Madras High Court
S.Rajan vs #1.A.Suriyanarayanan on 22 June, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/06/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.S.A.(MD)No.35 of 2006 S.Rajan ... Appellant Vs #1.A.Suriyanarayanan 2.A.Pitchai Chettiar 3.A.Deivendran Chettiar 4.Pushpammal 5.Thirukumaran 6.C.Kalimuthu (Respondents 2 to 6 are given up) ... Respondents Civil Miscellaneous Second Appeal filed under Order 21 Rule 98 r/w Section 100 C.P.C., against the Judgment and decree dated 23.11.2005 made in A.S.No.174 of 2004 by the learned Principal District Judge, Madurai, confirming the Judgment and decree passed in unnumbered E.A.No../2004 in E.P.No.319 of 2000 in O.S.No.288 of 1981 dated 30.09.2004. !For Appellant : Mr.M.Valli Nayagam ^For 1st Respondent : Mr.Sulthan Allaudhin :JUDGMENT
The unsuccessful applicant in E.A.No.(unnumbered)/2004 filed under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure in E.P.No.319 of 2000 in O.S.No.288 of 1981 on the file of the trial Court (Ist Additional Subordinate Judge, Madurai) preferred an appeal on the file of the learned Principal District Judge, Madurai as A.S.No.174 of 2004 challenging the order of the trial Court rejecting the said claim petition. The learned appellate Court (Principal District Court, Madurai) after hearing, dismissed the above said appeal A.S.No.174 of 2004 by its Judgment dated 23.11.2005. Hence the present civil miscellaneous second appeal has been brought forth before this Court.
2. The brief facts leading to the filing of the Civil Miscellaneous Second Appeal can be briefly stated thus:
A.Suriyanarayanan, the present first respondent in this civil miscellaneous second appeal filed a suit O.S.No.288 of 1981 on the file of the trial Court (first Additional Subordinate Judge, Madurai) for partition and mesne profits in respect of the suit properties, which include the petition properties described in the schedule annexed to the above said unnumbered E.A. One Chinnathambia Pillai, who was arrayed as the sixth defendant in the above said suit, resisted the plaintiff's claim setting up title in himself on the strength of an alleged oral purchase. On the other hand, the plaintiff- A.Suriyanarayanan contended that the said Chinnathambia Pillai was only a tenant in respect of the suit properties. After full trial, the learned Subordinate Judge rejected the claim of title made by Chinnathambia Pillai, decreed the suit and passed a preliminary decree directing the division of the suit properties into three equal shares and allotment of one such share to the plaintiff by Judgment dated 26.11.1983. As against the said Judgment and preliminary decree, the above said Chinnathambia Pillai filed an appeal A.S.No.1483 of 1988 on the file of the High Court, Madras. During the pendency of the said appeal, the sole appellant Chinnathambia Pillai died. Subsequent to his death, S.Rajan, the present appellant got a sale deed from Kalimuthu, son of the said Chinnathambia Pillai on 05.02.1999. Thereafter, the sixth respondent herein filed applications in A.S.No.1483 of 1988, to condone the delay in filing set- aside the abatement petition, to set aside the abatement and to bring him on record as legal representative of the deceased Chinnathambia Pillai. The said applications were numbered as C.M.P.Nos.8589 to 8591 of 1995 respectively. By a common order dated 25.08.1999, all the three petitions were dismissed and consequently the appeal itself was also dismissed as abated. Meanwhile, the trial Court passed a final decree on 17.02.1989 for partition. Based on the final decree dated 17.02.1989, A.Suriyanarayanan, the first respondent in the present appeal, levied execution for getting possession of the properties alleged to his share in the final decree by filing E.P.No.319 of 2000 on the file of the trial Court.
