Madras High Court
K. Duraisamy vs R. Mohan on 28 June, 2021
Author: P.T.Asha
Bench: P.T. Asha
S.A.No.1142 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1142 of 2010
and
M.P.No.1 of 2010
1. K. Duraisamy
2. Nallammal ...Appellants
Vs.
1. R. Mohan
2. P. Subramaniam
3. K. Sundaram
4. Selvarani ...Respondents
PRAYER: Second Appeal filed under section 100 of the Civil
Procedure Code against the Judgment and Decree in A.S.No.29 of 2006
on the file of the learned Subordinate Judge, Namakkal, dated
31.08.2009, confirming the Judgement and Decree in O.S.No.554 of
1998 on the file of the learned Additional District Munsif, Namakkal
dated 21.09.2005.
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S.A.No.1142 of 2010
For Appellants : Mr.C. Jagadish
For Respondents : Mr. D. Shivakumaran
for R1 to R3
R4- Served- No appearance
JUDGEMENT
The first and the third defendants are the appellants before this Court. They have challenged the concurrent judgment and decree in A.S.No.29 of 2006, Sub Court, Namakkal confirming the judgment and decree in O.S.No.554 of 1998 on the file of the Additional District Munsif, Namakkal.
2. The facts in brief are as follows and the parties are referred to in the same status as in the suit:
2.1. The plaintiffs had filed the suit O.S.No.554 of 1998 on the file of the Additional District Munsif, Namakkal for a declaration and permanent injunction in respect of the properties situate in various Survey numbers at Singlipatti Village, Namakkal. 2/32
https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 2.2. The case of the plaintiffs is that the suit property originally belonged to one Kolanda Gounder who is the father of the first defendant and the husband of the third defendant, who are the appellants 1 and 2 respectively. The said Kolandai Gounder was adjudged as an insolvent in the proceedings in I.P.No.75 of 1972 and 53 of 1973. Pursuant to his being adjudged as insolvent, the Official Reciever has brought the properties to sale and one Pavayee Ammal purchased the suit properties in the auction held on 09.08.1974. The Official Receiver executed a sale deed dated 06.01.1975 in favour of the said Pavayee Ammal.
2.3. Since an undivided share had been purchased, the said Pavayee Ammal filed a suit for partition in O.S.No.19 of 1983. A preliminary decree was passed on 27.01.1984 in the said suit, filed against Kolandai Gounder and others. A final decree was passed on 28.09.1994. Thereafter, the said Pavayee Ammal had filed execution proceedings for taking possession of the property in E.P.No.152 of 1996 against the said Kolandai Gounder and others and after the death 3/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 of Kolandai Gounder, the 1st defendant was impleaded in the execution proceedings. A Commissioner was appointed and ultimately possession was taken on 26.04.1998 through Court. After the possession was taken by the said Pavayee Ammal, she along with her children had sold the property to the plaintiff under a sale deed dated 25.09.1998. The plaintiff was put in possession of the property on the purchase of the property. However the defendants started giving pinpricks in the enjoyment of the property by the plaintiff and the plaintiff also came to know that the second defendant, who is none other than the wife of the first defendant, had filed a suit for partition, as guardian on behalf her minor children wherein a collusive ex parte decree was obtained by her. Pavayee Ammal was not made a party to this suit. However, the decree was never acted upon since it was a collusive suit. The plaintiff had submitted that since the said suit was fraudulently filed and decree obtained they were ignoring the same. Hence the suit. 4/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010
3. Written Statement of the First Defendant:
3.1. The first defendant had filed a written statement on 18.09.2000 in which they had inter alia denied the insolvency proceedings, the suit for partition as well as taking over possession by the plaintiffs' predecessors in title.
3.2. The defendants went to the extent of stating that they were unaware about the insolvency proceedings and the suit for partition and also the orders passed therein. They would contend that it was only the first and third defendants who are in possession and enjoyment of the property in question. He would further contend that the suit property was the ancestral property of the first defendant's grandfather and that the defendants have been in possession and enjoyment of the same for over 60 years. Any possession taken by the plaintiff was only symbolic and physical possession was not taken. The second defendant had filed a written statement a month later contending that no possession was handed over to Pavayee Ammal. However, if there is such a record, the same, apart from being false would not bind the 5/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 minor children of the second defendant. The second defendant is in possession as guardian of the minors. That apart, the minors have not been made as parties to the proceedings and therefore the plaintiff was not entitled to the relief claimed for.
