Madras High Court
K.Velayudham Pillai vs T.Velayutham Pillai (Died) on 2 September, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/09/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.21 of 2002 1.K.Velayudham Pillai 2.M.Karunakaran Pillai 3.N.Krishna Das ... Appellants/ Defendants Vs. T.Velayutham Pillai (died) 1.V.Prama Kumari 2.V.Thanunathan @ Nageswaran 3.V.Padmini ... Respondents/ plaintiffs Second appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 25.09.2001 passed in A.S.No.19 of 1996 by the First Additional Subordinate Judge (camp), Padmanabhapuram, reversing the judgment and decree dated 26.09.1995 passed in O.S.No.6/1992 by the Additional District Munsif, Padmanabhapuram. !For appellants ... Mr.Thirugnanasambantham ^For respondents ... Mr.R.Subramanian :JUDGMENT
Challenge in this second appeal is to the judgment and decree dated 25.09.2001 passed in Appeal Suit No.19 of 1996 by the First Additional Subordinate Court, Padmanabhapuram.
2.The deceased by name Velayuthan as plaintiff has instituted Original Suit No.6 of 1992 on the file of the Additional District Munsif Court, Padmanabhapuram, for the relief of perpetual injunction, wherein the present appellants have been shown as defendants.
3.It is averred in the plaint that the suit property is originally belonged to the family of the plaintiff. During last settlement in the state of Travancore, patta No.343 has been given in favour of Chandran Velayuthan, the paternal grandfather of the plaintiff, in respect of the suit property. Till his demise, he has enjoyed the same as absolute owner. After his demise, the suit property and other properties have devolved upon the plaintiff and his brothers. The plaintiff and his brothers have enjoyed the suit property and some other properties as absolute owners. The plaintiff and his brothers have partitioned their family properties by registered partition deed dated 14.06.1954. In the said partition, the suit property has been allotted to the share of the plaintiff and thus the plaintiff has derived title to the same. During resurvey number and settlement period, patta has been granted in favour of the plaintiff in respect of the suit property. The suit property is comprised in Old Survey No.3041 and its Resurvey No.425/11, admeasuring 0.22 cents. In the suit property, there is a Sastha temple and the same is family temple of the plaintiff. The defendants are the adjacent owners of the suit property and they are not having any semblance of right, title and interest over the suit property. The defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff. Under the said circumstances, the present suit has been filed for the relief of perpetual injunction.
4.In the written statement filed on the side of the defendants, it is averred that the temple, which situates in the suit property, belongs to the Krishnanvaka Samudayam Oor People of Punkarai. In the suit property, so many pomiferous trees are in existence and its yield is being enjoyed by the villagers. It is false to say that the suit property is the absolute property of the plaintiff. The suit property and temple have been managed by the then trustee viz., Madhavan Pillai. After his demise, one Padmanabha Pillai has been elected as trustee of Sastha Temple. One Dhasappan son of Velayuthan Pillai has been elected as Kanakka Pillai. Even if there is any partition between the plaintiff and his bothers, the decision rendered in Original Suit No.67 of 1958 has superseded the partition deed. In the said suit, the present plaintiff has been shown as 20th defendant and his brothers have been shown as 21st and 22nd defendants. The first defendant's father has been shown as 13th defendant. After his demise, the first defendant has been impleaded. The suit property has been shown as Item No.7 in the said suit. Though the present plaintiff has filed Appeal Suit No.306 of 1959, he has not challenged the finding of the lower Court regarding Item No.7. Therefore, the finding given in the earlier suit, has become conclusive and the plaintiff cannot claim any exclusive right or possession over the suit property. The plaintiff is not in possession and enjoyment of the suit property at any point of time and the plaintiff is not entitled to get relief of perpetual injunction. There is no merit in the suit and the same deserves dismissal.
5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after contemplating both the oral and documentary evidence, has dismissed the suit with costs. Aggrieved by the judgment and decree of the trial Court, the deceased plaintiff as appellant has filed Appeal Suit No.19 of 1996 on the file of the First Additional Subordinate Court, Padmanabhapuram. The first appellate Court, after hearing both sides and upon perusing the available records, has allowed the appeal and thereby set aside the judgment and decree passed by the trial Court and consequently decreed the suit. Against the judgment and decree passed by the first appellate Court, the present second appeal has been filed at the instance of the defendants as appellants.
