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2024 DIGILAW 1760 (MAD)

Charles(died) v. Leela

2024-08-01

S.SOUNTHAR

body2024
JUDGMENT : PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.31 of 1998, dated 9.7.2007, on the file of Subordinate Judge, Padmanabhapuram confirming the judgment and decree made in O.S.No.82 of 1994, dated 17.12.1997, on the file of Additional District Munsif, Padmanabhapuram. The Second Appeal is directed against the judgment and decree made in A.S.No.31 of 1998, dated 9.7.2007, on the file of Sub-ordinate Judge, Padmanabhapuram confirming the judgment and decree made in O.S.No.82 of 1994, dated 17.12.1997, on the file of Additional District Munsif, Padmanabhapuram. 2. The defendants in the suit are the appellants. The respondents-Plaintiffs filed a suit seeking recovery of possession, mesne profits and decree for putting up southern fence on ‘AH’ line in the southern limits of the suit property as indicated in the plan as appended with decree in O.S.No.232 of 2009. 3. The suit was decreed by the trial Court and aggrieved by the same, the defendants preferred an appeal and the First Appellate Court affirmed the findings of the trial Court. Aggrieved by the concurrent findings of the Courts below, the defendants are before this Court. 4. According to the respondents/Plaintiffs, their right over the suit property was declared by the judgment and decree passed in O.S.No.203 of 1972 between the present plaintiffs and the defendants. The said judgment and decree was confirmed by the High Court in S.A.No.2053 of 1981. It was further claimed by the plaintiffs that after declaring the title of the plaintiffs, they were relegated to file a separate suit for recovery of possession and hence, the present suit was laid seeking possession and other reliefs. The suit was resisted by the defendants by claiming title over the suit property under sale deed, dated 13.12.1967. The defendants also claimed that though the title of the defendants was upheld in the earlier litigation in O.S.No.203 of 1972, the judgment and decree passed in the suit was erroneous one. The defendants asserted their possession from 1967. The defendants also raised the plea of adverse possession from 13.12.1967. The defendants raised the plea of non-joinder of necessary parties and sought for dismissal of the suit. 5. The defendants asserted their possession from 1967. The defendants also raised the plea of adverse possession from 13.12.1967. The defendants raised the plea of non-joinder of necessary parties and sought for dismissal of the suit. 5. The sixth plaintiff in the plaint was examined as P.W.1 and four documents were marked on the side of the plaintiffs as Ex.A1 to Ex.A4.The first defendant was examined as D.W.1 and three documents were marked on the side of the defendants as Ex.B1 to Ex.B3. 6. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiffs were entitled to the decree as prayed for. Aggrieved by the said judgment and decree, the defendants preferred an appeal in A.S.No.31 of 1998, on the file of Sub-Court, Padmanabhapuram. The First Appellate Court affirmed the findings of the trial Court and dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the defendants are before this Court by filing the present Second Appeal. 7. At the time of admission, this Court formulated the following substantial questions of law, by order, dated 06.06.2024: a) Whether the Courts below are justified in granting a decree for recovery of possession only based on Ex.A1 to Ex.A4 when the title of the plaintiffs over the suit property was not declared under the said document? b)Are the Courts below correct in granting to the plaintiffs a decree for a larger relief, namely, permission to put up boundary wall, while what the plaintiffs have asked for in the plaint is a smaller relief, namely, permission to put up only boundary fence? 8. The learned counsel for the appellants vehemently contended that in the earlier litigation between the parties, the title of the plaintiffs over the suit property was not declared and hence, the present suit based on the averment that title of the plaintiffs was declared in the earlier litigation is contrary to the evidence available on record. The learned counsel by taking this Court to Ex.A1 to Ex.A4, submitted that the title of the plaintiffs over ‘ABCDEFGH’ portion as mentioned in Ex.C2-Plan marked in that suit, was not at all declared. The learned counsel by taking this Court to Ex.A1 to Ex.A4, submitted that the title of the plaintiffs over ‘ABCDEFGH’ portion as mentioned in Ex.C2-Plan marked in that suit, was not at all declared. The learned counsel further submitted that as per the averments found in the plaint, the defendants trespassed into the suit property in the year 1972 and the suit has not been filed within 12 years, but it was filed only in the year 1994 beyond the period of limitation. Hence according to the learned counsel, the suit was hopelessly barred by limitation. The learned counsel further submitted that the plaintiffs sought for putting up boundary fence on the southern side of the suit property. The Courts below granted a decree to put up a boundary wall. The relief granted by the Courts below is larger than the relief that was prayed for by the plaintiffs. 