Madras High Court
Arumugam vs Rathinam Chettiyar (Died) on 12 January, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.01.2018
Reserved on : 17.03.2017
Pronounced on : 12.01.2018
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Second Appeal No.728 of 2000
1.Arumugam
2.Ganapathy
3.Kannappan
4.Ramasamy
5.Jayalakshmi
6.Kamalambal
...Appellants/Respondents 1 to 4, 7
& 8/ Plaintiffs 1 to 4, 7 & 8.
versus
1.Rathinam Chettiyar (died)
2.Palanivelu
3.Mohan
4.Lakshmanasamy
5.Rajalakshmi
6.R.Radhakrishnan
7.R.Santhi
8.R.Kala
9.R.Muthukumar
10.R.Packiam
(RR 6 to 10 are brought on record
as Lrs of the deceased 1st respondent
vide Court order dated 27.12.2002
made in CMP No.11244 of 2001
... Respondents /Appellants 1 to 3 &
respondents 5 &6/Defendants 1 to 3
& plaintiffs 5 & 6
Prayer: Second Appeal is filed under Section 100 of CPC., against the
judgment and decree dated 08.11.1999 in A.S.No.27 of 1999 on the file of the
Court of Additional District Judge cum Chief Judicial Magistrate, Pudukottai,
reversing the judgment and decree dated 16.04.1998 in O.S.No.858 of 1988 on
the file of the Court of Additional District Munsif, Pudukottai.
!For Appellants : Mr.G.R.Swaminathan for
Mr.N.Rahem Abdullah
^For Respondents : Ms.N.Krishnaveni, Senior Counsel for
Mr.T.R.Rajaraman for R 2
: Mr.K.Gokul for R4 & R5
: No appearance for RR 3, 6 to 10
: R1 died ? Steps taken.
:JUDGMENT
This second appeal has been directed against the judgment and decree dated 08.11.1999 in A.S.No.27 of 1999 on the file of the Court of Additional District Judge cum Chief Judicial Magistrate, Pudukottai, reversing the judgment and decree dated 16.04.1998 in O.S.No.858 of 1988 on the file of the Court of Additional District Munsif, Pudukottai. For the sake of convenience, the parties are referred to as per their rank in the suit.
2.The averments made in the plaint is as follows:
The plaintiffs are the absolute owners of the suit property. The Suit property is the ancestral property of the plaintiffs. The first defendant occupied the property as a tenant under late A. Ramiah Pillai, the father of the plaintiffs 1 to 7 and the husband of the 8th plaintiff. Late Ramiah Pillai filed the suit in O.S.No.34 of 1972 on the file of the District Munsif, Pudukottai against the 1st defendant for eviction and for recovery of arrears of the rent and got a decree. Since the first defendant failed to vacate the suit premises, execution proceedings were taken by late Ramiah Pillai against the first defendant. When he went to the spot with Court Amin on 27.02.1975 to take delivery of property and to execute the orders passed in E.A.96 of 1975, it was found that the first defendant's child was suffering from small pox. Therefore, the delivery proceedings were suspended and E.P. was closed. The said Ramiah Pillai subsequently passed away on 30.01.1977 leaving behind his legal heirs i.e the plaintiffs 1 to 7 his children and 8th plaintiff his widow to succeed to his estate including the suit property. The first defendant who continued to occupy the suit property as tenant attorned to the second plaintiff and requested for renewal of lease. The lease was renewed on 01.01.1981 for a further period of 1 year, fixing a monthly rent of Rs.40/- and each month rent payable by 5th day of succeeding month. The 1st defendant further agreed not to sub let the premises and to vacate the suit premises definitely on 31.12.1982. He had executed an agreement to that effect on 01.01.1981. The defendant failed to vacate the premises as agreed on 31.12.1982 and also defaulted in payment of rent from 01.01.1983. The tenancy became tenancy at will. The plaintiffs issued eviction notice through an advocate dated 24.02.1983 calling upon the defendants to vacate the suit premises by the end of month of tenancy and to pay the arrears of rent immediately. The defendants who received the notice had sent a reply dated 02.03.1988 containing false and fraudulent allegations. He has taken several false inconsistent defences denying the tenancy under the plaintiffs. Therefore the suit was filed before the Court for eviction of the defendants from the suit properties, recovery of arrears of rent and for future mesne profits at the rate of Rs.40/- per month till the defendants vacated the suit property. The decree passed in O.S.No.34 of 1972 has become final. O.S.No.34 of 1972 operates as res judicata on the defendants, besides the defendants are estopped from denying their tenancy and the plaintiffs title to the suit property. The first defendant's son Palanivelu has been added as 2nd defendant in view of the contentions raised by the 1st defendant. Since the 3rd defendant claimed right over some portion in the suit property, he was also impleaded as 3rd defendant in the suit as per order in I.A.No.2 of 1996 dated 16.07.1996.
