Madras High Court
Syed Dhasthakeer vs Navab John on 14 September, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.09.2012 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.1419 of 2012 & M.P.No.1 of 2012 Syed Dhasthakeer .. Appellant -Vs- Navab John .. Respondent (Name of Syed Akbar shown as 2nd respondent is given up with the permission of the court on 14.09.2012) Second Appeal filed under section 100 of C.P.C against the judgment and decree of the Subordinate Judge's Court at Kallakurichi dated 13.09.2010 in A.S.No.44 of 2007 confirming the judgment and decree of the Third Additional District Munsif Court at Kallakurichi dated 21.03.2007 in O.S.No.627 of 2003. For appellants : Mr.AR.L.Sundaresan Senior Counsel for M/s.D.Thirumoorthy For Respondents : Mr.N.Manokaran ----- JUDGMENT
Navab John, the sole respondent in the second appeal as plaintiff, filed the original suit in O.S.No.627 of 2003 on the file of the Court of the Additional District Munsif, Kallakurichi for bare injunction against the appellant Syed Dhasthakeer and deceased Syed Akbar (second defendant). During the pendency of the suit, Syed Akbar died and the suit as against him was allowed to abate. The trial Court, after trial, decreed the suit and granted the relief of injunction sought for by Navab John. As against the decree of the trial Court, an appeal was filed as A.S.No.44 of 2007 on the file of the Sub-Court, Kallakurichi. The learned Sub-ordinate judge, Kallakurichi by a judgment and decree dated 13.09.2010 dismissed the appeal confirming the decree passed by the trial Court. As against the said decree of the first appellate Court by which the decree of the trial Court was confirmed, the present second appeal has been filed.
2. The learned counsel for the first respondent submits that the second respondent Syed Akbar is no more and the appeal having been filed against a dead person is a nullity. Mr.AR.L.Sundaresan, learned senior counsel arguing on behalf of the counsel for the appellant submits that the said Syed Akbar figured as a co-defendant along with the appellant and that he did not contest the suit and remained ex parte before the trial Court. Learned senior counsel also submits that even in the first appeal before the first appellate Court, he need not have been made a party respondent as no relief was sought against him.
3. Admittedly, during the pendency of the first appeal, the said Syed Akbar died and the fact of his death was recorded by the first appellate Court. No steps were taken by the appellant herein or any other party to the first appeal to get the legal representatives of Syed Akbar impleaded in the first appeal. From the trial Court records it is found that even during the pendency of the suit, namely on 14.11.2005 itself, a memo was filed informing that the said Syed Akbar, who figured as D2, had died. Thereafter, despite the grant of time for taking steps, the first respondent herein, who was the plaintiff before the trial Court, did not take steps and allowed the suit as against the Syed Akbar (D2) to abate. Thereafter, the suit was allowed to be dismissed for default in entriety to be restored subsequently on an application. Even after such restoration, no steps were taken to set aside the abatement caused by the death of Syed Akbar, who figured as second defendant. The trial Court seems to have proceeded with the suit and pronounced a judgment simply indicating that Syed Akbar, the second defendant remained ex parte without even noting the fact of his death and the abatement caused due to the failure to take steps to bring his legal representatives on record. As such, the judgment pronounced and decree passed by the trial Court shall be a nullity so far as the same is against Syed Akbar, who figured as second defendant.
4. The above said mistake committed by the trial Court had triggered a further consequential mistake in the array of parties in the first appeal before the First Appellate Court and the first appeal came to be filed arraying the above said Syed Akbar as second respondent in ignorance of the fact that he died pending suit and the suit itself had abated against him. Only when the notice sent from the First Appellate Court was returned with an endorsement that he was dead, the First Appellate Court directed taking steps to implead the legal representatives of the said Syed Akbar. On 20.06.2008, a memo came to be filed, based on which the first appellate Court passed an order exempting the appellant in the first appeal from taking steps to bring the legal representatives of Syed Akbar on record. The said order also came to be passed on the erroneous assumption that he died after the filing for the appeal, whereas the fact remains that during the pendency of the suit itself he died and the suit itself had abated as against him. The resultant position shall be that the first appeal itself was filed showing a dead person as respondent No.2. Therefore, the appeal as against the said Syed Akbar would be non-est.