3.3. Pending the suit, the plaintiffs would contend that the defendants had trespassed into the 2nd item of the suit property and therefore they sought to amend the plaint to include the relief of recovery of possession in respect of the second item of property.
3.4. An additional written statement was filed by the first defendant denying the said allegations, stating that he has always been in possession of the same. A plea of adverse possession was also taken out by the defendants.
4. The above was the sum and substance of the pleadings taken out by each party in the above suit.
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5. Trial Court:
5.1 The Trial Court based on the pleadings had framed the following issues in the vernacular and the English translation of the same is hereinbelow set out:
"1. Whether the plaintiff is entitled to the relief of declaration and injunction as pleaded by them ?
2. Whether it is true that the Official Receiver had executed a sale deed dated
06.01.1975?
3. Whether it is true that the second defendant and her minor children are in possession and enjoyment as per the partition in their favour?
4. Whether it is correct to say that the decree for partition obtained against the insolvent Kolaidaigounder and his partners will not bind the second defendant and her 7/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 minor children ?
5.To what relief is the plaintiff entitled to?"
5.2. The Learned Additional District Munsif, Namakkal by the judgment and decree dated 21.09.2005 was pleased to decree the suit as prayed for. Challenging the said judgment and decree, the plaintiffs had filed A.S.No.29 of 2006 A.S.No.29 of 2006 on the file of the Subordinate Court, Namakkal. The learned Subordinate Judge also confirmed the judgment and decree of the Trial court.
6.Challenging the same, the above Second Appeal has been filed.
7.The Second Appeal has been admitted on the following Substantial Questions of Law on 01.12.2010:
"1.Whether the courts below are right in law in relying on Ex.A.2 and Ex.A.3 in construing possession of the plaintiffs when the 8/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 executing court in REP No.152 of 1996 has not followed the mandatory provisions of Order 21 Rule 35 and Order 21 Rule 36 of the Code of Civil Procedure regarding delivery of immovable properties and more particularly when the plaintiffs have not proved title and possession to the suit property ?
2.Whether the Courts below are right in law in arriving at a conclusion that the plaintiffs are in possession of the suit property based on Exs.A.2 , A.3 and A.11 when the description of property in Ex.A.3 receipt and the Ex.A.4 sale deed under which the plaintiffs claim to have purchased the suit property are entirely different ?
3.Whether the Courts below have properly considered the evidence of P.W.2, P.W.4 and D.W.1 coupled with Exs.B.1 to B.14 9/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 which proves title and possession of the defendants ?
4.Whether the Courts below are right in law in decreeing the suit of the plaintiffs particularly when Pavayee Ammal the vendor of the plaintiffs has not been examined to prove title and possession of the suit properties and as to whether she took possession of the suit properties in accordance with Order 21 Rule 35 and 36 of the Code of Civil Procedure?
5.Whether the Courts below have properly appreciated the law relating to burden of proof, particularly Sections 101, 102 and 103 of the Indian Evidence Act, 1872?" 10/32
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8. Submissions:
8.1. Mr.C. Jagadish, learned counsel arguing on behalf of the appellants would primarily put across his arguments questioning the judgment and decree of the Courts below on the ground that the edifice upon which the entire suit of the plaintiffs rests is the suit for partition filed by Pavayee Ammal and the handing over of possession to her in execution proceedings.
8.2. He would submit that the procedure under which the property was handed over to Pavayee Ammal is illegal and does not confer any right whatsoever on the said Pavayee Ammal or the plaintiffs.
8.3. He would submit that in the execution proceedings in E.P.No.152 of 1996, the warrant that was issued to the Advocate Commissioner and which has been marked as Ex.A6 directs the Advocate Commissioner only to inspect the property as per decree, note down the physical features and submit his report with plaint by 11/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 17.03.1997.
