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2021 DIGILAW 793 (MAD)

Sasi v. Chellan

2021-03-08

N.SATHISH KUMAR

body2021
JUDGMENT : Common Prayer: These Second Appeals are filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 28.09.1994 made in A.S.No.70 of 1993 on the file of the Subordinate Judge, Kuzhithurai confirming the judgment and decree of the learned Principal District Munsiff, Kuzhithurai made in O.S.No.369 of 1985. 1. These two second appeals have been filed as against the judgment of the First Appellate Court allowing the appeal in part. S.A.No.770 of 1995 was filed by the defendants challenging the decree and judgment of the First Appellate Court granting decree in favour of the plaintiff in respect of Survey No.2480. The unsuccessful plaintiff in respect of Survey Nos.2837- C and 2837-E has filed S.A.No.1741 of 1997. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 3. The brief facts, leading to the filing of this Appeal Suit, are as follows: It is the contention of the plaintiff that the suit properties is a specific plots measuring 49 cents and it lies east of the village Odai (Ooru Vaikkal or Thodu). The plaintiff has purchased the same on 03.01.1997. The defendants claims right in the properties, which lie west of the village odai (Ooruvaikal or Thodu). The defendants 2 to 4 filed a suit in O.S.No.133 of 1977. The plaintiff was forced to contend the suit. The trial Court dismissed the same, as against the same second appeal has been filed and the same is pending in S.A.No.1704 of 1981. As the present suit property is lying east of the Odai (Oorvaikal or Thodu), the defendants have no right. Hence, the suit. (ii) Originally the suit has been filed for permanent injunction. However, during the pendency of the suit, an amendment petition was filed seeking to amend the prayer. Accordingly, declaration of title and possession was added as consequential relief by an order dated 22.11.1992 in I.A.No.1165 of 1991. 4. It is the contention of the first defendant that the plaintiff has no manner of right and possession over the suit properties. The alleged sale deed dated 03.01.1997 is invalid. The defendants 2 to 4 have filed a suit in O.S.No.133 of 1977 in respect of specific plots in old Survey Nos.2837-C measuring 14 cents, 2837-D, measuring 11 cents and 2837-E, measuring 18 cents, totally 43 cents. The alleged sale deed dated 03.01.1997 is invalid. The defendants 2 to 4 have filed a suit in O.S.No.133 of 1977 in respect of specific plots in old Survey Nos.2837-C measuring 14 cents, 2837-D, measuring 11 cents and 2837-E, measuring 18 cents, totally 43 cents. The plaintiff as defendant resisted the suit opposing the sale deed dated 03.01.1977. In the said suit, it was held that the present plaintiff has no manner of right and possession and the sale deed is invalid. The plaintiff taking advantage of the boundary description has filed the present suit and the claim of the plaintiff is barred by estoppel and res judicata. The defendants 2 to 4 are the owners of the entire plots. The plaintiff had no title whatsoever in the suit property. The defendants 2 to 4 had executed an agreement of sale in favour of the first defendant. Hence prayed for dismissal of the suit. 5. Based on the pleadings, the following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to get injunction as prayed for in the plaint? 2. Whether the claim of the plaintiff is barred by estoppels and resjudicata by reason of the judgment and decree in A.S.No.344 of 1978 in O.S.No.133 of 1977? 3. Whether the suit is maintainable? 4. Relief as costs? Additional issues: 1. Whether the plaintiff is entitled to the declaration of title and possession over the suit property? 2. Is the plaintiff is having valid title and possession of the suit property? 6. Before the trial Court, on the side of the plaintiff P.W.1 to P.W. 4 were examined and Exs.A1 to A9 were marked and on the side of the defendants D.W.1 was examined and Exs.R1 to R13 were marked. 7. Based on the evidence and materials, the trial Court dismissed the suit holding that the suit property was already dealt in an earlier suit and the plaintiff has not established title in respect of Survey No.2480. However, the First Appellate Court granted decree in respect of 2480 in favor of the plaintiff and dismissed the suit in respect of other aspects. Challenging the grant of decree in respect of Survey No.2480, the defendants have filed S.A.No.770 of 1995 and the plaintiff has filed S.A. No. 1741 of 1997 as against the concurrent findings of the Courts below in respect of Survey Nos.2837-C and 2837-E. 8. Challenging the grant of decree in respect of Survey No.2480, the defendants have filed S.A.No.770 of 1995 and the plaintiff has filed S.A. No. 1741 of 1997 as against the concurrent findings of the Courts below in respect of Survey Nos.2837-C and 2837-E. 8. While admitting the second appeal, the following substantial questions of law have been framed: in S.A.No.770 of 1995: (1) Whether the lower appellate Court is correct in granting a decree to the plaintiff on the ground that the defendants have not disproved the case of the plaintiff, when the plaintiff himself has not proved his case? in S.A.No.1741 of 1997: Whether the finding given by the Appellate Court that the suit is barred by resjudicata in sofar as it relates to the property comprised in Survey Nos.2837-C, 2837-D and 2837 is sustainable? 