5. Subsequently, the first appeal also was pursued to a logical conclusion which resulted in a judgment and decree confirming the decree of the trial Court. The said mistake committed by the trial Court and continued by the first appellate Court has culminated in the filing of the second appeal arraying the above said Syed Akbar, a dead person, as second respondent. But the appellant in the second appeal, while showing the said Syed Akbar in the array of parties as second respondent, has chosen to append a note below the address of the said person to the effect that he was being given up in the second appeal seeking exemption from serving notice on a party who remained ex parte in the lower Court. The grant of an order exempting the appellant from the necessity of serving notice on a person who remained ex-parte before the lower appellate Court is one thing and giving up a party is another thing. In the former case, the grant of an order exempting the appellant from the necessity of serving notice on a person who remained ex parte before the lower Appellate Court will not take his name from the array of parties. Such person will be very much there in the array of parties and the judgment pronounced and decree passed after such an order exempting service of notice will be binding on him equally. The latter case, namely giving up a party, will have the effect of exonerating such person and it shall also have the effect of removal of his name from the array of parties. When a party is given up, he will no longer be a party to the proceedings and any order or judgment or decree passed thereafter will not be binding upon him or his legal representatives or anybody claiming through him. What the appellant herein has done is to show him as second respondent in the array of parties instead of totally omitting the name of Syed Akbar from the array of parties since he ceased to be a party during the pendency of the suit itself by the abatement of the suit as against him and at the same time state that he is being given up.
6. When an appellant/petitioner/plaintiff wants to give up a person from the proceedings initiated by him at the time of filing of the proceedings itself, it shall not be proper to show him as a party in the array of parties assigning him a rank in the array of parties and to make a note that he is given up. Giving up a party will arise only after the institution of the proceedings against him. Therefore, this Court is of the view that the appellant, by making the above said note appended to the address of Syed Akbar shown to be the second respondent does not want to make him a party in the second appeal. In fact, the same was the representation made by the learned senior counsel on behalf of the appellant. In order to avoid confusion, this Court permits the counsel for the appellant to delete the name of Syed Akbar shown as second respondent and make the second appeal as one filed against a single respondent, namely Navab John. With the permission of the Court, the learned counsel for the appellant has made the above said correction deleting the name of Syed Akar shown as second respondent. Pursuant to the deletion of Syed Akbar, the parties in the second appeal are referred to as appellant and respondent respectively. Syed Dhasthakeer is referred to as appellant/first defendant and Navab John is referred to as the sole respondent / plaintiff.
7. At the time of admission as many as seven questions were framed as substantial questions of law. They are as follows:-
" (1) When the title of the first respondent is specifically denied and title has been set up by the appellant, whether the first respondent can sustain the suit for bare injunctionl, without seeking the relief of declaration, in contravention of the law laid down by the Hon'ble Apex Court in the decision reported in 2008(6) CTC 227?
(2) Whether the courts below are correct in law in placing reliance upon Ex.A6 judgment, in the absence of any pleading in that respect, in flagrant violation of the settled law that no amount of evidence, could be let in to prove a plea, not raised?
(3) Are the courts below justified in law in ignoring the admission made by the first respondent examined as P.W.1, which has the effect of dislodging his case, particularly when it is axiomatic that the admission of the opposite party is the best evidence in law?
(4) When the first respondent had failed to produce any relevant document to prove his alleged possession over the suit property on the date of the suit, whether the courts below are correct in law in granting decree by misconstruing the documents on record?
(5) Whether the courts below are correct in law in placing the burden of proof upon the appellant, especially when it is incumbent upon the first respondent/plaintiff to establish his case?
(6) Whether the courts below are correct in law in concluding that the issue raised in the present suit is already decided in the earlier suit, especially when the present suit is filed on a specific cause of action of the year 2003 and the earlier suit ws of the year 1968, in contravention of the law of limitation?
And (7) Whether the courts below are correct in law in discarding Exs.B1 to B4 without assigning any legally valid reasons?
8. This Court heard the arguments advanced on both sides and perused the records sent for from the Courts below including the judgments of the Courts below. However, at the time of arguments, the learned senior counsel appearing for the appellant conceded that question Nos.2 and 4 to 7 need not be considered as the same could not be successfully projected as substantial questions of law involved in the second appeal. Similarly, regarding the question No.3 noted above, the learned senior counsel for the appellant wuld submit that the said question could be modified and re-framed as "whether the finding of the courts below holding the respondent/first defendnat to have proved his possession despite the admission made by PW.1 is perverse?"