8.4. The learned counsel would therefore submit that nowhere in the warrant was a power given to the Advocate Commissioner to take delivery of the property. The subsequent reliefs relating to taking over possession and handing it over to the said Pavayee Ammal are all without authority and therefore liable to be ignored. He would also argue that the possession taken was only symbolic and that the defendants continued to be in possession and enjoyment of the properties to date.
8.5. He would also draw the attention of the Court to the cross examination of the Advocate commissioner wherein he has admitted that there was no direction given to him to take possession and hand it over to the appellants.
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https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 8.6. He would further submit that although the plaintiffs would claim that they have taken possession of the suit properties, however, a perusal of Ex.B12, which is the order of the Tahsildar, Namakkal shows that the first defendant is in possession and enjoyment of the property.
8.7. The learned counsel would further submit that the procedure contemplated under Order 21 Rule 35 has not only been not been followed but has also been flouted.
8.8. He would therefore submit that considering the blatant miscarriage of justice in taking possession and the fact that the possession continues with the first defendant, the decrees of the Courts below deserve to be set aside and the Second Appeal allowed.
8.9. Mr. D. Shivakumar, learned counsel arguing on behalf of the respondents would submit that this defense was not taken in the written statements filed by the appellants/defendants 1 and 2. He would submit 13/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 that in the execution proceedings the prayer sought for has been clearly spelt out in column 11 of the execution petition. The warrant has been erroneously prepared and for the mistake committed by the Courts the plaintiff cannot be mulcted with an responsibility. However the parties were clear about the relief that has been claimed by Pavayee Ammal in the execution proceedings and the Commissioner had also proceeded in those lines. In fact, the Court below has also granted police protection to the Advocate Commissioner to take possession of the properties when the second appellant/third defendant herein had attempted to obstruct the taking of possession. He would further contend that the first and third defendants who are very much aware about the suit and the execution proceedings, particularly when the first defendant was a party to the execution proceedings, had not taken any steps to set aside the order of taking delivery. Delivery was taken as early as in the year 1998 and the appellants have not even cared to enter appearance in the execution proceedings. No objections have also been filed to the Advocate Commissioner's report.
14/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 8.10. He would further submit that the plea of adverse possession is rather strange considering the fact that the suit has been filed immediately on taking possession of the property on the property being sold to the plaintiffs herein. Further, the fact that the defendants 1 to 3 claim adverse possession only proves that they have recognised the right of the plaintiff to the suit property.
8.11. He would also submit that when the Advocate Commissioner was unable to take possession, he had filed a memo before the court seeking police protection and police protection was also granted. Even at this juncture, there was no protest by defendants 1 and 3 herein particularly when the first defendant was a party in the execution proceedings. He would submit that procedure adopted is only an error and procedure being a handmaiden of Justice such procedural errors should be condoned.
15/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 8.12. He would rely on the following Judgments in support of his arguments:
"1.Shreenath & Another vs Rajesh & Others reported in [(1998) 4 SCC 543]"
2.Mahadev Govind Gharge & Others vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka & Others reported in [(2011) 6 SCC 321]
3.V.Gandhimathi & Others Vs. G. Thiyagarajan & Others reported in [CDJ 2019 MHC 2736 ]
4.S. Dhanalakshmi vs. M.K. Satyanarayana Rao reported in [2012 (3) CTC 482]"
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9. Discussion:
9.1. The entire argument of the defendants 1 and 3 revolves only around the legality of the possession taken by Pavayee Ammal, the vendor of the plaintiffs, in the proceedings in REP.No.152 of 1996.
The contention of the appellants/defendant 1 and 3 is that the warrant issued to the Advocate Commissioner was only to note down the physical features of the suit property and submit his report. Therefore, there was no authority vested upon the Advocate Commissioner to take delivery of the suit property and that the Advocate Commissioner has acted contrary to the provisions of Order 21 Rule 35 of the Code of Civil Procedure. Order 21 Rule 35 deals with the procedure to be followed by an executing court for executing a decree for delivery of possession of immovable property and Rule 36 talks above delivery of possession in the occupation of a tenant. Rule 35 is hereinbelow extracted:
"35. Decree for immovable property. -
(1) Where a decree is for the delivery of any immovable property, possession thereof shall 17/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by afixing a copy of the warrant in some conspicuous place on the property and proclaiming the beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in 18/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession "
(Emphasis is mine).
