Madras High Court
A.S.Vedhagiri vs Govindammal on 12 April, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12/04/2013 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.17 of 2012 & M.P.Nos.1 & 2 of 2012 A.S.Vedhagiri .. Appellant -Vs- 1.Govindammal 2.Valli .. Respondents Second Appeal filed under section 100 of C.P.C to set aside the decree and judgment dated 15.11.2011 made in A.S.No.359 of 2010 on the file of the IV Additional Judge, City Civil Court, Chennai in reversing the decree and judgment dated 09.07.2010 made in O.S.No.6473 of 2009 on the file of II Assistant City Civil Court, Chennai. For appellant : Mr. G.Ethirajulu For Respondents : Am.Loganathan ----- JUDGMENT
The plaintiff in the original suit filed before the trial Court is the appellant in the second appeal. He has filed the suit for a declaration that the settlement deed dated 11.06.2009 executed by the first respondent/first defendant in favour of the second respondent/second defendant and registered as Document No.2587 of 2009 is void, not valid in law and not binding upon the appellant/plaintiff and for a permanent injunction restraining the respondents/defendants from interfering with the peaceful possession and enjoyment of the plaint 'B' schedule property. The learned trial Judge, namely the II Assistant Judge of the City Civil Court, Chennai decreed the suit as prayed for with cost by the judgment and decree of the trial Court dated 09.07.2010.
2. The decree passed by the trial Court was challenged by the respondents herein before the lower appellate Court, namely IV Additional Judge, City Civil Court, Chennai in A.S.No.359 of 2010. The appellant herein/plaintiff filed a miscellaneous petition in C.M.P.No.1150 of 2011 in the said appeal suit for reception and marking of additional documents as additional evidence. Similarly, the respondents herein/defendants filed two other petitions, namely C.M.P.No.1151 of 2011 and C.M.P.No.2140 of 2011 in the above said appeal suit for reception of additional documents as additional evidence under Order 41 Rule 27 C.P.C. The learned lower appellate Judge, after hearing the said civil miscellaneous petitions along with the appeal, dismissed all the three petitions. However, on merits, the appeal was allowed, the decree passed by the trial Court was set aside and the original suit filed by the appellant herein/plaintiff was dismissed by the common order and judgment dated 15.11.2011. The decree drawn on the basis of the said judgment of the lower appellate Court dated 15.11.2011 made in A.S.No.359 of 2010 is challenged in the present second appeal.
3. The averments made in the plaint, in brief, are as follows:-
i) House site measuring East to West 33 feet and North-South 65 feet, admeasuring 2346 sq.ft comprised in S.No.33, Block No.4, Ekkattuthangal, Guindy Taluk, morefully described in the plaint 'A' schedule belongs to the respondents/defendants. Vacant site measuring East to West 30 feet and North to South 69 feet comprised in the very same survey number lying on the east of 'A' schedule property morefully described in plaint 'B' schedule belongs to the appellant/plaintiff. Plaint 'A' schedule property originally originally belonged to Mariammal. The first respondent/first defendant Govindammal is her daughter and the second respondent/second defendant Valli is the daughter of the first respondent/first defendant.
ii) The property described in plaint 'B' schedule originally belonged to Solai Naicker, the grandfather of the plaintiff. He bequeathed the same to his son Sanjeevi Naicker, the father of the appellant/plaintiff. On the death of Solai Naicker, the plaintiff acquired title to the plaint 'B' schedule property. Since the appellant/plaintiff is residing far away, he had asked his maternal aunt's son to watch the plaint 'B' schedule property, which was vacant. At the time of issuance of patta, Revenue Officials issued joint patta in the names of Solai Naicker and Mariammal in respect of both 'A' and 'B' schedule properties. Due to scarcity of funds, the appellant / plaintiff wanted to sell his property, namely the suit 'B' schedule property and effected a publication in the Hindu Classifieds on 14.05.2009 for the said purpose. He also applied for transfer of patta in his name. The first respondent/first defendant, after coming across the advertisement issued by the appellant/plaintiff, made a secret arrangement by gifting the plaint "B" schedule property to her daughter, namely the second respondent/second defendant under a settlement deed dated 11.06.2009 registered as Document No.2587 of 2009. As the plaint 'B' Schedule property absolutely belongs to the appellant/plaintiff and the first respondent/first defendant did not have any transferable title in respect of the plaint 'B' schedule property, the said settlement deed is invalid and is not binding upon the appellant/plaintiff. Based on the said settlement deed dated 11.06.2009, Valli, the second respondent/second defendant made an attempt to trespass into the suit 'B' schedule property on 01.07.2009 regarding which information was conveyed to the appellant/plaintiff by his maternal aunt's son. On receiving the said information from his maternal aunt's son, the appellant/plaintiff went to the property and resisted and remonstrated the act of the 2nd defendant. Subsequently, the appellant/plaintiff applied for and got an Encumbrance Certificate on 09.07.2009 from which he came to know that the above settlement deed had been executed by the first respondent / first defendant in favour of her daughter, namely the second respondent/second defendant in respect of the plaint 'B' schedule property. Only thereafter, the appellant / plaintiff applied for a certified copy of the said settlement deed and obtained the same on 23.07.2009. The second respondent/second defendant is relentless in making her attempts to grab the plaint 'B' schedule property with the help of local rowdies and using force. Therefore, the appellant/plaintiff had been constrained to file the suit for the above said reliefs.