9. The learned counsel for the appellants also submitted that the earlier suit filed by the appellant and five others and the decree passed in that suit was in favour of six persons. However, in the present suit, the plaintiffs in the earlier suit namely, Chinniah Pillai and Thasammal Nadachi were not arrayed as parties. Therefore, the Plaintiffs are not entitled to maintain a suit for recovery of possession without impleading the other two plaintiffs in the earlier suit. 10. The learned counsel for the respondents by taking this Court to Ex.A1 to Ex.A4, submitted that the title of the plaintiffs over ABCDEFGH portion in Ex.C2-Plan marked in the earlier litigation was upheld in the judgment passed in O.S.No.103 of 1972 and only the relief sought for by the plaintiffs with regard to declaration of their possession over the suit property was dismissed in respect of ABCDEFGH. Therefore, the learned counsel submitted that the present suit filed by the plaintiffs based on the declaration granted in their favour in the earlier suit is very well maintainable. The learned counsel further submitted that in the earlier suit, the plaintiffs were granted liberty to file a suit for recovery of possession in respect of ABCDEFGH portion and the Second Appeal filed by the defendants against the decree passed in the earlier suit was disposed of only on 22.02.1982 and hence the present suit is filed within 12 years from 22.02.1982 is very well within time. The learned counsel further submitted that the word “fence” includes boundary wall and therefore, the relief granted by the Courts below cannot be termed as a larger relief. Therefore, the learned counsel sought for dismissal of the Second Appeal. 11. The learned counsel for the respondents further submitted that the co-owner is entitled to maintain a suit for recovery of possession and any decree passed in his favour shall be construed as one for the other co-owners also. 12. Answer to Substantial Question of Law (a): Ex.A1 is the judgment passed in the earlier suit including the parties in O.S.No.203 of 1972, on the file of IInd Additional District Munsif Court, Padmanabhapuram. The last two lines of Para 2 of Judgment which describe the prayer in the suit reads as follows: “2.............The action of the defendants had cast a cloud on the title of the plaintiffs and so it is necessary that the title and possession of the plaintiffs to the suit property is declared and an injunction also is granted against them from interfering with the right and peaceful enjoyment of the Plaintiffs. Hence the suit.” Ex.A2 is the decree passed in O.S.No.203 of 1972. The relevant portion in decree referring to prayer in the suit and valuation of suit reads as follows: “This action cast a cloud on the title of the plaintiffs and so it is necessary that the title and possession of the plaintiffs be declared and an injunction also be granted against the defendants restraining them from interferring with the possession of the plaintiffs.” “A-relief of declaration and B-relief of consequential injunction are valued at Rs.300/- being the half of the market value of the suit property. C-relief of damage is valued at Rs.50/- and D-relief of putting up boundaries is valued at Rs.400/-.” “Court fee is paid as follows:-- For A and B reliefs, a Court Fee of Rs.23/- is paid under Section 25(b) of the Court Fees Act XIV of 1950, Madras. C-relief of damage is valued at Rs.50/- and D-relief of putting up boundaries is valued at Rs.400/-.” “Court fee is paid as follows:-- For A and B reliefs, a Court Fee of Rs.23/- is paid under Section 25(b) of the Court Fees Act XIV of 1950, Madras. For C relief, a Court Fee of Rs.4/- is paid under Section 22 of the above said Act and for D relief, a fixed Court Fee of Rs.30/- is paid under Section 50 of the same Act.” A perusal of Ex.A1 and Ex.A2 would suggest that the plaintiffs therein filed the suit for declaration of title and for declaration of their possession over the suit property and for consequential injunction, damages and for putting up boundaries. From Ex.A1 and Ex.A2, it is clear that the plaintiff therein did not seek recovery of possession but he sought for declaration of title, declaration of his possession over suit property and consequential injunction based on his alleged possession. The trial Court upheld the title of the plaintiffs in respect of the entire suit property. As far as declaration regarding possession is concerned, the possession of the plaintiffs was declared in respect of the suit property except ABCDEFGH portiton as described in Ex.C2 marked therein. As far as ABCDEFGH portion is concerned, the