Madras High Court
Rangasamy Gounder (Died) vs Munusamy Gounder (Died) on 26 March, 2019
S.A.No.725 of 2000
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 05.07.2019
JUDGMENT DELIVERED ON : 30.10.2019
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.725 of 2000
1.Rangasamy Gounder (Died)
2. Arjunan
[2nd appellant brought on record as L.R of the deceased
sole appellant vide order of Court dated 26.03.2019
made in C.M.P.No.6518,6519 and 6523 of 2019 in
S.A.No.725/2000 (PRMJ)] ... Appellants
...Versus...
1.Munusamy Gounder (Died)
2. Ponni (Died)
3.Gopal
4.Kasiammal
5.Indirani
[RR3 to R5 are recorded as LRs of the deceased R2 vide
order of Court dated 13.03.2019 in
S.A.No.725/2000 (PRMJ)] ... Respondents
PRAYER:This Second Appeal has been filed under Section 100 of C.P.C.,
against the judgment and decree in A.S.No.104 of 1998 dated
02.02.2000 on the file of the Additional District Judge at Tiruvannamalai,
reversing the judgment and decree made in O.S.No.309 of 1993 dated
28.04.1998 on the file of the Principal District Munsif at Tiruvannamalai.
1/14
http://www.judis.nic.in
S.A.No.725 of 2000
For Appellant :: Mr.P.Vediappan
for Mr.R.Bharanidharan
For R1,R2 :: Died
For R3&R4 :: Mr.R.Siddharth
for Mr.T.R.Rajaraman
For R5 :: No appearance
JUDGMENT
The defeated defendant (since deceased) is the appellant herein.
2. The respondent herein (since deceased) has filed a suit O.S.No.309/93 on the file of the Principal District Munsif Court at Thiruvannamalai for declaration of his title regarding “ A” & “ B” schedule properties and for Mandatory Injunction to demolish the superstructure put up by the appellant/defendant in “B” schedule property and for damages of Rs.3,000/-. The “B” schedule property measuring an extent of 12x21 feet form part of “A” schedule property, measuring an extent of 30x60 feet.
3. The case of the respondent/plaintiff is that he has purchased the suit “A” schedule property by virtue of Registered sale deed under 2/14 http://www.judis.nic.in S.A.No.725 of 2000 Ex.A1 dated 16.07.1966 from one Srinivasa Mudaliar, son of Sesha Mudaliar and had been in exclusive possession and also pleaded that he has prescribed title by adverse possession. It is further alleged that the defendant/appellant filed O.S.No.696/89 for declaration of his title and for recovery of possession in the guise of Ex.B1 sale deed dated 20.01.1913, which ended in passing ex-parte decree and the same has been executed in R.E.P.No.267/91 and that the possession has been taken by the appellant/defendant.
4. Accordingly to plaint averments, the appellant took possession illegally and caused damage to his goods worth about Rs.3,000/- and hence, he filed the present suit in O.S.No.309/93 on the file of the Principal District Munsif Court, Thiruvannamalai, for the aforementioned reliefs.
5. The said suit was resisted by the appellant/defendant inter- alia contending that the plaintiff has no valid title inasmuch as his vendors had no right over the suit properties and that the predecessor- in-title, namely Sesha Mudaliar was one of the attesting witnesses in the sale deed dated 20.01.1913 executed in favour of the plaintiff and that the plaintiff/respondent misdescribed the suit "B” schedule property, as the sketch plan does not reflect the grounds on reality. 3/14 http://www.judis.nic.in S.A.No.725 of 2000
6. The further case of the appellant/defendant is that the present suit is not maintainable. In view of the fact that the decree in earlier suit in O.S.No.696/89 has already been executed through Court of law in R.E.P.No.267/91, as such, he took possession of the suit properties on 2.4.1993. It has been contended that the boundaries of the properties had not been correctly mentioned in O.S.No.696/89 due to typographical error and the same should not have been taken advantage by the respondent/plaintiff in filing the present suit.
