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2020 DIGILAW 30 (MAD)

Monikantan Nair v. Sarojini Amma

2020-01-03

N.SATHISH KUMAR

body2020
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code praying to set aside the judgment and decree made in O.S.No.83 of 1985 on the file of the District Munsif Court, Kuzhithurai, dated 26.04.1996 and confirmed by the learned Second Additional Sub Judge Camp at Kuzhithurai, dated 26.04.2001, in A.S.No.65 of 1997.) Aggrieved over the concurrent finding of the Trial Court and the first Appellate Court, dismissing the suit filed by the appellant/plaintiff for declaration and injunction and also demarcation of plaint 'B' schedule property, the present Second Appeal has been filed. 2. While admitting the Second Appeal, the following substantial questions of law were framed for consideration: "(i) Whether a judgment in a prior suit for redemption of mortgage can be held binding on the plaintiff in a subsequent title suit? (ii) Whether in a suit for redemption of mortgage a binding decree as to title can be given? and (iii) Whether the recitals and property specifications schedule mentioned in a partition deed is not binding on the parties thereto persons claiming under or through them?" 3. The brief facts leading to the filing of the suit are as follows: The suit property consists of 37 cents in Old Survey No.1163 of Kollemcode Village. Originally, plaint 'A' schedule property was in possession of Janaki Pillai. Later, under partition deed dated 11.09.1102 M.E.(1927 A.D.), the western one half of the plaint 'A' schedule property, i.e., western 181/2 cents was allotted to one Kumara Pillai Sivasankara Pillai. The remaining eastern one half in 'A' schedule property was allotted to one Sadasivan Nair, the younger brother of Sivasankara Pillai. The said Kumara Pillai Sivasankara Pillai died on 06.01.1974. After his death, his widow Bhagavathi Amma and children including the present plaintiff entered a partition deed dated 01.01.1975, in which, Bhagavathi Amma got plaint 'B' schedule property. The said Bhagavathi Amma executed a gift deed in respect of 'B' schedule property to his son, namely, the plaintiff on 28.08.1980. It is the further stated by the plaintiff that the father of the plaintiff and mother put up a structure in the eastern property. Eastern portion of the plaint 'A' schedule property was mortgaged to Bhagavathi Amma by Sadasivan Nair on 29.05.1972. The defendant filed a suit in O.S.No.5 of 1979 for redemption of mortgage. It is the further stated by the plaintiff that the father of the plaintiff and mother put up a structure in the eastern property. Eastern portion of the plaint 'A' schedule property was mortgaged to Bhagavathi Amma by Sadasivan Nair on 29.05.1972. The defendant filed a suit in O.S.No.5 of 1979 for redemption of mortgage. The Court has granted a decree to the defendant for redemption of property on the basis of the area mentioned in the mortgage deed. Since the suit in O.S.No.5 of 1979 is a simple suit for redemption, the question of title was not decided. Since the decision in O.S.No.5 of 1979 has created cloud on the title of the plaintiff over the plaint 'B' schedule property, the plaintiff was compelled to file the suit for declaration of plaint 'B' schedule property. Hence, the suit. 4. It is the case of the defendant that Sadasivan Nair was not allotted any portion of Survey No.1163 under partition deed of the year 1927 AD. But, whereas, he has purchased 191/2 cents in the eastern portion of the said Survey Number. After the purchase of the said 191/2 cents, he constructed boundaries and compound wall for the same and other structures including latrine, cattle shed and kaliyal, etc., and he was in possession of all of them. It is the further case of the defendant that the plaintiff's father was not entitled to any portion of the said eastern 191/2 cents in Survey No.1163. While in possession of eastern 191/2 cents with structures, Sadasivan Nair mortgaged the same to the plaintiff's mother Bhagavathi Amma on 29.05.1972 and later, sold the property to the defendant on 19.08.1975. The defendant filed a suit in O.S.No.5 of 1979 against the present plaintiff's mother Bhagavathi Amma for redemption of the above mortgage and for recovery of compensation for destruction of structures in the property. The present plaintiff was contesting the said suit on behalf of his mother examining himself as D.W.1. The issue Nos.2 and 3 in the said suit were, (i) Whether the plaintiff therein, who is the present defendant, entitled to claim damages for destruction of structures in the eastern 191/2 cents and if so, to what extent? The present plaintiff was contesting the said suit on behalf of his mother examining himself as D.W.1. The issue Nos.2 and 3 in the said suit were, (i) Whether the plaintiff therein, who is the present defendant, entitled to claim damages for destruction of structures in the eastern 191/2 cents and if so, to what extent? and (ii) Were the Urakkalam, latrine and Kaliyal buildings and the compound walls constructed by the second defendant in the said suit (the mother of the present plaintiff) or were they in existence even on the date of the plaint mortgage? 