Madras High Court
Durai Kannu Naidu vs Thirumalai Naidu on 28 April, 2011
Author: G.Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.1555 of 2008 and M.P.No.1 of 2008 Durai Kannu Naidu .. Appellant vs. Thirumalai Naidu .. Respondent This Second Appeal is focussed as against the judgment and decree of the learned Additional District Judge, Chennai, Fast Track Court No.III dated 04.09.2006 in A.S.No.402 of 2004 dismissing the appeal, confirming the decree and common judgment of the II Assistant Judge of City Civil Court at Chennai in O.S.No.6028 of 2000 dated 03.09.2003. For appellant : Mr.S.N.Narasimhulu For Respondent : Mr.R.G.Annamalai JUDGMENT
This Second appeal is focussed by the original defendant animadverting upon the judgment and decree dated 04.09.2006 passed in A.S.No.402 of 2004 by the Additional District Judge, Chennai, Fast Track Court No.III, confirming the common judgment and decree of the II Assistant Judge of City Civil Court at Chennai in O.S.No.6028 of 2000. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff who is the respondent herein filed the suit seeking the following reliefs:
"(i) To permit the petitioner/plaintiff to sue as indigent person;
(ii) To direct the respondent/defendant deliver the vacant possession of 'B' schedule mentioned property;
(iii) For permanent injunction restraining the respondent/defendant from not to put up any construction in the 'B' schedule mentioned property; and
(iv) for costs." (extracted as such)
(b) The written statement was filed by the defendant resisting the suit.
(c) Whereupon issues were framed by the trial Court and along with this suit, various other suits were also tried.
(d) During common trial, the plaintiff -Thirumalai Naidu examined himself as P.W.1 and Exs.A1 to A27 were marked. The defendant-Doraikannu examined himself as D.W.3 and Exs.B1 to B10 were marked.
3. Ultimately the trial Court decreed the suit, as against which appeal was filed by the defendant for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court.
4. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the defendant on various grounds and also suggesting the following substantial questions of law:
"1. Both Trial and Lower Appellate Court failed to identify the appellant and respondent properties.
2. The Trial and Lower Appellate Court failed to note down that the suit filed by the respondent/plaintiff only on the ground of delivery of possession without any declaration prayer. Since, the possession and enjoyment of the appellant property is entirely deferent property. The Appellant now enjoying property is the Munusamy property which is mentioned in Ex.A2 Settlement deed which is situated on the southern side of the respondent property. This respondent entailed only in Ex.A1 Settlement property, while the appellant property is Ex.A2 settlement property. Both Ex.A1 and A2 have separate properties and the same was proved through Ex.C1 and C2 the Commissioner report and sketch filed in the Lower Appellate Court. Hence, the suit filed by the respondent/plaintiff for possession without declaration is not at all maintainable under law.
3. The Trial and Lower Appellate court failed to note that the suit filed by the respondent/plaintiff barred by limitation. Admittedly that the respondent/plaintiff as stated in this suit that he obtained possession from the appellant/defendant in the year 1982 itself through court in E.P.No.172/1982. After taken delivery of possession from the appellant in 'B' Schedule property which is part and parcel of 'A' schedule property in O.S.No.1179/1979 the appellant shifted to the occupation which mentioned in Ex.A2 Settlement Deed. Latter the appellant possession is proved through Koor chit marked as Ex.B2 after paid Rs.4,200/- stamp duty penalty and also from Notices issued by the Revenue Deparment which is marked as Ex.B4 dated 16.1.1998.
4. The Courts below failed note that this appellant prayed that he is the owner of the 'B' Schedule property and which is part and parcel of the 'A' Schedule property measuring from north to south 96 feet and east to west 21 feet. But as per the Advocate Commissioner report both 'A' and 'B' properties as mentioned in the suit in O.S.No.6020 of 2000 as part and parcel of 'A' schedule as mentioned in the Advocate Commissioner report and the property situated under the occupation of the appellant measuring north to south 100 feet and east to west 24 feet as mentioned in the 'B' Schedule in the Advocate Commissioner's report.