4. First and second respondents / first and second defendants filed separate written statements. All the averments made in the written statement of the first respondent/first defendant are also found in the written statement of the second respondent/second defendant. In addition, the first defendant, in her written statement, has stated that in respect of the aspects not specifically dealt with in the written statement of the first defendant, she is adopting the written statement of the second respondent/second defendant. The averments made by the first and second defendants, in brief, are as follows:-
The appellant/plaintiff is not in possession of the plaint 'B' schedule property. On the other hand, plaint 'B' schedule property had been in continuous and uninterrupted possession and enjoyment of the predecessor-in-title of the second respondent/second defendant. The second respondent/second defendant got the same under a settlement deed dated 11.06.2009, registered as Document No.2587 of 2009, in the office of the Sub-Registrar, Saidapet and thus, the second respondent / second defendant has become the absolute owner. She is in possession of the plaint 'B' schedule property. The mother of the second respondent, who was the absolute owner of the plaint 'B' schedule property, executed the said settlement deed and put the second respondent in possession of plaint 'B' schedule property. The plaint allegation that the first respondent / first defendant made a secrete arrangement and executed the said settlement deed in respect of the plaint 'B' schedule property is mischievous and meaningless. The appellant/plaintiff was never in possession and enjoyment of the suit property and hence, the prayer sought for injunction is liable to be rejected. The plaint averments that the second defendant, after seeing the advertisement issued by the appellant/plaintiff, made an attempt to trespass into the plaint 'B' schedule property is false since the property, before settlement, was in the possession and enjoyment of the first respondent/first defendant and from the date of settlement, it has been in the enjoyment of the second respondent / second defendant. The appellant/plaintiff, having no right or title in the plaint 'B' schedule property, is not entitled to the declaration as prayed for in respect of the said settlement deed dated 11.06.2009. The plaint allegation as if the appellant/plaintiff applied for Encumbrance Certificate and then came to know about the settlement deed dated 11.06.2009 is a false and an invented one for the purpose of filing the suit. The appellant/plaintiff has not correctly valued the property for the purpose of court fee. The value of the property as per the settlement deed is Rs.10 lakhs. Under Section 25(b) of the Tamil Nadu Court Fees and Suits Valuation Act, the fee shall be computed on one half of the market value of the plaint 'B' schedule property. The valuation of the relief of declaration has not been properly done and the Court fee paid is not correct. On the said ground alone, the plaint has got to be rejected. The suit filed by the appellant/plaintiff, without having any right whatsoever in the plaint 'B' schedule property, is liable to be dismissed with exemplary cost.
5. Based on the above said averments, the learned trial Judge framed three issues and one additional issue, which are as follows:
Issues:
1) Is the settlement deed dated 11.06.2009 valid in respect of plaint 'B' schedule property?
2) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
3) To what relief?
Additional Issue:
Whether the plaintiff does not have any right in respect of plaint 'B' schedule property?
6. Based on the said issues and additional issue, parties went for trial and in the trial, including the appellant herein/plaintiff, three witnesses were examined as Pws 1 to 3 and 15 documents were marked as Exs.A1 to A15 on the side of the appellant/plaintiff. The second respondent/second defendant alone deposed as the sole witness (DW1) on the side of the respondents/defendants and no document was produced on their side.