9. The respondent Navab John, as plaintiff, filed the suit based on his alleged possession and contending that his peaceful possession and enjoyment of the suit property was sought to be interfered with and disturbed by the appellant Syed Dhasthakeer (first defendant) and the deceased Syed Akbar (second defendant). The deceased Syed Akbar did not appear in the suit. He remained exparte and subsequently he died during the pendency of the suit. The appellant Syed Dhasthakeer (first defendant) contested the suit contending that the plaintiff was not in possession of the suit property as claimed by him and on the other hand, the same was in his possession and a part of the same was in his constructive possession as the same had been let out for running a school named "Mount Carmel Matriculation School". There are rival claims of title to the suit property. Still the respondent Navab John chose to file the suit as a bare injunction suit based on his alleged possession alone. When such is the case, the Court normally will not go into the question of title and on the other hand decide the suit based on the finding regarding possession. There are exceptional cases wherein title can be gone into. When the person against whom injunction is sought for claims to be the owner of the property and contends that no injunction against the real owner can be granted, in such cases, though the plaintiff might have sought for an injunction based on possession alone, necessity to decide the question of title incidentally will arise. If such question is a simple one without complication, the same can be decided in the injunction suit itself.
10. The first question projected as substantial question of law is tha the suit for bare injunction without a prayer for declaration is not maintainable in the light of the decision of the Apex court reported in 2008(6) CTC 227. The said contention, according to the considered view of this court is untenable. There is a provision in the Specific Relief Act directing refusal of grant of declaration in cases where consequential reliefs could have been claimed, but omitted to be prayed for. The same is found in Section 34 of the Specific Relief Act, 1963. So far as the provisions dealing with the permanent injunction are concerned, there is no such provision mandating refusal of the grant of injunction on the sole ground that declaration has not been prayed for. In this regard section 27 of Tamil Nadu Court Fees and Suits Valuation Act, 1955 is relevant. The same is extracted below:
27. Suits for injunction. - In a suit for injunction -
(a) where the relief sought is with reference to any immovable property; and
(i) where the plaintiff alleges that his title to the property is denied, or
(ii) where an issue is framed regarding the plaintiff's title to the property, fee shall be computed on one-half of the market value of the property or on rupees seven hundred and firty, whichever is higher;
(b) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees two thousand, whichever is higher;
(c) in any other case, where the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand, whichever is higher.
A reading of the same will show that even in cases where the plaintiff himself alleges in the plaint that his title being denied, then such a suit for bare injunction in respect of the imovable property shall be valued at half of the market value of the property. In addition to cases wherein denial of title is alleged in the plaint, the cases wherein the issues of title are framed are also included in the said category for payment of court fee and they shall be valued at half of the market value of the property.
11. A comparative study of the relevent provisions of the Specific Relief Act, 1963 and the Tamil Nadu Court Fees and Suits Valuation Act, 1955 will show that there cannot be a blanket principle that when the title is denied a suit for bare injunction without a prayer for declaration shall be dismissed as not maintainable. Even the judgment relied on behalf of the appellant does not say that a suit for bare injunction, in case of denial of title of the plaintiff by the defendant, is not maintainable. On the other hand, the Hon'ble Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. & others reported in 2008 (6) CTC 237 has held in clear terms that when the title of the plaintiff in a suit for bare injunction is disputed, the court can go into the matter. After categorising the cases, the Apex court held that if the issue regarding the title is simple and not complicated, the same can be decided in the suit for injunction itself and on the other hand, if the court is of the view that the issue is so complicated and it cannot be conveniently dealt with in the suit for injunction and a detailed and elaborate enquiry is needed, then the court could relegate the parties to a regular suit for declaration to establish title and consequential relief of injunction. It must be noted that even in the said case dealt with by the Apex court, the Apex court, after holding that the question of title involved in the said case was not simple one and it was complicated requiring detailed and elaborate enquiry, the Apex court allowed the appeal and gave leave to the plaintiff therein to file a suit for declaration and consequential reliefs. Only as a rule of convenience for the court, the prayer for bare injunction in respect of immovable property are to be denied relegating the parties making the claim to seek declaration of title and injunction as a consequential relief.