5. The Trial Court and Lower Appellate Court decree the suit for delivery of possession which is mentioned of 'B' Schedule property as decreed in 'B' schedule as mentioned in previous suit in O.S.No.1179/79. It is respectfully submits that the present suit 'B' Schedule property is entirely deferent property and in the previous 'B' Schedule property in O.S.No.1179/79. Since the 'B' and 'C' Schedule properties as mentioned in O.S.No.1179/79 was part and parcel of 'A' Schedule measuring north to south 96 feet and east to west 21 feet.
(extracted as such)
5. However, my learned Predecessor framed the following one substantial question of law:
"Whether the suit filed by the respondent/plaintiff for delivery of possession, without declaration, is maintainable in law."
6. Heard both sides.
7. The learned counsel for the appellant/defendant would put forth his argument, which could pithily and precisely be set out thus:
(a) The Courts below miserably failed to compare the schedule of property as found set out in the earlier suit with that of the schedule of property found set out in the present suit.
(b) The averments in the plaint in the earlier suit O.S.No.1170 of 1979 and the averments in the present plaint in O.S.No.6028 of 2000 were not considered at all.
(c) The plaintiff without praying for a declaration of his title to the suit property which was originally settled by Perumal Naidu in favour of Munusamy, claims to be the owner and in such a case, it is for him to pray for a declaration of his alleged title over it. But both the Courts below have not concentrated on that. They assumed and presumed as though the adjudication in the previous suit would squarely be applicable to this suit also.
Accordingly, the learned counsel for the appellant/defendant would pray for allowing this Second Appeal, by way of setting aside the judgments and decrees of both the Courts below and dismissing the original suit.
8. Per contra, in a bid to torpedo and pulverise and to take the edge off the arguments of the learned counsel for the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments, which could tersely and briefly be set out thus:
(a) The earlier suit O.S.No.1170 of 1979 was filed as against the same defendant namely Duraikannu Naidu, who unlawfully occupied the suit property belonging to Thirumalai Naidu and the litigation went up to High Court, which ultimately decided that the suit property therein belong to Thirumalai Naidu, the plaintiff herein as well as the plaintiff therein and accordingly, ordered eviction of Duraikannu Naidu. Duraikannu Naidu was evicted and Thirumalai Naidu obtained possession. However with the help of rowdy elements, the said Duraikannu Naidu barged into the very same suit property and put up a small structure, which necessitated the plaintiff to once again file the present suit O.S.No.6028 of 2000.
(b) Absolutely there is no right vested with Duraikannu Naidu in relation to the suit property. Duraikannu Naidu even though happened to be the brother of the said Perumal Naidu, the former had no right over the suit property.
(c) The suit property was not the ancestral property of Perumal Naidu and Duraikannu Naidu. However, Duraikannu Naidu having covetous eye over the suit property persistently caused disturbance to Thirumalai Naidu and both the Courts below appropriately and appositely, decided that Duraikannu Naidu had no iota of ownership over the suit property and accordingly ordered eviction warranting no interference in the Second Appeal.
9. Indubitably and indisputably, the following are the facts which are absolutely necessary for the effective disposal of this Second Appeal.
(i) Duraikannu Naidu is the brother of late Perumal Naidu. The said Perumal Naidu had three wives. The plaintiff - Thirumalai Naidu is the brother of Duraisamy. Both were born to Perumal Naidu and his first wife. It so happened that Perumal Naidu as per Ex.A2, executed the settlement deed in favour Thirumalai Naidu allotting the following property as found set out in Ex.A2:
" brhj;J tptuk;
bjd; brd;id hp$p!;onuc&d; o!;ohpf;l; nfhlk;ghf;fk; rg; o!;ohpf;l; irjhg;ngl;il jhYf;fhitr; nrh;e;j 106k; be/nfhak;ngL fpuhkj;jpy; bjd;dz;il khl tPjpapy; nlhh; be/1-62 cs;s tPl;od; xU gFjp bjd;g[wk; cs;s kid/ ,jw;F fpuhkej;jk; rh;nt be/121 cs;sJ/ ,jw;F ehf;bfy;iy tptuk;; /;
tlf;nf ? ,d;W ehd; brl;oy;bkz;l;lhf vGjp itj;jpUf;Fk; jpUkiy eha[L kida[k; tPLk;
bjw;nf ? fhrp gpyf;!; kid fpHf;nf ? ehd; bghJthf tplg;gl;Ls;s 4 mo mfyKs;s bghJ tHp re;J nkw;nf ? VGkiy ehaf;fh; tPLkid.