7. The learned trial Judge, on an appreciation of evidence, decided the issues in favour of the appellant / plaintiff and against the defendants and decreed the suit as prayed for by a judgment and decree dated 09.07.2010. On appeal, the learned lower appellate Judge, namely IV Additional Judge, City Civil Court, Chennai decided the Issue Nos. 1 and 2 and the Additional Issue in favour of the defendants and against the plaintiff and dismissed the suit. The said decree of the lower appellate Court is challenged in the present second appeal on various grounds set out in the memorandum of grounds of appeal.
8. In accordance with Section 100 CPC of the Code of Civil Procedure, the second appeal has been admitted on the following substantial questions of law:
"1.When the appellant/plaintiff had traced his title and that of the first respondent / first defendant to an order passed under the Estate Abolition Act, whether the lower appellate court is right in holding that the first defendant alone shall have the title to the entire property?
2. Whether the lower appellate Court has given a perverse finding to the effect that the entire suit property is in the possession of the respondents/defendants?
3. Whether the lower appellate Court has not properly applied the principle governing the burden of proof?
9. The arguments advanced by Mr.G.Ethirajulu, learned counsel for the appellant and by Mr.Am.Loganathan learned counsel for the respondents were heard and the materials available on record were also perused.
10. Admittedly two adjacent properties have been shown in the plaint as 'A' schedule property and 'B' schedule property. Plaint 'A' schedule property lies on the west and it forms the western boundary of the plaint 'B' schedule property. Similarly, plaint 'B' schedule property lies on the east and the same is shown to be the eastern boundary of the plaint 'A' schedule property. The appellant/plaintiff does not claim any title or right in respect of the property described in plaint 'A' schedule. In fact, he has admitted the title of the first respondent / first defendant in respect of the same in paragraph 5 of the plaint, which contains the following averment:
"The 1st defendant can settle her property i.e., 'A' schedule property, to the 2nd defendant or to anyone."
On the other hand, the appellant/plaintiff contends that the plaint 'B' schedule property absolutely belongs to him and the respondents/defendants do have no manner of right or title in respect of the same. Based on the said averment alone, the appellant/plaintiff has sought for the reliefs of declaration and injunction.
11. The plaint prayer is confined to plaint 'B' schedule property. That being so, this Court is at a loss to understand why the appellant/plaintiff has chosen to provide two schedules to the plaint and show a property in respect of which he does not seek any relief as plaint 'A' schedule property. It is still more surprising to note that the appellant/plaintiff was allowed to lead evidence denying the tile of the first respondent/first defendant in respect of the plaint 'A' schedule property also, much against the admission made in the plaint and without there being any plea. Any amount of evidence without a plea shall not be looked into. Not content with same, the appellant/plaintiff seems to have made an attempt to adduce additional evidence denying the title of the first respondent/first defendant in respect of plaint 'A' schedule property by filing C.M.P.No.1150 of 2011, before the lower appellate Court under Order XLI Rule 27 C.P.C. The learned lower appellate Judge has rightly dismissed the said petition. It is unnecessary to make any further observation regarding the pleadings and evidence in respect of plaint 'A' schedule property. Suffice to point out that the same is not the subject matter of dispute in this case and the prayer made by the appellant/plaintiff is confined to the plaint 'B' schedule property.
12. Admittedly, Govindammal, the first respondent / first defendant executed the settlement deed dated 11.06.2009 registered as Document No.2587 of 2009 in the Office of the Sub-Registrar, Saidapet, Chennai South, gifting the plaint 'B' schedule property to and in favour of the second respondent / second defendant. The execution of the said settlement deed and the alleged attempt made by the second respondent/second defendant on 01.07.2009 to trespass into the plaint 'B' schedule are projected as the causes of action for filing the suit from which the second appeal has arisen. The appellant/plaintiff has sought for the relief of a declaration declaring the said settlement deed to be void and one not binding on the appellant/plaintiff. By the execution of the said settlement deed the title of the appellant/plaintiff, if any, in respect of the plaint 'B' schedule property stands denied and disputed. The respondents/defendants have also contended that the first respondent/first defendant was the absolute owner of the plaint 'B' schedule property till 11.06.2009 and thereafter, by virtue of the settlement deed, the second respondent/second defendant became the owner of the same. A certified copy of the settlement deed dated 11.06.2009 has been produced by the appellant/plaintiff and the same has been marked as Ex.A14. Apart from that, the respondents/defendants have also made a clear averment that the appellant/plaintiff does not have any manner of right or title to the plaint 'B' schedule property. Hence, as rightly contended by the learned counsel for the respondents, the appellant/plaintiff ought to have prayed for declaration of his title to the plaint 'B' schedule property paying Court fee under Section 25(b) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 in stead of seeking a declaration declaring the settlement deed to be void. Tinkering with the pleading in order to avoid payment of proper Court fee shall not be allowed. For the said reason alone, the rejection of the prayer for declaration by the lower appellate Court need not be interfered with.
