Madras High Court
Chinna Pillai Ammal And 3 Others vs Mannangatti Padayachi And 6 Others on 17 July, 1998
Equivalent citations: 1999(1)CTC231
ORDER
1. The appellants are the legal representatives of the deceased plaintiff and the respondents are the defendants before the trial Court
2. The deceased plaintiff is one Pavadai Padayachi. He laid the suit for declaration of his title to the B Schedule property and for recovery of possession of the plaint B Schedule property. The plaint B Schedule property in this suit is an extent of 134 feet into 25 feet in R.S.Nos.17/1 and 17/10 of Ulunthandar Kovil village. It is further stated in the description of the plaint B schedule property that this vacant site measuring 134 feet into 25 feet was shown in the plaint plan in the earlier suit filed between the parties in O.S.No. 164 of 1967 as 'B Schedule Property. The respondents/defendants resisted the suit for declaration of absolute title of the deceased plaintiff to the suit properties and for recovery of possession by stating that the deceased plaintiff is not the absolute owner of the suit properties, and the deceased plaintiff has got brothers and they are also entitled to the suit properties.
3. On the above pleadings and on the oral and documentary evidence placed before the trial Court, the learned District Munsif of Tirukovilur in O.S.No. 198 of 1977 came to the conclusion that the deceased plaintiff has not proved the oral partition between him and his brothers, and further the deceased plaintiff has not proved that Kattayya Padayachi relinquished his right in favour of the plaintiff over the suit property, and in the result he dismissed the suit with costs.
4. Aggrieved against the said findings of the trial Court, the legal representative of the deceased plaintiff filed an appeal in A.S.No. 166 of 1982 on the file of the Subordinate Judge's court at Villupuram and the learned subordinate Judge Villupuram also came to the conclusion that the deceased plaintiff failed to establish that there was an oral partition between the deceased plaintiff and his brothers and the suit property was allotted to the share of the deceased plaintiff in the said partition, and the deceased plaintiff also failed to prove the relinquishment by Kattayya Padayachi, and ultimately he dismissed the appeal and confirmed the Judgment and decree of the trial Court. Not satisfied with concurrent findings of both the courts below the legal representatives of the deceased plaintiff as appellants have preferred this second appeal.
5. At the time of admission of the second appeal my learned predecessor framed the substantial questions of law that arise for consideration in this second appeal as follows:-
(1) Whether a co-owner can maintain a suit for ejectment as against the trespassers event in the event of his claim for absolute title has been negatived and upon his failure to prove the partition, particularly when such a plea has been made as an alternative one in the plaint (2) Whether the failure to disclose the date of trespass by the plaintiff would be fatal in a suit, where there was no plea of adverse possession?
6. Point No.1: It is not in dispute that the suit property originally belonged to one Narasa Padayachi and Solai Padayachi who are brothers, and they entered into an oral partition, and in the said oral partition, the northern half share fell to Narasa Padayachi, and the southern half share fell to Solai Padayachi. The present dispute is this suit is with regard to the share of Solai Padayachi, which is a vacant site measuring an extent of 134 feet into 25 feet. It is also admitted by both the parties that Solai Padayachi died in the year 1900 leaving behind his wife Chokkayai and four daughters by name Thangammal, Kasi Ammal, Lakshmi Ammal and Alamelu Ammal. There are no sons to Solai Padayachi. The above said Thangammal, who is one of the daughters of Solai Padayachi, pre-deceased her mother Chokkayia. One another daughter of Solai Padayachi by name Lakshmi Ammal died leaving behind her four sons, and they are Ponnuswamy, Govinda Padayachi, Verrabadra Padayachi and Pavadai Padayachi. Pavadai Padayachi is the deceased plaintiff in the present suit, and he died later, and his legal representatives are the appellants herein. Yet another daughter of Solai Padayachi by name Alamelu Ammal died leaving behind her only son by name kattaya Padayachi. According to the deceased plaintiff, who filed the present suit, there was an oral partition in the year 1952 between the deceased plaintiff Pavadai