Madras High Court
C.E.Sulochana (Deceased) vs C.E.Sathyanarayan on 6 February, 2018
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.02.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.719 of 2005
1.C.E.Sulochana (Deceased)
2.Samyuktha Paramahamsan
3.Lakshmi Banu
[The Second and third plaintiffs brought on record as successors in-interest of the deceased Sole Plaintiff as per orders of this Hon'ble Court dated 18.11.2016, passed in Appl.No.5832 of 2016.]
... Plaintiffs
Versus
C.E.Sathyanarayan ... Defendant
Plaint filed under Order IV Rule 1 of the Original Side Rules read with Order VII Rule 1 of Civil Procedure Code praying to pass a judgment and decree for:
(a) directing the defendant to quit and deliver vacant possession of the Western portion of the House ground and premises bearing door No.7, (Old No.3), First Main Road, Lake Area, Nungambakkam, Chennai 600 034, and morefully described in the schedule hereunder;
(b) directing the defendant to pay a sum of Rs.10,000/- towards past mesne profits for the period 16.07.2005 to 31.07.2005;
(c) directing the defendant to pay future mesne profits and damages for use and occupation of the plaint schedule property at Rs.20,000/- per month from the date of plaint till date of delivery of possession and
(d) for costs of the suit.
For Plaintiffs : Mr.T.Visvanatha Rao
For Defendant : Mr.M.Aravind Subramanian
J U D G M E N T
The suit is filed for recovery of possession.
The averments in the plaint in brief are as follows:-
2. The deceased 1st plaintiff is the owner of the property situate at Door No.3, present Door No.7, 1st Main Road, Lake Area, Nungambakkam, Chennai 600 034 measuring about an extent of 7668 sq.ft together with construction in the ground floor measuring about 3500 sq.ft. and 3500 sq.ft in the first floor.
3. According to the 1st plaintiff, it is her absolute property, she having purchased the same under a sale deed dated 05.08.1996. Further she had put up the construction in it. The plaintiff had executed a registered settlement deed dated 14.02.2005, settling a portion measuring about 4161 sq.ft. on the Eastern side in favour of her younger son Suryanarayan together with building thereon.
4. The defendant, according to the plaintiff, was allowed to reside in the Western portion of the property excluding the car shed, under the leave and license of the plaintiff. The plaintiff would further aver that the defendant who is the eldest son has developed enmity and animosity towards her and he has not been helpful to her. Taking advantage of the fact that he has been living in the Western portion he caused extensive damage to the property by committing various acts of waste.
5. When the defendant caused damage to the compound wall and also to the building, the plaintiff was obliged to file a suit in O.S.No.8620 of 1996 on the file of the City Civil Court, Chennai seeking mandatory injunction directing the defendant to restore the demolished portion of the compound wall and for permanent injunction restraining the defendant from damaging any portion of the property and for costs.
6. The said suit was resisted by the defendant contending that the 1st plaintiff did not have absolute title to the property as it is the property of joint family and it was also contended that the 1st plaintiff is a Home maker without any income. There was partition between the defendant and the younger brother 10 years prior to the filing of the suit in O.S.No.8620 of 1996 and in the said partition, Western portion was allotted to the defendant.
7. On the above contentions, it is stated that, after full trial the II Additional Judge, City Civil court, Chennai concluded that the properties are absolute properties of the plaintiff herein and that she is entitled to the relief sought for in the suit. On such conclusion, the suit was decreed on 16.02.1999. It is stated that an appeal was filed against the said judgment and decree in A.S.No.324 of 2000 on the file of the V Additional City Civil Court, Chennai. However, the defendant herein who was the appellant in the appeal withdrew the appeal without prosecuting the same.
8. Therefore, according to the plaintiff, her title has been upheld by the City Civil Court, and the claim of the defendant that the property belongs to joint family and hence he is entitled to a share, as well as his claim that there was partition between him and his younger brother Suryanarayan were rejected by the City Civil Court and the judgment of the City Civil Court had become final.