9. The learned counsel appearing for the plaintiff/appellant in S.A.No.1741 of 1997 vehemently contended that the suit property lies on the east of Village Odai (Oorvaikal or Thodu). Though in the earlier suit in O.S.No.133 of 1977 filed by the defendants 2 to 4, a specific contention was raised that the land in Survey Nos.2837-C, 2837-D and 2837-E, which is measuring about 43 cents, is lying in one plot on the west of Oorvaikal or Thodu, in the present plaint, a new stand has been taken that the property is lying on the east of Oorvaikal. Hence, it is the contention that though two survey numbers in the present suit was also included in the earlier suit, another survey number in Survey No.2480 is totally different and lies on the east of Oorvaikal. Therefore, the order of the First Appellate Court dismissing the suit confirming the findings of the trial Court is not on proper appreciation of law and evidence. Boundaries given in the earlier suit in O.S.No.133 of 1977 is totally different. Further, total extent of property is shown as 43 cents, i.e., in Survey No.2837-C , 2837-D, 2837-E measuring 14, 11 and 18 cents, respectively in O.S.No.133 of 1977, however, in the present suit, the total extent of the property is shown differently such as Survey No.2480, is measuring 48 cents, 2837-E, 29 cents, 2837-C, 67 cents. Hence, it is the contention that the boundaries is totally different. Hence, it is the contention that the boundaries is totally different. The present suit property lies in the east of Oorvaikal, whereas in the previous case, it is clearly established that 14 cents in 2837- C, 18 cents, 2837-E lie on the west of Oorvaikal. Hence, it is the contention that the Courts below have not even considered this fact properly. Hence, prayed for allowing the appeal. 10. The learned counsel for the defendants submitted that the suit is nothing but an abuse of process of law. Survey Nos.2837-C and 2837-E have already been dealt in an earlier suit, which has also reached finality. The present suit has been filed taking advantage of the admission of one of the defendants in the earlier suit that the suit property lies on the west of Oorvaikal. It is further contented that the properties in Survey Nos.2837-C, 2837-D and 2837-E, measuring about 43 cents were originally held to be a continuous plot and it was canvassed by both sides in the previous suit, now the plaintiff has taken a different stand as if Survey Nos.2837-C ,2837-E and 2840 are the contiguous plots, which is totally contrary to the earlier suit. At any event in the earlier suit survey Nos.2837-C and 2837-E were declared in favor of the defendants. Survey No.2480 is concerned, title has not been established and resurvey number has not been given, but the First Appellate Court has wrongly considered that resurvey number has been assigned to survey No.2480 as Re Survey No.709/3 and granted decree. It is further contended that the plaintiff traces title only on the basis of Exs.A1 and A6. The Courts below have clearly stated that Ex.A1 did not convey any title to the entire property, since Ex.A1 was created mischievously to disturb the possession of the defendants herein. Therefore, when the document itself is held to be invalid, the same document cannot be relied upon by the plaintiff in this case to seek declaration. Hence, it is the contention that the First Appellate Court granting decree in respect of Survey No.2480 in favour of the plaintiff is also liable to be set aside. 11. I have heard the learned consul appearing on either side and perused the records carefully. 12. Hence, it is the contention that the First Appellate Court granting decree in respect of Survey No.2480 in favour of the plaintiff is also liable to be set aside. 11. I have heard the learned consul appearing on either side and perused the records carefully. 