Madras High Court
Rajendran vs R.V.Saravanan
Author: R.Subbiah
Bench: R. Subbiah, R. Pongiappan
A.S.No.550 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 12.03.2020
Judgment Delivered on : 04.06.2020
CORAM:
THE HONOURABLE MR. JUSTICE R. SUBBIAH
AND
THE HONOURABLE MR. JUSTICE R. PONGIAPPAN
Appeal Suit No. 550 of 2018
and
C.M.P.No.21942 of 2019
1. Rajendran
2. Soundara Pandian
3. Asokan
4. Dushiandan .. Appellants
Versus
R.V.Saravanan .. Respondent
Appeal Suit filed under Order XI Rule 1 of A.S. Rules of this Court,
read with Section 96 of the Civil Procedure Code (CPC) against the judgment
and decree dated 22.12.2017 made in O.S. No. 55 of 2012 on the file of the
District Court, Karaikal.
For appellants : Mr.T.S.Baskaran
For respondents : Mr.R.Natarajan
JUDGMENT
R.SUBBIAH, J This Appeal is filed by the plaintiffs who have instituted the suit in O.S.No.55 of 2012 on the file of the District Court, Karaikal for the relief of http://www.judis.nic.in Page No.1/35 A.S.No.550 of 2018 partition and separate possession. The trial court, by the judgment and decree dated 22.12.2017 dismissed the suit which gave rise to the filing of the present appeal.
2. The Plaintiffs have filed the suit in O.S. No. 55 of 2012 for the following relief:
(i) partition and separate possession of 8 Mahs 15 Kuzhis from out of a larger extent of 108 Mahs 15 Kuzhis in the suit property providing liberty to the plaintiffs to apply for final decree for division by metes and bounds.
(ii) directing the defendant to pay the plaintiffs mesne profits at the rate of Rs.5,000/- per month.
3. The case of the appellants/plaintiffs, as could be culled out from the plaint, is as follows:
(a) The plaintiffs are great grand children of Ponnusamy Padayachi and sons of Nataraja Padayachi. According to the plaintiffs, during the year 1925, their great grandfather Ponnusamy Padayachi, son of Subbu Padayachi purchased 5 Velis of Punja lands in O.S.No.340 in Varichikudi South Village, which he subsequently sold to one Balaguru Chettiar of T.R.Pattinam. Thus, the property purchased under 1925 document, was alienated by Ponnusamy http://www.judis.nic.in Page No.2/35 A.S.No.550 of 2018 Padayachi even during his lifetime to a third party. Subsequently, under a sale deed dated 18.04.1931, Ponnusamy Padayachi purchased land measuring an extent of 8 Mahs 15 Kuzhis in the very same Cadastre No. 340 of Varichikudi, which is the subject matter of the present suit. Out of 8 Mahs 15 Kuzhis, 4 Mahs alone was taken possession by the purchaser Ponnusamy Padayachi inasmuch as the remaining portion was under encroachment by one Ayyakannu Pillai. Therefore, a clause was incorporated in the sale deed dated 18.04.1931 to the effect that the purchaser, on his own, can take possession of the property which was encroached by one Ayyakannu Pillai by vacating him.
It is the assertion of the plaintiffs that the vendor of the sale deed dated 18.04.1931 did not retain any land with him and he sold the entire land in his possession to Ponnusamy Padayachi. It was also stated in the plaint that land comprised in OS No. 340 consists of a larger extent of 108 Mahs 15 Kuzhis and that is the reason why, while executing the sale deed dated 18.04.1931, the four boundaries pertaining to the entire extent of 108 Mahs 15 Kuzhis was erroneously mentioned, but what was purchased by Ponnusamy Padayachi was only 8 Mahs and 15 Kuzhis.