In the execution proceedings, the appellant in the present C.M.S.A. resisted execution by filing a claim petition under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure, praying for adjudication of his claim and consequential dismissal of E.P. The trial Court, after hearing, rejected the unnumbered claim petition by its order dated 30.09.2004. The same was challenged before the Principal District Court, Madurai in A.S.No.174 of 2004. The learned Principal District Judge, Madurai, after hearing, dismissed the said appeal by its Judgment dated 23.11.2005. Hence the present Civil Miscellaneous Second Appeal before this Court.
3. The Court heard the arguments advanced by Mr.M.Valli Nayagam, learned counsel on behalf of the appellant and Mr.Sulthan Allaudhin, learned counsel on behalf of the first respondent and paid its anxious considerations to the same.
4. The following substantial questions of law have been raised in this Civil Miscellaneous Second Appeal for determination:
"(i) Whether the courts below are correct in passing final order in an application filed under Order 21 Rule 97 even without numbering the same?
(ii) Whether the order of Courts below are bad in law since a competent civil Court has already passed an order in favour of the appellant and hence the orders are hit by Order 21 Rule 104 of Civil Procedure Code?"
5. Advancing arguments on behalf of the appellant Mr.M.Valli Nayagam, learned counsel would contend that the Courts below have committed an error in holding the appellant's claim petition under Order 21 Rule 97 liable to be rejected even without numbering; that the Courts below have erred in not considering an order passed by a competent civil Court (Second Additional Subordinate Judge, Madurai) in the counter claim made in O.S.No.434 of 1999 by the appellant herein and that the Courts below should have upheld the claim made by the appellant and dismissed E.P. as against the appellant so far as the properties described in the schedule attached to the claim petition are concerned and that the appellant's claim of adverse possession could not have been rejected at the threshold itself.
6. Per contra Mr.Sulthan Allaudhin, learned counsel for the first respondent would contend that the order of the trial Court and the Judgment of the lower appellate Court are not infirm; that there is no scope for interference either with the order of the trial Court or with the Judgment of the lower appellate Court and that the present Civil Miscellaneous Second Appeal should be dismissed as devoid of merits.
7. It is not in controversy that the appellant herein has traced his title to Chinnathambia Pillai through his son Kalimuthu, who figures as sixth respondent in the Civil Miscellaneous Second Appeal. The appellant relies on the sale deed dated 05.02.1999 executed by the said Kalimuthu. Admittedly, Kalimuthu did not have any right of title of his own in respect of the disputed properties, apart from the derivative title as the legal representative of his father Chinnathambia Pillai. Only in such a capacity, Kalimuthu executed the sale deed in favour of the appellant. The above said Chinnathambia Pillai was a party to the original partition suit. In fact, as against the preliminary decree, Chinnathambia Pillai had preferred an appeal A.S.No.1483 of 1988 on the file of the High Court, Madras. During the pendency of the appeal, he died. His son Kalimuthu (sixth respondent in the present appeal) did not file any application to get him impleaded in the said appeal as the legal representative of Chinnathambia Pillai. On the other hand, he chose to execute the above said sale deed in favour of the appellant herein on 05.02.1999. Only thereafter Kalimuthu, the sixth respondent herein claiming to be the legal representative of Chinnathambia Pillai filed C.M.P.Nos.8589 to 8591 of 1995 to implead him as legal representative, to set aside the abatement and to condone the delay in filing the petition to set aside the abatement. All the three applications were dismissed by the High Court, Madras and the appeal was also dismissed as abated, by order dated 25.08.1999.
8. When a person purchased the property from the Judgment debtor or his legal representatives pendente lite or after passing of the decree, the purchaser shall not have a better right or title than that of the Judgment debtor. The purchaser shall be bound by the decree as judgment debtor himself. In such an event, resistance to execution on the strength of title derived from the judgment debtor need not be adjudicated upon for the simple reason that the entertainment of such a claim will amount to opening the avenue once again for the judgment debtor to resist execution even though such a plea by his predecessor in interest might have been rejected earlier in the suit itself. When a similar question arose before the Honourable Supreme Court in Narayana Sarma, N.S.S. v. Goldstone Exports P. Ltd. reported in [2001(4) CTC 755], the Honourable Supreme Court held that it was not necessary to determine the question raised by the obstructor as he admitted that he was a transferee pendente lite. The following are the observations made by the Honourable Supreme Court in the said case:
"If the resistance was made by a transferee pendente lite of the judgment- debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. .... In other words, the court is not obliged to determine a question merely because of the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings."
