Madras High Court
M. Anbazhagan And Ors. vs Mahboob Basha, Rabiya Bi, Shakitha And ... on 16 April, 2005
Equivalent citations: (2005)2MLJ615
JUDGMENT M. Thanikachalam, J.
1. The defendants in O.S.No.331/90 on the file of the District Munsif, Chengalpattu, who were successful in resisting the suit filed by the plaintiffs therein, failed to sustain the same, when the Judgment was challenged before the first appellate Court in A.S.No.48/92 and the plaintiffs in O.S.No.31/85, who had succeeded in getting a decree as prayed for against the defendants therein, failed to sustain the same, when the same was challenged by the defendants before the first appellate Court in A.S.No.100/91, are the appellants in these two second appeals.
2. In this Judgment, the parties are referred as per the ranking given in O.S.No.31/85 for convenience.
3. In both the suits, the subject matter is one and the same. The properties involved in both the cases are in Survey Nos.263/1 - 93 cents, 263/2 - 40 cents, 263/3 - 13 cents, 263/6 - 51 cents, totaling 1.97 acres, situated at Keezhapakkam Village, Chengalpattu Taluk.
4. The plaintiffs in O.S.No.31/85 have filed the suit originally against two defendants by name Mahboob Basha and Kaja Hussain Sahib, for recovery of possession of the suit properties, as well as for past and future mesne profits, quantifying the same, on the ground that the suit properties belong to them, as their ancestral properties, that from 1972 onwards, in spite of injunction granted by this Court in O.S.No.478/72, the defendants having trespassed into the properties, are in unlawful possession of the same, that their right to the suit properties was declared by this Court in S.A.No.2274/1975 and that since the defendants are not entitled to any right to be in possession of the suit properties, they are entitled to recover the same, claiming profits also.
5. Subsequently, defendants 3 to 5 were impleaded as parties elsewhere in 1991, because of the subsequent suit filed by these three defendants in O.S.No.331/90, as proper and necessary parties.
6. The suit was opposed by defendants 1 & 2 originally alleging, that their elder brother by name Sabjan Sahib had entered into sale agreements, for the purchase of the suit properties under Exs.B1 to B3, marked in O.S.No.478/72, paid the entire sale consideration, that in pursuance of the sale agreements, Subjan Sahib was put in possession of the suit properties even in the year 1962, which was confirmed by this Court in a second appeal, that after the death of Subjan Sahib about the year 1971, his legal heirs are enjoying the properties, who have also acquired title to the same by adverse possession, that the plaintiffs were not in possession and enjoyment of the suit properties, from the date of sale agreements, that the suit is barred by limitation, as well as barred by the principles of res judicata, further pleading that the suit is bad for non-joinder of necessary parties.
7. The defendants 3 to 5, in O.S.No.31/1985 after they came on record, have more or less reiterated the stand taken by defendants 1 & 2 in their written statement, further contending that in pursuance of the sale agreements, Subjan Sahib was put in possession of the suit properties, since the entire sale consideration was paid by him, that they are entitled to the protection of Section 53-A of the Transfer of Property Act (hereinafter called 'the Act'), pleading that the filing of O.S.No.478/72 was not known to them. It is also further contended, that the suit is barred by limitation, further asserting, that they have prescribed title to the suit properties, by adverse possession.
8. Defendants 3 to 5 in O.S.No.31/1985 as plaintiffs have filed O.S.No.331/90 for declaration, that they are entitled to the benefits of Section 53-A of the Act with consequential relief of permanent injunction, restraining the defendants therein, from in any way interfering with their peaceful possession and enjoyment of the suit properties, on the ground, that on the basis of the sale agreements executed by the owners of the suit properties, Sabjan Sahib was entitled to the protection of Section 53-A of the Act, since the entire consideration was paid and he was also put in possession of the suit properties, in part performance of the agreement, that after his death, they are in possession and enjoyment of the suit properties, which cannot be disturbed by the original owners of the suit properties, since they have lost their title to the suit properties, by adverse possession and limitation and in view of the protection available under Section 53-A of the Act, more or less reiterating the stand taken by them in the written statement filed in O.S.No.31/85.
9. The plaintiffs in O.S.No.31/85 as defendants in O.S.No.331/90, reiterating the claim projected in O.S.No.31/85 have opposed the suit for declaration and injunction and the pleadings need not be repeated unnecessarily.