,jd; kj;jpapy; fpHf;F nkw;F tlg[wk; mo 21* ? 0@ bjd;g[wk; mo 21* ? 0@ tlf;F bjw;F nky;g[wk; mo 96* ? 0@ fPH;g[wk; mo 96* ? 0@ ,jw;F Toa rJuo 2016 rJuoa[s;s mokid mDgt ghj;jpa chpikia khj;jpuk; ,e;j brl;oy;bkz;l; gj;jpuj;jpy; rk;ke;jg;gl;lJ"
(ii) The said Perumal Naidu as per Ex.A1, executed another settlement deed in favour of the said Duraisamy Naidu's son, namely Munusamy the following property:
"brhj;J tptuk;
bjd; brd;id hp$p!;onuc&d; o!;ohpf;l;. nfhlk;ghf;fk; rg; o!;ohpf;l;. irjhg;ngl;il jhYf;fhitr; nrh;e;j 106k; be/nfhak;ngL fpuhkj;jpy;. bjd;dz;il khl tPjpapy;. nlhh; be/1-62 cs;s tPLkid/ nkw;go kidf;F fpuhkej;jk; rh;nt be/121y; cs;sJ/ ,jw;F ehd;bfy;iy tptuk; /;
tlf;nf ? bjd;dz;il khl tPjp bjw;nf ? vd; kpFjp kid nkw;nf ? VGkiy ehaf;fh; tPLkid fpHf;nf ? ehd; bghJthf tplg;gl;Ls;s ehyo mfyKs;s bghJ tHpr; re;J/ ,jd; kj;jpapy; fpHf;F nkw;F tlg[wk; mo 21*?0@ bjd;g[wk; mo 21*?0@ tlf;F bjw;F nky;g[wk; mo 96*?0@ fPH;gwk; mo 96*?0@ ,jw;F Toa rJuo 2016 rJuoa[s;s mokid mDgt ghj;jpa chpikia khj;jpuk; ,e;j brl;oy;bkz;l; gj;jpuj;jpy; rk;ke;jg;gl;lJ/@
10. The details relating to other cases are not germane at present for the disposal of this Second Appeal.
11. The contention of the plaintiff Thirumalai Naidu is that the suit property involved in the earlier suit O.S.No.1170 of 1979 and the present suit O.S.No.6028 of 2000, is one and the same and after Duraikannu was evicted from the suit property concerned in the earlier suit, he once again occupied the same suit property. Thirumalai Naidu claims to be the owner of the suit property concerned.
12. Whereas, the learned counsel for the defendant Duraikannu Naidu would submit that a mere perusal of the schedule of property in the earlier suit and the schedule of property in the present suit, would amply make the point clear that the earlier suit was relating to an extent of 96' x 21' adjoining South Mada Street. Whereas, the present suit property is situated to the south of the earlier suit property and in such a case, it would be wrong to hold that the adjudication in the previous suit would squarely be applicable in respect of the present suit. He would also point out that the earlier suit property was covered by Ex.A2 herein, the settlement deed dated 16.02.1979 executed by Perumal Naidu in favour of Thirumalai Naidu. However, the present suit property is covered by Ex.A1 - the settlement deed executed by Perumal Naidu in favour of Munusamy, who was earlier represented by his uncle, namely Thirumalai Naidu. In such a case according to him, by no stretch of imagination it could be held that the adjudication in the earlier suit would be binding on the present suit.
