Madras High Court
K.A. Perumalsamy vs A. Kandasamy And Anr on 28 September, 2001
ORDER
1. The unsuccessful first defendant in both the courts below has preferred the above second appeal.
2. The case in brief is as follows:- The plaintiff filed a suit for declaration and recovery of possession of the suit property from the defendants and for past and future damages. The suit property and other properties originally belonged to Meenatchi Estate. One Abirami Enterprises purchased the entire properties under a registered document dated 17.3.1986. The suit property and other areas in survey No.72 were purchased by the plaintiff for a consideration of Rs. 80,000 form Abirami Enterprises under a registered document dated 9.10.1987. The second defendant is the son of the first defendant. They were in possession of the properties and they agreed to deliver possession. In fact, they had delivered possession of the other two items and they were rented out by the plaintiff to one Sivanandam. The first defendant attempted to get electricity service connection and also filed O.S.No. 1135 of 1988 on the file of District Munsif Court, Dindigul for permanent injunction. If the property in the occupation of the first defendant was rented out, it will fetch a sum of Rs. 150 per month. Hence the suit.
3. The defendants resisted the suit admitting the title of Meenatchi Estate. According to them, the first defendant was appointed as a trustee for the properties on 1.5.1975. He was employed as a Manager in Meenatchi Estate from 1.1.1980. The suit property was orally gifted to him in view of the services rendered by him to the management. Now, the first defendant is residing in the property along with his family members. The fact of handing over the property to the first defendant will be apparently clear from the earlier court proceedings. The sale in favour of Abirami Enterprises as well as the sale in favour of the plaintiff do not cover the suit property in the possession and enjoyment of the defendants. Electricity service connection was also taken in the name of the first defendant. Moreover, the first defendant had already filed a suit against the plaintiff and others in O.S.No. 176 of 1988. The plaintiff is not entitled to claim recovery of possession of the property.
4. The trial court framed 5 issues and there was joint trial of three suits, namely Original Suits 176 of 1988, 388 of 1988 and 80 of 1992. The evidence was recorded in O.S.No. 388 of 1988 and it was treated as evidence in the other two suits and a common judgment was pronounced. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-4 were marked. On the side of the defendants, Exs.B-1 to B-27 were marked and D.Ws.1 to 4 were examined. The trial court dismissed O.S. 176 of 1988 and 80 of 1992 and decreed the suit O.S. 388 of 1988 granting two months time to deliver possession and the mesne profits were left open to separate proceedings. Aggrieved against this, the first defendant preferred A.S.No. 131 of 1994 on the file of District Court, Dindigul against the judgment and decree in O.S.No. 388 of 1988 and in respect of the dismissal of other two suits, they did not prefer any appeal. The learned District Judge after hearing the parties, dismissed the appeal and aggrieved against this, the first defendant has come forward with the present second appeal.
5. At the time of admission, the following substantial questions of law were framed by this court for consideration:
1) Whether the courts below erred in law and misdirecting themselves in construing Exs.A-4, B-3 and B-4 as conferring title to the suit property?
2) Whether in law Exs.B-22 and B-23 confer title and possession of the first defendant as recorded by the Labour Court?
3) Whether the plaintiff has title and is entitled for recovery of possession over the suit property?
6. Heard the learned counsels of both sides.
7. The suit property is part of Survey No. 72 situated in Dindigul. It is not in dispute that the properties originally belonged to Meenatchi Estate and for proper and valid consideration received, they have conveyed the suit property as well as other properties under Exs.B-3 and B-4 in favour of Abirami Enterprises. The suit property is said to be part of the properties covered under these documents. From Abirami Enterprises, the plaintiff is said to have purchased the suit property under a registered document dated 9.10.1987 as per Ex.A-4. Admittedly, the defendants were in possession and enjoyment of the property. By virtue of purchase, the plaintiff filed the suit for declaration, recovery of possession and also past and future profits from the defendants. Learned counsel for the appellant/first defendant mainly contended that the courts below ought to have noted that the first defendant was appointed as a caretaker of the suit property from 1975 onwards, and later he was given absolute right in consideration of the services rendered by him as seen from Exs.B-21 to B-23. The plaintiff has not established his title to the entire suit property. Moreover, the properties covered under Exs.A-3 and A-4 do not include the suit property. Exs.B-3 and B-4 also do not include the suit property. Admittedly, the defendants are in possession and enjoyment of the property. The services rendered by the first defendant to manage-Estate is proved by Exs.B-11 to B-20. The courts below ought to have held that Ex.A-3 is created by the plaintiff and is erroneous. The courts below ought to have believed the independent evidence of D.W.2 as well as the documents.
