Madras High Court
Kanagasabapathi vs P.Dhanasekaran on 5 October, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.10.2018
RESERVED ON : 18.09.2018
PRONOUNCED ON : 05.10.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.(MD)No.487 of 2012
and
M.P.(MD)No.1 of 2015
Kanagasabapathi ... Appellant / Appellant / Defendant
Vs
1.P.Dhanasekaran
2.Latha
3.Amutha ... Respondents / Respondents 2 to 4
/ L.R.s of Plaintiff
Prayer: The second appeal filed under Section 100 of Code of Civil
Procedure, against the judgment and decree passed in A.S.No.119 of 2005 on
the file of the Subordinate Court, Tuticorin, dated 09.08.2011 confirming the
judgment and decree passed in O.S.No.236 of 2004 on the file of the
Additional District Munsif Court, Tuticorin, dated 29.11.2004.
!For Appellant :Mr.G.Venugopal
^For Respondents : Mr.C.Vakeeswaran
:JUDGMENT
The second appeal has been filed by the defendant in O.S.No.236 of 2004 on the file of the Additional District Munsif Court, Tuticorin.
2.O.S.No.236 of 2004 was originally filed as O.S.No.208 of 1999 on the file of the Subordinate Court, Tuticorin and subsequently was transferred to the file of the Additional District Munsif Court, Tuticorin and renumbered as O.S.No.236 of 2004. The suit had been filed by Ponnusamy against Kanagasabapathi, seeking a declaration that the plaintiff was a tenant in the suit property and to evict the defendant from the suit property and for payment of past mesne profits of Rs.18,000/- and for future mesne profits. The suit property had been described as house bearing D.No.1, Keela Ranganathaperumal Street, Tuticorin Town. This suit, by judgment and decree, dated 29.11.2004, was partly decreed insofar as the declaration of tenancy and direction to evict the defendant was concerned but dismissed insofar as the claims for past and future mesne profits were concerned. The defendant then filed A.S.No.119 of 2005, which came up for consideration before the Subordinate Court, Tuticorin. The plaintiff, who was the respondent, died pending proceedings and his legal heirs were brought on record as respondents 2, 3 and 4. By judgment and decree dated 09.08.2011, the learned Subordinate Judge, Tuticorin, dismissed the appeal. Challenging that dismissal, the defendant had filed the present second appeal.
3.This second appeal had been admitted on the following substantial questions of law:
?1.Whether Ex-A3, Yadasth is forgery document?
2.Whether after the death of appellant's father Ayyasamy Nadar, the tenancy rights devolved upon all the three sons viz., the appellant, the deceased plaintiff and DW-2?
3.Whether Marthandapatti Vairava Nadar Chatram is necessary party to the proceedings??
O.S.No.236 of 2004 (Additional District Munsif Court, Tuticorin):-
4.The plaintiff claimed that the land over which the suit property had been constructed belongs to the Marthandapatti Vairava Nadar Chatram. The plaintiff's father Ayyasamy Nadar was an accountant in the said Chatram. He took on lease the land. The plaintiff put up construction. The plaintiff and his father were residing in the constructed building. The father died on 12.03.1989. The defendant then forcibly entered into the building. The plaintiff and the defendant were brothers. It was claimed that the Chatram had executed a Yadasth and the plaintiff claimed right through the said document. The plaintiff issued a notice, dated 26.04.1999 calling upon the defendant to vacate the premises. The defendant received the same and sent a reply, dated 15.05.1999. Since the defendant had refused to vacate the premises, the plaintiff filed the above suit seeking a declaration that the plaintiff is a tenant and for a direction to the defendant to vacate the premises and for payment of past and future mesne profits.
5.The defendant filed a written statement denying the allegations. It had been stated that the building in D.No.1 was taken on lease by the father, Ayyasamy Nadar. He put up a building bearing D.No.1 and D.No.1C. The defendant claimed to be occupying D.No.1 along with his father. D.No.1C was leased out to a tenant. Thereafter, the plaintiff requested the defendant's father to lease D.No.1C for running a flour mill. A monthly rent of Rs.600/-
was fixed and the defendant's father was receiving the same. After the death of the father, the defendant continued to occupy D.No.1. The plaintiff was occupying D.No.1C. It was claimed that the plaintiff had agreed to pay monthly rent to defendant. Thereafter, the plaintiff wanted additional space and requested the defendant to give a portion of his building for occupation. Thereafter, the plaintiff leased out the suit property to a third party. He agreed to share the rent with his brother. There were disputes in sharing the rent. It is claimed that the plaintiff had no cause of action to institute the suit.