3.The averments made in the written statement filed by the first and second defendants are as follows:
The averments made in the plaint are denied as false. It is not correct that the suit properties belonged to the Plaintiffs. It is false to state that the first defendant Rathinam Chettiyar was in possession and enjoyment of the property of Late. Ramiah Pillai as a tenant and was paying monthly rent. The defendants are unaware of the suit in O.S.No.34 of 1972 and the details of Judgment and the averment in the plaint that on 27.02.1975, the Amin went to take delivery, but did not take delivery are denied. The defendants denied that Ramiah Pillai died on 30.01.1977 and since they were told that Ramiah Pillai went to Malasiya, the plaintiffs as legal heirs of the Ramiah Pillai never enjoyed the properties. The first defendant had not entered into any rental agreement with the second plaintiff on 01.01.1981 and the conditions such as, as per rental agreement, Rs.40/- per month would be paid within the 5th day of every month and would vacate the suit property on 31.12.1982 had not been given. When there is no rental agreement, it is false to state that there are rent arrears between June 1985 and June 1988. As the plaintiffs are not the owners of the suit property, the defendants are not liable to pay any rent. The rental agreement filed by the plaintiffs is not true and genuine and the same is not valid either under law or on facts. The property is a Government Promboke land and the plaintiffs had not impleaded the Government as parties to the suit and due to non joinder of the necessary parties, the suit is liable to be dismissed.
4.The averments made in the written statement filed by the third defendant are as follows :
The suit filed by the plaintiffs is not maintainable. The suit properties mentioned in the plaint is no way related to the property in which the third defendant, the father of the first defendant is in possession. He had encroached the Government land, constructed house, paid the tax and he is enjoying the same. The plaintiffs prayed for possession of one cent of the suit property and one sided roof house on the Southern part on East - West Road and door number is 2/2 A and these details have been produced in O.S.No.34 of 1972 and since the said suit was decreed, the plaintiffs are not entitled to file the present suit. As per Section 11 of Civil Procedure Code, this suit is barred by Res Judicata and not maintainable. The said Ramiah Pillai, father of the plaintiffs filed suit in O.S.No. 34 of 1972 for an extent of 0.1cent, but the plaintiffs are now praying for the whole property and hence the same is not acceptable. The plaintiffs have not furnished full details of the suit property and only after filing written statement by the first and second defendants, the plaintiffs have filed a petition to amend the plaint in respect of the details of the suit property. This shows that the plaintiffs are unaware of the extent and survey numbers of the property. Since this defendant had encroached and obtained patta, the remedy sought for by the plaintiffs cannot be granted as against this defendant as per law. He had never paid rent and the plaintiffs are not entitled to take possession of the suit property from this defendant. The rental agreement said to have been executed by the first defendant would not bind this defendant and the second defendant.
5.From the above pleadings, the trial Court has framed the following issues namely,
1.Whether the defendants are the tenants of the plaintiffs?
2.Whether the defendants have got any legal right over the suit property?
3.Whether the Government is necessary party to the Suit?
4.Whether the defendants are estopped from denying the title of the plaintiffs?
5.Whether the suit is hit by res judicata ?
6.What other reliefs the plaintiffs are entitled to?
6.Before the Trial Court, in order to prove the case of the plaintiffs, on the side of the plaintiffs P.Ws.1 to P.Ws.4 were examined and Exs.A1 to Exs.A14 were marked and on the side of the defendants, D.W.1 was examined and Ex.B.1 to Ex.B.19 were marked and also Ex.C.1 and Ex.C.2 were marked.
7.After considering all the materials and oral and documentary evidence let in by the parties, the trial Court answered all the issues in favour the plaintiffs and suit was decreed in favour of the plaintiffs. Aggrieved against the said judgment and decree passed by the trial court dated 16.04.1998, the defendants preferred an appeal before the District Judge, Pudukottai in turn District Judge made over the appeal to the Additional District Judge cum Chief Judicial Magistrate, Pudukottai in A.S.No.27 of 1999. Based on the submissions of the appellants and respondents, the first appellate Court raised the following points for consideration:
1.Whether the suit in O.S.No.858 of 1988 is hit by res judicata in pursuance of the judgment and decree in O.S.No.34 of 1972?
2.Whether Ex.A.10, stated to have been executed by the first defendant in favour of the second plaintiff is true and valid?