12. In this case, it is not necessary to decide the question of title because the suit is sought to be resisted not only on the ground that the appellant/first defendant is the real owner against whom no injunction can be granted, but also on the ground that the first respondent/plaintiff was not in possession of the suit property as on the date of filing of the suit and hence the suit for bare injunction is liable to be dismissed. The first substantial question of law regarding the maintainability of the suit for bare injunction is answered against the appellant and in favour of the respondent.
13. As such the only other question now remains to be considered as substantial of law is:
"whether the finding of the courts below holding the respondent/first defendnat to have proved his possession despite the admission made by PW.1 is perverse?"
Though the appellant/first defendant would have contended that he is the owner of the property, the main plea of defence taken by him is that the plaintiff (respondent Navab John) is out of possession and his prayer for bare injunction cannot be sustained. In this regard, the learned senior counsel took this Court through the pleadings made by the parties and also the evidence adduced on both sides and contended that both the Courts below committed a grave error in rendering a perverse finding to the effect that the respondent Navab John/first defendant was in possession and enjoyment of the suit property. In support of his contention, learned senior counsel, besides referring to the documents produced by the appellant/first defendant, namely settlement deed, lease deed, patta and Kist receipts, which have been marked as Exs.B1 to B4 respectively, has also referred to a specific admission made by the plaintiff while deposing as PW1. In fact learned senior counsel very much relied on the said admission rather than the above said documents marked as Exs.B1 to B4 which have been brought into existence either just before or subsequent to the filing of the suit and one of the documents, namely Ex.B3 had been superseded by an order of appellate authority under Ex.A5. The admission relied on by the learned senior counsel for the appellant is that the plaintiff, as PW1, has candidly admitted that the suit property is in the possession and enjoyment of the Management of Mount Carmel Matriculation School. The learned senior counsel has contended that the said admission will prove that the respondent Navab John was not in possession as on the date of such admission at least. The further admission made by PW1 has also been brought to the notice of the Court. PW1, besides admitting the possession of part of the property by the said school, has also admitted that he did not lease out the property to the said school or permit the management of the said school to run the school in the said property. The plaintiff has also pleaded absence of knowledge as to whether the property was leased out by the appellant/first defendant to the said school. Such evidence will amount to an admission of the plea of the appellant/first defendant that the appellant/first defendant is in constructive possession of that part of the suit property through the school management. The plaintiff as PW1, has also admitted that he did raise objection or offer resistance for the running of the school in the suit property. Pointing out all these aspects, learned senior counsel argued that the same would show that the plaintiff was not in possession of the suit property as on the date of his examination as PW1. When such is the case, the burden on the plaintiff to prove his possession on the date of plaint is heavier learned senior counsel contended.
14. Per contra, Mr.N.Manoharan learned counsel for the respondent would contend that excepting the alleged admission, the respondent/plaintiff had adduced concrete documentary evidence in the form of Exs.A1, A2, A5 and A6 which would clinchingly prove the possession of the respondent/plaintiff on the date of plaint. Learned counsel for the respondent would also contend that a snap answer given by PW1 in cross-examination by slip of tongue should not be allowed to be projected by the appellant as an admission.
15. This Court carefully considered the above said submission made on both sides. Ex.A1 is the Encumbrance Certificate which shows that the suit property had been mortgaged by the father of the respondent/plaintiff to an Agricultural Co-operative Bank. Admittedly, it is not a usufructuary mortgage or mortgage with possession and it was only a simple mortgage wherein possession was not delivered to the mortgagee. The said Encumbrance certificate is also of the year 1964. Ex.A2 is the Kist receipt of the year 1963. Ex.A6 is the copy of the judgment dated 02.04.1974 pronounced in A.S.No.13 of 1971 on the file of the learned Sub-Judge, Chidambaram. From Ex.A6 it is found that, in a previous suit, the suit property was found to be in the possession of the father of the plaintiff Navab John. Even in that previous suit wherein declaration of title had also been sought for, the relief of declaration was declined holding that the father of the plaintiff did not possess valid title. The above said three documents, namely Exs.A1, A3 and A6 will, at the best, prove that the plaintiff's father was in possession of the suit property as on 02.04.1974, the date of pronouncement of the judgment in the appeal arising out of the said previous suit. There is no other clinching document to show that the father of the appellant did not loose possession and continued to have the possession of the suit property till the filing of the suit. The only document relied on by the plaintiff in this regard is Ex.A5, namely patta issued in the name of the plaintiff/respondent after deleting the name of the appellant/first defendant. Admittedly the order directing deletion of the name of the appellant/first defendant and issuance of patta in the name of the respondent/plaintiff was passed during the pendency of the present suit. Even in the present suit, the plaintiff does not claim any title. He has not even pleaded perfection of title by adverse possession. That is the reason why he has not chosen to seek declaration on the basis of alleged perfection of title by adverse possession subsequent to the judgment of the previous suit.