6.At the time of admission of the present second appeal, the following substantial questions of law have been formulated for consideration;
"a)Whether the judgment marked as Ex.B1, to which the plaintiff in the present suit is a party would disable, on the principle of res judicata, the plaintiff from getting relief prayed for in the suit?
b)Would Ex.B6, the sale deed for a portion of the suit property standing in the name of the temple, to which sale deed the plaintiff is an attesting witness, would preclude him from claiming the suit property as his own property?"
7.The learned counsel appearing for the appellants/defendants has repeatedly contended that with regard to the suit property and some other properties, a suit for partition has been filed in Original Suit No.67 of 1958 on the file of the First Additional District Munsif Court, Padmanabhapuram, wherein the present deceased plaintiff has been shown as 20th defendant and his brothers have been shown as 21st and 22nd defendants and in the said suit, the suit property has been shown as item No.7, wherein it has been held that the suit property is a common property and the temple which situates in the suit property is a common temple to all the villagers and Original Suit No.67 of 1958 has been dismissed in respect of item No.7 and even though the present deceased plaintiff has instituted Appeal Suit No.306 of 1959, he has not challenged the finding of the trial Court with regard to item No.7 and therefore, the decision rendered in Original Suit No.67 of 1958 would operate as res judicata to the present suit and the first appellate Court, without considering the above legal aspect, has erroneously decreed the suit and therefore, the judgment and decree passed by the first appellate Court are liable to be set aside.
8.Per contra, the learned counsel appearing for the respondents/plaintiff has also equally contended that the suit property is originally belonged to the family of the plaintiff and patta No.343 has been given in favour of the grandfather of the plaintiff by name Chandran Velayudhan and till his demise, he has enjoyed the suit property and after his demise, the plaintiff and his brothers have partitioned their family properties including the suit property under a partition deed dated 14.06.1954, wherein the present suit property has been allotted to the share of the plaintiff and since then the plaintiff has been possession and enjoyment of the suit property as absolute owner and also the temple, which situates in the suit property, as a separate temple of the plaintiff and in which neither the defendants nor the villagers have had any manner of right, title and interest and since the defendants have tried to disturb the peaceful possession and enjoyment of the plaintiff, the deceased plaintiff has come forward with the present suit and the trial Court, without considering the contentions put forth on the side of the deceased plaintiff, has erroneously dismissed the suit, but, the first appellate Court, after poring the evidence available on record, has rightly decreed the suit and therefore, the judgment and decree passed by the first appellate Court, are not liable to be set aside and altogether the present second appeal deserves dismissal.
9.As stated earlier, the first and foremost substantial question of law framed in the present second appeal is;
"Whether the judgment marked as Ex.B1, to which the plaintiff in the present suit is a party, would disable, on the principle of res judicata, the plaintiff from getting relief prayed for in the suit?"
10.The sum and substance of the case of the plaintiff is that the suit property is the separate property of the plaintiff and the temple which situates in the suit property is his family temple. It is an admitted fact that in the suit property a Sastha temple is situate. The main attack made on the side of the appellants/defendants is that the suit property and the temple which situates therein, have been shown as Item No.7, in Original Suit No.67 of 1958 instituted on the file of the First Additional District Munsif Court, Padmanabhapuram and therefore, the decision rendered therein operates as res judicata to the present suit.
11.The certified copy of the judgment rendered in Original Suit No.67 of 1958 has been marked as Ex.B1, wherein the deceased plaintiff has been shown as 20th defendant and his brothers have been shown as 21st and 22nd defendants and the father of the first defendant has been shown as 13th defendant and after his demise, the first defendant has also been impleaded. Original Suit No.67 of 1958 has been filed for the relief of general partition, wherein the present suit property has been shown as item No.7.
12.In fact, this Court has closely perused the entire judgment passed in Original Suit No.67 of 1958. The specific contention urged in the written statement filed on the side of the defendants 10 to 18 & 24 therein is that Item No.7 (the present suit property) belonged to the ancestors of the defendants 21 to 23 and they endowed it in favour of Krishnavaga Villagers residing in Punkara Village. The villagers built a temple and a building in the said item at a cost of Rs.15,000/-. This item is mischievously included in the plaint schedule. In the written statement filed on the side of the defendants 20 to 22 therein, it has been stated that Chandran Velayuthan has constructed a temple in Item No.7 and at the request of the villagers of Punkara, he had dedicated the temple to the public and the villagers are doing pooja therein. But, nobody else is entitled to item No.7 in which the temple is now situate.
