Kerala High Court
P. Aravindakshan vs Karunakaran P
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934
SA.No. 570 of 1997 (A)
----------------------
AS.63/1993 of III ADDL.SUB COURT, KOZHIKODE
OS.320/1987 of ADDL.M.C.,KOZHIKODE-II
APPELLANT(S/APPELLANT/PLAINTIFF:
--------------------------------
P. ARAVINDAKSHAN,
MANNOORE DESOM,
P.O. MANNOORE,
KOZHIKODE.
BY ADVS.SRI.M.C.SEN (SR.)
SRI.M.P.SREEKRISHNAN
SRI.R.PARTHASARATHY
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
------------------------------------
1. KARUNAKARAN P.,
KUNNEGAT HOUSE,
KOLATHARA P.O.
2. MALUKUTTY, -DO- -DO- (DIED - LRS IMPLEADED)
3. P. AMBUJAKSHI, P.G. PLYWOOD CO.
PAPPINISSERI P.O., KANNUR DISTRICT.
(DIED - LRS RECORDED)
4. V. PADMINI, VATTARAMBATH HOUSE,
P.O. ARAKKINAR, CALICUT DISTRICT.
5. P.P. DIVAKARAN, FLT. NO.307,
SHIV SHAKTHI, KURLA.
6. P.P. SHANMUGHAN, KALPATTA,
P.O. KALPATTA.
7. BHANUMATHY, W/O.K.A. VELU,
KARUVATHODI HOUSE,
MALAPPURAM.
8. SUGUNAN, PADINHAREPURAKKEL HOUSE,
P.O. MANNOR, KADALUNDI,
CALICUT DISTRICT.
9. DAMAYANTHI, -DO-
(DIED - LRS RECORDED)
10. P. BALAN, "NISANTH',
P.O. DESOM, ALWAYE-3.
11. VENUGOPALAN P., ASST. ENGINEER,
K.S.E.B., GANDHI ROAD, CALICUT.
12. SARALA, 'NISANTH', P.O. DESOM,
ALWAYE - 3.
13. ANITHA, KALLINGAL HOUSE,
EAST HILL ROAD,
P.O. WEST HILL, CALICUT.
14. SURESAN P.O., 'NISANTH',
P.O. DESOM, ALWAYE - 3.
15. LAKSHMI, -DO-
16. JAYANTHI, PATHAYATHINGAL HOUSE,
SANTHI NAGAR, WANDOOR, MALAPPURAM DT.
17. VASANTHI A.P., 339, 29TH STREET,
ANNA NAGAR (WEST), MADRAS 40.
18. K. VILASINI, KAKKOVIL HOUSE,
P.O. KARUVANTHURUTHI, CALICUT.
19. DEVAYANI, AYYAPPANJARIKAVALA,
CHERTHALA, ALAPPY DISTRICT.
20. P. RAMAKRISHNAN, PADINHAREPURAKKAL HOUSE,
P.O. MANNUR, KADALUNDI (VIA), CALICUT.
21. P. APPUKUTTAN, ALLIED ENGG. WORKS,
P.O. FEROKE, CALICUT.
22. P. VASU, C/O. P. BALAN,
ROYAL ENGINEERING, ROYPURAM,
MADRAS-18.
23. E.P. AMMUKUTTY, EDATHAMPADIKKAL,
P.O. DEYPORE, CALICUT-25.
24. GOURY, P.O. FEROOK COLLEGE, FEROKE.
25. V. SARASWATHI, VALLIL HOUSE,
P.O. CHEVARAMBLAM, MALAPARAMBA,
CALICUT DISTRICT.
26. P. BALAN, ROYAL ENGINEERING,
ROYURAM, MADRAS-18.
27. P. RAJENDRAN, NEW AGE INDUSTRIES,
P.O. MANNUR, KADALUNDI, CALICUT.
28. P. ANILKUMAR -DO-
29. P. SUNILKUMAR, ALLIED ENGG. WORKS,
P.O. FEROKE, CALICUT.
30. P. ANAND, C/O. BALAN, ROYAL ENGINEERING,
ROYPURAM, MADRAS-18.
31. REGHU, S/O. BALAN, -DO-
32. T. LEELA, THENDIYEMEL HOUSE,
ELETHUR P.O., CALICUT DISTRICT.