6.An additional written statement was filed by the defendant claiming that the Yadasth, on the basis of which, the plaintiff had instituted the suit, was a forged document. He also challenged the valuation of the suit and the Court fees paid thereon.
7.On the basis of the above pleadings, the learned Additional District Munsif framed the following issues for trial:
?1)Whether the plaintiff is entitled to get declaration that the plaintiff is the tenant of the scheduled building?
2)Whether the plaintiff is entitled to get mesne profits?
3)To what other reliefs, the plaintiff is entitled for??
8.The learned Additional District Munsif framed the following additional issue for trial:
?Whether it is correct that the suit is not maintainable as the schedule property has not been properly valued as per Court Fees Act??
9.Again, the learned Additional District Munsif framed the following additional issues for trial:
?1)In consequence of the declaratory relief whether the plaintiff is entitled to recover possessing of the schedule property?
2)Whether the plaintiff is entitled to get future mesne profits??
10.During trial, the plaintiff examined himself as PW-1 and marked Ex- A1 to Ex-A6. Ex-A1, dated 26.04.1999 and Ex-A2, dated 15.05.1999 are the notice and reply notice exchanged between the parties. Ex-A3 is the Yadasth executed by D.Devendran in favour of the plaintiff. Ex-A4 are the receipts and acknowledgements for money order payments. Ex-A5 is the copy of paper publication, dated 10.03.1976 and Ex-A6 is the copy of the petition in Trust O.P.No.34 of 1992. On the side of the defendant, the defendant examined himself as DW-1 and examined another brother Ganesa Pandian as DW-2. The defendant did not mark any document.
11.The learned trial Judge, on appreciation of the oral and documentary evidence, held that Ex-A3, based on which suit had been filed, cannot be considered as a legally admissible document. However, the learned trial Judge placed reliance on Ex-A4, Ex-A5 and Ex-A6. Ex-A4 were the series of acknowledgement cards for payment of money orders. Ex-A5 was the copy of paper publication, dated 10.03.1976, in a Tamil daily ?Dinathanthi? and Ex-A6 was the copy of petition in Trust O.P.No.34 of 1992, wherein, the plaintiff, K.Ponnusamy, was shown as 9th respondent and his son, who was subsequently impleaded on his death as 12th respondent. The learned Additional District Munsif reasoned that the money order receipts proved that the defendant was a tenant under the plaintiff and found that the Chatram had recognized the status of the plaintiff, since they had impleaded him as respondent in the Trust O.P. It was therefore found that the plaintiff had established his claim for declaration that he is a tenant and consequently directed eviction of the defendant from the suit schedule property. However, the claims for past and future mesne profits were rejected by the learned Additional District Munsif.
A.S.No.119 of 2005 (Subordinate Court, Tuticorin):-
12.The defendant filed an appeal against the judgment and decree of the learned Additional District Munsif, Tuticorin. Pending appeal, the plaintiff, who was the first respondent died and his legal representatives were brought on record as 2nd-4th respondents. The learned Subordinate Judge also rejected Ex-A3, Yadasth, which was the basis of the claim made by the plaintiff to evict the defendant herein. The learned Judge also observed that the judgment of trial Court did not warrant any interference and consequently dismissed the appeal.
S.A.(MD)No.487 of 2012:-
13.Challenging the concurrent findings by the trial Court and the first appellate Court, the defendant had filed the present second appeal.
14.This second appeal had been admitted on the following substantial questions of law:
?1.Whether Ex-A3, Yadasth is forgery and (corrected) document?
2.Whether after the death of appellant's father Ayyasamy Nadar, the tenancy rights devolved upon all the three sons viz., the appellant, the deceased plaintiff and DW-2?
3.Whether Marthandapatti Vairava Nadar Chatram is necessary party to the proceedings??
15.Heard arguments advanced by the Mr.G.Venugopal, learned Counsel for the appellant and Mr.C.Vakeeswaran, learned Counsel for the respondents. The parties shall be referred as plaintiff and defendant for sake of convenience.