10. The trial Court, considering the common interest involved in both the suits, as well as the fact that the evidence required in both the cases, either oral or documentary, are one and the same, probably as agreed between the parties, took the case for joint trial, after framing necessary issues.
11. The learned District Munsif, after the examination of Sundarraj (2nd plaintiff) as P.W.1 and Rabiya Bi (3rd defendant) as D.W.1, as well as marking Exs.A-1 to A8 and B1 assessed the same, based upon certain admitted facts, as well as the previous proceedings, which brought to surface that the plaintiffs are entitled to a decree, including the mesne profits, whereas defendants 3 to 5 are not entitled to any decree in O.S.No.331/90. Thus concluding, O.S.No.31/85 was decreed as prayed for and O.S.No.331/90 was dismissed as per the common Judgment dated 27.8.1991, which were challenged before the first appellate Court in A.S.No.100/91 and 48/92 on the file of the Additional Sub Court, Chengalpattu, by defendants 3 to 5.
12. The learned Additional Subordinate Judge, by going through the common Judgment and reassessing the materials available on record, was unable to agree with the findings rendered by the learned District Munsif. Upon appreciation of the materials, the learned Additional Subordinate Judge came to the conclusion, that the plaintiffs were unable to prove the possession of the suit properties with defendants 1 & 2, as well as the defendants 3 to 5 also failed to prove the possession of the suit properties with them, by producing the documentary evidence. However, at the same time, he came to the conclusion, as seen from paragraph-22 of the Judgment, since Sabjan Sahib was in possession of the suit properties, in pursuance of the sale agreements, the possession should be continued with his legal representatives viz., defendants 3 to 5. Thus he had taken the decision, as if the suit properties are in the possession of defendants 3 to 5 in O.S.No.31/85, who are the plaintiffs in O.S.No.331/90. It is further held by the learned Additional Subordinate Judge, that defendants 3 to 5 are entitled to be protected under Section 53-A of the Act, since they have deposited the balance of sale consideration, which was disputed. On the basis of the above conclusion, the first appellate Court upset the decree granted in favour of the appellants/plaintiffs, thereby dismissed the suit O.S.No.31/85, decreeing the suit O.S.No.331/90, which are under challenge in these second appeals.
13. This Court, while admitting the second appeals had formulated the following substantial questions of law, for consideration.
(a) Whether the lower appellate Court has acted without evidence while reversing the well considered Judgment and decree of the trial Court?
(b) Whether the lower appellate Court has properly appreciated the scope of Section 53-A of the Transfer of Property Act?
(c) Whether the lower appellate Court is right in holding that the defendants 3 to 5 in O.S.No.31/85 and the plaintiffs in O.S.No.331 of 1990 are entitled to claim protection under Section 53-A of the Transfer of Property Act?
(d) Whether the lower appellate Court has properly appreciated the scope of the Judgment in S.A.No.2274 of 1975 of High Court, Madras?
(e) Whether the suit O.S.No.331 of 1990 is in time and whether the lower appellate Court has properly appreciated the law of limitation in this regard?
14. Heard the learned senior counsel for the appellants, Mr. T.V. Ramanujam and the learned counsel for the respondents, Mr. R. Mohan.
15. Shri T.V. Ramanujam, senior counsel for the appellants has submitted, that defendants 3 to 5, who had claimed protection under Section 53-A of the Act, has not established the ingredients required under this Section, for the protection and despite this fact, the first appellate Court had committed an error in accepting the case of defendants 3 to 5, thereby upsetting the well reasoned Judgment of the trial Court. It is the further submission of the learned senior counsel for the appellants, that the first appellate Court has not properly appreciated the scope of the Judgment in S.A.NO.2274/1975 on the file of this Court, as well as failed to appreciate the law of limitation also.
16. On the other hand, the learned counsel for the contesting respondents/defendants would contend, that in the previous proceedings between the parties, it was concluded that the legal representatives of Sabjan Sahib are entitled to the protection of Section 53-A of the Act and on that basis, as well as on the basis of the evidence adduced, the first appellate Court has correctly come to the conclusion, that defendants 3 to 5 are entitled to the protection of Section 53-A of the Act, since possession was handed over to Sabjan Sahib, in pursuance of the sale agreements, which was continued with his legal representatives and that is why the suit is filed by the plaintiffs, for recovery of possession, which were properly considered and appreciated by the first appellate Court, not warranting any upset or reversal by this Court.
17. To appreciate the substantial questions of law framed supra, as well as the veracity of the arguments advanced on either side, it is incumbent to remember the previous litigation, leading to the present litigation, which are the subject matter of these two appeals.