33. P. SREENIVASAN, FOUNDARY SECTION,
I.S.R.O. THIRUVANANTHAPURAM.
34. P.P. SEEMANTHINI, PAZHUGANNUR,
PADINHAREPURAKKAL, P.O. CHALIYAM,
CALICUT.
35. P. RAVEENDRAN, CARBORANDUM UNIVERSAL,
P.O. CANJIKODE, PALGHAT DIST.
36. JANARDHANAN, GULF.
37. P. SATHIANATHAN, CARBORANDUM,
UNIVERSAL CANJIKODE, PALGHAT DIST.
38. P. SREEKUMAR, PADINHAREPURAKKAL HOUSE,
P.O. MANNUR, VIA. KADALUNDI.
39. P. JYOTI KUMAR, PADINHAREPURAKKAL HOUSE,
P.O. MANNUR, VIA KADALUNDI (MINOR)
REP. BY 33RD RESPONDENT.
40. P. MURALEEDHARAN, C/O. KALLIYANIKUTTY,
MANNIR AMSOM, DESOM, KOZHIKODE.
41. P. JAYARAJAN, C/O. INDIAN INDUSTRIAL
TECHNICIAN, 2 B.C. PRESS II LANE, ROYAPURAM,
MADRAS-13.
42. P. DIVANANTHAN, -DO-
43. P. SREENIVASAN, -DO-
44. P. SURESH BABU, -DO-
45. P. PRADEEPKUMAR, -DO-
46. P. SUDHA, -DO-
47. P. DAMAYANTHI, -DO-
48. C. RAMACHANDRAN, QUARTERS,
NO.IIA/929, H.A.L. TOWNSHIPYARD,
MAHARASHTRA STATE.
49. C. RAMACHANDRAN,
50. NALINI, CHEMBAKKOTE HOUSE,
P.O. MALAYAMMA, VIA
R.E.C. CHATHAMANGALAM, CALICUT.
51. P. KARTHIAYANI, C/O. T.K. GOPALAKRISHNAN,
THEKKEY PURAKKEL HOUSE, P.O. NEDUVA,
PARAPPANANGADI, MALAPPURAM.
52. P. SULOCHANA, 3A, MANIAVASALAM,
SHASTRI ROAD, COIMBATORE.
53. VISALAKSHI, PALLIYARAKUNNIL HOUSE,
P.O. VELLALLUR, MAKKARAPPARAMBA,
MALAPPURAM.
54. P. YAMUNA BAI, PARAPPANANGADI,
P.O. MALAPPURAM.
55. INDIRADEVI, D/O. SIDHARTHAN P.P.
56. NIKITHA (MINOR) RREPRESENTATED BY 55TH
RESPONDENT.
57. T. GOPALAKRISHNAN.
58. PIRANLAL.
59. KAIRALI.
ADDL.RESPONDENTS 60 TO 64 IMPLEADED.
60. DHASHAYANI, W/O. K.P. VELAYUDHAN,
AGED 65 YEARS, PERADY, METHAL,
KOMMERI, CALICUT-7.
61. SATHYABHAMA, W/O. DIVAKARAN,
RENJITH NILAYAM, MADAVOOR,
ERANJIKKAL P.O.
62. LOHITHAKSHAN, AGED 59,
THEKKEPURAKKAL,AYANIKKAD PARAMBA,
KULATHARA P.O., KUNDIYATHODU.
63. BHAVANI, 56 YEARS,
PALAMATTATHU, GEETHA NIVAS,
CHETTIPADY P.O., PARAPPANANGADI.
64. VIJITH, AGED 22 YEARS,
KUMMEKKATTU HOUSE, KOLATHARA P.O.,
CHERUVANOOR.
THE APPELLANT AND R4 TO R8 ARE RECORDED AS THE LRS
OF THE DECEASED R3 AS PER ORDER DT. 9.6.1998 ON
C.M.P.991/98.
THE SOLE APPELLANT AND RESPONDENTS 4 TO 8 ARE
RECORDED AS THE LRS OF DECEASED RESPONDENT NO.9 AS PER THE
ORDER DTD. 23/10/1998 IN CMP. 2235/1998.
ADDL. RESPONDEWNTS 60 TO 64 ARE IMPLEADED AS THE
LRS OF THE DECEASED SECOND RESPONDENT AS PER THE ORDER
DATED 11.10.2010 IN I.A. 1577/2010.