12. It is admitted that earlier the defendants 2 to 4 have filed a suit in O.S.No.133 of 1977 in respect of the land in Survey Nos.2837-C, 2837-D and 2837-E measuring for an extent of 14 cents, 11 cents and 18 cents, respectively, totally 43 cents. The boundaries set out for the above lands is South of Valigarai (land) West of Thodu (small stream), North of Nedunganni (land) and east of Erichallaru (land). Though the above suit was originally dismissed, in an appeal, the findings of the trial Court had been reversed and the First appellate Court by its judgment in A.S.No.344 of 1978 has granted decree in favour of the plaintiffs, namely the defendants 2 to 4 herein in respect of lands referred in the said suit. Ex.A1, title deed of the plaintiff herein was relied upon by the defendant in the previous suit, which was marked as Ex.B1 in the said suit. The First Appellate Court in para 14 of the judgment in A.S.No.344 of 1978 has clearly recorded a finding "that Ex.B1 sale deed has been mischievously obtained to disturb the possession of the plaintiffs and did not convey any title to the properties. It is also held that the vendor of the defendant one Mohamad Ali is only a brother-in-law of the Mallukutty Meerakannu. The Courts below doubted the correctness and validity of Ex.B1 and also held that the legal heirs of the so called owner, one Mallukutty Meerakannu, did not join in execution of the sale deed in favour of the defendant". 13. The above finding makes it very clear that the plaintiff did not get any right of title to the suit properties. When the above findings were put to challenge in a second appeal, this Court has dismissed the same by confirming the findings of the Courts below on 14.06.1991. The plaintiff and the defendants are the parties to the earlier suit. When the above findings were put to challenge in a second appeal, this Court has dismissed the same by confirming the findings of the Courts below on 14.06.1991. The plaintiff and the defendants are the parties to the earlier suit. The document relating to the present subject matter under Ex.A1, was already tested in the earlier proceedings as Ex.B1 and the Court has recorded a specific finding that Ex.B1, sale deed dated 03.01.1997 has been mischievously created by the present plaintiff and also held that the sale deed did not convey any title to the properties as the so called legal heirs of the original owner, namely Mallukutty Meerakannuu did not join in the sale proceedings. When the validity of the sale deed i.e., Ex.A1 itself is doubted and the title to the entire property has not been proved in the previous proceedings, the plaintiff's another attempt by relying upon the same document to establish the title in respect of the same properties cannot be permitted in the eye of law. 14. Earlier there was an issue with regard Ex.B1 and title in respect of Survey Nos.2837-C, 2837-E, which went against the present plaintiff. Therefore, the findings in the earlier proceedings, certainly not only operates as resjudicata but also estopped against the plaintiff from claiming any right in respect of the same properties. It is to be noted that the present plaint has been filed during the pendency of the second appeal to the earlier suit. Merely because the predecessors of the defendants has given an evidence with regard to the boundaries, the present plaint came to be filed taking advantage of the admission of the witness examined on the side of the defendants to the effect that Survey Nos.2837-C and 2837-E lies on the west of the Oorvaikal, as if the properties lies in the east of the Oorvaikal by adding another survey number, namely Survey No.2480. It is relevant to note that though in the present plaint, it is the contention of the plaintiff that the extent of Survey No.2480 is 48 cents, 2837-B is 29 cents and 2837-E is 67 cents and the plaintiff traces title under Ex.A6. On perusing Ex.A6, the schedule makes it very clear that the vendor of the plaintiff had only 16 cents and that too had clear boundaries and totally different from the present plaint boundaries. On perusing Ex.A6, the schedule makes it very clear that the vendor of the plaintiff had only 16 cents and that too had clear boundaries and totally different from the present plaint boundaries. Similarly, in Survey No.2837- C, only 14 cents were owned by the so called vendor of the plaintiff with specific boundaries. Further, in respect of Survey No.2837-E, there is no mention in Ex.A6 and the boundaries to the above two survey numbers are different in Ex.A6. 