13. However, the learned counsel for the appellant/plaintiff has contended that though the prayer for declaration could have been validly declined on the above ground, the rejection of the prayer for declaration shall not lead to the rejection of the prayer for the other relief viz., permanent injunction. Per contra, learned counsel for the respondents/defendants would submit that the relief of injunction was sought for only as a consequential relief and hence, the failure on the part of the appellant to make out a case for the grant of declaration would lead to the automatic rejection of his plea for permanent injunction. As an answer to the above said contention of the learned counsel for the respondents/defendants, learned counsel for the appellant/plaintiff has argued that the prayer for injunction could be taken as a prayer for consequential relief only if the suit cannot be maintained for the relief of permanent injunction alone. The said contention of the learned counsel for the appellant/plaintiff deserves to be countenanced.
14. Of course, both the reliefs viz., relief of declaration and relief of permanent injunction are made discretionary reliefs. In fact, Section 34 of the Specific Relief Act provides an embargo for the grant of declaration if the plaintiff has not sought for further relief/reliefs when such further relief/reliefs could have been sought for. Such an embargo is provided to check granting of mere declaration in air. On the other hand, none of the provisions dealing with the grant of injunction found in the said Act has prescribed seeking declaration as a condition precedent for the grant of injunction. None of the provisions directs rejection of the prayer for injunction in the absence of a prayer for declaration. A suit for bare injunction based on title can be maintained without a prayer for declaration even in case of denial of title of the plaintiff. Section 25 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 states that a suit for declaration regarding immovable property with a prayer for injunction as a consequential relief shall be valued at 50% of the market value. Similarly, Section 27 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 dealing with the prayer of injunction in respect of immovable properties, says how the relief of permanent injunction is to be valued, when as per the plaint averments the plaintiff's title to the property is disputed or when an issue regarding the title of the plaintiff to the property is framed. In case the title of the plaintiff is disputed as per the plaint averments, Court fee shall be paid on half of the market value of the property. It also provides for collection of the same Court fee in case of framing of an issue regarding the title of the plaintiff as a necessary issue. It is pertinent to note that in such cases the Court fee payable shall be equal to the Court fee payable for declaration under Section 25 (b) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. For better appreciation, both the Sections are shown in tabular column.
25. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26 -
(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on (rupees one thousand and five hundred), whichever is higher;
(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, free shall be computed on one-half of the market value of the property or on [rupees one thousand], whichever is higher;
(c) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees two thousand], whichever is higher;
(d) in other case, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand], whichever is higher.
27. Suits for injunction.- In a suit for injunction -
(a) where the relief sought is with reference to any immovable property, and
(i) where the plaintiff alleges that his title to the property is denied, or
(ii) where an issue is framed regarding the plaintiff's title to the property, fee shall be computed on one-half of the market value of the property or on [rupees seven hundred and fifty], whichever is higher;
(b) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees two thousand], whichever is higher;
(c) in any other case, where the subject matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand] whichever is higher.
15. A conjoint reading of the above said provisions of the Specific Relief Act and the Tamil Nadu Court Fees and Suits Valuation Act, 1955 will make it clear that a suit for bare injunction without a prayer for declaration of title cannot be rejected as not maintainable. In addition, in a catena of cases it has been held that the Court can incidentally go into the question of title in a suit for injunction, though the issue regarding title is not a necessary issue in a suit for injunction. Only as a rule of convenience, Courts have held that complicated questions of title shall not be decided in a suit for injunction and in such cases also, outright dismissal of the suit is not recommended and on the other hand, relegating the plaintiff to a more comprehensive suit of declaration and injunction is recommended. It shall be obvious from the celebrated judgment of the Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. & others reported in 2008 (6) CTC 237, wherein their Lordships of the Supreme Court, after holding the question of title involved in the said case to be complicated which could not be conveniently dealt in a suit for bare injunction, dismissed the suit for bare injunction and at the same, granted permission to the parties to file a fresh suit for declaration. A further direction was issued to the effect that such case should be decided by the trial Court on its own merits without taking into account and without being influenced by any of the observations made in the former case. Keeping in mind, the observations made above, the questions raised in the present second appeal as substantial questions of law have to be considered.