13.On the basis of the rival pleadings raised on the side of the contesting defendants in Original Suit No.67 of 1958, the First Additional District Munsif Court, Padmanabhapuram has framed issue No.17 to the effect that;
"Whether item Nos.7, 9, 10 15, 19, B letter in item No.20, Item Nos.22, 23 & 31 are the tarwad properties of the defendants 20 to 22?. What is the right of plaintiffs and defendants 1 to 19 over these items?.
14.In fact, on the side of the contesting defendants in Original Suit No.67 of 1958, contra pleadings have been raised with regard the items of suit properties mentioned above and under the said circumstances, the issue No.17 has been framed. The First Additional District Munsif Court, Padmanabhapuram, after considering the rival claim made in respect of Item No.7 (the present suit property) has clinchingly held that Item No.7 is a common property and the temple which situates therein is a village temple and ultimately dismissed the suit in respect of Item No.7. Against the judgment and decree passed in Original Suit No.67 of 1958, with regard to Item No.7 (the present suit property), no appeal has been filed by the present deceased plaintiff and his brothers. Therefore, the decision rendered in Original Suit No.67 of 1958 in respect the suit property has become final.
15.As stated earlier, the first and foremost substantial question of law framed in the present second appeal is as to whether the judgment and decree rendered in Original Suit No.67 of 1958 by the First Additional District Munsif Court, Padmanabhapuram, would operate as resjudicata to the present suit.
16.The present deceased plaintiff has been shown as 20th defendant in Original Suit No.67 of 1958 and the father of the first defendant has been shown as 13th defendant and after his demise, the present first defendant has been impleaded as one of the defendants. At this juncture, a nice legal question arises as to whether the decision rendered earlier, would operate as res judicata between the co-defendants in the present suit.
17.In order to raise the plea of res judicata under Section 11 of the Code of Civil Procedure between co-defendants, the following aspects must be necessary;
"a)There must be a conflict of interest between the defendants concerned;
b)It must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims;
c)The question between the defendants must have been finally decided; and
d)The co-defendants were necessary and proper parties in the former suit."
18.In 1995 (3) Supreme Court Cases 693 (Mahboob Sahab Vs. Syed Ismail and others) it has been held that the above conditions are very much essential so as to decide the doctrine of res judicata between co-defendants.
19.In Original Suit No.67 of 1958, the plaintiffs therein have claimed partition in respect of the suit Item No.7 mentioned therein (the present suit property). But, the specific contention of the 13th defendant therein and the other defendants who sailed with him is that the suit Item No.7 belongs to the villagers. The present deceased plaintiff and his brothers (defendants 20 to 22 in Original Suit No.67 of 1958) have contended that in the said suit property nobody is having right except their family. Therefore, conflict of interest between the contesting defendants has been present in Original Suit No.67 of 1958 and the said conflict is very much essential to give the relief to the plaintiffs therein. Further the said conflict between the contesting defendants has been finally decided and the contesting defendants are also necessary and proper parties in Original Suit No.67 of 1958 and therefore, it is quite clear that all the conditions culled out in the decision reported in 1995 (3) Supreme Court Cases (Mahboob Sahab Vs. Syed Ismail and others) are present in the present suit and under the said circumstances, the decision rendered in Original Suit No.67 of 1958 with regard to Item No.7 (the present suit property) would clearly operates as res judicata to the present suit.
20.In the written statement filed by the appellants/defendants, it has not been specifically pleaded that the decision rendered in Original Suit No.67 of 1958 would operate as res judicata to the present suit. In written statement filed on the side of the appellants/defendants at paragraph No.7 it has been mentioned that the decision rendered in Original Suit No.67 of 1958 is conclusive and the present plaintiffs cannot claim any exclusive right or possession over the suit property. Therefore, it is quite clear that no specific plea has been raised with regard to doctrine of res judicata.
21.At this juncture, it would be more useful to look into the decision reported in 2002(5) CTC 529 (Lourdusamy Vs. Williams and another), wherein this Court has clinchingly held that it will be too technical to reject the issue of res judicata, simply because the word res judicata has not been raised in the plaint. Therefore, it is quite clear that even though the plea of res judicata has not been specifically raised in the written statement filed on the side of the appellants/defendants, the averments made in the written statement would be sufficient to constitute the plea of res judicata.