15. Survey No.2837-C, purchased by the defendants in a revenue auction, which has already been dealt in the previous suit. In para-9 of the judgment in A.S.344 of 1977, it is admitted by the parties that Survey No. 2837-E is only a poromboke land. Therefore, the question of claiming declaration by the plaintiff in respect of Survey Nos.2837-E and 2837-C, which were already decided in favour of the defendants in the earlier suit, does not arise at all. Previous suit has been filed for 43 cents for Survey Nos.2837-B, 2837-C and 2837-D. In the said suit, it is the specific stand of the defendant therein that the all three survey numbers are contiguous plots. Now the plaintiff in the present suit, who was the defendant is the earlier suit, had taken a stand that Survey Nos.2837-C, 2837-E and 2480 are the contiguous plots, which is contrary to the earlier stand in the earlier suit. The very claim has been negatived by the Courts below in the earlier suit. Now, by merely including other survey number, namely Survey No. 2480 seeking declaration in respect of the same property is nothing but an attempt of non-suiting the earlier proceedings. Though the plaintiff has not claimed any right over Survey No.2480, location of the property itself is not identified. It is the contention of the plaintiff that the Survey Nos.2837-C, 2837-E and 2480 are the contiguous plots, whereas the plaintiff in the earlier suit as the defendant has taken a different stand as if Survey Nos. 2837-C, 2837-D and 2837-E are the contiguous plots. The stand taken by the plaintiff herein is highly impermissible. 16. It is also relevant to note that the present suit has been filed in the year 1985 during the pendency of the earlier suit in a second appeal. Originally it is filed for permanent injunction. 2837-C, 2837-D and 2837-E are the contiguous plots. The stand taken by the plaintiff herein is highly impermissible. 16. It is also relevant to note that the present suit has been filed in the year 1985 during the pendency of the earlier suit in a second appeal. Originally it is filed for permanent injunction. Only thereafter, amendment was sought in the year 1991 for declaration and recovery of possession. That itself clearly indicates that the suit itself is barred by limitation and it is only futile exercise on the part of the plaintiff. As far as Ex.A6 is concerned, the total extent of Survey No.2480 is only shown as 16 cents, but in the present suit, it has been shown as 48 cents. P.W.1 in his evidence also feign ignorance where Survey No.2480 is exactly situated. He also feign ignorance that re-survey number has been assigned to the suit properties and he does not know whether any of the sale deed was taken place in that land. However, he has also admitted that in between survey Nos.2837-D and 2837-C, poromboke land is situated that is Survey No.2837- E. P.W.2, in his evidence also stated that Survey No.2480 situated at the distance of 300 feet from Survey No.2837-C and he does not know about resurvey in respect of Survey No.2480. 17. The First Appellate Court having found that the plaintiff had admitted that he does not know about resurvey of Survey No.2480, and where the property is situated, simply allowed the application filed seeking to file additional evidence and marked the same as Exs.A10 to A21 to rely upon those documents as patta was granted in favour of many people. When the plaintiff himself was not able to correlate the resurvey number and he is not aware of the new resurvey number, the First Appellate Court inferring ownership merely on the basis of the some revenue records filed as additional documents without any opportunity being granted to the parties to give rebuttal evidence and granting decree in respect of Survey No.2480 is not according to law. Having recorded that P.W.2 is not able to state the correct location of Survey No.2480, the First Appellate Court has granted decree, which is erroneous. In a suit for declaration it is for the plaintiff to establish his/her title. Having recorded that P.W.2 is not able to state the correct location of Survey No.2480, the First Appellate Court has granted decree, which is erroneous. In a suit for declaration it is for the plaintiff to establish his/her title. When the title itself is based on the document i.e., Ex.A1, which was already disbelieved by the Courts in a previous round of litigation and when the Court has recorded a finding that the said sale deed did not convey any title to the entire properties, the plaintiff is certainly not entitled for any declaration and finding in the earlier suit certainly operates as resjudicata. 18. The plaintiff has not proved the case in respect of other two survey numbers, which were already dealt in the earlier suit. Merely on the basis of some admission as to the boundaries in the earlier suit, it cannot be taken advantage by the plaintiff herein to claim declaration once again in respect of the same property, which was already dealt in the earlier suit. Original extent has been conveniently shown in the present plaint, though it is found absent in the earlier partition deed. For all these facts, the findings of the First Appellate Court has to be necessarily set aside. Such view of the matter, the order of the First Appellate Court granting decree in respect of Survey No.2480 is hereby set aside. Accordingly, the points are answered. 19. In the result, S.A.No.770 of 1995 is allowed and S.A.No.1741 of 1997 is dismissed by confirming the judgment of the trial Court. No costs.