BY ADV. SRI.P.V.KUNHIKRISHNAN -R16 TO 54, 57 TO 59
BY ADV. SRI.R.K.MURALEEDHARAN -R1 TO 15,55
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15-03-2012, THE COURT ON 25-05-2012 DELIVERED THE FOLLOWING:
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
S.A. No. 570 of 1997
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 25th day of May, 2012.
JUDGMENT
The plaintiff in O.S. 320 of 1987 who had his suit for partition dismissed by the trial court and confirmed by the lower appellate court is the appellant before this court. During the pendency of the appeal before this court, the 2nd respondent, 3rd respondent and 9th respondent died and their legal heirs have been brought on the party array.
2. According to the plaintiff, he and defendants 1 to 16 belonged to Asari community who follow Hindu Mithakshara Law. They are all members of Padinharepurakkal tarwad. Plaint A schedule is the geneology. According to the plaintiff, plaint B schedule property which consists of three items originally belonged to Padinharepurakkal Parangodan and now those items S.A.570/1997.
2belong to the tarwad of the plaintiff and defendants 1 to 16. Pirungan was the only son of Parangodan, who is the predecessor-in-interest of plaintiff and defendants 1 to 16 and Pirungan had only one son by name Chandunni. Plaintiff and defendants 1 to 16 are the successors-in-interest of the said Chandunni. They are in joint possession of the suit property. It is contended that when the plaintiff demanded for partition, the first defendant replied that he is not in a position to partition the properties because defendants 17 to 53 are setting up rights over the property. According to the plaintiff, defendants 17 to 53 had nothing to do with the property and they are not members of Padinharepurakkal tarwad. There is no relationship between the two groups, namely, the plaintiff and defendants 1 to 16 on the one hand and defendants 17 to 53 on the other. Defendants 17 to 53 S.A.570/1997.
3belong to Thirumalamal tarwad. The plaintiff laid the suit claiming 1/32 shares over the properties.
3. The first defendant filed a written statement almost supporting the plaintiff. According to him, defendants 17 to 53 are unnecessary parties and they have nothing to do with the properties of Padinharepurakkal tarwad. He therefore expressed his readiness and willingness to partition the properties as demanded by the plaintiff.
4. Defendants 17 to 53 contested the suit. They contended that they belong to Asari community and they are residing in Palakkad paramba and their tarwad is Padinharepurakkal tarwad. It was contended that the ancestors of defendants 17 to 53 had specialized in temple architecture and due to their expertise the Uralans of Mannur Devaswom conferred on their ancestors the title S.A.570/1997.
4'Thiruvillamal Asarimar'. Plaint B schedule properties belonged to defendants 17 to 53. Item No.1 of plaint B schedule property was purchased by the 42nd defendant's father Velu in the year 1919. Suffice to say, they traced title to item Nos.1 to 3 in plaint B schedule through various documents and their contention was that the plaintiff and defendants 1 to 16 have nothing to do with plaint B schedule properties. According to them, the two groups belonged to different families. According to these defendants, the plaintiff and defendants 1 to 16 have no manner of right over the suit properties and the suit is only a test suit to see whether they can obtain any rights over the suit properties. They prayed for a dismissal of the suit.
5. It appears that during the pendency of the suit the 42nd defendant died and his legal heirs have been brought on the party array as defendants 54 to 58. S.A.570/1997.
5
6. Based on the above pleadings, issues were raised. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A12 from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts.B1 to B50 marked. On a consideration of the materials before it, the trial court came to the conclusion that plaint B schedule items, which are three in number, belonged to the predecessor-in-interest of defendants 17 to 53 and since the plaintiff and defendants 1 to 16 contended that they and defendants 17 to 53 belonged to two different families, no relief can be granted to the plaintiff. Accordingly, the suit was dismissed.
7. The plaintiff carried the matter in appeal as A.S.63 of 1993. The appellate court on an independent evaluation of the evidence came to the conclusion that the finding of the trial court that plaint B schedule property belonged exclusively to defendants 17 to 53 was fully S.A.570/1997.
6justified and found no grounds to interfere with the decree dismissing the suit. Accordingly, the appeal was also dismissed.
