Madras High Court
P.Subramania Chetty vs P.N.Narayana on 21 July, 2014
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 21.07.2014 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.441 of 2012 P.Subramania Chetty ... Appellant vs. 1.P.N.Narayana, S/o.Nagabushnam 2.P.N.Dinesh, S/o.Nagabushnam 3.The Tahsildar, Taluk Office, Pallipattu. ... Respondents Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 29.07.2011, passed by the Subordinate Judge, Tirutani, in A.S.No.42 of 2010, confirming the judgment and decree, dated 20.04.2010, passed in O.S.No.72 of 2008, by the District Munsif Judge, Pallipattu. For Appellant : Mr.T.K.Bhavanantham For R1 & R2 : Mr.R.Akilesh for Mr.T.Dhanasekaran For R3 : No Appearance J U D G M E N T
The first defendant in O.S.No.72 of 2008 on the file of the Distirct Munsif Court, Pallipattu, is the appellant, and respondents 1 and 2 herein were the plaintiffs before the trial Court. The plaintiffs filed a suit for permanent injunction, restraining the first defendant from interfering with the possession and enjoyment of the suit schedule property and the second defendant/the Tahsildar, Pallipattu, from transferring the patta in favour of the first defendant in respect of the suit property. The suit was decreed by judgment and decree dated 20.04.2010, passed in O.S.No.72 of 2008 and on appeal, learned Subordinate Judge, Tirutani, confirmed the same by judgment and decree dated 29.07.2011, passed in A.S.No.42 of 2010. Aggrieved by the same, this second appeal has been filed by the first defendant / appellant herein.
2. The case of the plaintiffs/respondents 1 and 2 is as follows:
Plaintiffs 1 and 2 are brothers and sons of one P.Nagabushanam. The plaintiffs' grandfather P.Doraisamy Chetty, after acquiring the suit schedule property, continued to be in possession and enjoyment of the same, and after his death, his sons, namely, P.Nagabushanam/father of plaintiffs and P.Venkatarathinam succeeded him and they continued to be in possession and, to that effect, patta also stood transferred in the names of P.Nagabushanam and P.Venkatarathinam. Whileso, after the marriage of these plaintiffs, they orally partitioned the properties and thereafter, they are in possession and enjoyment of the suit schedule property. It is further stated in the plaint that since the first respondent, who is a stranger and a resident of Bangalore, is also attempting to transfer the patta in his name with the help of the Tahsildar, Pallipattu, the plaintiff filed the suit for permanent injunction against the defendants from interfering with the suit property and also not to transfer the patta in favour of the first defendant.
3. The first defendant / appellant, in his written statement, averred that the suit property and other properties are ancestral in nature and it originally belonged to one Guruvaiah Chetty and Chinnavenkatappa Chetty, who are brothers. Guruvaiah Chetty died in the year 1966, leaving behind his three sons, namely, P.Doraisamy Chetty / grandfather of plaintiffs, P.Thangavelu Chetty and P.Subramania Chetty / first defendant. Whileso, the grandfather of the plaintiffs, namely, P.Doraisamy Chetty, filed a civil suit for partition in O.S.No.82 of 1979 on the file of the Sub Court, Kancheepuram, against his second son-P.Thangavelu Chetty and third son/first defendant, and also impleading Kovaiah Chetty and P.Srinivasa Chetty, who are the sons of his brother(Chinnavenkatappa). While the suit was pending, the said P.Doraisamy Chetty died and thereafter, the father of plaintiffs/Nagabushanam and all the legal heirs of Doraisamy Chetty were brought on record as parties to the suit. Similarly, after the death of Thangavelu Chetty, legal heirs of the said Thangavelu Chetty were also brought on record as defendants in the above said suit. The trial Court decreed the suit as prayed for vide judgment and decree dated 24.11.1993, passed in O.S.No.82 of 1979. Thereafter, though the first defendant and the legal heirs of P.Thangavelu Chetty preferred an appeal before this Court in A.S.No.426/1995, while the matter was pending, the issue was compromised among the parties and thereafter, a compromise decree was passed by this Court on 11.04.2005. In terms of the said compromise decree, the first defendant was allotted 87 cents (eastern