16.The land over which the suit schedule property lies belongs to the Marthandapatti Vairava Nadar Chatram. The plaintiff claimed that he had put up the building bearing Nos. D.No.1 and D.No.1C over the said land. The defendant on the other hand claimed that their father Ayyasamy Nadar had put up the construction. The plaintiff claimed that he is a tenant in D.No.1C. He also claimed tenancy rights in D.No.1. The basis for claiming such right was Ex-A3, Yadasth. Ex-A3 has been rejected by both the trial Court and the first appellate Court.
17.Among the reasons for rejection of the same was that it was dated 01.12.1997 and the individual, who executed it, D.Devendran, was said to have died in April'1997. It is under these circumstances, the respondent had filed M.P.(MD)No.1 of 2015 seeking to produce as additional document, the death certificate of D.Devendarn. It is seen from the said document that he died on 13.05.1998. It was urged that the production of this document is required to remove the doubt caused by both the Courts below with respect to the execution of the document by a dead person. Even otherwise, Ex.A3 is inadmissible in evidence. The witnesses to that document have not been examined. It had been executed on three sheets. The first two sheets are five rupees stamp papers. The third sheet is plain paper. The schedule has not been given. It is not known under what capacity, D.Devendran executed the document. It was not executed on behalf of the Trust. It was executed in his individual name. Both the Courts below had rejected Ex-A.... and also found the same as inadmissible in evidence and I find no reason to differ with the same.
18.However, reliance had placed on Ex-A4, Ex-A5 and Ex-A6. Ex-A4 is a series of money orders. They do not convey that the defendant was a tenant under the plaintiff. There is no writing that the money orders were sent towards monthly rent. Ex-A4 is rejected by me. The findings of both Courts on Ex-A5 is shocking. Ex-A5 is an Advertisement issued by the Chatram, and the actual words are as follows:
?mwptpg;G J}j;JFb NkY}h; kh.tap.taputehj ehlhh; rj;jpuj;jpy; fzf;fuha; ,Ue;j K.ma;ahr;rhkp ehlhh; vd;gtiu 1976 Vg;uy; 19k; Njjpapy; ,Ue;J ePf;fp tpl;lgbahy; Nkw;gbahh; ,lk; rj;jpuk; rk;ge;jkhf ve;jtpj njhlh;Gk; itj;Jf; nfhs;sf; $lhJ. itj;Jf;nfhz;lhy; mJ rj;jpuj;ijf;fl;Lg;gLj;jhJ.
1.kh.tap.fh.eluh[ ehlh;>
2.kh.taptap.J.NjNte;jpud;> rj;jpuk; mf;jhh;fs;.?
19.The public notice reads that Ayyasamy Nadar, the father of the plaintiff and the defendant had been removed as accountant by the Chatram on 19.04.1976 and the general public were put on notice and were warned not to have any connection with him or dealing with him with respect to the activities of the Chatram. This public notice is dated 10.05.1976. This advertisement had been issued by Chatram in its official capacity. Ex-A3 has to be necessarily examined with suspicion. When Chatram had removed the father and had warned the general public not to have any dealing with him, it is not known under what right, the said D.Devendran, executed Ex-A3. Ex-A3 had not been executed on behalf of Chatram and it can never give any legally sustainable rights to the plaintiff. Ex-A3 is rejected on this additional ground also. Production of death certificate of D.Devendran would not make an inadmissible document admissible and consequently M.P.(MD)No.1 of 2015 dismissed.
20.Ex-A6 is a copy of petition in Trust O.P.No.34 of 1992. The fact is that the plaintiff and his son are shown as respondents 9 and 12. That fact simpliciter does not convey any meaning at all. It is urged that the Court should presume that they are shown as respondents 9 and 12 only because they are tenants. But no evidence had been let in to prove the contents of the said document. In fact, it was a petition filed seeking permission to sell even the suit schedule property. It was a petition filed under Section 34 r/w Sections 36 and 37 of Indian Trust Act. This document clearly reveals that the plaintiff had no right or title over the suit property, much less any right to seek declaration of tenancy rights and a further right to evict the defendant from the suit schedule mentioned property.