7. The Trial Court has rightly dismissed the suit by its judgment and decree dated 28.04.1998 holding that the suit is not maintainable and that both the parties have purchased the same properties and further held that the non-examination of plaintiff is fatal and that the additional Report of the Commissioner could falsify the case of the respondent/plaintiff.
8. Challenging the judgment and decree of the Trial Court, the respondent/plaintiff filed appeal in A.S.No.104/98 before the learned Additional District Judge, Tiruvannamalai and the same was allowed on 2.2.2000. Aggrieved by the same, the appellant/defendant has preferred the above Second Appeal.
4/14 http://www.judis.nic.in S.A.No.725 of 2000
9. The above Second Appeal has been admitted on 09.05.2000 on the following Substantial Questions of Law:-
(i) Whether the judgment and decree of the Lower Appellate Court is sustainable in law for want of deciding the issue regarding maintainability of the present suit, without seeking relief to set aside the decree passed in the earlier suit O.S.No.696/89?
(ii) Whether the present suit gives rise to the Second Appeal or hit by the principles of res judicata?
(iii) Whether the Lower Appellate Court is right in holding that the decree in the earlier suit O.S.No.696/89 as inoperative, when the fact remains that it has already been fully executed in R.E.P.No.267/91, especially in the absence of asking for a relief to set aside the said decree?
10. After hearing the respective counsel and on carefully scrutinizing the documents and also Exs.C1 to C4 Report filed before the Trial Court, it is seen that the respondent/plaintiff filed the suit alleging that schedule “ A” property, which is comprising of schedule “B” property, is purchased by his ancestor under Ex.A1 and he is the absolute owner of the “A” schedule property and the defendant has filed earlier suit 5/14 http://www.judis.nic.in S.A.No.725 of 2000 O.S.No.696/89. Since, the subject matter of the suit property in the said O.S.No.696/89 does not relate to “A” schedule property, he has not contested the case.
11. Resultantly, the appellant/defendant has obtained an ex-parte decree in that suit and also executed the same in R.E.P.No.267/91, whereby, they have removed the “B” schedule property from “ A” schedule property under the guise of execution of the decree. Since the said decree does not relate to the present suit property, the same is not binding upon him and hence, he filed the present suit for declaration of title and for recovery of possession.
12. While the Trial court has held that the suit is not maintainable and both the parties have purchased the same property, but Ex.P1 sale deed in favour of the defendant is anterior point of time and therefore, the Trial Court has non-suited the respondent/plaintiff. However, on appeal by the plaintiff, the Lower Appellate Court has reversed the said finding of the Trial Court after going into the factual position and compared the suit property with that of Ex.A1 and also compared Ex.A1 with Ex.B1 and held that the suit property in O.S.No.696/89 is different from Ex.A1 and also held that the schedule of the property under Ex.A1 and Ex.B1 are different and distinct. 6/14 http://www.judis.nic.in S.A.No.725 of 2000 Accordingly, the Lower Appellate Court allowed the appeal and decreed the suit.
13. It is seen from the records that the Lower Appellate Court has considered the dispute between the parties as to the identification of the suit properties in the suit in two different discussions viz.,
i) what is the property purchased under Ex.A1 and Ex.B1? and
ii) Whether the property mentioned in Ex.B1 is same as property mentioned in Ex.A1 and answered the points in affirmative in favour of the respondent/plaintiff and the same is under challenged in this appeal filed by the defendant.
