the trial of this two cases. 37. The order of Tr.O.P.No.68 of 2005 reveals that the learned Principal District Judge has passed an order to try all the three cases together before the I Additional District Court. It is seen that in the joint trial memo filed by the appellant in O.S.No.218 of 2004 before the Fast Track Court III, Madurai. It is stated that this suit is to be tried along with O.S.Nos.137 of 2006 and 1 of 2007 on the file of Fast Track Court III, Madurai. As the order of transfer passed by the Principal District Judge was not brought to the knowledge of the Trial Judge, the trial Judge passed an order over-ruling the memo filed by the appellant. 38. Tr.O.P.NO.27 of 2008 is closed by the learned Principal District Judge, against the order, the appellant has not come forward to file a revision petition. Since the order passed in Tr.O.P.No.68 of 2005 was not brought to the notice of the trial Court, this point raised by the appellant is not sustainable. 39. All the issues are decided against the appellant. The appellant failed to prove that he has contributed the entire cost for the construction. Even the documents filed by the appellant in Exs.B8, 11 and 12 reveals that the plaintiff and the second defendant were having each 1/3th share in the property. 39. All the issues are decided against the appellant. The appellant failed to prove that he has contributed the entire cost for the construction. Even the documents filed by the appellant in Exs.B8, 11 and 12 reveals that the plaintiff and the second defendant were having each 1/3th share in the property. The order of the learned Principal District Judge in O.S.No.68 of 2005 was not brought to the notice of the learned Additional District Judge. No revision was filed against the order in T.R.O.P. No. 27 of 2008 and the case is not hid under Section 24(3) of C.P.C. In the above circumstances, there is nothing to interfere with the order of the trial Court. Hence this appeal is dismissed with cost.