16. Learned counsel for the appellant/plaintiff has contended that the lower appellate Court committed an error in holding that the first respondent/first defendant had title to the entire property described in plaint 'A' and 'B' schedules when the appellant/plaintiff has traced his title to an order of settlement officer dated 28.02.1959 granting joint patta in the names of Mariammal, the mother of the first respondent and Solai Naicker, the grandfather of the appellant/plaintiff. A copy of the said order of the Settlement Officer has been marked as Ex.A12. Ex.A12 will show that an extent of 10 cents of land comprised in S.No.33 was in the joint enjoyment of Mariammal and Solai Naicker and hence, joint patta was directed to be issued. Ex.A4 is the joint patta in their names. There can be no doubt that the order refers to 10 cents of land comprised in S.No.33 that includes both plaint 'A' and plaint 'B' schedule properties. When such joint patta had been issued in 1959 itself, the appellant/ plaintiff has failed to state how the said property came to be separated into two parts as 'A' and 'B' schedules. The appellant/plaintiff has simply stated that the plaint 'B' schedule property belonged to his grandfather Solai Naicker and that the said Solai Naicker bequeathed the same to his son Sanjeevi Naicker, who is the father of the appellant/plaintiff. Though the appellant/plaintiff has furnished the date of Will as 22.12.1962, he has not stated the date of death of Solai Naicker. According to his averment, the plaintiff's father Sanjeevi Naicker was the sole legatee under the Will.
17. Ex.A1 is the certified copy of the order of this Court dated 04.03.1965 granting Letters of Administration in favour of Sanjeevi Naicker in respect of the properties of Late Solai Naicker annexing his Will dated 22.12.1962. From Ex.A1 it is found that the name of the wife of Solai Naicker is Kanniammal. It is obvious from the said Will that the testator Solai Naicker divided his properties into two schedules and bequeathed the properties described in Schedule 'A' in the said Will to Ratnavelu, Balasubramaniam and Ganesan, all sons of the testator's eldest son Ramamoorthy (deceased) and the properties described in Schedule 'B' in the said Will to his younger son Sanjeevi Naicker. Admittedly, the suit property is not found mentioned in the said Will. However, the appellant/plaintiff relies on the residuary clause found in the said Will which says that all movable and immovable properties of the testator which have been left out and not mentioned in the Will and all outstandings from the third parties to which the testator was entitled shall be taken by Sanjeevi Naicker. By the said residuary class alone, the appellant/plaintiff has staked claim of title to suit 'B' schedule property.
18. Exs.A5 and A6 have been produced as proof of levy of Urban Land Tax jointly in the names of Mariammal and Solai Naicker. Ex.A5 is Form 7-B Notice issued to both Mariammal and Solai Naicker on 20.04.1972 stating that the Urban Land Tax was assessed at Rs.19.20 and it was also proposed to levy penalty of Rs.9.60 under Section 40-A of the Act since they had not furnished return under Section 7-A of the Tamil Nadu Urban Land Tax Act, 1966 and that an enquiry would be conducted on 16.05.1972 regarding any objection that might be raised. Survey Number is not found in the said document. Ex.A6 is the Urban Land Tax Assessment Order made under Section 11(2) of the Tamil Nadu Urban Land Tax Act, 1966. It was made in respect of Door No.14, Reddi Street, I Street, Alandur in Town S.No.33. The tax was levied for the period 01.07.1963 to 30.06.1971. Ex.A2 is the Legal Heir Certificate issued by the Tahsildar, Sriperumbudur on 22.05.1974 to the effect that one Manthiyammal, wife of Sanjeevi and Vedhagiri, the appellant/plaintiff (son of Sanjeevi Naicker) are the legal heirs of Sanjeevi Naicker. Ex.A3 is the Family Card of the appellant/plaintiff. The address found therein is Old No.59-5, New No.33-5, Main Street, Sorancherri, Poonamallee Taluk, Tiruvallur District. Ex.A4 is the notice issued on 07.05.1993 under Section 9(2) of the Survey and Boundaries Act, 1923 to Solai Naicker, Son of Periasamy Naicker in respect of Patta no.16 showing that the patta stood in the name of Solai Naicker and another.
