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2019 DIGILAW 2931 (MAD)

Kalasamy (Died) v. Korthi (Died)

2019-10-30

R.THARANI

body2019
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the Judgment and Decree passed in A.S.No.95 of 2011 dated 30.03.2013 on the file of the learned Additional Sub Judge, Tenkasi confirming the Judgment and Decree dated 10.03.2011 passed in O.S.No.644 of 2005 on the file of the learned Additional District Munsif, Tenkasi.) 1. Heard the learned counsel on both the side. 2. This appeal is filed against the judgment and decree passed in A.S.No.95 of 2011 dated 30.03.2013 on the file of the learned Additional Sub Judge, Tenkasi confirming the Judgment and Decree dated 10.03.2011 passed in O.S.No.644 of 2005 on the file of the learned Additional District Munsif, Tenkasi. 3. The appellants herein are the legal heirs of the plaintiff and the respondents herein are the defendants in the suit. One Kalasamy filed a suit in O.S.No.644 of 2005 before the learned Additional District Munsif, Tenkasi for a prayer of declaration and for recovery of possession and for injunction not to put up any construction in the suit property and for meane profits. The trial Court dismissed the suit. Against which, the appellants herein filed an appeal in A.S.No.95 of 2011 before the learned Additional Sub Judge, Tenkasi. The learned Additional Sub Judge dismissed the appeal by confirming the Judgment and Decree of the trial Court. Against the dismissal of the appeal, the appellants have filed this second appeal. 4. The case of the plaintiff is that the suit property is the ancestral property of the plaintiff's father. After the demise of the father, the plaintiff was in possession of the suit property. The sisters of the plaintiff namely Rasammal and Sornam were married and they relinquished their right in the suit property. Patta No.268 was issued in the name of the plaintiff. The second defendant offered to purchase the property for a meagre amount. Since the plaintiff refused for the same, he forged documents. The defendants filed a suit in O.S.No.88 of 2000 against this plaintiff. Subsequently he left the case for dismissal. The plaintiff permitted one Ramasamy Nadar to cultivate the property as a tenant from the year 1990. Ramasamy Nadar filed a suit in O.S.No.1 of 2002 against the defendants and subsequently the first defendant and Ramasamy colluded together and the suit was dismissed. O.S.No.1 of 2002 has nothing to do with the suit property. The plaintiff permitted one Ramasamy Nadar to cultivate the property as a tenant from the year 1990. Ramasamy Nadar filed a suit in O.S.No.1 of 2002 against the defendants and subsequently the first defendant and Ramasamy colluded together and the suit was dismissed. O.S.No.1 of 2002 has nothing to do with the suit property. Both the defendants 1 and 2 have no right over the suit property. The first defendant tried to put up some construction in the property. The plaintiff sent a notice on 18.10.2005 and on 22.10.2005 with the help of some forged document, the first defendant lodged a complaint before the Surandai Police Station and the defendants 1 and 2 encroached upon the property on 25.10.2005 and the plaintiff filed a suit for declaration and for recovery of possession and for injunction not to put up any construction. 5. The brief substance of the written statement filed by the first defendant is as follows:- (a) The plaintiff failed to mention when the family agreement was entered into and that when his sisters relinquished their right. Survey no.85/4A patta no.268 was given in the joint name of the defendants also. The suit property originally belong to Arumuga Nadar and he was enjoying the property. After his demise, his daughters Marimmal and Kasiammal partitioned the suit properties and they were in possession and enjoyment of the suit properties. Mariammal sold the suit properties to Masanam and Masanam sold the property to Nallakannu Thevar who in turn sold the property to the first defendant on 20.04.2000. It is stated that the suit properties were in possession of the first defendant and the properties were not in the possession of the plaintiff. (b) Nallakannu obtained an exparte decree in O.S.No.88 of 2000 but subsequently he sold the property and left the suit for dismissal. The plaintiff with the help of his henchmen filed a suit in O.S.No.1 of 2002 and he himself was the second defendant in the suit and he remained exparte. He directed his henchmen Ramasamy to file a petition before the Tahsildar in D.R.No.1 of 2002 and he was the respondent in that petition also. That petition was dismissed on 06.10.2003. No appeal was filed against that order till today. Ramasamy was examined as a witness in O.S.No.1 of 2002 and he accepted that he filed a petition in D.R.No.1 of 2002. That petition was dismissed on 06.10.2003. No appeal was filed against that order till today. Ramasamy was examined as a witness in O.S.No.1 of 2002 and he accepted that he filed a petition in D.R.No.1 of 2002. He also admitted that he and the plaintiff approached the Advocate and took steps for filing the petition. (c) The plaintiff admitted that Ramasamy was a tenant and he was not impleaded in this suit and this suit is bad for non joinder of necessary parties. The reply notice sent by the defendants is received by the plaintiff. The suit properties was not in the possession and enjoyment of the plaintiff. The Police directed the plaintiff to approach the Civil Court. The second defendant is no way connected with the case. The third defendant is not a necessary party and the suit is to be dismissed. 