(b) While the facts are so as stated above, Ponnusamy Padayachi died intestate in the year 1939, leaving behind his 4 sons namely Ramalinga Padayachi, Thiyagaraja Padayachi, Damodara Padayachi and Sambasiva http://www.judis.nic.in Page No.3/35 A.S.No.550 of 2018 Padayachi as his legal heirs. After the demise of Ponnusamy Padayachi, his four sons have decided to effect division of the family properties left by their father. Accordingly, during the year 1940, partition of all the properties owned by Ponnusamy Padayachi was effected, which included the properties owned by him in the State of Tamil Nadu and Karaikal under the erstwhile British Regime. In the said partition, the subject matter of the present suit, i.e. 8 Mahs 15 Kuzhis of Punja land, had been allotted to the share of Ramalinga Padayachi.
(c) The Plaintiffs further contend that their grand father Ramalinga Padayachi died in the year 1974, leaving behind his son Nataraja Padayachi and his daughter Savithriammal as his legal heirs. The plaintiffs are the sons of Nataraja Padayachi. The Plaintiffs also further contend that their grand father Ramalinga Padayachi had bequeathed the suit property in their favour by executing a registered Will, dated 01.05.1965 in which life interest was conferred on their father Nataraja Padayachi. After the death of Ramalinga Padayachi in the year 1974, the Will was acted upon and the plaintiffs have become owner of the suit property. Even otherwise, as sons of Nataraja Padayachi, the plaintiffs are entitled to assert a right and interest in the suit property owned by their grand father. The Plaintiffs also would further contend that one of their brothers by name Vasanthan died unmarried and http://www.judis.nic.in Page No.4/35 A.S.No.550 of 2018 issue-less during 1974 and their father Nataraja Padayachi had died during 1996.
(d) The plaintiffs would further contend that they are the co-owners in joint possession and enjoyment of suit property. The suit property is not divided between the plaintiffs and defendant. But the defendant is hurriedly attempting to alienate the subject matter of the suit since April 2012 by falsely claiming that he is the absolute owner of the suit property. As the defendant is acting detrimental to the right and interest of the plaintiffs, the plaintiffs have decided to seek partition of their share in the suit property. It is also understood by the plaintiffs that the Government of Puducherry had acquired portion of land for public purpose for setting up Navodaya School from Balaguru Chettiyar however, plaintiffs are not concerned with such acquisition since their portion of the land was not acquired. Hence, the present suit is filed by the plaintiffs for the reliefs stated supra.
4. The sum and substance of the case of the defendant in their written statement is as follows:
(a) The plaintiffs are not co-owners or co-sharers or even joint owners either with this defendant or with his vendor. In fact, in the plaint, there is no pleading to that effect. The defendant is stranger to the plaintiffs, with whom http://www.judis.nic.in Page No.5/35 A.S.No.550 of 2018 neither the defendant nor the defendant's vendor had any transaction with respect to purchase of any property. Similarly, neither the defendant nor the defendant's vendor had owned the suit property with the plaintiffs, as co-
owners at any point of time. The suit property was not in possession of the plaintiffs as co-owner at any point of time. In fact, the plaintiffs' great grandfather Ponnusamy Padayachi and their ancestors have purchased the property with definite boundaries and as such, the plaintiffs have got independent title and possession over their property.
(b) It is not the case of the plaintiffs that their ancestors owned the property as joint owners as undivided share holders and they hold a joint possession for themselves and on behalf of the other co-shares of the property. What is averred in the plaint is that the plaintiffs are co-owners among themselves and they are in joint possession of their property. The co-owner who claims partition from the other co-owner should possess a definite share in the property with specific boundaries and the portion of the property assessed by a co-owner, should have an element of inseparability. A co- ownership should be out of joint contribution of funds made by co-owners from common funds or separate funds and each one of the co-owners is responsible for entire undivided properties. There are rights and liabilities attached to every co-owner with respect to joint properties, which is http://www.judis.nic.in Page No.6/35 A.S.No.550 of 2018 conspicuously absent in this case.
(c) The plaintiffs or their ancestors are and were no were connected to the defendant's vendors as co-owners and when a person is claiming partition, the element of joint title or joint ownership should exist. The joint title and joint ownership gets converted in severally by dividing the property and a co- owner will become an individual owner over his share in the property. But this is not the case of the plaintiffs. The alleged property of the plaintiffs had never been mingled with the property of the defendant's vendors and they are not co- owners either with the defendant or with his vendors and hence, the plaintiffs are not entitled for partition.