5. After the contest, the Court below answered both the issues in favour of the defendant herein. Therefore, the present suit is also barred by the principle of res judicata and delivery of 19 1/2 cents was also taken by the defendant in the previous suit. The defendant's eastern 191/2 cents is a specific plot having compound walls on all its sides, admittedly, including its western side. There is no need for demarcation of the present plaint 'B' schedule property. 6. Based on the above pleadings, 10 issues were framed by the Trial Court. They are: "(i) Whether Kumara Pillai Sivasankara Pillai had a right over the plaint 'B' schedule property? (ii) Whether the plaintiff is entitled to plaint 'B' schedule property? (iii) Whether the defendant has any right in the plaint 'B' schedule property? (iv) Whether the suit is barred by the principle of res judicata, in view of the judgment in O.S.No.5 of 1979? (v) Whether under mortgage, plaint 'B' schedule property was passed to Bhagavathi Amma? (vi) Whether the suit is bad for non-joinder of necessary parties? (vii) Whether the plaintiff is entitled for declaration in respect of 'B' schedule property? (viii) Whether the plaintiff is entitled for injunction? (ix) Whether the plaintiff is entitled for a decree of demarcation? and (x) To what relief?" 7. Before the Trial Court, on the side of the plaintiff, P.W.1 was examined. Exs.A.1 to A.16 were marked. On the side of the defendant, D.W.1 was examined and Exs.B.1 to B.11 were marked. Court documents, namely Exs.C.1 and C.2 were also marked. 8. On the basis of the pleadings and evidence, the Trial Court has found that the extent of the entire suit property is not 37 cents as alleged by the plaintiff and only 32.125 cents are available on ground. Court documents, namely Exs.C.1 and C.2 were also marked. 8. On the basis of the pleadings and evidence, the Trial Court has found that the extent of the entire suit property is not 37 cents as alleged by the plaintiff and only 32.125 cents are available on ground. In fact, the issue involved in the suit is only with regard to the compound wall situated dividing both the properties and since the above issue was already covered in O.S.No5. of 1979, it is binding on the parties. 9. The first Appellate Court, considering the entire documents, has come to the factual finding that the contention of the plaintiff that in the 'A' schedule property, western part and eastern part divided equally and allotted under partition deed is not correct and ultimately, confirmed the finding of the Trial Court. Aggrieved over the same, the present Second Appeal has been filed. 10. It is the contention of the learned counsel appearing for the appellant that the suit property is measured about 37 cents in old Survey No.1163, corresponding to Re-Survey No.388/11 of Kollemcode Village, Vilavancode Taluk. One half of the property i.e., 181/2 cents belongs to the plaintiff's ancestor-in-interest and the other half on the eastern side belongs to the defendant and her vendor. Earlier, the defendant's vendor mortgaged the property of 191/2 cents though he was entitled to 181/2 cents. He has mortgaged 1 cent more than his share. The present defendant in the sale deed also states as 191/2 cents, more than one cent of her vendor entitlement. The plaintiff and the defendant are relatives and family members. Therefore, the defendant cannot claim more than one half of the schedule property. The defendant's vendor forcibly constructed a compound wall housing more area than his share. The Commissioner's report also indicates that now the present area is only 32.125 cents and he has also drawn a separating line, which separates equal half's. The plaintiff's house is in plot No.1 on the western side and the defendant's house is in plot No.2 on the eastern half of the suit property. This reduction in area was caused by the widening of the road on the southern side of the suit property. The defendant, who filed the previous suit, cannot stick on to the claim that she has got 191/2 cents. This reduction in area was caused by the widening of the road on the southern side of the suit property. The defendant, who filed the previous suit, cannot stick on to the claim that she has got 191/2 cents. The defendant, in order to occupy one cent more than her vendor's share, is taking advantage of the earlier suit. 11. It is further contended that O.S.No.5 of 1979 will not bar the present suit. There is no issue with regard to the title. Therefore, the suit filed for redemption of mortgage cannot operate as res judicata. Hence, his contention is that the plaintiff is entitled to a decree for declaration of title on the one half of the schedule property on the western side and he is also entitled to demarcate the properties. The Courts below have not considered the entire documents and evidence properly. Hence, he prayed for allowing the Second Appeal. 