22.It has already been pointed out that the decision rendered in Original Suit No.67 of 1958 in respect of Item No.7 mentioned therein (the present suit property) would clearly operate as res judicata to the present suit and therefore, the first substantial question of law formulated in the present second appeal is decided in favour of the appellants/defendants.
23.Even assuming without conceding that the plea of res judicata is not applicable to the present suit, the Court must analyse the document of title filed on the side of the deceased plaintiff with regard to the suit property. On the side of the deceased plaintiff, Ex.A9 has been filed. Ex.A9 is a sale deed which stands in the name of one Velayuthan. The specific contention of the deceased plaintiff is that the suit property is originally belonged to one Chandran Velayuthan. In fact, this Court has closely perused Ex.A9. In Ex.A9 clear four boundaries have been given to the property purchased by the said Velayuthan, wherein it has been clearly mentioned that on the southern side of the property sold under Ex.A9, Sastha temple is situate. It is an admitted fact that in the suit property there is one temple by name Sastha. From the four boundaries given in Ex.A9, it is needless to say that the said Sastha temple has not been covered under Ex.A9. Therefore, on the basis of Ex.A9, the deceased plaintiff is not having any semblance of right over the said Sastha Temple and on that score also, the present suit is liable to be dismissed.
24.The learned counsel appearing for the appellants/defendants has also argued that Ex.B6, is a sale deed and under Ex.B6 a property has been purchased for the said Sastha temple, wherein the deceased plaintiff has put his signature as an attestor and therefore, he has been estopped from claiming right to the suit property by way of estoppel by attestation under Section 115 of the Evidence Act and the first appellate Court has not at all considered the above aspect.
25.The second substantial question of law framed in the present second appeal is as to whether the present deceased plaintiff is precluded from claiming right to the suit property by way of estoppel by attestation under Section 115 of the Evidence Act??
26.In fact, this Court has perused Ex.B6, wherein it has been mentioned that a portion of the suit property, is standing in the name of the temple. The deceased plaintiff has been shown as one of the attestors in Ex.B6. At this juncture, it would be more useful to look into the correct legal position to the effect as to whether attestation of a particular document, would operate as estoppel.
27.It is an everlasting principle of law that attestation proves no more than of that the signature of an executing party has been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed. It can, at the best, be used for the purpose of cross-examination but by itself, it will neither create estoppel nor imply concern.
28.In AIR 1922 Privy Council P-20 (Pandurang Krishnaji Vs. Markandeya Tukaram and others), it has been held that attestation of a deed does not by itself estop a person from denying that he knew of its contents or he has consented to the transaction and that knowledge of the contents of a deed is not to be inferred from the mere fact of attestation. Further, it has been held that it is purely a question of fact and should be determined with reference to circumstances of the case.
29.From the close reading of the decision rendered by the Privy Council, it is needless to say that mere attestation would not operate as estoppel under Section 115 of the Evidence Act against the attesting witness.
30.In the instant case, it has already been pointed out that in Ex.B6, a part of the suit property has been mentioned, wherein the deceased plaintiff has been shown as one of the attesting witnesses and his mere attestation would not operate as estoppel against him, in view of the decision rendered by the Privy Council. Therefore, it is quite clear that the second substantial question of law formulated in the present second appeal cannot be decided in favour of the appellants/ defendants.
31.It has already been elaborately dealt with that the decision rendered in Original Suit No.67 of 1958 would clearly operate as res judicata to the present suit. The first appellate Court, without considering the available facts in the present case as well as correct legal position involved, has erroneously decreed the suit and in view of the foregoing enunciation of factual and legal aspects, this Court has found valid force in the argument advanced by the learned counsel appearing for the appellants/defendants in respect of res judicata and consequently the judgment and decree passed by the first appellate Court, are liable to be set aside and the suit is also liable to be dismissed.
32.In fine, the present second appeal is allowed without costs. The judgment and decree passed in Appeal Suit No.19 of 1996 by the First Additional Subordinate Court, Padmanabhapuram, are set aside. The judgment and decree passed in Original Suit No.6 of 1992 by the Additional District Munsif Court, Padmanabhapuram are restored.
gcg To
1.The First Additional Subordinate Judge, Padmanabhapuram.
2.The Additional District Munsif, Padmanabhapuram.