18. It is the common case of the parties, that the suit properties originally belonged to the plaintiffs, either jointly or otherwise, being the pangalis belonged to the same family. It is also the case of the defendants that the original owners viz., the plaintiffs or their predecessors in interest had executed sale agreements in favour of Sabjan Sahib under Exs.B1 to B3, which were exhibited in O.S.No.478/72. A dispute had arisen between the plaintiffs in O.S.31/85 and the defendants 1 & 2 elsewhere in the year 1972. Therefore, the 4th appellant herein along with three others have filed the suit before the District Munsif of Chengalpattu in O.S.No.478/72 for declaration of their title to the suit properties and for permanent injunction. The suit was resisted by the defendants therein, who are defendants 1 & 2 in O.S.No.31/85 on the ground, that the suit properties were purchased by the defendants and their eldest brother, Sabjan Sahib, for full and valuable consideration, on the basis of the agreements executed in favour of Sabjan Sahib, that they were put in possession of the suit properties also and that since they were/are in possession and enjoyment of the suit properties continuously, in part performance of the agreements, as well adverse to the interest of the real owner, there are not only entitled to the protection of Section 53-A of the Act, in addition, they have also prescribed title to the suit properties by adverse possession.
19. The trial Court, accepting the case of the plaintiffs in that suit decreed the suit as prayed for, which was challenged by defendants 1 & 2 in A.S.No.198/73 on the file of the Principal Subordinate Judge, Chengalpattu. The learned Subordinate Judge, Chengalpattu, considering the facts and circumstances of the case, came to the conclusion, while assessing the evidence further, that Sabjan Sahib should have come into possession of the suit properties, subsequent to Exs.B1 to B3, which was in 1952 and should have paid kist for the suit lands only as a party to the agreement entered into under Exs.B1 to B3 marked in that suit. In this view, the learned Subordinate Judge, came to the conclusion, that Sabjan Sahib was in possession of the suit properties and thereafter, defendants 1 & 2 are in possession of the same. Thus, a further conclusion was deduced, that the plaintiffs have lost title to the suit properties, which was acquired by Sabjan Sahib. Thus concluding, the learned Sub Judge has not decided about the protection claimed under Section 53A of the Act, observing that it is only of academic interest. Taking such an extreme view, extinguishing the title of the original owner, the appeal was allowed, upsetting the decree and Judgment rendered in favour of the plaintiffs, thereby dismissing the suit with costs throughout, which came to be challenged before this Court in second appeal 2274/1975.
20. In S.A.No.2274/1975, this Court has observed as follows:
"There is evidence to show that possession of the property must have been delivered to Sabjan Sahib in pursuance of the agreements exhibits B1 to B3."
Then considering other attending circumstances, it is observed:
"However, I find that the question whether the balance remained unpaid and whether Sabjan Sahib had not performed his part of the contract and the defendants who claimed the benefit of Section 53-A of the Transfer of Property Act have not expressed their willingness to perform the remaining part of the contract does not arise for consideration in this case."
thereby showing, that there was no conclusive finding by this Court, regarding the availability of the protection under Section 53-A of the Act to the defendants 1 & 2. When defendants 1 & 2 in that suit had claimed possession in themselves, as well as right in pursuance of Exs.B1 to B3 on the grounds, that for their benefits also, the agreements were obtained, this Court had observed:
"Therefore it is not possible to hold that the agreements exhibits B1 to B3 had been obtained by Sabjan Sahib not only for his own benefit, but also for the benefit of the defendants and that even the defendants had paid any part of the amounts paid on the date of the agreements."
Thus concluding, an observation has been made that Sabjan Sahib must have been in possession of the properties from 1962 to February 1971 on the basis of Exs.B3 to B.13. Then it is further observed, "the possession by the defendants of the suit properties could have commenced subsequent to the death of Sabjan Sahib." In this way, the claim of the defendants 1 & 2 over the suit properties by adverse possession was negatived. This Court, not stopping there, had come to the conclusion that the title to the suit properties continued only with the plaintiffs even after the execution of the agreements and it might be opened to the wife and sons of Sabjan Sahib, to claim the benefits of Section 53-A of the Act. Thus negativing the claim of the defendants 1 & 2 in O.S.No.478/72, regarding the adverse possession and concluding that the plaintiffs therein also failed to prove their possession, allowed the appeal in part, decreeing the suit only for title, dismissing the injunction claimed. Only on the basis of the observations available in S.A.No.2274/75, the present suits are filed by the plaintiffs and defendants 3 to 5.