12. In support of the above submissions, the learned counsel appearing for the appellant relied upon the following judgments: (i) Shakuntla Devi v. Kamla [ 2005(5) SCC 390 ]; (ii) R.Mohanasundaram & others v. Arulmigu Kolavizhi Amman Temple and others [ 2012(1) LW 86 ]; (iii) T.B.Dayashanker v. M.N.Kaluram [AIR 1978 Gujarat 94]; (iv) Rosily Mathew v. Joseph [AIR 1987 Kerala 42]; (v) Murthi Gounder v. Karuppanna Gounder [AIR 1976 Madras 302]; (vi) State of Haryana v. Mukesh Kumar [ AIR 2012 SC 559 ]; (vii) T.Anjanappa v. Somalingappa [ 2006(7) SCC 570 ]; (viii) Jahurul Islam v. Abul Kalam [AIR 1991 Calcutta 132]; and (ix) R.N.Dawar v. Ganga Saran Dhama [AIR 1993 Delhi 19]. 13. Whereas, it is the contention of the learned counsel appearing for the respondent/defendant that the contention of the appellant/plaintiff that 'A' schedule property allotted to one Kumara Pillai Sivasankara Pillai and other half allotted to Sadasivan Nair is not correct. Sadasivan Nair was not allotted any property under Ex.A.1-partition deed of the year 1927. It is his contention that Sadasivan Nair purchased 191/2 cents in the eastern portion of the above said survey number. After the purchase of the said 191/2 cents, he constructed boundaries and compound wall for the same including latrine, cattle shed and kaliyal, etc. The plaintiff's father was not entitled to any portion of the said eastern 191/2 cents in Survey No.1163. After the purchase of the said 191/2 cents, he constructed boundaries and compound wall for the same including latrine, cattle shed and kaliyal, etc. The plaintiff's father was not entitled to any portion of the said eastern 191/2 cents in Survey No.1163. It is his further contention that Sadasivan Nair mortgaged 191/2 cents to the plaintiff's mother Bhagavathi Amma under Exs.B.2/B.3-mortgage dated 29.05.1972, and later, sold the property to the defendant under Ex.B.4. The present defendant has filed the suit for redemption of mortgage. There was an issue with regard to the extent of the property mortgaged. The Court below has held that only an extent of 191/2 cents was actually mortgaged and all structures were present at the time of mortgage itself. Hence, his contention is that the defendant has also taken delivery of 191/2 cents under Ex.B.9. Hence, it is his contention that when the issue was already substantially decided with regard to the extent in the previous suit, now, the appellant/plaintiff cannot re-agitate the same on the basis of the gift deed said to have been executed by mother. It is his further contention that the present plaintiff himself was examined as D.W.1 in the previous suit. Hence, the suit is barred by principle of res judicata and estoppel. It is further contended that the plaint 'B' schedule property does not exist on land and the same is imaginary one. The Commissioner's report Ex.C.1 clearly indicates that the septic tank, latrine and a part of Urakkalam of the defendant were situated in plot No.1, which is imaginary plot claimed by the plaintiff to be his. Hence, it is his contention that both the Courts below factually arrived at a conclusion and dismissed the suit. Hence, he prayed for dismissal of the present Second Appeal. 14. The suit has been filed for declaration on the ground that the entire 'A' schedule property is consisting of 37 cents under partition deed of the year 1927 Exs.A.1/A2 (Tamil copy) and the western half, that is, plaint 'B' schedule property of 181/2 cents in plaint 'A' schedule property, was allotted to one Kumara Pillai Sivasankara Pillai and the remaining 181/2 cents on the eastern one half of the plaint 'A' schedule property was allotted to Sadasivan Nair. After the death of Kumara Pillai Sivasankara Pillai, his legal heirs partitioned the same and entered a partition deed in the year 1975, in which, Bhagavathi Amma, mother of the plaintiff, was allotted 'B' schedule property. The plaintiff became owner of the property by virtue of the gift executed under Exs.A.3/A.4, dated 28.08.1980. Hence, it is the contention of the appellant that since the entire suit property is only an extent of 37 cents, the plaintiff and the defendant each entitled to 181/2 cents, whereas the defendant is in possession of more extent. Hence, declaration is sought. 