Padayachi and his three brothers by name Ponnusamy Padayachi, Govinda Padayachi, and Veerabadra Padayachi, and further Kattayya Padayachi also relinquished his right in the suit property orally in favour of the deceased plaintiff Pavadai Padayachi in this suit. This oral partition of the year 1952 between the deceased plaintiff and his three brothers as well as the oral relinquishment made by Katayya Padayachi in favour of the deceased plaintiff are all denied by the defendants herein, who are the husband and wife. The 1st Respondent/1st defendant in the present suit filed an earlier suit in O.S.No. 164 of 1967, Ex.A-1 is the certified copy of the plaint in O.S.No. 164 of 1967 on the file of District Munsif's Court at Tirukoilur wherein the present 1st defendant filed the suit to declare his right in respect of the plaint. A and B schedule properties and to direct the defendant therein viz., Pavadai Padayachi (deceased plaintiff in the present suit) to deliver possession of the plaint A Schedule properties and also for permanent injunction restraining Pavadai Padayachi from interfering with the possession of the plaint B Schedule property (the present suit property) by the plaintiff. The said suit in O.S.No. 164 of 1976 after contest was dismissed with costs by a Judgment dated 21.1.1969 as borne out by the certified copy of the Judgment in O.S.No. 164 of 1967 marked as Ex.A-2 in this case. As against the dismissal of the earlier suit on O.S.No. 164 of 1967 the 1st defendant in the present suit by name Mannangatti Padayachi as the plaintiff in the earlier suit preferred an appeal in A.S.No. 239 of 1969 on the file of Subordinate Judge's Court at Cuddalore and the said appeal was also dismissed with costs on 31.7.1972 as evidenced by the Printed copy of the Judgment in A.S.No. 239 of 1969 marked as Ex.A-4 in this case. The 1st defendant by name Mannangatti Padayachi went up in second appeal in respect of the suit in O.S.No.164 of 1967 by filing the Second Appeal No.1982 of 1972 before the High Court of Judicature at Madras, and the second appeal was allowed, and the matter was remanded to the lower appellate Court for reconsideration on the question of the appellants Mannangatti Padayachi acquiring title to the suit A and B Schedule properties by adverse possession on the basis of the evidence already on record, and the copy of the said Judgment of the High Court, Madras dated 2.1.1976 in S.A.No. 1982 of 1972 is marked as Ex. B-22 in this case. After remand by the High Court in the second appeal, the learned Subordinate Judge at Cuddalore once again took up the appeal in A.S.No.239 of 1969 and considered the plea of adverse possession and held that the plaintiff therein by name Mannangatti Padayachi (1st defendant in the present suit) has not established the acquisition of title by adverse possession, and so the learned Subordinate Judge at Cuddalore once again dismissed the appeal with costs, confirming the Judgment and Decree of the District Munsif's Court at Tirukoilur dated 27.1.1969 in O.S.No. 164 of 1967.
7. In the earlier suit in O.S.No. 164 of 1967 the title of the 1st defendant in the present suit by name Mannangatti Padayachi was negatived by both the Courts and both the courts held that the defendant herein are trespassers in respect of the suit property, which is the plaint B Schedule, measuring 134 feet into 25 feet. There cannot be any dispute on the point that the defendants herein viz., Mannangatti Padayachi and his wife Anajali Ammal have no title to the plaint B Schedule of this suit and they are in possession of the suit properties illegally as trespassers. In the above background we have to consider the claim of the deceased plaintiff in the present suit in O.S.No. 198 of 1977 out of which the present second appeal in S.A.No. 91 of 1985 arises.
8. At the risk of repetition, it must be stated that the 1st defendant herein viz., Mannangatti Padayachi, who was the plaintiff in the earlier suit in O.S.No.164 of 1967, is estopped by the principle of Res Judicata by virtue of the Judgment and decree passed in O.S.No. 164 of 1967 to claim title to the present suit property either on the basis of a document of title or on the basis of succession or on the basis of adverse possession. In other words the title of the 1st defendant herein was negatived in the earlier suit and it is not open to the defendants herein to say that they have got any semblance of right, title and interest in the suit property. It follows that they are in unlawful possession of the suit property.