9. Therefore, the plaintiff had by a legal notice dated 25.06.2005 revoked the leave and license granted and required the defendant to hand over possession to her. The defendant sent reply dated 17.07.2005 reiterating the claim that the property is joint family property and as a person who was allotted the property in a oral partition, he is entitled to make alterations. This prompted the plaintiff to come forward with the present suit for recovery of possession.
10. The defendant filed written statement contending that the suit property is a joint family property and that the plaintiff had no manner of right over the suit property. He also claimed that the Western side portion was allotted to him in a oral partition between him and the younger son of the plaintiff. Therefore, according to the defendant, the plaintiff has no right to maintain the present suit. He also contended that the suit in O.S.No.8620 of 1996 being the suit for injunction, the findings in the said suit are not binding on him.
11. During the pendency of the suit, the 1st plaintiff died and the plaintiff 2 and 3 were impleaded as successors in interest by an order of this Court on 18.11.2016 in Appln.No.5832 of 2016. After impleading of the plaintiffs 2 and 3, the defendant filed additional written statement, wherein, he would contend that the settlement deed executed by the 1st plaintiff dated 02.05.2014 is invalid and void in the eye of law, since the property is joint family property and the 1st plaintiff had no right to settle the property in which she had no right.
12. In the additional written statement, the defendant would admit the execution of the settlement deed dated 02.05.2014 in favour of the plaintiffs 2 and 3. But, he would challenge the capacity of the 1st plaintiff to execute such a settlement on the claim that the property is joint family property.
13. On the above pleadings the following issues and additional issues were framed by this Court:
1.Whether the plaintiff is the absolute owner of the property?
2.Whether the defendant is in permissive possession of the suit property as claimed in the plaint?
3.Whether the oral partition claimed by the defendant is true or not?
4.Whether the suit is barred by principles of Resjudicata in view of decision in O.S.No.8620 of 1996
5.Whether the defendant is estopped from setting up title to the suit property?
6.Whether the plaintiff is entitled to mesne profits? If so to what amount?
7.Whether the plaintiff is entitled to the decree as prayed for?
Additional issues:-
1.Whether the defendant is estopped from questioning the settlement deed dated 02.05.2014, having admitted to the execution of the same by the first plaintiff?
2.Whether the suit is bad for non joinder of necessary parties?
3.Whether the settlement deed has been acted upon?
4.To what relief the plaintiffs are entitled to?
14. Before proceeding to discuss the issues, yet another admitted fact will have to be place on record. The defendant had, after the filing of the present suit by the plaintiff, filed C.S.No.129 of 2007 in this Court for partition and separate possession of his 1/5th share claiming that the suit property is a joint family property. In the said suit the defendants viz., the plaintiffs herein and C.E.Suryanarayan had filed an application in A.No.3358 of 2007 seeking rejection of the plaint. In the said application for rejection of the plaint, this Court had framed the following points for determination:
1. Whether the suit is barred by res judicata?
2. Whether the present suit would amount to re-agitation of the issues already determined in O.S.No.8620 of 1996?
3. Whether the suit is meritless as contended by the defendants and whether the suit is liable to be rejected exercising the power under Order VII Rule 11 of CPC?
15. The Hon'ble Mrs. Justice R.Banumathi, as she then was, had considered the rival contentions and had concluded that the suit for partition is barred by res judicata. She had also concluded that the suit amounts to re-agitation of the issues which were already decided by the City Civil Court in O.S.No.8620 of 1996 and rejected the plaint as abuse of process of Court.
16. The defendant challenged the said judgment in OSA.No.355 of 2008 and the said appeal came to be dismissed by a Division Bench of this Court on 19.08.2009, upholding the conclusion of the Hon'ble Single Judge. It is stated at the bar that an attempted review of the judgment in OSA was also rejected by this Court.
Issue No.4:-
17. The original issue as framed by this court reads as follows:
Whether the suit is barred by principles of res judicata in view of decision in O.S.No.8620 of 1996?
The said issue was framed on 23.03.2006. On 03.07.2009 the said issue was recast and the phrase plea of the defendant was substituted in the place of the words suit.
The original issue No.4 reads as follows:
Whether the plea of the defendant is barred by the principles of res judicata in view of the decision in O.S.No.8620 of 1996?