3.Whether the notice dated 24.02.1988 sent by the plaintiffs to the 1st defendant is valid under Section 106 of Transfer of Property Act?
4.Whether there is any landlord and tenants relationship established?
5.Whether the plaintiffs are entitled to recovery of possession and for past mesne profits?
8.The first Appellate Court considered all the pleading put forth before the Trial Court, the oral and documentary evidence produced by the parties, judgment and decree of the trial Court, submissions made by both the counsel and considering the facts and circumstances of the case, reversed the judgment and decree passed by the trial court and dismissed the suit by allowing the first appeal.
9.Aggrieved by the judgment and decree passed by the first appellate Court, dated 08.11.1999 in A.S.No.27 of 1999 the plaintiffs had filed the present Second Appeal before this Court.
10.Though the appellants have raised four substantial questions of law in the grounds of appeal this Court while admitting the second appeal has framed the following substantial questions of law?
(a) Whether the lower appellate Court erred in holding that the present suit is barred under Sec.47, CPC overlooking the fact that the present action does not deal with execution, discharge or satisfaction of the decree in the earlier suit ? and
(b) Whether the defendants are barred by res judicata from disputing the title of Ramayya Pillai through whom the plaintiffs claim title, in view of the decision in O.S.No.34 of 1972, District Munsif Court, Pudukottai?
11.According to the plaintffs, the suit property is the ancestral property of the plaintiffs. Originally the first defendant had taken on lease from the father of the plaintiffs 1 to 7 Ramaiah Pillai and he has not paid rent and filed the suit for eviction and got decree and it is an ex-parte decree. Subsequently, he filed Execution petition. The Amin did not take the delivery of possession. Subsequently, the father of the plaintiffs 1 to 7 died in the year 1977. The Second plaintiff and the first defendant entered into lease agreement on Ex.A.10 in the year 1981 for one year. Based on the lease agreement dated 01.01.1981, the plaintiffs filed the present suit for eviction originally against the first defendant. The first defendant denied the lease agreement Ex.P.10. The third defendant was subsequently impleaded and he also filed written statement furnishing the details of the property and they denied the title of the plaintiffs.
12. Heard the rival submissions made on both sides and perused the records.
13.The learned Counsel for the appellants would submit that the suit property is originaly belonged to father of the plaintiffs 1 to 7 and the husband of the 8th plaintiff. They let the building to the first defendant/first respondent. Since he had defaulted in payment, father of the the plaintiffs 1 to 7 filed the suit in O.S.No.34 of 1972 before the District Munsif Court, Pudukottai. They got decree and filed Execution Petition and when the Amin went to take delivery, as the first defendant's child was suffering from Chicken Pox, he could not effect the decree and could not take possession and delivery was not recorded. He was examined as P.W.4 and he had stated the reasons for not effecting the decree. The first defendant separately entered into lease agreement with the second plaintiff under Ex.A.10, Since, he did not pay the rent, he issued lawyer notice Ex.A11 and filed the suit. The trial Court has rightly decreed the suit, whereas, the first appellate Court has failed to appreciate the fact wrongly framed the points for consideration and failed to appreciate the oral and documentary evidence let in by the plaintiffs and dismissed the suit and allowed the appeal.
14.The learned counsel for the appellants would further submit that the trial Court has wrongly given findings that the plaintiffs have not proved the title that the properties are ancestral properties of the plaintiffs and failed to consider the fact that there cannot be any title deeds or documents for the ancestral property. The earlier suit was decreed as ex-parte and no issues were framed. Therefore, the Principles of res judicata would not be applicable. The suit is only based on the subsequent agreement. First defendant entered into lease agreement with the second plaintiff under Ex.A.10. Since, he was default in payment of rent, the suit was filed based on the agreement. Therefore, Section 47 of the Civil Procedure Code will not applicable. Once he admitted the title of the father of the plaintiffs 1 to 7 and he has not challenged the earlier decree and further he entered into the lease agreement under Ex.A.10, he cannot deny the title of the plaintiffs. Therefore, he is estopped from disputing the title. Since he has admitted his signature, he cannot deny Ex.A.10.
15.The first appellate Court miserably failed to consider all the facts that for the ancestral property, no title deed can be produced and also electricity connection stands in the name of their father till now and Commissioner's report shows that there is compound wall and failed to consider all these facts and dismissed the suit by allwoing the first appeal and the same is liable to be set aside. Under such circumstances, Section 47 of the C.P.C will not applicable. Since earlier decree was only an exparte decree, the principles of res judicata will not be applicable. Therefore, judgment and dcree of the first appellate Court is liable to be set aside and suit has to be decreed.