9.2. The said order contains the following contingencies in which the Executing Court steps into take possession of an immovable property as per the decree:-
"a) Where the person bound by the decree refuses to vacate the property;
b) Where joint possession is decreed;
c) Where there is an obstruction to the taking of delivery."
9.3. A reading of this provision clearly indicates the manner in which a decree for immovable property has to be executed and the Rule 19/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 mandates that possession has to be delivered to the decree holder. It is only in the third contingency that the words "shall be delivered" is absent. The manner in which an objection to the taking of possession is provided under Order 21 Rule 97 of the Code of Civil Procedure.
9.4. From the records, it is seen that both the defendants 1 and 3 were aware about the decree for partition and the execution proceedings as the first defendant was a party to the execution proceedings. The two of them have taken no steps whatsoever to question the execution proceedings in the earlier suit for partition. Therefore, the Final Decree and taking of possession have attained finality. The execution proceedings which have reached a finality is sought to be re-opened in the instant suit. If the Execution Petition in E.P.No.152 of 1996, which is marked as Ex.A.5 is examined, it is very clear that the plaintiffs' predecessors in title in Column No.11 of the Execution Petition has sought for the following relief which is translated from the vernacular as follows: 20/32
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9.5.The Order dated 17.07.1996 and 27.08.1996 of the learned District Munsif, Namakkal, in Ex.A.5 would clearly show that the execution was instituted only for the purpose of obtaining delivery of possession of the portions marked "C" in the plan attached to the Decree. The 1st defendant who was the 12th respondent in the execution proceedings had not entered appearance despite being served with the notice.
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https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 9.6. The Executing Court has therefore appointed the Advocate Commissioner to execute the Decree. The Court while drafting the warrant had directed the Commissioner to inspect the property as per the Decree and note down the physical features which was not the relief which was claimed in the execution proceedings and neither the order passed on 10.02.1997. On 10.02.1997 the order that was passed by the learned District Munsif was as follows:
"10.02.97:Court Notice - Served. Postal notice returned. R1 called absent set ex parte.
recognised R11, R12 as L.R.s of R2 Thiru.A.Dhanasekaran, Advocate is appointed as Commissioner to inspect the suit properties and to divide the properties as per Decree and submit the report with Plan by 17.03.91. The Commissioner's fee is fixed at Rs.600/- to be paid by the petitioner. Id/-VR.ADM. (As per Ex.A.5)"
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https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 9.7.However, it appears that the error in the warrant went unnoticed by the Court and by the Advocate Commissioner and the Advocate Commissioner proceeded to execute the warrant as per the relief claimed in Column 11 of the execution proceedings. It also appears that while executing the warrant, the Commissioner had filed a Memo stating that he was prevented from executing the warrant and the Memo is marked as Ex.A.7. Thereafter, orders were passed for police protection and the Advocate Commissioner had visited the property on 26.04.1998 at about 10.00a.m and allotted the properties marked "C" in the Decree to the said Pavayee Ammal which is detailed in the Commissioner's report marked as Ex.A.10. Though on 30.07.1997, the 3rd defendant, the 2nd appellant herein had prevented the Commissioner no steps were taken to file any application either questioning the execution or the Decree. Therefore, the defendants 1 and 3 had acquiesced to the taking of possession and therefore, are estopped from questioning the same. The argument that the Advocate Commissioner has exceeded the warrant may not be of any assistance to defendants 1 and 3 as the same is only a procedural error to which 23/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 even the defendants 1 and 3 have acquiesced and consequently, waived their right to question the same.
9.8.The Courts of Law have time and again held that procedure is nothing but the handmaid of justice. Technical objections should not be stretched to defeat justice if the error does not strike at the very Rule of Law.
9.9.The Hon'ble Supreme Court in the Judgment reported in 1976 (1) SCC 719 [State of Pubjab v. Shamlal Murari] observed as follows"
"Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of Justice."