14. Admittedly, in Ex.B1 = Ex. A7, the schedule of the property has been taken note of by the Lower Appellate Court and it was compared with the schedule of the property in Ex.A1 = Ex.A11. Based upon the schedule of the properties and the boundaries, the Lower Appellate Court has rightly come to the conclusion that the property mentioned in Ex.A10 are different and distinct from the property mentioned in Ex.B1 said to have been situated at Karuneekar street and Brahmin street in Tiruvannamalai. The suit property is situated only on the West of the Brahmin street, while, the other 3 boundaries appear to be properties of third parties. The Trial Court had taken note of the 7/14 http://www.judis.nic.in S.A.No.725 of 2000 Advocate Commissioner's Reports filed in Exs.C1 and C2 and the subsequent Advocate Commissioner's Reports under Exs.C3 and C4 and also taken note of the old Survey No. and New Survey No and the sub-division effected thereon.
15. While comparing S.No namely 585/69, the rival as to the name of the street has also been discussed and it appears that the case of the respondent/plaintiff is that the street is Karuneekar Street is also known as Eswaran koil Street. But, the case of the appellant/defendant is that the street mentioned in S.No.585/71 is only Eswaran Koil Street and it was not a Karuneekar street and after taking note of the Surveyor plan, the Lower Appellate Court has rightly come to the conclusion that S.Nos.585/65, 66,67,68 Karuneekar Street is mentioned in S.No585/69 and thus, it is seen that the disputed property, namely S.No.585/71. “A” schedule property belongs to the appellant. While property purchased under Ex.B1 is situated in S.Nos.585/65,66,67,68 and on close perusal of the Advocate Commissioner's Report and also taking note of the 4 boundaries, it is seen that the properties are different and distinct.
16. At this juncture, the pleading of the appellant/defendant in the written statement assumes significance. It is admitted by defendant/D.W.1 that the properties mentioned in Exhibits A8 and A9 in 8/14 http://www.judis.nic.in S.A.No.725 of 2000 the previous suit (viz O.S.No.696/89) are wrong. In the written statement, he has stated as follows:-
" The defendant further submits that at the time of filing the suit in O.S.No.696/89 of the four sides, the two sides of the boundaries were wrongly mentioned due to type mistake" .
But, it is pertinent to note that so far, he has not taken any steps to amend the decree. The property mentioned Exhibit A9 is not correct and he had not taken any steps before executing the decree. But he has given a wrong description of the property and took possession of the property.
17. Furthermore, it is elicited from the cross-examination of D.W.1 that properties mentioned in Exs.A8 and A9 in the previous suit, are wrong. Furthermore, D.W.1 in the cross examination has denied that "gp/thrh/F/1 gj;jpuj;jpy; th';fg;gl;l brhj;Jf;F jhd; ehd; mry; tHf;F vz;/696/89 jhf;fy; bra;njd/ jhth brhj;jpy; ehd;F vy;iyfs; tptuk; m/t/vz;/696/89y; tHf;Fiuapy; jtwhf ilg; bra;ag;gl;Ls;sJ/ nfhh;l; K:yk; jhd; RthjPdk; bgw;W jhth brhj;ijj;jhd;/ ehs; ,t;tHf;fpy; vjph; tHf;Fiua[ld; jhff;y; bra;Js;s tiuglk; gp/rh/F/4 MFk;/ (thjp jug;g[ Ml;nrgiza[ld;) thjpahdth; jhf;fy; bra;Js;s tHf;Fiua[ld; ,izf;fg;gl;Ls;s tiuglk; gprhM/6 jtwhdjhFk;/"
9/14
http://www.judis.nic.in S.A.No.725 of 2000 In his cross examination, he has also stated as follows:
gp/rh/F/2 jPh;g;ghiz efypy; gpuhkzh; bjUt[f;F tlf;Fk;. fUzPfh; bjUt[f;F bjw;Fk;. ehuhrk; re;Jf;F fpHf;Fk;. tuj Mr;rhhp fhypkidf;F nkw;Fk; vd Fwpg;gplg;gl;Ls;sJ/ vd;dhy; mJ jl;lr;rpy; jfwhf ,Uf;fyhk;/
18. Thus, in view of the pleadings by the appellant/defendant as extracted supra and coupled with his evidence and answer elicited in the cross examination of D.W.1, it appears that the appellant herein has mentioned wrong boundaries in O.S.No.696/89 and seems to have obtained a decree in respect of wrong property and more than that, no such property appears to be in existence as per the Surveyor plan and thus, taking note of the admission of D.W.1 and his further admission that what was taken in possession by D.W.1 through the Court is schedule “ A” property, which absolutely belonged to the respondent/plaintiff. The Lower Appellate Court has come to the conclusion that the appellant/defendant has taken possession of the wrong property, which is not in existence. As per the admission of D.W.1, coupled with Surveyor's Report as stated supra, as to the second point, namely whether the property mentioned in Ex.B1 is the same as property mentioned under Ex.A1 the Lower Appellate Court has rendered a categorical finding that the “ A” schedule property is different from the property mentioned in Exs.A8 to A10 and Exs.B2 and B3 and are entirely 10/14 http://www.judis.nic.in S.A.No.725 of 2000 different from the property mentioned under Ex.B1. Therefore, on a perusal of the evidence, such a finding does not suffer from any illegality or irregularity warranting interference at this appellate stage.