9. The learned counsel for the appellants who are legal representatives of the deceased plaintiff contended that an alternative plea has been made in para 7 of the plaint that the deceased plaintiff herein, by name Pavadai Padayachi as a cosharer would be entitled to maintain the suit for the ejectment against the trespasser, and there is preponderance of Judicial authorities for the proposition of law that a co-sharer can maintain a suit for possession as against a trespasser, and the learned Judges of the lower Courts below failed to note that when once the defendants were found to be trespassers having no title what so ever to the suit property, then the deceased plaintiff, even if he had failed to prove the oral partition and that he was the absolute owner of the suit property pursuant to the said oral partition, he would be entitled to maintain this suit as a co-sharer for the relief of possession, and in those circumstances this second appeal must be allowed, and the decree and Judgment of both the courts below must be reversed, and the suit must be decreed for the relief of possession as prayed for:
10. In support of the above contentions the learned counsel for the appellants relied on the decisions reported in (1) K. Veerankutti v. P.Umma AIR 1956 Mad. 514, (2) Sundarammal v. Sadasiva Reddiar and (3) Akkamma (Died) v. Kannamma, 1976 (89) L. W. 666.
11. In the earlier decision reported in K. Veerankutti v. P. Umma AIR 1956 Mad. 514 a Division Bench of our Madras High Court stated as follows:-
"It is well settled that a co-tenant or co-owner has full right to be in possession of the property to take steps to eject the trespasser from it"
12. In the subsequent decision of our Madras High Court reported in Sundarammal v. Sadasiva Reddiar it was laid down by a learned Single Judge of our High Court as follows:-
".....It may be that the benefit of the suit will got for all the other co-tenants, but so far as the trespasser is concerned, it will not be open to him to plead that a co-tenant cannot by herself file a suit for ejectment. In this view it would be unnecessary to implead the other co-widows. If however, either of the parties want that during the pendency of the proceedings, it would be desirable to implead the other co-widows as parties, it may be open to them to apply under Order 1 Rule 10 CPC and implead them..."
13. In another decision of our High Court reported in Akkamma (died) v. Kannamma, 1976 (89) L.W. 666 His Lordship Mr. Justice Ismail. J. as he then was held as follows:-
"If several co-sharers are entitled to the property, they should be impleaded as parties either as plaintiff or as defendants. None of these decisions has laid down the proposition that one of the several co-sharers cannot maintain a suit for ejectment against a trespasser."
14. The learned counsel for the respondents/defendants repudiated the above arguments by contending that the claim of the deceased plaintiff for absolute title has been negatived by both the courts below, and both the courts below have given concurrent findings on the question of factum of the oral partition pleaded by the deceased plaintiff in the present suit, and upon his failure to prove the oral partition, the deceased plaintiff and his legal representatives viz., the appellants herein are not entitled to get the relief of possession on the basis that the deceased plaintiff is a co-owner. In particular the learned counsel for the Respondents has drawn my attention to the prayer portion as well as to the pleadings in para 7 of the plaint.