9.10. In an other Judgment of the Hon'ble Supreme Court reported in (1992) 1 Supreme Court Cases 31 [Syram Pestonji 24/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 Gariwala v. Union Bank of India and others], the learned Judges were called upon to decide as to whether the order passed by the Bombay High Court rejecting the application by the Decree Holder against the defendant was valid and binding on the parties when the Compromise was signed only by the learned counsel and not by the parties and further, the defendant had not chosen to respond to the notice issued under Order 21 Rule 22 of the Code of Civil Procedure, resulting in order being made under Order 21 Rule 23 of the Code of Civil Procedure. The learned Judges observed as follows:
"In the present case, the notice issued under Order XXI Rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed. The notice was accordingly made absolute by order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree."
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https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 9.11. In the Judgment of the Hon'ble Supreme Court reported in (2005) 4 Supreme Court Cases 480 [Kailash v. Naniku and others], the Court was considering whether the provisions of Orders 8 Rule 1 of the Code of Civil Procedure is applicable to the trial of an Election Petition, whether the Rules framed by the High Court governing the trial of election petitions would override the provisions of the Code of Civil Procedure and whether the time limit of 90 days prescribed by the proviso to Order 8 Rule 1 of the Code of Civil Procedure was mandatory or directory in nature.
9.12. The Hon'ble Supreme Court after considering the various Judgments on procedure observed as follows:
"28.All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice..."
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9.13. In the Judgment reported in 2012 (3) CTC 482 [S.Dhanalakshmi v. M.V.Satyanarayana Rao], the Division Bench of this Court was considering a petition filed to amend the defect in a Decree dated 14.02.2002 in L.P.A.No.3 of 1998, nearly nine years after the passing of the Decree. While allowing the LPA, the Decree was drafted as follows:
"The Decree passed in the exercise of the Appellate jurisdiction of the High Court in A.No.111 of 1985 be and is hereby set aside the the Appeal allowed".
9.14. When execution proceedings were initiated the respondent/Judgment Debtor had raised a preliminary objection that the Decree was not executable as the Decree did not set out that the decree 27/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 was for declaration and recovery of possession. The Bench relied upon the Judgment of the Apex Court in Thilak Raj v. Baikunthi Devi (D) by the legal representatives reported in 2009 SAR Civil 407 S.C., wherein the Apex Court held as follows:
"15.Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of 28/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 technicalities."
The Division Bench ultimately proceeded to amend the Decree.
9.15.A reading of the above Judgments would clearly show that the procedure is nothing but a means to ultimately render justice and the same cannot be derailed by raising technical objections. The defendants 1 and 3 who had not chosen to question the Decree and delivery of possession cannot challenge it in a subsequent proceeding, without having challenged the original order. Therefore, the Question of Law No.1 is answered against the appellant/defendants 1 and 3.
9.16. In the case on hand also a reading of the Ex.A.7 to A.10 the proceedings of the Court and the Advocate Commissioner in E.P.No.192 of 2006 would clearly demonstrate that the drafting of the warrant was a clerical mistake and the Court and the Advocate Commissioner was conscious of the relief sought for in E.P.No.192 of 2006 and has delivered possession to Pavayee Ammal. 29/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 9.17. From a perusal of Ex.A.10, it is also seen that the Advocate Commissioner has handed over the properties which had been described and marked with letter "C" to the said Pavayee Ammal. Possession has also been handed over after obtaining orders of police protection from the Court. The difference in the description of the property in Ex.A.3 and Ex.A.4 is on account of the Sub division of the Survey No.92 and there is no ambiguity in the same. That apart this defense has not been raised earlier. The Question of Law No.4 is answered against the appellant.
9.18. That apart, the appellant has not raised the defense which covers Question of Law Nos.2, 3and 5 at any point of time earlier and the same is answered infavour of the plaintiff/respondent. The non examination of Pavayee Ammal is not fatal to the case since the documentary evidence has been produced to prove the taking of possession.
30/32 https://www.mhc.tn.gov.in/judis/ S.A.No.1142 of 2010 In the result, the Second Appeal is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
28.06.2021 mrn/mps Index : Yes/No Speaking order/non-speaking order To
1.The Subordinate Court, Namakkal.
2.The Additional District Munsif Court, Namakkal.
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