plaintiffs were relegated to file a separate suit for recovery of possession. The same can be gathered from the following observation of the trial Court in its judgment marked as Ex.A1 which reads as follows: “17. Issue 9:-- The plaintiffs have filed this suit only for declaration of title and possession and injunction and for damages. The plaintiffs themselves admitted that the landed portion namely ABCDEFGH of ExC2 Plan is in the possession of the defendants. Even though they have stated that they have to amend the plaint and to claim relief of recovery of possession, they failed to do so. So in this suit, the plaintiffs’ title for the entire suit item has been declared and with regard to possession also except the ABCDEFGH of Ex.C2 Plan, the other portion is declared in their favour. For the ABCDEFGH portion, the plaintiffs are relegated to file a separate suit for recovery of possession. Since the defendantrs are denying the title, they are liable for the costs of the plaintiffs. For the ABCDEFGH portion, the plaintiffs are relegated to file a separate suit for recovery of possession. Since the defendantrs are denying the title, they are liable for the costs of the plaintiffs. In the result, the suit is decreed by declaring the title in the suit item in favour of the plaintiffs and except the ABCDEFGH portion of Ex.C2 Plan, the other portion is also declared in their favour for possession with regard to the relief of possession for ABCDEFGH portion of ExC2 Plan, the suit is dismissed..........” 13. Ex.A2 is the decree passed in O.S.No.203 of 1972 and the relevant portion of the decree reads as follows: “This Court doth order and decree that the title over the suit property except ABCDEFGH portion of Ex.C2 be and is hereby declared and that the other portion also declared in their favour for possession. With regard to the relief of possession for ABCDEFGH portion of ExC2 Plan, the suit be and is hereby dismissed.” 14. A perusal of Ex.A1 Judgment and Ex.A2 decree would suggest that though the title of the plaintiffs in respect of the entire suit property including ABCDEFGH portion was upheld in the judgment, in the decree, it was mentioned as title of the plaintiffs over the suit property except ABCDEFGH portion was declared. However, the decree further reads that the suit was dismissed only with regard to the relief of possession of ABCDEFGH portion. The combined reading of Ex.A1 and Ex.A2 would indicate, prayer for declaration of plaintiff’s possession over ABCDEFGH portion was negatived. It is settled law that the decree shall be in confirmity with the judgment and if there is any conflict between the judgment and decree, the judgment will prevail over the decree. Decree is nothing but a formal expression of the conclusion of the Court which will enable the decree holder to execute the decree. However, for the purpose of deciding the conclusions and findings of the Court, the judgment has to be referred to. The Plaintiffs have come to the Court with a clear averments that their title over ABCDEFGH was declared in the earlier litigation. A perusal of the judgment rendered in O.S.No.203 of 1972 make it clear that the title of the plaintiffs was declared in respect of entire suit property therein including ABCDEFGH portion and declaration regarding possession alone was negatived. 15. A perusal of the judgment rendered in O.S.No.203 of 1972 make it clear that the title of the plaintiffs was declared in respect of entire suit property therein including ABCDEFGH portion and declaration regarding possession alone was negatived. 15. Ex.A3 is the judgment passed in A.S.No.36 of 1972 filed by the defendants challenging the decree in O.S.No.203 of 1972.The First Appellate Court also found that the plaintiffs proved their title over the suit property. The relevant observation of the First Appellate Court reads as follows: “12..............................................Therefore the above mentioned circumstances clearly go to prove that the plaintiffs have got title to the suit property and the same has been proved on the strength of Ex.A1, A2, A3 and A7. The contention of the appellants that they are entitled to the suit property on the strength of Ex.A5 delivery Ex.A4 Compromise is not acceptable, as already found.” 16. Ex.A4 is the decree passed in S.A.No.2053 of 1981 filed by the defendants challenging the dismissal of their First Appeal. A perusal of the same would suggest that the judgment and decree passed by the Courts below were confirmed and the Second Appeal got dismissed. Therefore, it is based on Ex.A1 to ExA4, that the titleof the plaintiffs over the suit property in O.S.No.203 of 1972 including the present suit property namely, ABCDEFGH portion as mentioned in Ex.C2-Plan, was declared in the earlier litigation and the said judgment has become final by virtue of the dismissal of the Second Appeal in Ex.A4. Therefore, this Court has no hesitation to come to the conclusion that the plaintiffs have proved their title by producing Ex.A1 to Ex.A4. Accordingly, Substantial Question of Law(a) is answered against the appellants and in favour of the respondents. 