8. Notice is seen issued on the following substantial questions of law:
"1. Have not the courts below gone wrong in ignoring material documents like Ext.A1 to A3, B8, B25 to B32 while deciding the question whether the plaintiff and defendants 1 to 16 are the members of Padincharepurakkal Tarwad.
2. When Ext.B8 relating to the property in the possession of plaintiff and defendants 1 to 16 contains the same signature of Chandunni as is contained in Ext.B25 to 32 are the courts below right in holding that the plaintiff and defendants 1 to 16 are not the descendants of Chandunni who executed B25 to 32 which are admittedly binding on the tarwad.
3. When the contesting defendants admitted the execution of Ext.A11 and A12 agreement relating to the management of tarwad property and the S.A.570/1997.7
plaintiff is also a party to such agreement, is it open to the contesting defendants to deny the status of membership to the tarwad by stating that Chandunni died issueless and that the plaintiff and defendants 1 to 16 are not his descendants."
9. Sri.M.C.Sen, learned Senior Counsel appearing for the appellant very vehemently contended that the courts below have erred in law in holding that the plaintiff and defendants 1 to 16 have no rights over the suit property. According to him, Exts.A1 to A3, B8, B25 to B32 have not been properly considered and the courts below were not justified in coming to the conclusion that defendants 17 to 53 have also the same family name, namely, Padinharepurakkal. Learned counsel went on to point out that Exts.A11 and A12 have not been considered in the proper perspective. By Exts.A11 and A12, the group consisting of defendants 17 to 53 had recognized the right of the plaintiff and defendants 1 to 16, and even assuming S.A.570/1997.
8that defendants 17 to 53 have also rights over the property, there is no justification in dismissing the suit. May be it was imprudent on the part of the plaintiff and defendants 1 to 16 to take up the stand that the group consisting of plaintiff and defendants 1 to 16 and group consisting of defendants 17 to 53 belonged to two separate families and they had no common ancestor. Ext.B8 document would show that Chandunni mentioned therein is the Chandunni who finds a place in the geneology produced by the defendants and marked as Ext.B11 in the suit. It is therefore contended that there was no justification for the lower courts to have dismissed the suit.
10. Learned counsel for the appellants referred to the geneology produced by defendants 17 to 53 marked as Ext.B11. Learned counsel made reference to the following entry in the said geneology.
( ) | ( ) S.A.570/1997.
9
| ______________________________________ | | ( ) ( ) | It is pointed out that Chandunni shown in Ext.B11 geneology produced by defendants 17 to 53 is shown to have died without leaving behind any issues, which is not true. The said Chandunni shown in Ext.B11 is the Chandunni shown in A schedule geneology to the plaint. The plaintiff and defendants 1 to 16 are the legal heirs left behind by the said Chandunni and therefore the plaintiff and defendants 1 to 16 are entitled to shares in the suit property. As already stated, learned counsel went on to point out that it was quite indiscriminate on the part of the plaintiff and defendants 1 to 16 to have denied any relationship between them and defendants 17 to 53. Even assuming that the plaint mentions so, that is not a ground to S.A.570/1997.
10dismiss the suit if it is actually found that the two groups had a common ancestor. Learned counsel went on to point out that at any rate, the suit ought not to have been decreed giving shares to defendants 17 to 53. Reliance was also placed on Ext.B8 document which according to the learned counsel is an admitted document and the signature of Chandunni in Ext.B8 compares well with the signatures contained in the documents relied on by the contesting defendants and that would show that both the groups had a common ancestor. According to learned counsel, reliance placed on Ext.B26 to show that the two groups belonged to two different families is erroneous. Even though Ext.B26, mentions Padinharepurakkal tarwad, it is in a different Amsom and Desom and not in Mannur Amsom so that it could not be held that Ext.B26 is clinching enough to show that the two families are different. According to the learned S.A.570/1997.
11counsel, the decree passed by the court below is clearly unsustainable.
11. Learned counsel for the contesting respondents pointed out that the above contentions are new contentions taken up at the second appellate stage and find no place in the pleadings or in the arguments addressed before the courts below. The consistent case of the plaintiff till date was that the plaintiff and defendants 1 to 16 belonged to a different family and plaint B schedule property belonged absolutely to them and defendants 17 to 53 have no manner of right over the suit property. In the plaint the plaintiff and defendants 1 to 16 categorically denied any sort of relationship with defendants 17 to 53 and that stand continued during the appellate stage and even before this court. It was contended by the counsel for the respondents that the plaintiff shall not be permitted to raise a new case totally different from the pleadings in the plaint. S.A.570/1997.