19. The appellant/plaintiff has not produced any title deed of Solai Naicker. On the other hand, he has produced a certified copy of the sale deed dated 15.07.1932 in the name of Sandyammal which was executed pursuant to a Court sale made in E.P.No.1033 of 1931 on the file of the District Munsif, Chengalpet. The same has been marked as Ex.A9. According to the appellant/plaintiff, the property sold under Ex.A9 is the property situated on the west of the plaint 'B' schedule property and the 'B' schedule property has been referred to as the property of Solai Naicker in the said sale deed. The second respondent/second defendant, who figured as the sole witness on the side of the defendants, would state in her evidence that the property described as 'B' schedule in the plaint was purchased by Sandyammal under the said sale deed. However, she would deny the fact that property of Solai Naicker has been shown as the eastern boundary of the said property purchased under the original of Ex.A9. At the same time, she would plead ignorance as to which property has been shown as eastern boundary of the property conveyed under Ex.A9 in favour of Sandyammal. It is not the case of the respondents/defendants that there is yet another property which is situated on the east of the plaint 'B' schedule property and that was referred as Solai Naicker's property in Ex.A9. Ex.A9 is the certified copy of a sale deed dated 15.07.1932, an ancient document. The property purchased by Sandyammal under the said sale deed shows the property of Solai Naicker as its eastern boundary.
20 Exs.A4 to A6, Ex.A10 the document containing information obtained by the appellant/plaintiff under the Right to Information Act and Ex.A12 would show that joint patta had been issued in the names of Solainaicker and Mariammal for the entire extent of 10 cents of land comprised in S.No.33 in the Alandur Village. Especially the order of the Settlement Tahsildar No.2, Madras dated 28.02.1953, a copy of which has been produced as Ex.A12 narrates how joint patta came to be issued in the names of Solai Naicker and Mariammal. The following are the recitals found in the order:
2. This site is in the joint enjoyment and possession of Mariammal, wife of Rajagopal Naicker and Solai Naicker, S/o.Periasamy Naicker. The former got her share through her mother-in-law Sandyammal who purchased it in D.No.1099 dated 18.07.1932 (SRO, Saidapet). Sandyammal's legal heir was her only son Rajagopal Naicker. He is also dead. His wife Mariammal is in possession of his share. Murugesan is her only major son. She request registry of her share in the name of her son. The other part belonging to Solai Naicker is his ancestral property. No document are available with him to verify title. But his ownership is not disputed by Mariammal. The entire site is enjoyed by them jointly.
3. I direct the issue of patta for S.No.33 of Block 1 of Alandur under Section 18(4) of the S.A.Act jointly in the names of Mariammal wife of Rajagopal Naicker and Solari Naicker, Son of Periasamy Naicker."