15. There is no dispute that the original survey number of the suit property is 1163. The contention of the appellant is that as per Exs.A.1 and A.2-partition deed, Kumara Pillai Sivasankara Pillai, acquired 181/2 cents on the western side and the remaining 181/2 cents was allotted to Sadasivan Nair. But, whereas, a perusal of Exs.A.1 and A2 would go to show that 181/2 cents said to have been allotted only to Kumara Pillai Sivasankara Pillai, hence, the contention of the plaintiff that eastern portion was allotted to Sadasivan Nair is not correct. In fact, Exs.A.1 and A.2 indicate that one Janaki Pillai Kamalatchi Pillai was allotted 10 cents. Thereafter, under Exs.A.9 and A.10, Sadasivan Nair acquired 191/2 cents by purchase. Therefore, the first contention of the appellant/plaintiff that Sadasivan Nair was allotted some extent by way of partition deed has not been established. It is also to be noted that Sadasivan Nair has mortgaged the property on the eastern side to an extent of 191/2 cents to the plaintiff's mother Bhagavathi Amma. Thereafter, he sold the property to the defendant. Thus, the defendant filed a suit for redemption of mortgage in O.S.No.5 of 1979. The above suit for redemption was decreed in favour of the plaintiff therein. This fact is not in dispute. The judgment of the previous suit is marked as Ex.B.7. In the above suit, the mother of the plaintiff, who was the second defendant in O.S.No.5 of 1979, has taken a stand that she has put up additional structures, namely compound wall, latrine, Kaliyal, etc., including the additional area of an extent of property along with mortgaged property. The judgment of the previous suit is marked as Ex.B.7. In the above suit, the mother of the plaintiff, who was the second defendant in O.S.No.5 of 1979, has taken a stand that she has put up additional structures, namely compound wall, latrine, Kaliyal, etc., including the additional area of an extent of property along with mortgaged property. One of the issues framed in the above suit is as follows: "Were the Urakkalam latrine and Kaliyal buildings and the compound walls constructed by the second defendant or were they in existence even on the date of the plaint mortgage?". 16. It is not in dispute that Sadasivan Nair has mortgaged 191/2 cents on the eastern side. But, the only contention of the second defendant in the previous suit is that the structures were put up by her. Though the Trial Court in the previous suit has held that there was no specific issue with regard to the title of the properties, it was observed that all the constructions put up were in existence at the time of Ex.B.2 and clearly recorded a finding that the second defendant therein did not construct any building on the eastern side. The appeal filed against the above judgment also appears to be dismissed. The matter reached finality. This fact is not in dispute. Under Ex.B.2-mortgage deed, 191/2 cents were mortgaged to Bhagavathi Amma by Sadasivan Nair. After redemption of suit, a delivery report was received in the execution proceedings. Ex.B.9 delivery is dated 17.04.1985 in E.P.No.177 of 1984. 191/2 cents were delivered to the respondent/defendant. It is curious to note that in the previous suit, the present plaintiff was examined on behalf of his mother and delivery is also recorded in respect of 191/2 cents. When the mortgagee/Bhagavathi Amma already entered into a mortgage deed with respect to the specific extent in the property of the mortgagor, now, she is totally estopped from contending that the mortgagor had no right to execute mortgage for excessive extent. Further, such a defence was taken in the previous suit that the constructions were put up by her, but, the Court decided the above issue against her and held that the constructions were already there even at the time of mortgage by Sadasivan Nair. Further, such a defence was taken in the previous suit that the constructions were put up by her, but, the Court decided the above issue against her and held that the constructions were already there even at the time of mortgage by Sadasivan Nair. The Commissioner's report and plan, viz., Exs.C.1 and C.2 also clearly indicate that the structures available in the suit property are within the eastern side and there is a compound wall dividing the western part. Exs.C1. and C.2 also make it clear that the compound wall originally available in the suit property is not in a straight line and finding of the Court in the earlier suit clearly indicated that the structures were in existence at the time of mortgage of the property. When the mortgagee entered in agreement accepting the title of the mortgagor and her contention in the redemption suit that she put up a construction, is also negatived, now, the appellant/plaintiff cannot contend that the mortgagor has no right for 191/2 cents. That apart, the sale deed in favour of the respondent/defendant is also in respect of 191/2 cents. Further, the Commissioner's report also clearly indicated that as on ground, only 32.125 cents are available in the entire suit property. Therefore, the contention of the appellant/plaintiff that he is entitled to 181/2 cents cannot be countenanced. 