13. I would like to extract hereunder the schedule of property in the earlier suit O.S.No.1170 of 1979 and the schedule of property as found in the present plaint in O.S.No.6028 of 2008:
O.S.NO.1170 OF 1979 O.S.NO.6028 OF 2008 "A" Schedule Plot of land with an extent of 96' North to South and 21' east to west together with the house adjoining the street in Gramanatham S.No.121, bearing door No.1/72, South Mada Street, Koyambedu, within the sub registration district of Kodambakkam, Saidapet Taluk, bounded on the North by South Mada Street. On the South by Munuswamy's house-site, on the east by 4' lane left by the plaintiff and Perumal Naicker's house site and on the West by Elumalai Naicker's house-site marked as "ABCDA" in the plaint sketch.
"B" Schedule The remaining southern portion of the A schedule land, excluding the building portion and the common lane of 4' on the eastern portion of the 'A' schedule property marked "EHGBFCD" in the plaint-sketch and bounded on the North by the building of the "A" schedule property, on the south by Munuswamy's house-site, and on the west by Elumalai Naicker's house-site.
"C" Schedule The land with an extent of about 15' x 12' forming the north western portion of the B schedule land and marked as (sic)...in the plaint sketch which forms part of the schedule property having Gramanatham Survey ...(sic) in Koyambedu Village, Saidapet Taluk, bounded on the north by the plaintiff's building, on the south by the plaintiff's site, on the east by the plaintiff's site, and on the west by Elumalai Naicker's house-site. Schedule A Land measuring an extent of 90' N to S, 21' E to W together with house adjoining the structure in S.No.121 bearing Old D.No.1/62, New D.No.7, South Mada St., Koyambedu, bounded on N by South Mada St., S by vacant land., E by 4 ft. lane belonging to plaintiff herein and W by Elumalai Naicker's house site.
Schedule B All the piece and parcel of land with the existing hut spread and standing over it bearing door no.7 (part) in rear open plot land of door no.7, Old No.1/62, South Mada St., S.No.121-Koimbedu, Chennai 107 measuring 18 X 6=288 sq.ft. Land and hut structure bounded on North by : Thirumalai Naidu's Building South by: Thirumalai's site East by : Thirumalai's site and West by the Elumalai Naicker's house site contained in the Sub-Registration Dist. of Koyambedu and Registration Dist. of Central Madras. Corporation Division No.65.
14. A mere poring over and perusal of both the schedules of properties, would glaringly and pellucidly make the point clear that in the earlier suit, the plaintiff Thirumalai Naidu proceeded on the footing that he acquired ownership over the suit property by virtue of the settlement deed-Ex.A2 dated 16.02.1979 executed by Perumal Naidu in favour of Thirumalai Naidu and the description of the property would show that the said extent of 96' x 21' is situated immediately to the south of South Mada Street. Whereas in the present suit, so to say in the plaint, the schedule of property is shown as the property situated to the south of the earlier suit property referred to in the earlier suit and the Commissioner's report would establish the same and it is not as though the defendant is occupying the property referred to in Ex.A2, but he is in occupation of the property referred to in Ex.A1.
15. A mere perusal of the description of properties as found in Exs.A1 and A2 extracted supra, would show that the suit property in the earlier plaint is covered by Ex.A2 the settlement deed herein, in favour of Thirumalai Naidu, whereas, the present suit property is covered by Ex.A1 - the settlement deed executed by Perumal Naidu in favour of Munusamy.
16. At this juncture, I would like to extract hereunder the relevant portion of the judgment of this Court in the earlier Second Appeal No.591 of 1982 which emerged out of the earlier suit O.S.No.1170 of 1979.
"8. This contention could have been accepted if the property described in "C" schedule is independent of the properties described in "B" schedule and "A" schedule. If there had been two different items and if the trial court had decided the question with reference to one item, that could not be taken to be a decision with regard to another item. But in the present case, the plaint "A" schedule property describes the entire property including the house property. The plaint "B" schedule property describes a portion of the "A" schedule property. That portion relates to the passage on the side of the house of the plaintiff and the vacant site situate on the rear of the house of the plaintiff. The "C" schedule property forms part of "B" schedule property and it relates to only a smaller portion of "A" schedule property as well as "B" schedule property. When the court decides the question of title to the "A" schedule property, it goes without saying that the title to "C" schedule as well as "B" schedule properties is automatically decided. The plaintiff put forward only one title and that is based upon the settlement deed dated 16.02.1979 marked as Ex.A1. Under that document, the entire property described in Schedule "A" to the plaint has been settled on the plaintiff. When the plaintiff's title has been found with reference to "A" schedule property on the basis of Ex.A1, his title to Schedule "B" as well as Schedule "C" should automatically be taken to be found.