15. The matter was examined in detail by me by giving due consideration to the points raised by both the counsel. I have carefully considered the arguments of the learned counsel for both parties and gone through the records. After hearing the rival contentions and after perusing the pleadings as well as the oral and documentary evidence placed in this case I am of the opinion that the deceased plaintiff in the present suit even as a co-owner is not entitled to the relief of possession as against the defendants, even upon his failure to prove the oral partition pleaded by him, and the reasons for my opinion are as follows:-
16. Nobody is disputing the settled proposition of law as putforth by the learned counsel for the appellant and mentioned in the decisions cited by the learned counsel for the appellants that a co-owner can maintain a suit for possession as against a stranger or trespasser, and the benefit of such a decree for possession in respect of the property as against the stranger or trespasser must go to the other co-sharers also. The deceased must go to the other co-shares also. The deceased plaintiff has set out an alternative plea to maintain the suit for possession as a co-sharer in para 7 of the plaint in the following words in Tamil:-
17. Therefore it is evident from the pleadings in 7 of the plaint that the deceased plaintiff in the present suit has taken up a stand that he is entitled to the relief of possession on the basis as a co-sharer as against the trespasser. who are the defendants herein. However the prayer in para 10(1) of the plaint is on different line and it is significant and it reads as follows:-
So the prayer in the plaint shows that the deceased plaintiff Pavadai padayachi is entitled to get a decree for the relief of possession on declaration of his absolute title to the suit property and not on the basis that he is a co-sharer or co-owner of the suit. Even after the decree and judgment of both the Courts below giving the concurrent findings that the oral partition between the deceased plaintiff and his brothers and the relinquishment of Kattayya Padayachi as pleaded by the deceased plaintiff was found to be not true, the deceased plaintiff herein has not taken any steps to amend the prayer portion in the plaint in the present suit praying for a decree for possession on the basis that he is a co-sharer of the suit property. The other brothers of the deceased plaintiff and Kattayya Padayachi were not impleaded even as a formal parties to the present suit. So as the prayer stands, the appellants want to stick on to the position that the deceased plaintiff Pavadai Padayachi is the absolute owner of the suit property. The prayer in para 10(a) of the plaint indicates that the appellants still want to hold that the deceased plaintiff Pavadai Padayachi is the absolute owner of the suit property on the basis of the oral partition and the oral relinquishment which fact was not established by him by satisfactory evidence in this case. Unless the appellants admit that the other brothers of the deceased plaintiff Pavadai Padayachi and Kattayya Padayachi also have got share in the suit property, the suit is not maintainable for the relief of possession as a co-sharer and they cannot sustain the suit as, co-sharer setting up absolute title in Pavadai Padayachi as against the defendants herein, who are trespassers. However, it is open to the appellants herein to file a fresh suit for partition by impleading the necessary and proper parties for an effective adjudication of the subject matter of this suit. In those circumstances I am of the view that a co-owner can maintain a suit for ejectment as against the trespassers even in the event of the plaintiff's claim for absolute title has been negatived and upon his failure to prove the oral partition when such a plea has been made in para 7 of the plaint as an alternative remedy but the prayer in the present suit for possession on the basis of absolute title cannot be granted, and I answer this point accordingly.
18. Point No.2: The cause of action as set out in Para. 8 of the plaint reads as follows:-
Nowwhere in para 8 of the Plaint the deceased plaintiff has given the date of trespass committed by the Respondents/ defendants herein. Cause of action is bundle of facts. The date of trespass need not be specifically set out in the cause of action para in as much as the Respondents/defendants are held to be trespassers of the suit property. The 1st defendant herein by name Mannangatti Padayachi has also taken a plea in the earlier suit O.S.No.l64of 1967 that he has prescribed title to the suit property by adverse possession, and that plea was also negatived, and therefore it is not open to the defendants herein to say or to plead that they have perfected title to the suit property by adverse possession. However in a suit based on title for possession, the relief of possession can be negatived only when the adverse party viz. the defendants herein are able to establish that the title of the deceased plaintiff or the appellants is extinguished by law of limitation. In a suit for possession based on title the plaintiff has no longer to prove under Articles 65 of the Limitation Act that he was in possessions of the suit property for a period of twelve years, and it is for the defendants to establish that his possession has been adverse for the requisite period of 12 years vide 1976 (89) L.W 71. In the present case the Defendants cannot say that they have perfected title by adverse possession.
19. Considering the above facts and circumstances of the case I am of the view that the failure to disclose the date of trespass into the suit property by the Respondents/defendants herein is not fatal to the present suit for possession when the plea of adverse possession was not available to the Respondents/defendants herein, and I answer this point accordingly.
20. In view of my findings on the earlier point I am to hold that the second appeal has to be dismissed with costs, and the judgment and decree of both the Courts below have to be confirmed, and however it is open to the appellants to file a fresh suit for the relief of partition by impleading all the necessary and proper parties for an effective adjudication of the subject matter of the suit, and I answer this point accordingly.
21. In the result the second appeal is dismissed with costs. The judgment and decree of both the Courts below are confirmed.