21. Ex.A12 is only a xerox copy. But, it is considered in conjunction with the other documents, the contention of the appellant/plaintiff that for the entire property extending 10 cents described as plaint 'A' and 'B' schedule properties by the plaintiff, joint patta had been issued in the names of Mariammal and Solai Naicker, seems to be a tenable one. The said view will get support from the fact that though the second defendant, while deposing as DW1, chose to contend that the property purchased by Sandyammal under the original of Ex.A9 sale deed was the suit 'B' schedule property, the very settlement deed executed by the first defendant in favour of the second defendant, a certified copy of which has been marked as Ex.A14, will show that the western boundary of the 'B' schedule property is shown to be the property of Sandyammal and the eastern boundary of the 'B' schedule is shown to be the property of one Kali Naicker. Therefore, the contention of the appellant/plaintiff that the property purchased by Sandyammal under the original of Ex.A9 is plaint 'A' schedule property bounded on the east by 'B' schedule property is quite sound and acceptable. But, it shall not be desirable to decide the question of title regarding the plaint 'B' schedule property in the present suit, which has been filed simply for the relief of declaration that the settlement deed dated 11.06.2009 is void and not binding upon the plaintiff and for the relief of permanent injunction restraining the respondents from interfering with the alleged possession and enjoyment of the appellant/plaintiff. As pointed out, the plaintiff's title has been denied and disputed and in fact, a registered document came to be executed by the first respondent/fist defendant gifting the plaint 'B' schedule property to the 2nd respondent/2nd defendant. The same will show the denial of the title claimed by the appellant/plaintiff. Then the appellant/plaintiff ought to have filed the suit for getting his title declared. The appellant/ plaintiff, instead of doing it which will attract a higher court fee on the basis of the market value of the land, has chosen to seek a declaration that the settlement deed dated 11.06.2009 is void and not binding upon the plaintiff. The said prayer has been made notionally valuing the reliefs at Rs.2000/-. It is an ingenious way of avoiding payment of proper court fee and the veiled prayer is nothing but an indirect prayer for declaration that the property belongs to the appellant/plaintiff. The prayer for declaration that the settlement deed is void has been made only for getting the approval of the Court for the claim of the appellant/plaintiff to the title to the suit 'B' schedule property. In view of the finding of this Court that the appellant/plaintiff has chosen to camouflage the prayer with the aim of avoiding payment of proper Court fee, the prayer for declaration has got to be negatived.
22. So far as the prayer for permanent injunction is concerned, though the same can be independently maintained and while considering the prayer for injunction, this Court can incidentally go into the question of title, this Court is of the considered view that the question of title in this case cannot be conveniently decided and that the complicated question of title involved in this case will deter the Court from making any attempt to decide the question of title in this case.
23. According to the plaint averments, the suit property remained a vacant site and it was in the possession of the appellant/plaintiff. The further averment made in the plaint is to the effect that he had asked his aunt's son to watch the property and the second respondent/second defendant, after getting the settlement deed executed by the first defendant in her favour, made an attempt to trespass into the suit 'B' schedule property; that the said fact was conveyed to the appellant/plaintiff by the said person and that pursuant to the receipt of the said information the appellant/plaintiff came and prevented the second respondent/second defendant from trespassing into the suit property. The said aunt's son of the appellant/plaintiff has been examined as PW3. From his evidence, it is obvious that PW3 is a cousin of the appellant/plaintiff and at the same time, he is the brother of the first respondent / first defendant. He has been examined by the plaintiff to show that it was he who was looking after the property on behalf of the appellant/plaintiff, since the appellant/plaintiff was residing at a place away from the plaint 'B' schedule property. Though PW3 would have chosen to make an attempt to support the case of the appellant/plaintiff that the suit 'B' schedule property is in the possession of the appellant/plaintiff, during cross-examination he has not denied the suggestion that the suit property is in the possession of the second respondent/second defendant and that she has put up a hut and residing in it. Similarly, PW2 has pleaded absence of knowledge as to whether the second respondent/second defendant Valli has put up a hut in the suit 'B' schedule property and is residing there. PW3 also pleaded absence of knowledge when confronted with such a suggestion. PW1, in his evidence, would say that the property is not in the possession of the defendants and that on the other hand, his nominee is there in the hut put up in the suit 'B' schedule property. The same is contrary to the admission made by PW2 and PW3. From the materials produced by the appellant/plaintiff, it is obvious that the settlement deed in favour of the second respondent/second defendant came to be executed by the first defendant on 11.06.2009 and the plaintiff caused an advertisement to be issued in the Classifieds of The Hindu on 14.06.2009 and that, only thereafter the problem arose and the plaintiff filed the suit on 28.07.2009. From the same, it can be seen that if at all any hut was put up by the second defendant, the same could have been only subsequent to the date of execution of the settlement deed, namely 11.06.2009. There is no evidence to show when the hut was put up. In such circumstances, the question of possession as on the date of suit shall be very much dependent on the answer to the question of title, attracting the principle Possession follows Title. No doubt there is no denial by the witnesses (PW2 and PW3) examined on the side of the appellant/plaintiff that the second respondent/second defendant has put up a hut and is residing there in the plaint 'B' schedule property. As pointed out supra, if at all the second defendant could have put up any hut, it would have been done only after she got the settlement deed from her mother. Within two months thereafter, the appellant/plaintiff has chosen to file the suit. Admittedly, on the date of the settlement deed, a copy of which has been marked as Ex.A14, the property remained a vacant site. As such, the second respondent/secon defendant, who claims to have put up a hut and claims to be residing there is bound to prove the date on which she put up such hut. There is no proof on the side of the respondents/defendants to show when such a hut was put up, even though PW2 and PW3 pleaded absence of knowledge when confronted with a suggestion that the second respondent/second defendant was residing in the hut put up in plaint 'B' schedule property. Under such circumstances, if at all possession could have been taken by the defendant, with the above said evidence, the Court will not be able to give a finding as to when the hut was put up and from which date the second defendant is residing there and the rule "Possession follows Title" will get attracted. The appellate Court ought not to have ventured to render a finding that the appellant/plaintiff had not proved his title to the suit 'B' schedule property and a further finding that the second respondent/second defendant was in possession and enjoyment of the property. Based on the said findings alone, the lower appellate Court chose to dismiss the suit with costs without considering whether it was convenient and prudent to go into the question of title and whether the principle possession follows title had to be applied. The said erroneous approach has lead to the dismissal of the suit by the lower appellate Court.