9. The very same view was expressed by Madhya Pradesh High Court in Manoj Kumar Sharma v. Mahadev Prasad reported in 2000(3) Civil LJ 861. Referring to Rule 102 and 98(2) of Order XXI C.P.C., the Court has gone to the extent of stating that a detailed enquiry regarding the claim made by a person, who admits to have purchased the property pendente lite from the judgment debtor was an exercise in futility. The following were the observation made by the said Court:
"For disposal of the present revision petition, I assume that whatever is said by the present objector is gospel truth but then too, in view of Rule 98(2) of Order XXI, the applicant would not be entitled to any relief. The applicant in any case would not be permitted to lead evidence beyond what is contended by him or pleaded by him in his objections. If the objections are that he has purchased the property during the pendency of the suit then Rules 102 and 98(2) of Order XXI of the Civil Procedure Code would be an complete answer to the objections. Learned Counsel for the non-applicant No.1 is justified in his submission that an inquiry would in fact be an exercise in futility in view of the pleadings of the present applicant, and it is at all not necessary to record the evidence of the parties. The Trial Court even otherwise was justified in closing the right of the present applicant in the opinion of this Court."
Similar view was expressed by a single Judge of the Madras High Court in Banumathi @ Karunaiammal v. A.P.Athanari and others reported in 2003(1) LW 551.
10. In view of the clear and emphatic declaration of law on this point by the Honourable Supreme Court and the High Courts, this Court accepts the contention of the learned counsel for the contesting respondent that the Courts below were right in holding that the appellant's claim was liable to be rejected even without numbering the claim petition. The above said observations made by the Honourable Supreme Court as well as the High Courts shall be a fitting answer to the contentions made by the learned counsel for the appellant and to discountenance his contentions that the Courts below have committed an error in rejecting the claim of the appellant even without numbering the claim petition. There is no infirmity or error either in the order of the trial Court or in the Judgment of the lower appellate Court upholding the order of the trial Court rejecting the claim made by the appellant herein and there is no scope for any interference with the same. As an alternative argument, the learned counsel for the appellant would make a submission that there was failure on the part of the trial Court and the lower appellate Court to take into consideration an order passed by the Second Additional Subordinate Judge, Madurai in the counter claim made by the appellant herein in O.S.No.434 of 1999, sustaining the counter claim based on the plea of adverse possession. On the other hand, the learned counsel for the contesting respondent would contend that the said order relied on by the appellant cannot be treated as a judgment in law and that the said order is not valid in the eye of law for the following reasons:
"The appellant herein is a purchaser from the judgment debtor in the partition suit, in which the execution petition has been filed. Chinnathambia Pillai, the predecessor-in-title was unsuccessful in resisting the suit for partition on the plea of title based on an alleged oral sale and adverse possession. Even if no direct plea of adverse possession was raised by Chinnathambia Pillai in the suit for partition, the same would amount to a failure to take a necessary defence and thus will constitute constructive res judicata as per Section 11 explanation IV of the Code of Civil Procedure. The order of the Second Additional Subordinate Judge, Madurai passed on the counter claim made by the appellant herein in O.S.No.434 of 1999 was made on 22.04.2002. Even before that date, judgment was pronounced in the partition suit O.S.No.288 of 1981 on 26.11.1983 itself and final decree was also passed on 17.02.1989 itself. The appeal preferred against the judgment and preliminary decree was also dismissed before passing of the order by the Second Additional Sub Judge in the counter claim in O.S.No.434 of 1999. Therefore, the issue regarding adverse possession in respect of the disputed properties could not have been validly raised by the appellant herein in the said subsequent suit and the same could not have been decided by the said Court."