6. The brief substance of the written statement of the second defendant is as follows:- The statement that after the death of the plaintiff's father, the sisters of the plaintiff relinquished their right over the suit property is wrong. The suit property originally belong to Arumuga Nadar. After his demise, his daughters Mariammal and Kasiammal partitioned the properties. The suit property was allotted to Mariammal and Mariammal sold the properties to Masanam who in turn sold the properties to the second defendant. Subsequently the second defendant sold the property to the first defendant. Twice the suit in O.S.No.88 of 2000 was decreed exparte. As the second defendant sold the property to the first defendant, he did not proceed with the case and the suit was dismissed for default. The suit is bad for misjoinder of parties. 7. On the above said pleadings, the following issues were framed: “TAMIL” 8. Two witnesses were examined as P.W.1 and P.W.2 and 5 documents were marked as Exs.A1 to A5 on the side of the plaintiff. Two witnesses were examined as D.W.1 and D.W.2 and 7 documents were marked as Exs.B1 to B7 on the side of the defendants. One document was marked as Ex.X1. After considering the evidences and arguments, the trial Court dismissed the suit. Against which, the appellant herein preferred an appeal in A.S.No.95 of 2011 before the Additional Sub Court, Tenkasi. 9. Two witnesses were examined as D.W.1 and D.W.2 and 7 documents were marked as Exs.B1 to B7 on the side of the defendants. One document was marked as Ex.X1. After considering the evidences and arguments, the trial Court dismissed the suit. Against which, the appellant herein preferred an appeal in A.S.No.95 of 2011 before the Additional Sub Court, Tenkasi. 9. In the grounds of first appeal in A.S.No.95 of 2011, it is stated that the trial Court failed to consider the oral and documentary evidence and the appellant filed Exs.A1 to A5 and X1 to prove title. The trial Court failed to consider Ex.B5 sale deed which was executed by Nallakannu Thevar in favour of the first defendant. Patta was issued in the name of Arumuga Nadar and the trial Court failed to consider the patta. Arumuga Nadar himself has no right over the suit properties. Mariammal also has no right over the suit properties and the sale deeds were created by Nallakannu Nadar by using his position as the Village Administrative Officer. The suit in O.S.No.1 of 2002 is between the tenant and the landlord and O.S.No.88 of 2000 is res judicata for the present suit. The trial Court failed to consider the same. On the abovesaid pleadings, the following issues were framed: “TAMIL” 10. The first appellate Court dismissed the appeal by confirming the judgment and decree passed by the trial Court. Aggrieved by the judgment and decree, the appellants herein have preferred this second appeal. 11. In the grounds of second appeal, it is stated that both the lower Courts failed to consider that the suit property belong to the appellants through Ex.A1 which is a settlement deed of the year 1993. Both the lower Courts failed to consider that patta no.268 was also in the name of the appellant and all the revenue records reflex the name of the appellant and the Courts below failed to give importance to Exs.A1 and A5. The Courts below failed to consider that O.S.No.88 of 2000 was dismissed for default. Both the Courts below erroneously contended that the suit is barred by res judicata. 12. The Courts below failed to consider that O.S.No.88 of 2000 was dismissed for default. Both the Courts below erroneously contended that the suit is barred by res judicata. 12. This Court by its order dated 06.03.2014, has admitted the second appeal and has framed the following substantial questions of law, which are as follows: “(a) Whether the Courts below have rightly applied its mind with regard to Section 11 of Civil Procedure Code by giving a finding that the suit in O.S.No.644 of 2005 is hit by res judicata ? (b) Whether the Courts below are right in deciding the case in favour of the defendants when the second defendant wantonly allowed his case in O.S.No.88 of 2000 dismissed for default and taking a plea against his own case ?” Issue no. (a) : 13. On the side of the appellants, it is stated that instead of considering the title, both the lower Court concentrated only on res judicata. It is stated that the earlier suit in O.S.No.88 of 2000 cannot be taken as res judicata in this case. The issue in question in that earlier suit is regarding the tenancy right of one Ramasamy and that a case against the tenants and landlord cannot be taken as a res judicata for subsequent case regarding title. 14. On the side of the appellants, it is stated that both the lower Courts have discussed only the question of res judicata and failed to consider the question of title. It is stated that the suit in O.S.No.88 of 2000 is res judicata for the present suit. Both the lower Courts failed to consider that the plaintiff/appellant did not contest the suit in O.S.No.88 of 2000 and that the prayer in that suit is regarding the tenancy right and not regarding the title. 15. On the side of the respondents, it is stated that both the lower Courts considered the question of title by framing separate issues. It is stated that the learned District Munsif framed an issue as to whether the plaintiff is entitled for declaration of title and the learned District Munsif gave a clear finding that the plaintiff is not entitled for a declaration of title. 16. It is stated that the learned District Munsif framed an issue as to whether the plaintiff is entitled for declaration of title and the learned District Munsif gave a clear finding that the plaintiff is not entitled for a declaration of title. 