17. Answer to Substantial Question(b): The learned counsel for the appellants submitted that though the respondents/plaintiffs sought for lesser relief regarding permission to put up boundary fence, the Courts below granted permission to put up compound wall. Therefore, it would amount to granting a larger relief than the one as prayed for. In order to understand the scope and true meaning of the word “fence”, it would be appropriate to refer to the Law Lexicon, authored by B.Ramanatha Iyer, wherein, the word “fence” is explained as follows: “Fences. Therefore, it would amount to granting a larger relief than the one as prayed for. In order to understand the scope and true meaning of the word “fence”, it would be appropriate to refer to the Law Lexicon, authored by B.Ramanatha Iyer, wherein, the word “fence” is explained as follows: “Fences. A fence is an inclosing structure about a field or other space, or about any object, composed of wood, iron or other material, and intended to prevent intrusion from without or straying from within. A Fence may consist of a hedge, a ditch, a wall, a trestle, or a navigable stream or deep watercourse(19 Cyc 468) It is nothing more than a line of obstacle and may be composed of any material which will present a sufficient obstruction(Allen .v. Tobias,77 (I)169) A barbed wire is a proper materil of which to construct fernce. A fence is an actual barrier which separates adjoining lands.” 18. Therefore, it is clear that the word ‘fence’ denotes not only structure made up of wood, wire or stick but it includes a structure made up of pucca wall. The fence is nothing but a structure which prevents trespass of animals and people into the property. Therefore, the compound wall structure in the fence line can also be treated as a fence. In the light of the definition given to the word fence in Law Lexicon as referred to above, I do not find the relief granted by the Courts below can be termed as a larger relief. Accordingly, Substantial Question of Law (b) is answered against the appellants and in favour of the respondents. 19. As far as the question of limitation is concerned, it is seen from Ex.A1 to Ex.A4, while dismissing the prayer of the plaintiffs seeking declaration of their possession over ABCDEFGH portion, they were granted liberty to file a separate suit for recovery of possession of that portion. The judgment passed by the trial Court was challenged by the defendants in First Appeal and thereafter in Second Appeal before this Court. The Second Appeal was disposed of by this Court only on 22.02.1982 as per Ex.A4.The present suit has been presented on 10.01.1994 well within the time of 12 years from the date of disposal of the Second Appeal. The Second Appeal was disposed of by this Court only on 22.02.1982 as per Ex.A4.The present suit has been presented on 10.01.1994 well within the time of 12 years from the date of disposal of the Second Appeal. The Courts below by applying the Doctrine of Merger, found that the suit filed by the plaintiffs is within the period of limitation. I do not find anything to interfere with the said finding. 20. The learned counsel for the appellants also submitted that two of the plaintiffs in the earlier suit namely ‘Chinniah Pillai and Thasammal Nadachi’ were not impleaded as parties in the suit. Therefore, the plaintiffs are not entitled to maintain a suit for recovery of possession, when their title said to have been declared along with present plaintiffs. Under Ex.A1, the title of the plaintiffs along with Chinniah Pillai and Thasammal Nadachi was declared. Therefore the plaintiffs, who are co-owners of the suit property along with Chinniah Pillai and Thasammal Nadachi are entitled for the relief and the defendants are only third parties to the suit. It is settled law that the co-owners are entitled to maintain a suit for recovery of possession against third party. In such suits, the third party defendant, by pointing out the non-joinder of other co-owners, cannot successfully resist the suit. Any decree for possession passed in the suit is not only for the benefit of the plaintiffs but it is also for the benefit of other co-owners ie., Chinniah Pillai and Thasammal Nadachi. The point raised by the learned counsel for the appellants on the ground of non-joinder of other co-owners is accordingly negatived and the relief of possession granted in favour of the plaintiffs is also for the favour of the other coowners. This Court finds no error or perversity in the findings of the Courts below. In view of the answer to Substantial Question of Law (A) and (B), the Second Appeal stands dismissed confirming the judgment and decree of the Courts below, however, with a clarification that the decree for possession is for the benefit of all the co-owners. No costs.