side) out of 2.60 acres in the suit first item of S.No.289/14 and in S.No.308/1, he was allotted 55 cents (eastern side), out of 1.10 acres in S.No.308/1 and again, he was alloted the full extent of 88 cents in S.No.306/5, which is third suit item. As per the said compromise decree, the father of the plaintiffs/Mr.P.Nagabhusanam and other legal heirs of P.Doraisamy Chetty were allotted with 87 cents on the western side in the suit Ist Item; 15 cents in S.No.303/17 of Myladumpaarai Village; 67 cents in S.No.304/4 of Myladumpaarai; 19 cents in S.No.305/6 of Myladumpaarai Village; 18 cents in S.No.306/11 of Myladumpaarai Village; 168 acres in S.No.306/11 in Parabhayamkarapuram Village; 2.69 acres in S.No.310/2 in Parabhayamkarapuram Village; 59 cents in S.No.310/3 in Parabhayamkarapuram Village; 1.21 acres in S.No.310/5 in Parabhayamkarapuram Village; 11 cents in S.No.313/3 in Parabhayamkarapuram Village; 41 cents in S.No.313/10 in Parabhayamkarapuram Village and 1.37 acres in Parabhayamkarapuram Village. Further, all the appellants and the respondents were given with the common right to enjoy the Well and borewell in S.No.289/14 and 306/1, except respondents 1 and 6 (in A.S.No.426/1995 before this Court), who are no more. Also, the first defendant and the legal heirs of Thangavel Chetty became entitled to the house in Old S.No.3/5 and in new S.No.26, situated in Cresent Road, Bangalore, while the family of the plaintiffs was allotted with a house at Parabhayamkarapuram Village. As per the above said compromise decree, the plaintiffs are in possession of their respective properties allotted to them, therefore, they are not entitled to file a suit for injunction, thus, the suit is barred by res-judicata. Moreover, the legal heirs of P.Doraisamy Chetty and Thangavelu Chetty are alive, therefore, they should have been impleaded as parties to the suit, hence, the suit is also bad for non-joinder of necessary parties.
4. On the side of the plaintiff, three witnesses were examined and Exs.A1 to A6 were marked and on the side of the defendant, only one witness was examined and Exs.B1 to B4 were marked. The trial Court, upon perusing all the documents and considering the arguments of both parties, decreed the suit. Aggrieved by the same, when the first defendant filed an appeal, the same was dismissed, confirming the judgment and decree passed by the learned trial Court. As against the same, the present second appeal has been filed. This Court, at the time of admission, framed the following substantial questions of law:
i. Whether the Courts below are right in decreeing the suit when the suit schedule property had been allotted to the appellant as per the decree of this Court in A.S.No.426 of 1995?
ii. Whether the Course below are right in accepting the patta, kist receipts and extracts from the adangal as conferring title on the respondents?
5. Learned counsel appearing for the appellant/first defendant submitted that on the basis of the compromise decree passed by this Court in A.S.No.426 of 1995, dated 11.04.2005, the parties are in peaceful possession of their respective shares, therefore, the trial Court ought not to have entertained the suit for injunction, without a prayer for declaration. It is further contended that since the compromise decree passed by this Court in A.S.No.426 of 1995, dated 11.04.2005, has been in force, the suit for injunction, which is bad in law, ought not to have been filed, that too against the co-owner. After taking physical possession of all these properties, the plaintiffs, who are sons of Mr.P.Nagabhusanam, in whose favour a compromise decree was passed by this Court, chosen to file a suit for bare inunction in respect of only Survey Nos.289/14, 308/1, 306/5, 306/1 and 310/3, without even mentioning anything about the compromise decree took place before this Court. The Courts below have also failed to take note of the fact that the appellant is in physical possession of the property and that the documents referred by the first appellate Court under Exs.A1 to A6 are all patta and kist receipts and extracts from the adangal, which would not confer any title on the respondents. Further, the Courts below have failed to take into consideration the core aspect that the suit is barred by res-judicata, he contended.