12It is too late for the plaintiff and defendants 1 to 16 to claim that they too have a share in the plaint schedule property and both groups have a common ancestor. Even in the light of Exts.A11 and A12, the plaintiff and defendants 1 to 16 continued with the allegation that they had no common ancestor with defendants 17 to 53 and the two groups belonged to two entirely different families and the properties belong absolutely to the plaintiff and defendants 1 to 16. Then it is for them to prove that they belong to the same family and they too had a share in the property. In the light of the specific stand taken by the plaintiff and defendants 1 to 16 throughout the proceedings, they cannot now be heard to say that they are also members of the family to which defendants 17 to 53 belonged and they have a share in the property. Learned counsel contended that reliefs can be granted only with reference to the pleadings and evidence in the case and a decree totally different from S.A.570/1997.
13the pleadings and the case set up cannot be granted. In support of his contention, learned counsel relied on the decisions reported in Narayani Amma v. Madhavi Amma (1959 KHC 236), Indira V. Menon v. Padmavathy Amma (1993(1) K.L.J. 44) and Thankamony v. Retnam Nadathy (2011(1) K.H.C. 495).
12. As regards Exts.A11 and A12, it was contended that it is true that the recital showed that plaintiff and defendants 1 to 16 are related to defendants 17 to 53. That at best could amount to an admission. It has been explained by the contesting defendants by adducing evidence and also contended that admission cannot confer title. So also it was contended that mere registration of document cannot confer title to a person. Learned counsel relied on the decisions reported in Shri Krishan v. Kurukshetra University (AIR 1976 SC 376), Sarojini v. Santha Trading Co. (1969 K.L.T. 412) and M.P. Wakf S.A.570/1997.
14Board v. Subhan Shah ((2006) 10 SCC 696). It was contended that it may be noticed that both the courts below have considered the evidence in considerable detail and have come to the conclusion that plaint B schedule properties were acquired by the predecessor-in-interest of the defendants 17 to 53. In the light of the pleadings and the evidence adduced by the plaintiff and his group that they have no manner of relationship with defendants 17 to 53 and that the two groups had no common ancestors, the lower courts were constrained to find that the properties were acquired by the predecessor-in-interest of defendants 17 to 53 and accordingly dismissed the suit.
13. In fact the above finding is a question of fact arrived at on the basis of the pleadings and evaluation of the evidence in the case. Strictly speaking, it could be said that no substantial question of law arises for consideration. However, since elaborate arguments were addressed by S.A.570/1997.
15both sides regarding the merits of the case, that is also being considered.
14. The pleadings in the plaint are very clear. It is to the effect that the property belonged to the plaintiff and defendants 1 to 16 and defendants 17 to 53 have no manner of right over the same. Paragraph 6 of the plaint is very categoric in this regard. It is pleaded therein that defendants 17 to 53 did not belong to the family of plaintiff and defendants 1 to 16 and they have no rights over the plaint schedule property. Defendants 17 to 53 are the members of Thirumalamal tarwad in Mannar Amsom and desom. Even though the two families are entirely different since they were having same profession and avocation and were residing together, there was close relationship between the two groups. But that does not mean that they had a common ancestor. They explained the position of defendants 17 to 53 by stating that since both the groups S.A.570/1997.
16have same avocation, out of generosity and kindness the predecessor in interest of the plaintiff allowed the predecessor-in-interest of defendants 17 to 53 to reside in the property, but that does not mean that they had any manner of right over the same or that they are members of the family to which the plaintiff and defendants 1 to 16 belonged.
15. In the written statement filed by the contesting defendants they disputed that they were in permissive occupation of the plaint schedule property and contended that infact the properties belonged to them. They were the acquisitions of the predecessor-in-interest of defendants 17 to 53. They accepted the case of the plaintiff and defendants 1 to 16 constituting one group belonged to a different family and that the two groups did not have a common ancestor at all. They made mention of several documents by which the acquisitions were made by their S.A.570/1997.
17predecessor-in-interest and contended that the plaintiffs had no manner of right over the suit property. They therefore contended that the plaintiff and defendants 1 to 16 had no manner of right over the suit property.