16. When the Court is seized of the matter, normally the Revenue Authorities should not entertain the petitions for change of patta and the party should be directed to seek their relief in the Civil Court. Even assuming that what the Revenue Divisional Officer did, which lead to the issuance of Ex.A5, was perfectly within his power, patta cannot be taken as a document of title since the plaintiff himself has not claimed title in himself. When the plaintiff did not claim title in himself, this Court wonders how the Revenue official directed issuance of patta in the name of plaintiff. If at all his possession alone was to be recorded for the purpose of levying Kist, order should have been made for recording his possession in the Adangal. Therefore, this Court comes to the conclusion that Ex.A5 does not lend any help to the respondent/plaintiff in establishing his case that he was in possession as on the date of plaint or on the date of his examination as PW1.
17. On the other hand, as rightly pointed by the learned senior counsel for the appellant, the respondent/plaintiff has made a categorical admission that he was not in possession as on the date of his examination as PW1. When he has made such an admission, the respondent/plaintiff ought to have stated how and when he was dispossessed and whether the dispossession was caused prior to the suit or during the pendency of the suit. If it was prior to the suit, the plaintiff ought to have sought for the relief of recovery of possession based on title or under Section 6 of the Specific Relief Act based on previous possession and dispossession by force. If it was during the pendency of the suit, the plaintiff ought to have amended the plaint by including a prayer for recovery of possession. Without doing it, the plaintiff conducted the suit holding out that he continued to be in possession which has been falcified by his own admission as indicated supra. Therefore, this Court does have no hesitation in coming to the conclusion that the plaintiff has not proved his possession either on the date of filing of the suit or subsequent thereto. The finding of the Courts below to the effect that the plaintiff was in possession on the date of suit and subsequent thereto is definitely discrepant and also perverse. The said finding has been rendered totally disregarding the categorical admission made by the plaintiff while disposing as PW1 and based on documents which evidence his possession prior to the judgment of the previous suit and a document which came into existence during the pendency of the present suit. It is true that normally a question of fact will not be allowed to be convassed in the second appeal. But when it is proved that the finding of a question of fact is perverse, it shall be treated as a substantial question of law. This Court finds that the finding of the Courts below regarding possession of the suit property is perverse. The modified substantial question of law formulated as question No.2 is decided in favour of the appellant and this court hereby holds that the finding of the courts below is perverse. Hence, this Court in exercise of its power as the second appellate Court is fully justified in interfering with the same and in fact it will not be justified if it does not interfere with it.
18. For all the reasons stated above, this Court comes to the conclusion that the decree of the trial Court based on the above said finding granting the relief of perpetual injunction and the decree of the first appellate Court confirming the decree of the trial Court are liable to be set aside.
19. In the result, the second appeal is allowed. The decree dated 13.09.2010 passed by the learned Subordinate Judge, Kallakurichi (first appellate Judge) in A.S.No.44 of 2007 confirming the decree passed by the trial court is set aside. The decree of the trial court dated 21.03.2007 made in O.S.No.627 of 2003 is also set aside and the suit shall stand dismissed. However, considering the nature of the case and also the fact that it is not seriously pressed on the side of the appellant, the parties are directed to bear their respective costs.
14.09.2012 Index: Yes Internet: Yes gpa/asr To
1. The Subordinate Judge's Court Kallakurichi
2. Third Additional District Munsif Court Kallakurichi P.R.SHIVAKUMAR.J., gpa/asr S.A.Nos.1419 of 2012 & M.P.No.1 of 2012 14.09.2012