(d) It is not the case of the plaintiffs that both the plaintiffs' ancestors and the defendant's vendors had purchased the property from a single or common owner or from a share holder as an undivided share. It is also not the case of the plaintiffs that the total extent of property comprised in O.S.No.340 is not only 108 Mahs 15 Kuzhis as stated by the plaintiffs. The land covered under old S.No.340 is a larger extent of property, i.e, more than 108 Mahs 15 Kuzhis owned by several persons. The defendant's vendor's property is covered under O.S.No.340-1A, O.S.No.340-1B and the plaintiffs' property, as per their document, is covered under O.S.No.340/1/A2. Subsequently, a re- survey number had been given to all its sub-divisions and the defendant's http://www.judis.nic.in Page No.7/35 A.S.No.550 of 2018 property falls within R.S.No.309/pt. A separate re-survey number might have been given to the plaintiffs' property, if it is actually in existence. Re-survey number was given during the year 1972 when re-survey measurement was done in accordance with the title deed of the respective land owner. If actually the plaintiffs are owners and in possession of their property as claimed by them, a separate re-survey number would have been given to their property. However, the re-survey number was not furnished in the plaint by the plaintiffs. The survey number was wrongly given as O.S.No.340 in the plaint in order to get an order to grab the property from the defendant.
(e) It is admitted case of the plaintiffs that the defendant's vendors had a title to an extent of 100 Mahs of land comprised in O.S.No.340 and out of 100 Mahs, the Government acquired a portion of the land and the remaining portion was held by the vendors of the defendant and sold to the defendant. If this stand of the plaintiffs is true, then the plaintiffs cannot seek for an order of injunction with respect to 108 Mahs 15 Kuzhis including the land which was acquired and possessed by the Government, which is a larger area of extent. Further, even without adding the Government as a party to the suit, the present suit has been filed with false and untenable averments. In fact, the suit had been filed against a person who had not owned and possessed a property as shown in the schedule of property, to which the relief of partition is sought. http://www.judis.nic.in Page No.8/35 A.S.No.550 of 2018
(f) The suit property comprised in O.S. No. 340-1A, 340-1B, R.S.No.309-1pt., Patta No.456, was originally owned by one Govindasamy Chettiar and on his death, his legal heirs, namely Gomalavalli, Balaguru Chettiar, Dr.Naraya Deenadayalu, Jayaramakrishnan, P.Dulasiammal, Poongolammal, V.Sinnamal and Smt.Venkatalakshmi, inherited the entire estate including the suit property. His legal heirs, namely Dualsiammal, Poongolamal, Sinnamal and Venkatalakshmi filed a suit for partition before the Additional District Court, Karaikal in O.S.No.3 of 1976, in which a preliminary decree was passed and subsequently, the properties of Govindasamy Chettiar were duly partitioned among his eight legal heirs on 10.07.1977 equally. Thereafter, the partition was also duly registered under partition deed, dated 09.11.1982, vide Registration No.366/82. In that partition deed, it is specifically stated that in respect of the property comprised in O.S.No.340-1A and 340-1B, R.S.No.309 pt each co-owner is entitled to 2 H 29 Ars. 45 Canthiars or 17 Mahs 15 Kuzhis. In the meantime, the Government of Puducherry acquired a portion of the land comprised in O.S.No.340-1A, 340-1B, R.S.No.309 1 pt. to an extent of about 9 Hectares 11 Ares or 68 Mahs 32 Kuzhis and the remaining extent of 4 Hectares 61 Ares or 34 Mahs 44 Kuzhis were owned and possessed by the vendors of the defendant. The defendant's vendor also obtained a patta to that effect in the http://www.judis.nic.in Page No.9/35 A.S.No.550 of 2018 name of the share holders, namely Balaguru Chettiar, Jayarama Krishnan and Narayana Deenadayalu. The vendors of the defendant were in possession and enjoyment of the property without any interference from anyone else and sold the property to an extent of 34 Mahs 44 Kuzhis to the defendant under four sale deeds, dated 09.02.2008. The defendant was also put in possession of the property on 09.02.2008, with definite boundaries. Therefore, the defendant is having an independent title and possession over the property owned by him and he has neither purchased the property of the plaintiffs nor he is in possession of the property of the plaintiffs. The plaintiffs have no title or possession over the property owned by the defendant or previously by his vendors and their ancestors.