21. This Court has not given any conclusive finding in favour of defendants 3 to 5, as if they are entitled to protection under Section 53A of the Act and that is why it appears, they have filed O.S.No.331/90, seeking that relief. In O.S.No. 478/72, since defendants 3 to 5 were not parties, the question of deciding the benefits under Section 53A of the Act in favour of the legal representatives of Sabjan Sahib did not arise. But unfortunately, with great respect, I would say, the learned Judge, while negativing the claim of the defendants 1 & 2 in that suit, who had claimed benefits under the sale agreements as well as adverse possession as an obiter, had observed, "Though the title to the property continued with the plaintiffs even after the execution of the agreements exhibits B.1 to B.3, it might be open to the wife and sons of Sabjan Sahib to claim the benefit o Section 53A of the Transfer of Property Act."
Therefore, as rightly contended by the learned senior counsel for the appellants, only on the basis of the said observation, defendants 3 to 5 are not entitled to claim protection or declaration of right under Section 53-A of the Act as of right, urging that right was already recognised. If at all, they have to establish the same to seek the protection by declaring that right, independently.
22. As discussed above, from the previous proceedings, it is made clear, that the plaintiffs/appellants are the owners of the suit properties and the declaration so made in S.A.No.2274/75 was not challenged and it reached its finality. Therefore, in the ordinary course, being the owners of the suit properties, the plaintiffs are entitled to recover possession unless it is shown, otherwise barred. To set at naught the claim of the plaintiffs, plea of adverse possession as well as the limitation have been taken in addition to the protection under Section 53-A of the Act. True, in the previous proceedings, a finding has been given, which is binding upon the plaintiffs also, that the defendants are in possession and enjoyment of the suit properties, in pursuance of the sale agreements. When defendants 1 & 2 had claimed title to the suit properties by adverse possession, that was also negatived. It is seen from the written statement filed by defendants 1 & 2 in the previous suit that they alone claimed possession of the suit properties in their favour, which was accepted by the first appellate Court, while dismissing the suit for declaration and injunction. It is not the finding of this Court in S.A.No.2274/75 that the defendants 3 to 5 were/are in physical possession and enjoyment of the suit properties in their own in pursuance of the fulfillment of their obligations under the contract of sale, attracting Section 53-A of the Act. On the other hand, it is observed, that the possession, by the defendants, of the suit properties could have commenced subsequent to the death of Sabjan Sahib, thereby indicating that the legal representatives of Sabjan Sahib were not in possession of the suit properties or have not inherited the possession of the suit properties, though at later part of Judgment, it is observed, that it might be opened to the wife and son of Sabjan Sahib to claim the benefits of Section 53 of the Act. Thus, the possession claimed by defendants 3 to 5 in pursuance of the agreements, which were marked in previous suits viz., Exs.B1 to B3 therein, not produced in this case, has to be established by the legal representatives of Sabjan Sahib, in order to claim the benefits under Section 53-A of the Act.
23. The appellants have failed to prove their possession in the previous suit and that is the reason now, they seek possession. The fact, that for some time, the defendants 1 & 2 were in possession of the suit properties as claimed by them in the written statement and as accepted by the Courts, will not come to the aid of defendants 3 to 5, to claim that they are in possession of the suit properties, in pursuance of the sale agreements, thereby attracting Section 53-A of the Act, automatically. Section 53-A of the Act gives protection on the basis of the doctrine of part performance, that a person, who had fulfilled all the obligations of the contract to be performed by him, should be protected from interfering with his possession, since under the hope that the vendor would execute the sale deed in pursuance of the contract, he had performed his obligation, thereby bringing his act within the meaning of part performance.
24. To seek protection under Section 53-A of the Act, the necessary ingredients are:
(1) there must be a contract to transfer for consideration any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performance or be willing to perform his part of the contract.
Therefore, defendants 3 to 5, who claim declaration on the basis of the part performance, must establish the above ingredients. As rightly submitted by the learned senior counsel for the appellants, to satisfy the above requirements, there is no evidence, except the ipse dixit of D.W.1, whose evidence also failed to satisfy the above requirements even taking as such. Admittedly, the agreements said to have been entered into between the parties are not produced in this case for perusal and appreciation. In the absence of the original agreements or copy of the same, this Court had no opportunity to say based upon the recitals therein, whether possession of the suit properties were given in pursuance of the agreement or not. In the previous proceedings, it appears, the agreements were marked as Exs.B1 to B3 i.e. in O.S.No.478/72. Not accepting the case of defendants 1 & 2, that case was decreed, which was challenged in A.S.No.198/73.