18. Though O.S.No.8620 of 1996 was instituted for a mandatory injunction directing the defendant to restore the portion of the building demolished by him. The trial Court had framed as many as six issues in the said suit and the issue Nos.3 and 4 framed in the said suit read as follows:
3. Is it correct that the suit property is the joint family property?
4. Is it correct the parties in this suit were orally partitioned themselves relating to the suit property ten years back?
19. While answering these issues, the learned II Assistant Judge, City Civil Court had concluded that the suit property is absolute property of the plaintiff herein and it has also been found that the theory of oral partition set up by the defendant is not true. Therefore, the title of the plaintiff has been upheld in O.S.No.8620 of 1996.
20. Though an appeal was filed against the said judgment the same was withdrawn by the defendant at a later point of time. In application No.3328 of 2007 in C.S.No.129 of 2007 this Court had framed a specific point for determination as to whether the suit for partition is barred by res judicata and the said point is answered against the defendant herein holding that in view of the decision of City Civil Court upholding the title of the plaintiff in O.S.No.8620 of 1996, the defendant herein as plaintiff in the suit for partition viz., C.S.No.129 of 2007 cannot seek to reagitate the said issue in the suit for partition and the said decision has been confirmed by the Division Bench on appeal in OSA.No.355 of 2008 dated 19.08.2009. Therefore, it is clear that the question of title of the plaintiff has been found in her favour by the City Civil Court and the same has been again upheld by this Court in C.S.No.129 of 2007. Therefore, it is futile on the part of the defendant to contend that the suit property is joint family property and that it was orally partitioned.
21. In view of the above conclusions, I do not think the defendant would be allowed to raise the issue of property being joint family property etc., in the present suit. Issue No.4 is answered in favour of the plaintiff holding that the plea of the defendant that the property is joint family property cannot be allowed to be raised and the defendant would be estopped from raising such a plea in the present suit.
Issue Nos.1 and 5:-
22. This issue relates to the title of the plaintiff, as already discussed the findings in O.S.No.8620 of 1996 are clear and categoric to the effect that the 1st plaintiff is the absolute owner of the property. The said finding had been confirmed in C.S.No.129 of 2007 under Ex.P3. In view of the same, I do not see any reason to doubt the title of the 1st plaintiff to the suit property. Hence, issue No.1 is answered in favour of the 1st plaintiff holding that she is the absolute owner of the suit property.
23. As regards issue No.1 as already discussed, the 1st defendant had raised an issue regarding the title of the 1st plaintiff to the suit property in O.S.No.8620/1996 and it has been decided against him. In C.S.No.129 of 2007 this Court had come to the conclusion that the claim of the plaintiff therein/ the defendant herein that the property is joint family property is barred by the principles of res judicata and thus the plaint itself has been rejected. Therefore, strictly the defendant is estopped from questioning the title of the 1st plaintiff to the suit property. Hence, issue Nos. 1 and 5 are answered in favour of the plaintiff and against the defendant.
Issue No.2:-
24. The defendant has not denied that he is in possession of the property and the defendant had only claimed that he is in possession independent of the plaintiff pursuant to the oral partition. His claim regarding title to the property has been rejected. It is not the case of the defendant that he is in possession in some other capacity. Therefore, issue No.2 is answered in favour of the plaintiff to the effect that the defendant is in permissive possession of the suit property and the permission has been revoked under Ex.P12. The defendants possession became illegal and he is liable to surrender possession to the plaintiff.
Issue No.6:-
25. The plaintiff has claimed past mesne profits at the rate of Rs.10,000/- for a period between 16.07.2005 and 31.07.2005 and at future mesne profits at the rate of Rs.20,000/- per month. Admittedly, in the building in question measures about 3507 sq.ft. The defendant has not denied the extent in his occupation.
26. PW1 the 2nd son of the 1st plaintiff, also the power agent of the 1st plaintiff, has filed the proof affidavit claiming that the suit property is capable of fetching income of more than Rs.30,000/- per month and the plaintiff has restricted the claim to Rs.20,000/-. This claim of the plaintiff is not denied by the defendant and I do not find any cross examination on the above quantum of rent as claimed in the proof affidavit of PW1.