24.The decision taken by the lower appellate Court to decline the relief of declaration regarding the validity of the settlement deed dated 11.06.2009, a copy of which has been marked as Ex.A14, cannot be said to be unsustainable. On the other hand, the reasons assigned by the lower appellate Court to arrive at the conclusion that the plaintiff had to be non-suited for the reliefs of declaration and injunction as sought for are not proper. The lower appellate Court ought not to have ventured to render a decision regarding the rival claims of title made to the disputed property, namely the plaint 'B' schedule property. The same is a complicated issue which cannot be conveniently dealt with in a suit for injunction and since the appellant/plaintiff had not sought any declaration of title and on the other hand, had chosen to camouflage the prayer by seeking a declaration that the settlement deed dated 11.06.2009 is void and not binding on him. Though the lower appellate Court is right in holding that no credence can be given to the copy of the order of the settlement Tahsildar passed under the Estate Abolition Act produced as Ex.A12, since it is not an authenticated one and it is only a xerox copy, in the light of the documents Ex.A2, A4 to A6 and A10-information obtained under the Right to Information Act showing that joint patta had been issued in respect of the entire property described in plaint 'A' and 'B' schedules in the names of Mariammal and Solai Naicker, the finding of the lower appellate Court that the plaintiff had not proved his title, shows the erroneous approach of the lower appellate Court in the matter of appreciation of evidence and perversity in the resultant finding. The learned lower appellate Judge simply observed that the trial Court committed an error in casting the burden of proof to prove the title regarding the suit 'B' schedule property on the respondents herein/defendants and decided the case against the appellant herein/plaintiff. The learned lower appellate Judge, without properly appreciating the evidence, both oral and documentary adduced on the side of the plaintiff, has rendered a perverse finding that the appellant herein/plaintiff has not proved his title and possession to the suit property. Hence, this Court comes to the conclusion that though the lower appellate Court has rightly held that no credence can be attached to Ex.A12 since it is not an authenticated document, it has committed an error in not properly considering the rest of the evidence adduced on the side of the plaintiff and the absence of any documentary evidence on the side of the defendants to arrive at a conclusion that the plaintiff had not proved his title to the suit 'B' schedule property and that hence, the said finding of the lower appellate Court, which is no doubt perverse, has got be interfered with. The decree passed by the lower appellate Court deserves interference. This Court is of the considered view that the proper course to have been adopted is to relegate the appellant/plaintiff to file a more comprehensive suit for declaration of title and injunction or in the alternative for recovery of possession and any other decision will be against the interest of justice. Accordingly all the three substantial questions of law are answered in favour of the appellant.
25. For all the reasons stated above, the second appeal is allowed in part and the decree of the appellate Court setting aside the decree granted by the trial Court and dismissing the original suit is hereby modified as follows:
The decree granted by the trial Court shall stand set aside and the suit O.S.No.6473 of 2009 on the file of II Assistant City Civil Court, Chennai shall stand dismissed without costs with liberty to the plaintiff to file a comprehensive suit for declaration of title and other consequential reliefs. Such a suit to be filed by the plaintiff shall be disposed of on its own merits without being influenced by any of the observations made in this case. No costs. Consequently, the connected miscellaneous petitions are closed.
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1. IV Additional Judge City Civil Court, Chennai
2. II Assistant Judge City Civil Court Chennai