17. During the argument, it is the submission of the learned counsel for the appellant that in southern portion, while widening the road, some extent has been taken over by the Government. Merely because of that, now, the plaintiff cannot contend that he is entitled to equal share in the entire property. The partition deed relied upon by the appellant/plaintiff, in fact, belied the contention of the plaintiff that Sadasivan Nair was allotted 181/2 cents. In fact, Sadasivan Nair was only a purchaser. Thereafter, he has mortgaged the property with the plaintiff's mother and sold it to the defendant. Admittedly, the plaintiff's ancestor was allotted only 181/2 cents. Admittedly, as per the Commissioner's report, certain portions have been taken for road. Such being a position, now, the appellant/plaintiff cannot claim declaration for half of the property. It is also curious to note that in the previous suit, one of the issues with regard to the constructions, has reached finality. The appellant/plaintiff himself was examined as D.W.1. Admittedly, as per the Commissioner's report, certain portions have been taken for road. Such being a position, now, the appellant/plaintiff cannot claim declaration for half of the property. It is also curious to note that in the previous suit, one of the issues with regard to the constructions, has reached finality. The appellant/plaintiff himself was examined as D.W.1. During the pendency of the earlier suit, gift deed was executed in favour of the appellant/plaintiff and now, he is claiming the right on the basis of Ex.A.1-partition deed and also gift deed. It is to be noted that the main dispute between the party is with regard to the area where the structure is available between the western portion and the eastern portion. There was a specific issue in this regard in the earlier suit, as indicated above. 18. At this juncture, it would be useful to refer to the judgment of the Constitution Bench of the Hon'ble Supreme Court in Direct Recruit Class II Engg. Officers' Association v. State of Maharashtra reported in 1990 (2) SCC 715 , wherein the Bench has held in Paragraph No.35 that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence and held that the principle of constructive res judicata underlying explanation IV of Section 11 of the Code of Civil Procedure is also applicable to writ case. 19. Therefore, when the issue with regard to the compound wall and extent in the mortgage is already decided and the appellant/plaintiff was also examined as D.W.1 in the previous suit, certainly, such a finding operates as res judicata as far as the extent owned by the parties is concerned. Further, the plaintiff's mother, as a mortgagee, also acknowledged the title of Sadasivan Nair to an extent of 191/2 cents and delivery was also taken under Ex.B.9 of the same extent. Therefore, the plaintiff is also estopped from claiming beyond the compound wall. The compound wall was also indicated in the Commissioner's report. Further, the plaintiff's mother, as a mortgagee, also acknowledged the title of Sadasivan Nair to an extent of 191/2 cents and delivery was also taken under Ex.B.9 of the same extent. Therefore, the plaintiff is also estopped from claiming beyond the compound wall. The compound wall was also indicated in the Commissioner's report. This fact is clearly indicated that the plaintiff has not established the title for the extent he claimed in the suit. In a suit for declaration, the entire onus lies on the plaintiff to prove his entitlement. Whether or not the total extent is 37 cents or 39 cents has also not been established. In such view of the matter, the appellant/plaintiff is certainly not entitled to declaration and other reliefs which he sought for. The judgments cited by the learned counsel appearing for the appellant also are not applicable to the facts of the present case. Accordingly, the substantial questions of law are answered against the appellant/plaintiff. 20. In the result, the Second Appeal fails and accordingly, the same stands dismissed. No costs.