27. The defendant was examined as DW1 and he has filed proof affidavit. In his proof affidavit he has not said that the mesne profits claimed is on the higher side. The entire proof affidavit only reiterates the claim that the property is joint family property.
28. Therefore, in the absence of any evidence to show that the mense profits claimed is excessive, I find that the mesne profits claimed is reasonable and the plaintiff is also entitled to mesne profit as prayed for in the suit.
Additional Issue Nos.1 to 3:-
29. The question relates to the settlement deed dated 02.05.2014. The defendant in his written statement admitted the execution of the settlement deed dated 02.05.2014 by the 1st plaintiff in favour of the plaintiffs 2 and 3. The Certified copy of the settlement deed has been marked as Ex.P17. It is a registered instrument, the defendant does not question the execution of the document by the 1st plaintiff. The document being registered instrument, the execution of which is not specifically denied, does not require proof by examination of attesting witnesses under proviso to Section 68 of the Evidence Act. Having admitted the execution of the settlement deed, the defendant is estopped from questioning the right of the 1st plaintiff to execute such document. Hence, the additional issue No.1 is answered accordingly. It is also seen from Ex.P18 that the Corporation tax assessment has been changed in the name of the plaintiffs 2 and 3 after execution of the settlement deed which shows that the settlement deed is acted upon. Hence, the additional issue No.3 is also answered in favour of the plaintiffs 2 and 3.
30. Though an additional issue relating to non-joinder of necessary parties have been framed in the suit, I do not see the suit being bad for non-joinder of necessary parties. The 1st plaintiff had instituted the suit against the defendant who is in occupation of the property. The plaintiffs 2 and 3 have been impleaded as successors in interest in view of the settlement deed dated 02.05.2014, Ex.P17. Hence, I do not see as to how the suit is bad for non-joinder of necessary parties. Hence, the additional issue no.2 is also answered against the defendant.
31. In view of the conclusions arrived at, the suit is decreed as prayed for with costs of the plaintiffs.
06.02.2018 dsa Index : Yes/ No Internet : Yes/ No Speaking Order/ Non-speaking Order List of the witnesses examined on the side of the plaintiff:
PW1 - Mr.C.E.Suryanarayan List of Exhibits marked on the side of the plaintiff:
Sl. No. Exhibits Description Dated 1 Ex.P1 The Power of Attorney 06.09.2010 2 Ex.P2 The certified copy of the sale deed 06.08.1956 3 Ex.P3 The certified copy of order in O.A.No.3328/2007 in C.S.No.129/2007 03.01.2008 4 Ex.P4 The copy of the judgment in OSA.355/2008 5 Ex.P5 The photocopy of the plaint in O.S.No.8620/1996 filed by the plaintiff against the defendant 6 Ex.P6 The Photocopy of the written statement filed by the defendant in O.S.No.8620/1996 7 Ex.P7 The certified copy of the pleadings in C.S.No.30/1960 8 Ex.P8 The copy of partition deed 05.03.1962 9 Ex.P9 The certified copy of the judgment in O.S.No.8620/1996 10 Ex.P10 The certified copy of the judgment in A.S.No.324/2000 11 Ex.P11 The copy of the advocate notice issued to the defendant on behalf of the plaintiff alongwith acknowledgment 12.06.2005 12 Ex.P12 The copy of the another notice 25.06.2005 13 Ex.P13 The reply notice sent by the plaintiff to the defendant 17.07.2005 14 Ex.P14 The valuation report 01.08.2005 15 Ex.P15 series The plaint in CS.129/2007 along with summons
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Ex.P16 The order in Review Petition No.108/2002
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17Ex.P17 Copy of the Settlement Deed. 02.05.2014 18 Ex.P18 Name transfer order, Chennai Corporation.
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List of the witnesses examined on the side of the defendants:
DW1 - C.E.Sathyanarayan DW2 - Sornapandian List of Exhibits marked on the side of the defendants:
Sl. No. Exhibits Description Dated 1 Ex.D1 Certified copy of the decree in OS.No.8620/1996
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06.02.2018 dsa R.SUBRAMANIAN, J.
dsa C.S.No.719 of 2005 06.02.2018