14. I am convinced that no prejudice has been caused to the defendant by the non-payment of the court fee in the trial court by the plaintiff and by non-framing of the issue in the trial court regarding the question of title to the "C" schedule property. The question of title has been considered fully when the trial court as well as lower appellate court discussed the evidence with reference to "B" schedule property. It must however be noted that the injunction granted by the trial court was with reference to the entire "B" schedule property which included the "C" schedule also."
17. It is therefore clear that this Court in the earlier Second Appeal based on Ex.A2 herein, held that Thirumalai Naidu happened to be the owner of the 'A' scheduled property therein, of which 'B' schedule property formed a part and the 'C' scheduled property formed part of the 'B' scheduled property. In other words, in the said 'A' scheduled property, "B & C" got included. As such, the adjudication in the previous litigation is apparently with reference to Ex.A2 herein, which stands in the name of Thirumalai Naidu and there was no adjudication based on Ex.A1 which stands in the name of Munusamy. It is an admitted fact by both sides that Munusmy died in an accident; however, his father Duraikannu Naidu was alive at the time of filing of the present suit.
18. The learned counsel for the defendant would contend that Munusamy's wife is still alive and in such a case, according to him, it is the legal heirs of Munusamy if at all they do have any right to evict the defendant they could initiate action and not Thirumalai Naidu. The averments in the present plaint, in no way would display and demonstrate as to how Thirumalai Naidu became the absolute owner of the property which stood in the name of Munusamy as per Ex.A1. Unless there are relevant averments in the plaint, there could be no possibility of adducing admissible evidence in Court.
19. At this juncture, I recollect the maxim:
Judicis est judicare secundum allegata et probata It is the duty of a Judge to decide according to the facts alleged and proved.
20. The earlier plaint in O.S.No.1170 of 1979 proceeded on the footing that it was based on Ex.A2 herein. However, the present plaint also would proceed on the line as though in respect of the present suit property, Thirumalai Naidu is the owner as per Ex.A2 and there is no reference to Ex.A1 - the settlement deed which stands in the name of Munsuamy. Unless there a specific prayer and proof for declaration of right of Thirumalai Naidu in respect of the suit property, there is no scope of decreeing the suit. Both the Courts below have not at all understood the scope of the present suit and the earlier suit and also the purport of Exs.A1 and A2. The perusal of the judgment of the trial Court as well as the appellate Court would evince and convey that they proceeded on the wrong footing as though the earlier judgment would automatically enure to the benefit of the plaintiff in this present suit also and accordingly, they decided the lis wrongly warranting interference in the Second Appeal.
21. Hence I am of the view that the judgment and decree of the first appellate Court has to be set aside and the matter has to be remanded back to the first appellate Court so as to give an opportunity to the plaintiff to make necessary amendments in the plaint praying for declaration of his title to the suit property and also for other necessary reliefs. The defendant also should be given due opportunity to file necessary additional written statement and necessary additional issues also are to be framed. Both sides shall be given opportunity to adduce additional evidence, whereupon the first appellate Court shall take into consideration the evidence available on record and the additional evidence to be adduced by both sides and decide the lis comprehensively within a period of five months from the date of receipt of a copy of this order. Accordingly the judgment and decree of the first appellate Court are set aside and matter is remanded back to the first appellate Court for deciding the lis as directed supra.
22. Both the parties shall appear before the first appellate Court on 10.06.2011.
23. Accordingly, this Second Appeal is disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
28.04.2011 Index : Yes/No Internet: Yes/No NOTE TO OFFICE:
(i) Issue order copy on 02.05.2011
(ii)Registry is directed to send back the records immediately to the first appellate Court.
G.RAJASURIA, J.
gms To
1. The Additional District Judge, Chennai, Fast Track Court No.III.
2. The II Assistant Judge of City Civil Court at Chennai.
S.A.No.1555 of 200828.04.2011