25. The learned Sub Judge, while rendering Judgment in O.S.No.198/73 has given a finding that Exs.B1 to B3 made out a case that possession was passed to Sabjan Sahib. But no finding is available, whether it is so recorded in the agreements. In the second appeal, a finding has been given that "Sabjan Sahib must have been in possession of the properties, having regard to the fact that kist had been paid by him from 1962 to February 1971 under Exs.B3 to B13". Here also, no finding has been rendered regarding handing over of the possession to Sabjan Sahib, in pursuance of the agreements or he was in possession of the properties prior to the agreements and he continued to be in possession of the same in pursuance of the agreements or some thing like that. The finding of possession appears to be based upon only on payment of kist till 1971. As far as the possession of defendants 3 to 5 are concerned, it is observed that their possession could have been commenced subsequent to the death of Sabjan Sahib, without taking into consideration that defendants 1 & 2 alone had claimed possession of the properties, which was accepted to some extent, since the suit for injunction was dismissed by the Court. At one stage, though it was observed, that there is evidence to show that possession of the properties must have been delivered to Sabjan Sahib, in pursuance of Exs.B1 to B3, it was later observed, that the benefits claimed by defendants under Section 53-A of the Act did not arise for consideration in that case, thereby showing that point was not raised by the parties in the previous case and no finding has been given. This being the position, in the absence of specific findings in the previous litigation between the parties regarding the claim of defendants 3 to 5, it is incumbent upon defendants 3 to 5, to prove the ingredients stated above, to claim the benefits of Section 53-A of the Act.
26. The third defendant, though had stated without producing sale agreements, that the plaintiffs or their pangalis have executed agreements in favour of Sabjan sahib, she is unable to say, when the balance of sale consideration was paid. The fact, that defendants 3 to 5 have deposited the balance of sale consideration, with subsequent interest, after the filing of the suit, will not prove that they were/are or their predecessors in interest were always ready and willing to perform their part of the contract. She would further contend, that after the death of her husband, about 20 years ago, she is enjoying the properties, for which she has not produced any scrap of paper. By reading the entire evidence of D.W.1, I am unable to find out any, material to come to the conclusion, that they are in possession of the properties in part performance of the contract or taken possession of the properties or they had done some act in pursuance of the contract or they had performed or willing to perform their part of the contract. In the absence of any such evidence, that too in the absence of any specific finding recorded by the courts in the previous litigation between the parties, taking advantage of some observation alone in S.A.No.2274/1975, defendants 3 to 5, who are the plaintiffs in another suit are not entitled to have the protection, for that purpose, they are also not entitled to any declaration, as claimed in the suit.
27. The submission of the learned senior counsel Mr.T.V.Ramanujam, that the first appellate Court failed to consider the question of limitation in this case, while granting declaration under Section 53-A of the Act, appears to be well founded. As per the cause of action stated in the original plaint, the first cause of action for the suit arose on 14.7.1942. The year 1942 must be incorrect, since in the previous suits, the date of agreement is given as 14.7.1952. The defendants 3 to 5, without knowing even the actual date of agreements, have repeatedly said in O.S.No.331/90, as if the agreements came into existence on 14.7.1942, thereby showing their ignorance, regarding the agreements, which would follow, the defendants are incompetent to claim the benefits under Section 53-A of the Act, since they cannot speak regarding the part performance in pursuance of the agreements, because admittedly, they have not performed any part of the agreement, personally. In paragraph-7 of the original plaint, further the cause of action is stated as if it had arisen, when Sabjan Sahib paid the balance of sale consideration, as well as in the year 1971 when Sabjan died, as well as on 25.3.1990, when the defendants gave out that they would enter into the suit properties, which are in the possession of the defendants 3 to 5/plaintiffs in 331/90.