19. At this juncture, it remains to be stated that the admission of D.W.1 to the effect that the description of the property mentioned in Exs.A8 and A10 is a mistake and he has not taken any steps to amend the decree in earlier suit under Section 152 of the C.P.C and he has taken delivery of the property on a wrong description in the schedule of property, which according to him is the typographical error and therefore, the Lower Appellate Court has rightly come to the conclusion that the property mentioned under Ex.A9(= Ex.B2) is non-est and also relied upon the admission made by D.W.1 as extracted supra and through the respondent/plaintiff is a party to the suit in O.S.No.696/89, the schedule of the property is not in existence, coupled with the fact that the property covered under Ex.A1 is different and distinct from property covered under Ex.B2. The Lower Appellate Court has rightly allowed the appeal and decreed the suit and on re-appreciation of the evidence as discussed supra, this Court finds that the property mentioned under Ex.B1 is entirely different and distinct from the property mentioned under Ex.A1 and Ex.A1 is in favour of the respondent/plaintiff and hence, he is the absolute owner of the property and as such, based upon the oral and 11/14 http://www.judis.nic.in S.A.No.725 of 2000 documentary evidence adduced before the Trial court, as discussed in the preceding paragraphs, the findings of the Lower Appellate Court that Ex.A8 to Ex.A10 and Ex.B2 to B3 are non-est and no such property is available as admitted by D.W.1 in the cross examination. Consequently, Ex.B9 which is a certified copy of Ex.B1 is absolutely in respect of a non- existing property and hence, the same is inoperative and a similar finding rendered by the Lower Appellate Court, on a different reasoning, as stated supra does not suffer from any illegality or irregularity warranting interference by this Court.
20. Taking note of the finding rendered in the preceding paragraphs that the property which is a subject matter of O.S.No.696/89 is different and distinct from Ex.A1, which is the property in the suit and also in view of the finding that the property under Ex.A1 and Ex.B1 are different and distinct, this Court comes to the conclusion that the principal of res-judicata does not come into play.
21. In view of the non-existence of any such property as claimed by the appellant/defendant, the third and the first substantial question of law does not arise for consideration on the factual background. Resultantly, all the substantial questions of law 1 to 3 are answered in negation against the appellant/defendant and the Second Appeal is devoid of merits.
12/14 http://www.judis.nic.in S.A.No.725 of 2000
22. In the result, this Second Appeal is dismissed. No costs. The judgment and decree of the First Appellate Court are confirmed.
30.10.2019 nvi Speaking Order:Yes/No Internet:Yes/No To
1.The Principal District Munsif, Tiruvannamalai.
2. The Additional District Judge, Tiruvannamalai. 13/14 http://www.judis.nic.in S.A.No.725 of 2000 RMT.TEEKAA RAMAN,J., nvi Judgment in S.A.No.725 of 2000 30.10.2019 14/14 http://www.judis.nic.in