21.DW-2 is another brother of the plaintiff and the defendant. He stated that the entire family was residing in the building and there were disputes among the brothers after the death of the father.
22.The documents filed and the evidence let in, lead the Court to strongly suspect that both the plaintiff and the defendant are indulging of shadow boxing only to defeat the rights of the Chatram. It is significant to point out that the Chatram had not been made a party to the suit. They are a necessary party and non-joinder is fatal to the suit.
23.With respect to the first substantial question of law, since both the Courts below have rejected the said document and that is a finding on fact, this Court also upholds the said finding and rejects Ex-A3 not only on the grounds stated in those judgments but also on the ground set out above.
24.With respect to the second substantial question of law, I hold that it is actually an issue on fact and when the father, Ayyasamy Nadar was actually removed as accountant and never had any tenancy rights and when the general public were warned not to have any dealing with him with respect to the activities of Chatram, the plaintiff and the defendant as his sons cannot claim any tenancy rights. They are both encroachers and in illegal occupation.
25.With respect to the third substantial question of law, I hold that Marthandapatti Vairva Nadar Chatram is a necessary party and non-joinder, goes to the root of maintainability the suit and I hold that the suit has to be dismissed on that ground also.
26.In the result, I hold that both the Courts below have miserably failed in their judgments to examine the pleadings and evidence in their proper perspective. The plaintiff and the defendant have merrily enjoyed the property of Marthandapatti Vairva Nadar Chatram without paying any rent and it is clear that the plaintiff and the defendant have created a fictitious litigation to defeat the right of Chatram.
27.In view of the reasons stated above, I hold that the judgment and decree of both the Courts below has to be interfered with. In the result, the second appeal is allowed with costs. The judgment and decree in A.S.No.119 of 2005, on the file of the Subordinate Court, Tuticorin, dated 09.08.2011 is set aside. The judgment and decree dated 29.11.2004 in O.S.No.236 of 2004 on the file of the Additional District Munsif, Tuticorin is set aside and the suit is dismissed.
28.In 2003(8)SCC289, Revindrakumar vs Ashok Kumar, albeight while dealing with the tactics adopted by a judgment debtor, the Supreme Court held that as follows:
?22.......raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system.?
29.In (1998) 3 SCC 573, K.K.Modi vs K.N.Modi others, the Honourable Supreme Court held as follows:
?44......A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. ......?
30.The Supreme Court in Surya Dev Rai v. Ram Chander Rai, 2003 (4) CTC 176 (SC): 2003 (6) SCC 675, considered the nature of jurisdiction under Article 227 of the Constitution of India and held thus:
?22.? It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.
25.? In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior Court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.?
31.In 2009 (5) CTC 710, Tamil Nadu Handloom Weavers' Co-operative Society, rep. by its Managing Director, vs S.R.Ejaz rep. By his Power Agent, Muralidhar T.Balani, the learned Single Judge held as follows:
?60.The issue involved in this Revision is a classic example as to how a vexatious litigant would be able to delay the legal process and cause threat to the very justice delivery system by way of unwanted re-litigation. The respondent was attempting to make mockery of the very judicial system. In case litigants like the respondent is permitted to achieve their objective in delaying the execution of a decree passed by the Court, which has attained finality, the common man will lose faith in Courts as well as in the justice delivery system.
61.Therefore, I have no hesitation to conclude that the Suit in O.S. No. 2889/2009 is a vexatious Suit. I am also of the view that this is a fit case for exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
62.Accordingly, the Suit in O.S. No. 2889/2009 on the file of XIV City Civil Court, Chennai is struck off from the file.....?
32.I further hold that the suit in O.S.No.236 of 2004 is an abuse of process of law and Court and I further direct that the suit should be struck off the suit register. I hold that both the plaintiff and the defendant are in illegal occupation of the building at D.No.1 and 1C, Keela Ranganathaperumal Street, Tuticorin Town.
33.In the result
1)S.A.(MD)No.487 of 2012 is allowed with costs;
2)O.S.No.236 of 2004 on the file of the Additional Munsif, Tuticorin, is struck off the suit register; and
3)M.P.(MD)No.1 of 2015 is dismissed.
To
1.The Subordinate Court, Tuticorin.
2.The Additional District Munsif Court, Tuticorin.
3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
.