28. The relevant Article applicable in this case must be Article 58 of the Act, since it contemplates filing of the suit to obtain any other declaration, which should embrace the declaration sought for under Section 53-A of the Act also. As per the 3rd column of the Article, the time begins to run or the period begins to run when the right to sue first accrues. No knowledge of the plaintiff is attributed or any other cause of action or date is attributed giving any other starting point of limitation other than the right to sue first accrues. In this case, though the agreements were not produced, since it is said that in pursuance of the agreements, which came into existence on 14.7.1952, they have performed their part of the contract, thereby entitling them to claim the benefits under Section 53-A of the Act, it should be held, that the right to sue had accrued on 14.7.1952, which is also stated in the plaint as 14.7.1942 instead of 1952. Admittedly, the suit was filed in the year 1990 i.e. after many decades. The suit is not for permanent injunction alone based upon possession, which came to them, on the basis of the agreements, labeling it as legal possession, not to be disturbed. The prayer column reads, the right of the plaintiffs should be declared, as if they are entitled to the benefits of Section 53-A of the Act, thereby indirectly asking another prayer that the defendants are debarred from interfering with the rights of the plaintiffs in respect of the suit properties, which are already declared by this Court in S.A.No.2274/75 on 24.4.1979. Only on the basis of the declaration is also sought for as consequential relief, permanent injunction is sought for against the defendants in that suit, whose title was declared. Therefore, unless the declaration comes within the period of limitation, and it is so declared, defendants 3 to 5 are not entitled to any protection by way of injunction, since it may amount to preventing the original owners, who got a decree for declaration of their title, from recovering the possession, which is neither barred under Order II Rule 2 C.P.C., nor barred under the principles of res judicata. The fact, that originally though the plaintiffs had claimed declaration and injunction, they failed to prove their possession, cannot be taken as a bar for claiming subsequent possession, on the basis of the declaration granted by this Court, in S.A.No.2274/75. It is also averred in the plaint, that the defendants have trespassed into the suit property. In this view of the matter, the possession sought for in O.S.No.31/85, cannot be denied, on the basis of Order II Rule 2 C.P.C. or under Section 11 of C.P.C., since the same were not the subject matter of the previous suit. For the foregoing reasons, it is to be held conclusively, since the suit is not filed within three years from the date on which the right to sue first accrues, the suit is clearly barred by limitation.
29. In O.S.No.331/90, the plaintiffs have claimed adverse possession also, which reads:
"The plaintiffs and prior to them the said Sabjan, who have been in possession of the suit properties from the date of agreement namely dated 14.7.1942 have acquired title to the suit properties by adverse possession and prescription also", thereby showing that they are denying the title of the original owners, which would indicate that they have not recognised the sale agreements or claimed any right on the basis of agreements, in pursuance of the part performance.
30. The learned senior counsel for the appellants submitted, that Section 53-A of the Act and adverse possession will not sail together, as declared by the Apex Court, reaffirming the previous decision, in Mool Chand Bakhru v. Rohan (2002 (1) CTC 433), wherein it is held thus:
"It has been held in the latter Judgment that the pleas of adverse possession and retaining the possession by operation of Section 53-A of the Act are inconsistent with each other. Such a plea is not available to the proposed vendee."
Against the law declared by the Apex Court, defendants 3 to 5, who are plaintiffs in O.S.No.331/90, have claimed adverse possession also, thereby cutting the right claimed under Section 53-A of the Act, for which there cannot be any declaration. Unfortunately, the first appellate Court, without considering the readiness and willingness and the part performance said to have been performed by defendants 3 to 5, on presumptions and surmises alone, had come to the conclusion that the plaintiffs have lost their right, whereas defendants 3 to 5 are entitled to declaration, as prayed for, which is not based upon any sound legal principles of law, as well as supported by acceptable evidence. For the foregoing reasons, without hesitation, I should conclude that the appellate Court has acted without evidence, while reversing the Judgment of the trial Court, that it has not properly appreciated the scope of Section 53-A of the Act, thereby committed an error in holding that the defendants 3 to 5 in O.S.No.31/85 viz., plaintiffs in O.S.No.331/90 are entitled to protection under Section 53-A of the Act, that it has not properly appreciated the scope of Judgment in S.A.No.2274/75, that too not considering the limitation, which is the duty of the Court, to be considered even in the absence of any plea, answering the substantial question of law accordingly.
31. Under the above said circumstances, both the appeals deserve acceptance, warranting upsetting the judgments rendered by the first appellate Court in A.S.No.48 of 1992 and A.S.No.100 of 1991 on the file of the Addl. Subordinate Judge, Chengalpattu, restoring the decree and judgment of the trial Court in O.S.Nos.31/85 and 331/90 on the file of the District Munsif, Chengalpattu.
In the result, both the appeals are allowed and the decree and judgment of the first appellate Court are set aside, restoring decrees and judgments of the trial Court, in both the cases. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs throughout.