6. Learned counsel for the appellant further contended that the Courts below have failed to take note of the fact that the plaintiffs have not impleaded the necessary parties to the suit viz. legal heirs of Duraisamy Chetty/grandfather of plaintiffs, and also one Thangavelu Chetty/brother of Doraisamy Chetty. Thus, the suit itself is bad for non-joinder of necessary parties.
7. In support of his submission, he has also relied upon a judgment of this Court in Senthilnathan v. S.Karuppiah and others (2010 (5) CTC 775) for the proposition that once a preliminary decree is passed, proceedings should be continued, hence, there is no question of limitation for passing final decree.
8. Per contra, learned counsel appearing for respondents 1 and 2 / plaintiffs submitted that this Court had passed only a preliminary decree in A.S.No.426 of 1995, dated 11.04.2005, but not a final decree. Although a compromise decree was obtained by the parties on 11.04.2005, the appellant herein did not even file any application for passing final decree to allot respective shares to the parties. Since the properties in question have not been allotted to the respective parties, the same cannot be disturbed, but, the appellant endeavored to interfere with the possession of the suit properties of the plaintiffs, hence, they were forced to file a suit for injunction.
9. In support of his submission, he has also relied upon a judgment of this Court in the case of Tanusree Basu and others v. Ishani Prasad Basu and others ((2008) 4 SCC 791) to contend that a co-owner being in exclusive possession of a joint property would be entitled to injunction, therefore, there cannot be any doubt or dispute as a general proposition of law that possession of co-owner would be treated to be possession at all. On that basis, he prayed for dismissal of the second appeal.
10. Heard the learned counsel appearing on either side and perused the materials available on record.
11. It is an admitted fact that the suit properties among other properties are ancestral in nature and it originally belonged to one Guruvaiah Chetty and Chinnavenkatappa Chetty, who are brothers. In the year 1966, Guruvaiah Chetty died leaving behind his three sons, namely, P.Doraisamy Chetty / grandfather of plaintiffs, P.Thangavelu Chetty and P.Subramania Chetty / first defendant. Further, it is also not in dispute that the plaintiffs' father / P.Nagabhushanam filed a suit for partition in O.S.No.82/1979 on the file of the Sub-Court, Kancheepuram, against the first defendant/appellant herein. Though the above said suit was decreed as prayed for, an appeal was preferred by the appellant herein before this Court in A.S.No.426/1995, wherein a joint compromise memo was filed before this Court signed by all the parties to the appeal and accordingly, a compromise decree was passed in the above said appeal on 11.04.2005. In terms of the said compromise decree, the first defendant was allotted with 87 cents (eastern side) out of 2.60 acres in the first suit item against S.No.289/14 and again, he was allotted with 55 cents (eastern side) out of 1.10 acres in S.No.308/1 and further, he was also alloted with the full extent of 88 cents in S.No.306/5, which is third suit item. In the said compromise decree, the father of the plaintiffs/Mr.P.Nagabhusanam and other legal heirs of P.Doraisamy Chetty were allotted with 87 cents on the western side of the suit first Item; 15 cents in S.No.303/17 of Myladumpaarai Village; 67 cents in S.No.304/4 of Myladumpaarai; 19 cents in S.No.305/6 of Myladumpaarai Village, 18 cents in S.No.306/11 of Myladumpaarai Village; 168 acres in S.No.306/11 in Parabhayamkarapuram Village; 2.69 acres in S.No.310/2 in Parabhayamkarapuram Village; 59 cents in S.No.310/3 in Parabhayamkarapuram Village; 1.21 acres in S.No.310/5 in Parabhayamkarapuram Village; 11 cents in S.No.313/3 in Parabhayamkarapuram Village; 41 cents in S.No.313/10 in Parabhayamkarapuram Village and 1.37 acres in Parabhayamkarapuram Village. Further, all the appellants and the respondents were given common right to enjoy the Well and the Bore-well in S.No.289/14 and 306/1, except respondents 1 and 6 (in A.S.No.426/1995), who are no more. Also, the first defendant and the legal heirs of Thangavel Chetty became entitled to the house in Old S.No.3/5, new S.No.26, situated in Cresent Road, Bangalore, while the family of the plaintiffs was allotted with a house at Parabhayamkarapuram Village.