16. It is further stated that the learned Additional Sub Judge, Tenkasi also has framed an issue as to the title of the plaintiff in issue no.3 and gave a findings that the plaintiff is not entitled for declaration and for injunction. 17. The learned counsel appearing for the appellants relied on the judgment passed by the Hon'ble Supreme Court in the case of Sajjadanashin Sayed MD. B.E. E.D.R. (D) By Lrs. v. Musa Dadabhai Ummer and others reported in (2000) 3 SCC 350 , which reads as follows: “Decision on matter collaterally or incidentally in issue in previous proceedings would not ordinarily operate as res judicata in subsequent proceedings where that matter is directly and substantially in issue.” 18. The learned counsel appearing for the appellants relied on the judgment passed by the Hon'ble Supreme Court in the case of Williams v. Lourdusamy and another reported in (2008) 5 SCC 647 , which reads as follows: “As a matter of fact even such an issue was not framed – it is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess – High Court posed unto itself a wrong question” 19. On the side of the respondents, it is stated that this question raised by the appellant is only question of fact and not a question of law. It is stated that Section 100 of CPC., is applicable only when it is stated as “in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.” 20. The learned counsel appearing for the respondents relied on the judgment passed by the Hon'ble Supreme Court in the case of Thulasidhara and another v. Narayanappa and others reported in (2019) 6 SCC 409 , which reads as follows: “No other substantial question of law was framed. The learned counsel appearing for the respondents relied on the judgment passed by the Hon'ble Supreme Court in the case of Thulasidhara and another v. Narayanappa and others reported in (2019) 6 SCC 409 , which reads as follows: “No other substantial question of law was framed. We are afraid that the aforesaid can be said to be a substantial question of law at all. It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. If the first appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial Court could have decided differently is not a question of law justifying interference in second appeal.” 21. The claim of the appellant is based on five documents, Exs.A1 to A5 were not helpful to decide the title. Ex.A5 is the kist receipt and Ex.A1 is chitta. This chitta was issued on 07.01.2008. Except these two documents, the appellants have not produced any document to substantiate his claim of title. Ex.X1 is a document showing that destruction order pertaining to T.T.R. 1992 – 1993. This document is also not helpful to prove the title of the plaintiff. The claim of the respondents is that the suit property belong to one Arumuga Nadar. After the demise of Arumuga Nadar, his daughters got the property through partition. Mariammal sold the property who in turn sold the property to Nallakannu Thevar who in turn sold the property to the first defendant on 24.04.2000. 22. The plaintiff claimed these documents as created documents but the plaintiff had not come forward to cancel these documents. It is seen that the suit in O.S.No.1 of 2002 was filed by one Ramasamy against the first respondent and the plaintiff. The plaintiff did not contest the suit and in that suit, it is stated that the appellant is not the owner of the property. It was stated that the first defendant was the owner of the property and the suit was dismissed by the trial Court. 23. The plaintiff did not contest the suit and in that suit, it is stated that the appellant is not the owner of the property. It was stated that the first defendant was the owner of the property and the suit was dismissed by the trial Court. 23. It is seen that the appellant/plaintiff gave evidence in that the suit. The suit property belong to Arumuga Nadar and the property was allotted to the share of Mariammal and Mariammal sold the property to Masanam. The suit was not decided only on the grounds of res judicata. Only after considering the oral evidence and documents on both sides, the lower Courts came to the conclusion that the plaintiff did not prove title. Hence, it is decided that this question raised by the appellant is not maintainable. Issue No. (b): 24. On the side of the appellants, it is stated that the defendants allowed the case in O.S.No.88 of 2000 to be dismissed for default and the defendants now cannot take a plea against their own case. 25. On the side of the respondent, it is stated that twice O.S.No.88 of 2000 was decreed as exparte decree and that the suit was filed by Nallakannu Thevar who is the second defendant in this suit and that subsequently Nallukannu Thevar sold the property to the first defendant and he did not follow up the suit filed by him and the suit was dismissed for default. The contention of the respondents is acceptable since Nallakannu Thevar sold the property to the first defendant, he might not be interested in proceeding with the case further. The contention of the second defendant in the earlier suit was not against the interest of the first defendant. Hence, this question raised by the appellants is not maintainable. 26. There is nothing sufficient enough to interfere in the judgment and decree passed by the first appellate Court. Hence, this Second Appeal is dismissed by confirming the judgment and decree passed in A.S.No.95 of 2011 dated 30.03.2013 on the file of the learned Additional Sub Judge, Tenkasi confirming the Judgment and Decree dated 10.03.2011 passed in O.S.No.644 of 2005 on the file of the learned Additional District Munsif, Tenkasi. No Costs.