(g) Ponnusamy Padayachi is said to have purchased the property in 1931, but it is not the case of the plaintiffs that Ponnusamy Padayachi purchased the property as undivided share from any co-owners who are vendors of the defendant and stepped into the shoes of the defendant's vendors and thereby became a co-owner. It is not the case of the plaintiffs that the possession of the property was handed over to Ponnusamy Padayachi by his vendor and it is not averred in the plaint that a separate property of Ponnusamy Padayachi was trespassed or encroached by the vendors of the defendant. While so, the question of partition and separate possession of the suit property http://www.judis.nic.in Page No.10/35 A.S.No.550 of 2018 will not arise. Further, after a period of 80 years, there is no triable issue that has arisen in this case. The plaintiffs have not made out prima-facie case in their favour. Further, the plaintiffs have now asked for injunction with respect to 108 Mahs and 15 Kuzhis extent of land when major portion of land was acquired by the Government of Puducherry. Therefore, in the absence of Government of Puducherry being impleaded as party to the suit, the relief sought for in the suit cannot be granted. There is no prima-facie case made out in favour of the plaintiffs. In the absence of prima-facie case, the question of balance of convenience and irreparable loss or injury will not be occasioned to the plaintiffs and hence, the plaintiffs are not entitled to equitable relief of injunction retraining the defendant from exercising his right over his property on facts and in law.
(h) The defendant had already sold as many as 125 plots viz., nearly 25 Mahs by dividing the land as plots to several persons and the defendant is now holding the remaining extent of the land alone. The sale was done even before 29.10.2012 and it was also known to the plaintiffs. However, the plaintiffs have not disclosed the same in the plaint and have come before this Court with unclean hands by suppressing the facts. Hence, the defendant pray that the suit is liable to be dismissed.
http://www.judis.nic.in Page No.11/35 A.S.No.550 of 2018
5. Before the trial Court, in order to prove their case, the second plaintiff examined himself as P.W.1 and marked Exs.A-1 to A-19. The defendant was examined as D.W.1 and Exs.D-1 to D-4 were marked on his side. The trial Court, after analysing the oral and documentary evidence, dismissed the suit filed by the plaintiffs by holding that the plaintiffs are not entitled for partition, as prayed for. Aggrieved by the same, the present First Appeal is filed by the plaintiffs.
6. The learned counsel appearing for the appellants/plaintiffs would submit that the great grandfather of the plaintiffs namely Ponnusamy Padayachi had purchased the suit property measuring 8 Mahs and 15 Kuzhis in Cadastre No.340 at Varichaikudi Village under a registered sale deed dated 18.04.1931, Ex.A-3 from one Appukutti Mudaliar. Apart from the above property, Ponnusamy Padayachi had also purchased other properties from Ayyakannu Pillai under a registered sale deed dated 26.05.1925. But the property purchased under the sale deed dated 26.05.1925 by Ponnusamy Padayachi was sold by his son Ramalinga Padayachi, the grandfather of the plaintiffs. It is the further submission of the learned counsel for the appellants that the said Ponnusamy Padayachi died in the year 1939, leaving behind his four sons. In the partition deed-Ex.A-2 executed between the sons of http://www.judis.nic.in Page No.12/35 A.S.No.550 of 2018 Ponnusamy Padayachi on 05.08.1940, the suit property and other properties were allotted to his son Ramalinga Padayachi, the grandfather of the plaintiffs. The said Ramalinga Padayachi, during his lifetime, had executed a Will and Codicil in favour of his grand children and life interest to his son Natarajan, the father of the plaintiffs. Thus, the plaintiffs, who are the legal heirs of Natarajan, became absolute owners of the suit property.