12. As stated above, when the respective parties have also taken possession of their respective shares as per the joint compromise decree, it is not known as to how the plaintiffs have filed the suit for bare injunction in respect of only five items of properties when 14 shares of properties were allotted, in favour of their father Mr.P.Nagabhushanam. Further, when the suit was filed without even impleading the LRs of Thangavelu Chetti/brother of plaintiffs' grandfather, who are also parties to the compromise decree, the Courts below ought not to have entertained the suit for non-joinder of necessary parties, since the second item of the suit properties admittedly belongs to the legal heirs of the said Thangavelu Chetty. Besides, from the plaint filed in the present suit, it could be seen that the plaintiffs have not mentioned anything about the compromise decree passed by this Court in A.S.No.426 of 1995, dated 11.04.2005, in terms of the memo of compromise signed by all the parties to the appeal. Thus, from the above said undisputed facts, it is very clear that the plaintiffs/respondents 1 and 2 filed the suit only with a fraudulent intention to secure something illegal, with a view to deprive and defeat the rights of the others, therefore, the same would render the transaction void ab initio. Although in a given case a, deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to playing fraud on the Court.
13. As noted above, when the plaintiffs' father P.Nagabhushanam filed a suit for partition in O.S.No.82 of 1979 on the file of the Sub Court, Kancheepuram, against the 1st defendant/appellant herein, the same was decreed, however on appeal in A.S.No.426 of 1995 both the parties entered into a compromise and a joint compromise memo signed by both the parties to the appeal was filed, as a result, a compromise decree was passed on 11.04.2005, by virtue of that, properties were allotted to both the plaintiffs and defendants families as mentioned in paragraph 11 above. When the plaintiffs' father P.Nagabhushanam was allotted 14 share of properties, a preliminary decree was also passed, therefore, when a preliminary decree was passed in a partition suit, the proceedings should be continued by fixing date for further proceedings till a final decree is passed. When the factual matrix stands as above, the defendant taking a total contradictory stand that the appellant did not file any application for passing final decree to allot respective shares to the parties, cannot file a suit in O.S.No.72 of 2008 for injunction that too without the prayer for declaration. Secondly, having accepted the preliminary decree passed in A.S.No.426 of 1995 without even challenging the same and concealing the compromise decree entered in A.S.No.426 of 1995 on 11.04.2005, that too, without impleading the necessary parties completely suppressing each and every facts, the plaintiffs had filed the present suit and obtained a decree for permanent injunction fraudulently.
14. In a similar and identical circumstances, the Apex Court while deprecating the conduct of litigant in deliberately misrepresenting and playing fraud upon the Court in N.Meghmala vs. G.Narasimha Reddy, 2010 (7) MLJ 693, has held as follows:-
"20. It is settled proposition of law that where an applicant gets an order by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC 853). In Lazarus Estate Ltd. Vs. Besalay 1956 All. E.R. 349), the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
23. In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. AIR 2000 SC 1165, this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
24. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud."
15. It is pertinent to recall the emphasis shown by the Apex Court in the aforesaid judgment against the litigant who obtained an order on fraud.
"26. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya Naidu (supra); Gowrishankar & Anr. Vs. Joshi Amba Shankar Family Trust & Ors. AIR 1996 SC 2202; Ram Chandra Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002 SC 33; Ram Preeti Yadav Vs. U.P. Board of High School & Intermediate Education AIR 2003 SC 4628; and Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr. AIR 2004 SC 2836).
28. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."
16. Therefore, considering the conduct of the plaintiffs and the compromise decree already passed in A.S.No.426 of 1995 in favour of the plaintiffs' father namely, P.Nagabhushanam and also obtained one another decree for injunction in O.S.No.892 of 1979 this court is of the considered view that the impugned judgment and decree are evident to show that the plaintiff has gained a decree for injunction by playing fraud not only against the defendants but also against the Court. Suppression of any material fact or document amounts to fraud played on the court, therefore, this Court in exercise of its inherent powers is inclined to interfere with the impugned judgment imposing exemplary cost.