16. At the risk of repetition, one may notice that on an evaluation of the evidence produced by the parties, both the courts below have concurrently found that the suit properties were the acquisitions of the predecessor-in-interest of defendants 17 to 53 and the plaintiff and defendants 1 to 16 have no manner of right over the properties.
17. Learned counsel appearing for the contesting respondents took this court through the various documents produced by both sides. He relied on various documents and pointed out that the findings arrived at by the courts below with regard to the plaint schedule properties are unassailable. Exts.B16 to B19 which have been discussed S.A.570/1997.
18elaborately by the courts below relate to item No.1. Exts. B10 and B12 to B15 relate to items No.2. Exts.B20 to B22 relate to item No.3 of the suit property. Even in this Second Appeal, it is not disputed that the documents made mention of relate to the suit properties. Considering the acquisitions made under the above mentioned documents and also perusing the geneology, both the courts below have conclusively found that the properties were acquired by the predecessor-in-interest of defendants 17 to 53. In fact learned counsel for the appellant was unable to show that the finding of the courts below with regard to the plaint schedule items are covered by the documents mentioned above relate to the suit property was erroneous.
18. Attention of this court was drawn to Ext.B8 panaya kychit in favour of Kunhutty Chekavan through whom the plaintiff and defendants 1 to 16 claimed rights. In a desperate attempt, learned counsel for the appellant S.A.570/1997.
19invited the attention of this court to compare the signatures in Ext.B8 and the signature of Chandunni in the deeds produced by defendants 17 to 53. According to learned counsel for the contesting defendants, the signatures compare well and that is sufficient to show that Chandunny shown in Ext.B11 geneology is also the predecessor-in-interest of plaintiff and defendants 1 to 16 and defendants 17 to 53.
19. According to learned counsel, the above fact read along with Exts.A11 and A12 would be sufficient to show that the plaintiff and defendants 1 to 16 too have rights over the property.
20. Unfortunately for the plaintiff and defendants 1 to 16, the case now put forward is totally different from what they have set up in the plaint in respect of which they adduced evidence also. After having lost the suit in the trial court, with all the documents now relied on by the learned S.A.570/1997.
20counsel for the appellant, plaintiff and defendants 1 to 16 pursued their stand that the two groups belonged to two different families and defendants 17 to 53 have no rights over the suit property even at the appellate stage. The lower appellate court was invited to render a decision on the rights of the two groups. It is significant to notice that even now as the pleadings stand, and as per the available evidence on record, the stand of the plaintiff and defendants 1 to 16 is that they belong to a different family and two groups have no common ancestors. At no point of time, the plaintiff and defendants 1 to 16 were in a mood to accept that the two groups have a common ancestor and defendants 17 to 53 have rights over the property.
21. The above was the position and stand even after Exts. A11 and A12 documents were marked from the side of the plaintiff.
S.A.570/1997.
21
22. In fact, the trial court has considered the impact of Exts.A11 and A12 in paragraph 9 of its judgment. It has come to the conclusion that Exts.A11 and A12 themselves are insufficient to confer title on the plaintiff and defendants 1 to 16. The trial court found that those documents were too brittle to hold in favour of plaintiff and defendants 1 to 16 especially when the stand of the plaintiff and defendants 1 to 16 was that the two groups belong to two different families. The trial court then went on to consider various documents already made mention of in respect of the suit properties and had come to the conclusion that it belonged to the predecessor-in-interest of defendants 17 to 53. The plaintiff had no case that Chandunni made mention of in the geneology produced by the defendants, Ext.B11, was the Chandunni who is shown as the predecessor-in-interest of plaintiff and defendants 1 to 16 in the geneology shown in plaint A schedule. S.A.570/1997.
22
23. The lower appellate court has also considered the above issue in paragraphs 7 and 9 of its judgment. The lower appellate court has noticed that even though on evidence it is found that both the groups have the same family name, the plaintiff and defendants 1 to 16 were bend upon denying any relationship with defendants 17 to 53 and continued to pursue with the contention that the two groups belonged to two different families. In paragraph 7 of the lower appellate court judgment, it is observed as follows:
"The plaintiff or the 1st defendant have no case that they have any predecessor viz., Raman."
The lower appellate court also observed that in A schedule to the plaint there is no person by name Raman as member of their family.
24. Raman and Velu are the two ancestors referred to in the various documents produced by defendants 17 to 53. Thus the lower appellate court has S.A.570/1997.