7. According to the learned counsel the plaintiffs' their great grandfather Ponnusamy Padayachi, while purchasing the property under the registered sale deed, dated 18.04.1931, had obtained possession of 4 Mahs 15 Kuzhis out of 8 Mahs 15 Kuzhis. The remaining 4 Mahs was under
encroachment and the purchaser was to take back possession from the encroacher. Accordingly, after the death of Ponnusamy Padayachi, his son Ramalinga Padayachi had taken over possession of 4 Mahs of the property from the encroacher under receipt, dated 10.01.1941. In respect of 4 Mahs 15 Kuzhis, there are specific boundaries in the sale deed. However, in respect of remaining 4 Mahs, there was no specific boundary, which was obtained from the encroacher. The defendant is the purchaser of the property in S.No.340 and the adjacent land owner. When the defendant started to sell lands, he tried to sell the lands of the plaintiffs also, as there is no specific boundary for the suit http://www.judis.nic.in Page No.13/35 A.S.No.550 of 2018 property. Due to discrepancies in the boundaries of the suit property, the defendant, taking advantage of the same, tried to sell the lands of the plaintiffs, and hence, the plaintiffs have filed the present suit.
8. The learned counsel for the appellants/plaintiffs further contended that as per the family partition deed executed among the sons of Ponnusamy Padayachi, the entire lands in 8 Mahs 15 Kuzhis were allotted to Ramalinga Padayachi by Ex.A-2, dated 05.08.1940. Apart from 8 Mahs 15 Kuzhis, the said Ramalinga Padayachi was also in possession of 5 Veli of Punja land in O.S. No. 340 which was purchased by his father Ponnusamy Padayachi by sale deed dated 26.05.1925. Under Ex.D-2 sale deed, dated 06.12.1947, the said Ramalinga Padayachi sold 4 Velis to Govindasamy Chettiar. Thus, as per Ex.D-2 sale deed, the lands purchased under the sale deed, dated 26.05.1925 by Ponnusamy Padayachi, was alone sold. From the legal heirs of Govindasamy Chettiar, the defendant had purchased the properties under four sale deeds. Under Ex.D-2, the said Ramalinga Padayachi had not sold the properties purchased under Ex.A-3 sale deed, dated 18.04.1931. Thus, the property purchased under Ex.A-3 was never conveyed to Govindaamy Chettiar as alleged by the defendant.
http://www.judis.nic.in Page No.14/35 A.S.No.550 of 2018
9. It is further stated by the learned counsel for the appellants/ plaintiffs that the said Ramalinga Padayachi, during his lifetime, had executed a Will, dated 01.05.1965 and a Codicil, dated 08.06.1974, conferring life estate to his son Nataraja Padayachi. The said Will and Codicil are marked as Ex.A-11 and Ex.A-10 respectively. As per the said Will and Codicil, Nataraja Padayachi was in possession and enjoyment of the property including the property which is the subject matter of the suit. In such circumstances, a suit in O.S.No.39 of 1982 was filed by Murugayyan Mudaliar and others against Nataraja Padayachi alleging that the sale deed obtained by Ponnusamy Padayachi under Ex.A-3, dated 18.04.1931 and various other sale deeds from their father Appukutti Mudaliar, was not valid and sought for recovery of possession of the properties. The said suit was dismissed and it has been clearly held therein that the sale in favour of Ponnusamy Padayachi is valid and binding on the legal heirs of Appukutti Mudaliar. This shows that the possession and enjoyment of the subject matter of the suit property, was with the plaintiff's father Nataraja Padayachi. As against the dismissal of the said suit, an appeal was preferred before this Court in A.S.No.640 of 1996, which was also dismissed, holding that the sale under Ex.A-3, dated 18.04.1931, is valid and the plaintiffs' father was in possession of the subject matter of the suit property. The judgment in the said appeal is marked as Ex.A-13. Thus, the http://www.judis.nic.in Page No.15/35 A.S.No.550 of 2018 plaintiffs' predecessors were in absolute possession and enjoyment of the property, which was purchased under Ex.A-3 sale deed dated 18.04.1931 as absolute owner.