17. As a general rule, suppression of material facts disqualifies the litigant from obtaining any relief. This rule has been evolved to deter the litigant from abusing the process of this Court by descenting it.
18. In the present case, initially, the plaintiffs deliberately mislead the learned trial court and again wilfully mislead the appellate court to defend the trial court judgment. Even before this Court the plaintiff resorted to the same deceiving tactics by building up false facts, suppressing the compromise decree. When a party approaches either lower court or the higher court must place all the facts before the court without any reservation and if there is any false statement or suppression of material facts, the court should not hesitate to impose exemplary cost.
19. Today some of the litigants do not have fear or know the consequences of misleading the court, the reason is that when the courts on certain occasions show its liberal approach on various reasons such approach is being understood by some litigants. This has given rise to huge docket population in the courts which results denial of timely justice to the needy citizens therefore, at times the courts have to send some message to wrong doer as an eye opener.
20. Useful reference can be had from the judgment of the Apex Court in State of Maharashtra and others vs. Sarangharsingh Shivdassingh Chavan and another, 2011 (1) SCC 577, wherein, in similar and identical circumstances, taking note of the fact that an affidavit filed by the litigant was clearly misleading, differing with the less imposition of fine of Rs.25,000/- by the High Court of Bombay has imposed the exemplary cost of Rs.10,00,000/- on the Maharashtra Government.
21. In yet another occasion, the Apex Court in Ramrameshwari Devi vs. Nirmala Devi, 2011 (8) SCC 249, deprecating the dilatory tactics and the harassment of opposite party, ultimately resulting in wastage of court's time and also unjust benefit to the wrong doer under the existing system of administration of civil litigation came down heavily to slap the exemplary cost of Rs.2,00,000/-.
22. Similarly, in the present case, this Court cannot shut its eyes to the deliberate and calculated strategies designed by the plaintiffs, to overreach the majesty of the courts, therefore, the plaintiffs who in my considered opinion are wrong doers deserve to be contemned should be imposed with exemplary cost. Accordingly, the first substantial question of law is answered.
23. Moving to the second substantial question of law namely, Whether the Course below are right in accepting the patta, kist receipts and extracts from the adangal as conferring title on the respondents, it may be mentioned herein that the law is well settled that patta and revenue records including adangal extracts are not documents of title. Whileso, the lower appellate court, on perusal, of Exs.A1 to A6 which are patta and kist receipts and extracts from adangal, overlooking two vital aspects that the appellant has been in physical possession of the property on the basis of the compromise decree passed in A.S.No.426/1995, in my considered opinion ought not to have decreed the suit confirming the decree for permanent injunction passed by the learned trial court holding that there is no document in the name of the appellant with regard to the suit property inasmuch as the compromise decree passed in A.S.No.426/1995 has not been questioned either by the plaintiffs or their father.
24. It is not in dispute that an appeal under Section 100 CPC can be entertained by the High Court on the substantial question of law. There is no quarrel over this legal position, however, if the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such findings can be interfered with by the High Court in an appeal under Section 100 CPC, because the High Court cannot shut its eyes to perverse findings of courts below. In the present case, the findings of fact arrived at by the courts below are contrary to evidence on record and therefore I am justified in setting aside the same, answering the second substantial question of law in favour of the appellant. Taking note of the conduct of the plaintiffs who have not only misrepresented both the courts, but also intentionally suppressed the compromise decree passed in favour of their father, this Court is inclined to impose an exemplary cost of Rs.1 lakh, payable to the appellant herein by the respondents 1 and 2, within a period of four weeks from the date of receipt of a copy of this judgment.
25. In fine, for the reasons stated above, concurrent findings of the Courts below are set aside and the parties are directed to act on the basis of the compromise decree passed by this Court in A.S.No.426 of 1995, dated 11.04.2005. Consequently, the Second Appeal stands allowed.
Index : yes 21.07.2014.
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To
1.The Subordinate Judge, Tirutani,
2.The District Munsif Judge, Pallipattu.
T.RAJA, J.
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Judgment in
Second Appeal No.441 of 2012
21.07.2014