23gone on the premises that B series of documents which have already been referred to earlier and concurred with the trial court that going by those documents the property belonged to the predecessor-in-interest of defendants 17 to
53. For cogent and convincing reasons, the lower appellate court has also found that Parangodan made mention of in Ext.B11 is not the Parangodan made mention of in plaint A schedule geneology. Apart from the finding in this regard, it must be remembered that the plaintiffs and defendants 1 to 16 too have no case that the two groups had any common ancestors.
25. Before the lower appellate court also much reliance was placed on Exts.A11 and A12 documents to claim right over the suit property. The lower appellate court has noticed that they are only joint decisions taken by the plaintiff and some of the defendants from amongst defendants 17 to 53 and it is insufficient to bind the other S.A.570/1997.
24contesting defendants in the case. More significantly the lower appellate court has noticed that Exts.A11 and A12 can be of no help to the plaintiff since his definite stand is that he and defendants 1 to 16 belonged to a different family and they have no relationship with defendants 17 to
53.
26. One may now have a look at the decisions relied on by the learned counsel for the contesting respondents.
27. In the decision reported in Narayani Amma's case (supra) it was held as follows:
"The first point raised in this appeal on behalf of the appellants, is that on the pleadings and on the relief claimed, it should be held, that Kanna Marar died as a divided member. There is no doubt, that the very basis of the suit is that both Kanna Marar and Sankara Marar were divided, and it was on this footing, that the plaintiffs claimed 5/8 share. Normally, without an S.A.570/1997.25
amendment of the prayer in the plaint and also of the allegations upon which that prayer is founded, it is not open to the plaintiffs, to ignore the very basis of the suit, viz., that Kanna Marar and Sankara Marar were divided. The learned Advocate General cited certain cases in which the parties, notwithstanding their pleadings, were permitted in the course of the litigation, to support their claims, on new or additional grounds not in the pleadings, or in which admissions made by them in other proceedings, were allowed to be explained or got rid of; it is unnecessary to deal with them, as they can have no application where the relief can be granted only on the case as pleaded and on the prayer as made. As pointed out, P.W.1 adhered top the averments in para 5 of the plaint at the trial. The prayer in the plaint is specific, and is for partition and recovery of their 5/8 share in the plaint schedule assets. As pointed out by Mulla in Civil Procedure Code, 12th Edition, page 610 where a plaintiff asks for less than what the plaintiff is entitled to, the court cannot give him relief in S.A.570/1997.26
excess of the plaint, unless the plaint is amended before judgment. We are therefore clear, that on the case pleaded and on the prayer made, it must be held, that the plaintiffs can claim nothing more than 5/8 share in the trarwad properties. As for Sankara Marars share, defendants 2 to 5 have not preferred an appeal against the decree negativing their claim to it, and we do not think, this is a proper case for applying the discretion under O.41, R.33."
28. In the decision reported in Thankamony's case (supra) it was held as follows:
"No party to a suit or proceedings will be allowed to raise inconsistent pleas. He cannot give up the case set out in the pleadings and propound the new and different one on the basis of the evidence tendered in the case. It is the fundamental rule of pleading that a party cannot approbate and reprobate."
29. In the decision reported in Indira V. Menon's case (supra) it was held as follows:
S.A.570/1997.27
"A party to a litigation cannot be allowed to take contradictory or inconsistent pleas one at trial stage and another at appellate stage. His contention in a proceedings from beginning to the end shall be consistent and uniform. It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in court, to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of this opponent. This wholesome doctrine applies to the successive stages of the same suit."
30. The above decisions are clear authorities for the proposition that no relief can be granted contrary to the pleadings and evidence adduced in the case. Parties cannot be allowed to take inconsistent pleadings and contradictory stands and they should be confined to the pleadings and evidence adduced by them.
31. In the decision reported in Shri Krishnan's case (supra) it was held as follows:
S.A.570/1997.28
"Any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. A candidate to Part II Law Examination was given permission to appear in that examination on the basis of undertaking that if he would not be able to get requisite permission from his employer to join the law classes he would abide by any order that the University might pass. The candidate was very anxious to appear in Part II Examination and the undertaking was given in terrorem and in complete ignorance of his legal rights. It was held that the undertaking given by him did not put him out of courts if the university cancels his candidature."