10. The learned counsel for the appellants/plaintiffs further contended that the defendant purchased a portion of the property from Govindasamy Chettiar, who is the son of Balaguru Chettiar. Balaguru Chettiar is the person to whom the plaintiff's great grandfather Ponnusamy Padayachi had sold the property, which he purchased in the year 1925. But the properties of the plaintiffs and defendant, are not divided. In the sale deed also, no specific boundaries are given. Therefore, the present suit is filed by the plaintiffs for partition. In such circumstances, the trial Court ought to have passed appropriate order identifying the property purchased under Ex.A-3, dated 18.04.1931, instead, the trial Court dismissed the present suit by erroneously holding that the plaintiffs failed to prove the title to the suit property. Hence, the learned counsel for the appellants prayed for setting aside the judgment and decree of the trial Court and to allow the appeal.
11. Countering the above submissions, the learned counsel appearing for the respondent/defendant submitted that the plaintiffs have no cause of http://www.judis.nic.in Page No.16/35 A.S.No.550 of 2018 action to file the present suit for partition. They are strangers and they are no way related to the defendant or his vendors. The plaintiffs are neither co- owners nor joint owners or in any way related to the plaintiffs. The plaintiffs misled and misrepresented the material facts while filing the suit. The plaintiffs, at the time of filing the suit on 22.08.2012, had full knowledge that the description of the property in the suit schedule is a false one and that the extent shown in the schedule itself is at random. Thus, the suit suffers from vice of fraud and the same is in contravention of Order 7 Rule 3 CPC. In fact, the plaintiffs have given the suit description in the schedule of property as O.S.No.340, measuring 108 Mahs and 15 Kuzhis, which has no basis. The said false description was given knowing fully well that the property as claimed by the plaintiffs, had been well described as early as on 18.04.1931 marked under Ex.A-3 showing the sub-division of the property as 340/1/A2 with boundaries. Suppressing all these facts, the plaintiffs have filed the present suit.
12. The learned counsel appearing for the respondent/defendant further contended that the claim of the plaintiffs that the defendant's vendor own an extent of 100 Mahs in O.S.No.340, over which the plaintiffs have no manner of claim or right, but however, they claimed the relief of permanent injunction in respect of the said 100 Mahs as well. The plaintiffs have claimed http://www.judis.nic.in Page No.17/35 A.S.No.550 of 2018 right only in respect of 8 Mahs and 15 Kuzhis from the total extent of 108 Mahs and 15 Kuzhis as described in the plaint schedule. The plaintiffs have also admitted in the plaint that the Government of Pondicherry had acquired lands from the defendant's vendor, over which they have no claim. However, they have included the acquired extent of property in the plaint schedule and claimed permanent injunction without even adding the Government as a party to the suit. The plaintiffs have no iota of right over the property left over by Ramalinga Padayachi, who is one of the sons of Ponnusamy Padayachi. The fact remains that way back on 04.12.1947, Ramalinga Padayachi had sold the property measuring 8 Mahs 15 Kuzhis to and in favour of Govindasamy Chettiar under Ex.D-1. This fact is clearly admitted by P.W.1 in the course of cross-examination. In fact, the Will dated 01.05.1965 marked under Ex.A-11 and the Codicil, dated 08.06.1974 marked under Ex.A-10, do not refer to the property comprised in O.S.No.340.
13. The learned counsel appearing for the respondent/defendant further submitted that Ex.A-19, which is the information obtained under the Right to Information Act (RTI Act), would also reveal that the property in O.S.No.340 was already sub-divided and therefore, the claim of the plaintiffs that the suit property mentioned in the schedule is not having clear boundaries http://www.judis.nic.in Page No.18/35 A.S.No.550 of 2018 and sub-division, is false. The learned counsel appearing for the respondent/defendant further submitted that the plaintiffs have deliberately suppressed the sale deed dated 04.12.1947 executed by Ramalinga Padayachi in favour of Govindasamy Chettiar, which is evident from Ex.D-1 and Ex.D-2.
14. The learned counsel appearing for the respondent/defendant relied on a decision of the Supreme Court in (Rangammal Vs. Kuppuswami and another) reported in 2011 (12) SCC 220 to fortify his submission that in the partition suit, the burden of proof is on the plaintiff to establish that the title to the suit property belongs to joint family and requires to be partitioned.