11. This Court is able to find substance in the submissions made by the counsel for the contesting respondent. A copy of the written statement filed in O.S.No.434 of 1999 on the file of the Second Additional Subordinate Judge, Madurai containing counter claim and the docket orders passed thereon has been produced in the form of additional typed-set of papers by the appellant. A perusal of the same will indicate that the learned Second Additional Subordinate Judge, Madurai had not followed the procedure prescribed for dealing with counter claim. As per Order 8 Rule 6(A)(4), the counter claim shall be treated as a plaint and the same shall be governed by the rules applicable to plaints. As per Sub Rule 2, a counter claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. As per Sub Rule 3, the plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant. A perusal of the copy of the order enclosed in the additional typed-set shows that the counter claim has not been either numbered as a counter claim or as an interlocutory application. Simply docket orders seem to have been passed granting time for counter statement. Ultimately, a non-speaking order was passed on 22.04.2002 as follows:
"Counter not filed. Respondent called absent and set exparte. Petition allowed."
12. It is not clear as to who are referred to as respondents and who are referred to as petitioners. Even though Order 8 Rule 6(E) empowers the Court to pronounce judgment against the plaintiff in relation to the counter claim and make such order in relation to the counter claim, as it thinks fit if the plaintiff makes default in putting a reply to the counter claim made by the defendant. But the above said order dated 22.04.2002 cannot be construed either a judgment on the counter claim or a final order passed on merit regarding the counter claim. Even if the suit is proceeded exparte in the absence of a written statement, unless the applicability of Order 8 Rule 10 is attracted and the Court acts there under; the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments, the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may, in law, be found entitled.
13. In the counter claim a plea for injunction based on possession alone had been made. Possession of the disputed property by the appellant is not in dispute. That is why the decree holder has filed the execution petition seeking delivery of possession in accordance with the final decree for partition. According to the judgment in the partition suit, Chinnathambia Pillai was in possession of the disputed properties only as a tenant. Under these circumstances, the said order passed in the counter claim cannot be taken as an adjudication of the claim of title to the disputed properties by the appellant herein based on the plea of adverse possession. As the execution petition was filed within the period of limitation against the appellant also who happened to be the purchaser from the judgment debtor, there is no question of acquiring title by adverse possession, because the entire period of litigation will be excluded for the purpose of calculating limitation. Therefore, the arguments advanced on behalf of the appellant that the trial Court as well as the first Appellate Court committed an error in holding that the appellant could not maintain a claim based on the plea of adverse possession cannot be countenanced.
14. The execution petition is resisted by the appellant only on the ground that he did have a better right than that of the decree holder based on the sale deed obtained from the judgment debtor. It was pointed out supra that the vendor of the appellant has not established title in himself by adverse possession. Hence the said plea is not available to the appellant herein. His title is only a derivative title derived from the judgment debtor Chinnathambia Pillai. It is not the contention of the appellant that actual possession cannot be obtained as per judgment of the trial Court and only symbolical possession can be obtained since the original judgment debtor was a tenant. Such a plea was not raised and such a question has not arisen in this appeal. Hence there is no need to consider the same at this stage. Suffice to observe that, on the strength of the pleadings made in the execution application (unnumbered), the objection made by the appellant is not maintainable; that consideration of the objection, in the light of the admission that the appellant purchased the property from the judgment debtor, will be an exercise in futility; that by the rejection of the execution application without even numbering the Courts below have committed no error; that there is no scope for any interference with the judgment of the lower appellate Court confirming the order of the trial Court and that the same is liable to be confirmed with the result that the appeal shall fail. Accordingly, this Civil Miscellaneous Second Appeal fails and the same deserves to be dismissed with cost.
15. In the result, this Civil Miscellaneous Second Appeal is dismissed with costs.
To The Principal District Judge, Madurai.