16.The learned counsel for the respondent would submit that the appellants/plaintiffs have not taken any steps to execute the decree in O.S.No.34 of 1972. Since, they failed to take delivery as per the decree within the stipulated time they created Ex.A.10 stating that the first defendant entered into a lease agreement with the second plaintiff. The recitals of the Ex.A.10 shows that it is for two years, it requires registration. Since it is not registered the same is not admissible in evidence and it is not valid under the eye of law. Further the properties are only Government Poromboke land and the defendants have denied the title of the plaintiffs and they ought to have filed the suit for declaration or atleast amended the prayer for declaration. Without amending the plaint, the suit is not maintainable. Even though the suit property belongs to the Government, the Government was not impleaded as a party to the suit. The first appellate Court has appreciated oral and documentary evidences and given a correct finding and allowed the appeal and dismissed the suit. The first appellate Court is always a fact finding Court. Going through the entire pleadings and the documentary evidence, it has given a factual finding. Unless there is perversity, this Cout while sitting in second appeal need not interfere with the findings given by the first appeallate Court on facts and there is no substantial questions of law involved in this case as projected by the appellants. Therefore, the appeal is liable to be dismissed.
17.Considered the rival submissions made on either side and perused the pleadings put forth by the rival parties before the trail Court, issues, oral and documentary evidence let in by both parties before the trial Court, judgment and decree, ground raised by the appellants in the first appeal also points for consideration raised by the first appellate Court, the judgment and decree passed by the first appellate Court and the grounds of appeal filed by the appellants before this Court.
18.The specific case of the plaintiffs is that the suit property is ancestral property of the plaintiffs originally the father of the plaintiffs 1 to 7 had let out the property to first defendant. Since he was defaulter in payment of rent, their father filed a suit before the District Munsif Court, Pudukottai in OS.No.34 of 1972 and got decree and filed execution petition. But due to various reasons the decree could not be executed. Subsequently, the first defendant entered into lease agreement Ex.A10 dated 01.01.1981 with the scond plaintiff and he was default in payment of rent, he issued notice Ex.A.11 and filed suit for eviction and for mesne profits.
19.The case of the defendants is that the suit property was not ancestral property of the plaintiffs. The property is a Government poromboke. Plaintiffs' father has encroached some of the portion and constructed house and the remaining portion was with defendants and they encroached the land and got service connection on their name and got patta in favour of their father. Even though the 8th plaintiff filed a petition before the revenue authority for getting patta, the same was rejected and patta was granted for six cents alone vide Ex.A.9. Though they got service connection to the portion of the property in his father's name Ramaiah, the first appellate Court found that cannot be a proof of title.
20.On a careful perusal of the oral and documentary evidence judgment and decree of the Courts below, the plaintiffs would state the property is ancestral property and the first defendant entered into lease agreement with 2nd plaintiff under Ex.A.10. Since the first defendant was default in payment, they filed the suit. The first appellate Court found that Ex.A.10 is not legally valid. The plaintiffs claimed title as the properties are ancestral property. The defendants denied the title of the plaintiffs they ought to have filed suit for declaration. In other words, plaintiffs have filed suit based on Ex.A10 alleged agreement, the defendants have denied not only the Ex.A10 agreement but also denied the title of the plaintiffs. If such being the case, it is the duty of the plaintiffs to plead and prove their title. Once Ex.A.10 is denied and it is not registered under Section 17(b) of the Registration Act, it is not valid and the same is not admissible in evidence. However, the defendants 2 and 3 were not parties to the document Ex.A10. The plaintiffs have not proved the same in the manner known to law. In the earlier suit, as claimed by the plaintiffs, their father filed the suit only for one cent. They have not established that they have got title over 9 cents and it is not poromboke property and the same is their private property. Defendants are tenants and since they defaulted in payment, they are liable to be evicted.
21. The plaintiffs have to prove their own case. The plaintiffs cannot take advantage of the weekness of the defendant's case as they come forward with the suit, as if they are the owner of the property. When the defendants denied the title, it is the duty of the plaintiffs to prove their right and title. Of course, a perusal of the judgment of the first appellate Court, it has correctly approached the case and answered the points raised for consideration. Since it is a factual aspect, this Court need not interfere with the factual finding given by the first appellate Court, unless the finding of the fact itself was erroneously given. In the second appeal this Court has to answer only to the substantial question of law, but not on the question of facts.
22. In this second appeal, the following substantial questions of law were framed :
(a) Whether the lower appellate Court erred in holding that the present suit is barred under Sec.47, CPC overlooking the fact that the present action does not deal with execution, discharge or satisfaction of the decree in the earlier suit?