32. In the decision reported in Sarojini's case (supra) it was held that mere mentioning of a name in the document or recital in a document is insufficient to confer title on the person as such concerned. In the decision reported in M.P. Wakf Board's case (supra) it was held that admission cannot confer title on a person. S.A.570/1997.
29
33. As rightly noticed by the courts below, Exts.A11 and A12 even though contained the name of some of the persons belonging to the group consisting of the plaintiff and defendants 1 to 16, it is doubtful whether that by itself is sufficient to confer title on that group any right especially when their consistent stand is that they belonged to a different family. As already noticed at the appellate stage also the plaintiff and defendants 1 to 16 continued to stick on with their stand that defendants 17 to 53 have no manner of rights over the suit property and that they were not in any way related to them.
34. It will not be out of place to refer to the evidence of P.W.1 examined on behalf of the plaintiff and defendants 1 to 16. He categorically says that defendants 17 to 53 have no manner of right over the suit property. He in no less terms says that he learnt that defendants 17 to 53 were setting up right over the property when he received S.A.570/1997.
30reply notice from the first defendant to his suit notice. He also says that defendants 1 to 16 did not take any objection to his claim for partition. He admitted that in the building situated in item No.1 of plaint B schedule the 22nd defendant and his family are residing therein. In the building in item No.2 at the time of the suit, the 42nd defendant and his family are residing and in the building in item No.3 the 21st defendant and his family are residing. He said that ever since he could recollect, those persons have been staying there. They have been residing in the properties for a very long time. According to him, till 1937 his father resided in the building in item No.2. When disputes arose between the predecessor-in-interest of defendants 17 to 53 and the predecessor-in-interest of P.W.1, his father shifted his residence. He is definite that he and defendants 17 to 53 did not belong to the same family. He deposed as follows:
S.A.570/1997.31
"17 53 .
......
, , .........."
In page 15 of the deposition, he deposed as follows:
" 16 17 53 ."
Further, he says that "1919 1856 .
."
35. First defendant was examined as D.W.1. He came forward with a case that his predecessors-in-interest were cremated in the plaint schedule property and also S.A.570/1997.
32that there is a temple in the suit property. He also deposed as follows:
"17 53 .
.......
17 53 .
."
He however admitted that all documents especially the one produced by defendants 17 to 53 show that the properties stand in the names of predecessors-in-interest of defendants 17 to 53. He further deposed as follows:
"17 53 . 1 16 ."
S.A.570/1997.
33
36. The pleadings being to the effect that the two families are entirely different and the stand of the plaintiff and the first defendant being as stated above, it is extremely difficult to accept the contention raised by the learned counsel for the appellant. Even after getting an adverse order from the trial court, wisdom does not appear to have dawned on the plaintiff and defendants 1 to 16 and they continued to proceed with the stand that the two families are different. The claim of the learned counsel for the appellant and the attempt to show that Chandunny made mention of in Ext.B11 geneology produced by defendants 17 to 53 and Chandunny shown in plaint A schedule geneology produced by the plaintiff is the same person is belied by the pleadings and evidence adduced by the plaintiff and defendants 1 to 16.
37. As rightly pointed out by the learned counsel for the contesting respondents, to ignore the pleadings and S.A.570/1997.
34the evidence adduced by the plaintiff and defendants 1 to 16 and to grant a decree also recognizing defendants 1 to 16 as members of the family to which defendants 17 to 53 belonged will be improper and would infact be illegal. This court cannot make out a new case which the plaintiff and defendants 1 to 16 never had. Even as on date, the stand of the plaintiff so far as the pleadings and evidence are concerned, is that the two families are different.
38. What now remains to be considered is I.A.54 of 2004 which is a petition seeking to produce additional evidence at the second appellate stage. The present attempt is to show that Chandunni left behind legal heirs. But that cannot be of any help to the plaintiff so long as the stand of the plaintiff and defendants 1 to 16 that the two families are different. Further, no grounds are made out to receive additional documents at this stage. None of S.A.570/1997.
35the grounds available under Order 41 Rule 27 are made out in the case on hand.
The result is that no grounds are made out to interfere with the judgment and decree of the court below and it is only to be held that the second appeal is without any merit. Accordingly, it is dismissed confirming the judgment and decree of the courts below. No order as to costs.
P. BHAVADASAN, JUDGE sb.