8. The first and foremost contention raised by the learned Senior Counsel for the appellant is that the first defendant was employed as a Manager in Meenatchi Estate and for the services rendered by him, the suit property was gifted to him. The fact that the first defendant was employed as a Manager is not disputed. There is absolutely no document to show that the suit property was gifted to the first defendant at any point of time. The property description in various documents relied on by the plaintiff also do not indicate that any property was excluded while conveying to Abirami Enterprises or in the sale deed in favour of the plaintiff. Simply because the first defendant is in occupation of the property, it cannot be construed that the property was gifted to him and in the absence of any recital in the documents filed by the parties and other circumstances, I am of the view that both the courts below rightly rejected the theory of gift put forward by the first defendant in the case.
9. Learned Senior Counsel for the appellant further contended that there are other indirect circumstances to come to the conclusion that the suit property could have been gifted to the first defendant. He relied upon Exs.B-21 to B-23 and admittedly they have come into existence in the year 1990 and 1991. They relate to the proceedings before the Labour Court at Madurai. At one point of time the first defendant stated that the gift was given to him as early as 1985, but no such pleadings were given in the written statement. The evidence adduced by the parties also indicated that the proprietor of Meenatchi Estate has not visited the area at the relevant point of time and hence the alleged theory of oral gift in 1985 was falsified. The evidence of other witnesses also did not inspire any confidence in the courts below. Considering the fact that the first defendant was employed as a Manager, it is possible that he could have been allowed to occupy a portion of the suit property and now as the properties belonging to Meenatchi Estate had already been sold to Abirami Enterprises, the first defendant had taken a novel stand in order to gain wrongfully. If the contention of the appellant is accepted, then it will lead to dangerous consequences. The proprietor is admittedly a resident of Rajasthan and the evidence indicated that he came to Dindigul only in 1980 and thereafter, he did not visit the place at all. Hence, it is patently clear that the theory of gift put forward by the first defendant is only his fertile imagination to get at the property by hook or crook. He is not in a position to state the length and breadth of the property given to him. No other evidence has also been let in to corroborate his testimony in respect of the alleged gift. There is no material to accept the contention of the learned senior counsel for the appellant that the suit property was not included in the earlier transaction.
10. Perusal of Exs.B-21 to B-23 also indicated that the first defendant filed a petition before the Labour Court for arrears of salary, wherein a compromise was entered into and stated that the property was allotted to the first defendant. As adverted to, all these documents have come into existence only after the filing of the suit. If really the property was already gifted to the first defendant, nothing prevented him from mentioning the year, month and date and under what circumstance the property was gifted to him. Under such circumstance, the theory of oral gift put forward by the first defendant falls to the ground.
11. Learned counsel for the respondent raised a legal plea to the effect that the present appeal is also barred by res judicata on the ground that the appellant had not preferred any appeal in respect of the two connected matters, namely, O.S.No. 176 of 1988 and O.S. 80 of 1992. As adverted to, the appellant was the plaintiff in the other two suits and they also relate to the same subject matter of the property covered in O.S.No. 388 of 1988. There is a clear finding against the appellant in respect of the other two suits also and when once the appellant failed to prefer any appeal against the other two judgments, naturally the present appeal also would be barred on the principles of res judicata. In support of his contention, reliance is placed upon the decision reported in Premier Tyres Ltd., v. Kerala State Road Transport Corporation, 1993 Supp (2) SCC 146, wherein it was observed that where two connected suits tried together and finding recorded in one suit became final in absence of appeal, appeal preferred against the finding recorded in the other suit would be barred by res judicata. The same view has been reiterated in Lonankutty v. Thomman and another, , Sheodan Singh v. Daryao Kunwar, AIR 1996 SC 1332 and Vediammal and others v. M. Kandasamy and others, 1997 TLNJ 96. In view of the decisions, it is patently clear that the principle of res judicata is also applicable to the case on hand. The courts below have rightly appreciated the contentions raised by the appellant and there is no illegality or infirmity calling for any interference.
12. For the reasons stated above, the Second Appeal fails and is dismissed. However, there will be no order as to costs.