(b) Whether the defendants are barred by estoppel from disputing the title of Ramayya Pillai through whom the plaintiffs claim title, in view of the decision in O.S.No.34 of 1972, District Munsif Court, Pudukottai?
23.As admitted by the plaintiffs, their father filed the suit against the defendants for eviction and got an exparte decree and filed three Execution petitions viz., E.P.Nos.23 of 1973, 2 of 1974 and 96 of 1975. However, he did not execute the decree during his life time for the various reasons. Admittedly the father of the plaintiffs died in the year 1977 and as the legal representatives they have not proceeded with the execution petitions for the reasons best known to them. The suit was decreed on 19.07.1972. The father of the plaintiffs died only 1977 during the pendency of the execution proceedings and during his life time he filed three execution petitions, admittedly, the same could not be executed. The plaintiffs have filed a separate suit by setting up Ex.A10, lease agreement as if the first defendant entered into fresh lease agreement. Major portion of the properties are in the possession of D2 and D3. However, they are not parties to the rent agreement Ex.A10. The appellants have not filed any EP after the death of their father. Without filing any execution petition, they have filed separate suit by stating that the defendants admitted the title of the plaintiffs. Despite defendants denied the agreement and title of the plaintiffs they have not amended the suit for declaration of their title. As far as the resjudicata is concerned, since the earlier suit was filed and decreed exparte even without framing issues, subsequently, a present suit has been filed and issues are framed and finally dismissed on merits, the doctrine of resjudicata will not be applicable.
24. As far as first substantial question of law is concerned, the decree is dated 16.02.1972. The decreeholder is the father of the appellants. He died in the year 1977. During his lifetime, he filed three execution petitions and they were allowed to be dismissed for various reasons and could not be executed. The decree has got valid to execute till 1984. But, in between 1977 and 1984, the plaintiffs have not taken any steps for 7 years to execute the decree. According to them even during the life time of his father, first defendant was chronic defaultor. Therefore, he filed a suit for eviction. Subsequently filed execution petitions, even then, the defendants have not paid any rent. Such being the case, then as to how the second plaintiff accepted the rent agreement executed by the first defendant. Further, the plaintiffs have not filed any single receipt to show that first defendant accepted Ex.A10 lease agreement, in pursuant of Ex.A10, he has paid the rent. Ex.A11 shows that it was issued only on 24.02.1988, they have not stated any valid reason either in the plaint or evidence as to why they waited such a long time, therefore, the first appellate Court has rightly allowed the appeal. As stated earlier, they has not filed the suit for declaratrion, they have filed the suit only based on Ex.A10 as if they are the owner of the property. Once he failed to establish that Ex.A10 is legally valid and failed to establish that subsequent to Ex.A10, first defendant paid rent he cannot invoke Section 116 of the evidence Act. Of course, the trial Court has erroneously passed the decree. The first appellate Court appreciated the oral and documentary evidence and rightly dismissed the suit and allowed the appeal. The first substantial question of law is answered accordingly.
25.As far as the second substantial question of law is concerned as per Section 11 of CPC if any previous suit is decreed on merits and decided the rights of the parties, finally, the subsequent suit cannot be filed on the very same relief. In this case, asdmittedly, the earlier suit was decreed exparte and no issues were framed and no anwers was given for any issues and right of the parties was not decided finally. The present suit is filed for eviction and mesne profits based on lease agreement under Ex.A10, as if the first defendant executed lease agreement to second plaintiff and he was default in payment of rent. Since, the present suit is filed only based on Ex.A10, the earlier suit will not bind. The second substantial question of law is answered accordingly.
26. Since the suit is based on Ex.A10, resjudicata will not be applicable. The plaint itself shows that the suit is based on the independent cause of action, this Court is of the view that either Setion 47 of C.P.C. or Section 11 of C.P.C. applicable to the facts of the present case. The first appellate Court is a fact finding Court. There is no perversity in the judgment and decree passed by the first appellate Court. Therefore, the second appeal fails and the same is liable to be dismissed.
27. In the light of the above discussion, this second appeal is dismissed. The judgment and decree dated 08.11.1999 in A.S.No.27 of 1999 on the file of the Court of Additional District Judge cum Chief Judicial Magistrate, Pudukottai, reversing the judgment and decree dated 16.04.1998 in O.S.No.858 of 1988 on the file of the Court of Additional District Munsif, Pudukottai is confirmed. No costs.
To
1.The Additional District Judge cum Chief Judicial Magistrate, Pudukottai.
2.The Additional District Munsif, Pudukottai.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.