15. The learned counsel appearing for the respondent/defendant also submitted that the plaintiffs have filed the suit against the defendant in respect of the left over remaining extent of the property measuring 4 Hectares 61 Ares or 34 Mahs 44 Kuzhis belonging to the vendors of the defendant, after acquisition of major portion by the Government of Puducherry under the scheme of the Land Acquisition Act. The present suit has been filed for the relief of partition in an illegal manner with false description of the suit property in the schedule with an oblique motive, without adding the vendors of the defendant and the Government of Puducherry, which had acquired and http://www.judis.nic.in Page No.19/35 A.S.No.550 of 2018 took possession of the major portion of the suit property measuring an extent of 9 Hectares 11 Ares or 68 Mahs and 32 Kuzhis. The Civil Court's process of administration of justice, had been misused and abused by the plaintiffs. Therefore, the learned counsel appearing for the respondent/defendant submitted that the present suit filed by the plaintiffs is nothing but abuse of process of law and he prayed for dismissal of the present appeal with costs for filing vexatious, frivolous, malicious and speculative litigation. In this regard, the learned counsel appearing for the respondent/defendant relied on a decision of the Supreme Court reported in (Vinoth Seth Vs. Devinder Bajaj) reported in 2010 (8) SCC 1 wherein it was held that if the suit filed by a party is proved to be vexatious, frivolous and malicious or it is a speculative litigation, Courts are entitled to impose exemplary costs to arrest mushrooming of vexatious and frivolous litigation.
16. Keeping in mind the above submissions made on either side, we have carefully perused the materials available on record and given our anxious consideration to the same.
17. The only point that arises for consideration in this appeal is as to whether the suit filed by the appellants/plaintiffs is maintainable in law. If this point is answered, that would suffice to dispose of the present appeal. http://www.judis.nic.in Page No.20/35 A.S.No.550 of 2018
18. As we have dealt with the facts of the case in detail, we refrain from reiterating the same any further, however, certain facts which are essential and absolutely necessary alone are reiterated and discussed hereunder.
19. The appellants/plaintiffs are the descendants of Ponnusamy Padayachi, who is their great grandfather. During his lifetime, he had purchased 5 Velis of land in O.S.No.340 in Varichikudi South Village, by sale deed dated 18.04.1931 / Ex.A-12. He had also purchased 8 Mahs 15 Kuzhis, which is the subject matter of the suit comprised in Cadastre O.S.No.340. Though he had purchased the said 8 Mahs 15 Kuzhis, he was given possession of 4 Mahs and 15 Kuzhis, since the remaining 4 Mahs were under encroachment by one Ayyakannu Pillai. Therefore, a clause was incorporated in the sale deed dated 18.04.1931 to the effect that the purchaser Ponnusamy Padayachi should vacate the trespasser and take possession of the remaining 4 Mahs. While so, the said Ponnusamy Padayachi died intestate in 1939. After his demise, there was a compendious partition of family property(ies) among his four sons, namely Ramalinga Padayachi, Thiyagaraja Padayachi, Damodra Padayachi and Sambasiva Padayachi on 05.08.1940 (Ex.A-2), in which 8 Mahs 15 Kuzhis of Punja land along with several other properties, had been http://www.judis.nic.in Page No.21/35 A.S.No.550 of 2018 allotted to the share of Ramalinga Padayachi. The portion of 4 Mahs out of 8 Mahs 15 Kuzhis in Cadastre O.S.No.340 was subsequently handed over by the encroacher to Ramalinga Padayachi on 05.01.1941, which is evident from Ex.A-9. Thus, the entire 8 Mahs 15 Kuzhis have come into the possession of Ramalinga Padayachi. It is the case of the appellants/plaintiffs that the said Ramalinga Padayachi, under registered Will dated 01.05.1965 Ex.A-11, had bequeathed 8 Mahs 15 Kuzhis of Punja land in favour of his son Nataraja Padayachi, who is the father of the plaintiffs and also to his daughter and thereafter, on 08.06.1974, a Codicil Ex.A-10 came to be executed by which the name of his daughter was removed from the allotment of share of the property. The said Ramalinga Padayachi died in the year 1974 and the said Nataraja Padayachi died in the year 1996 leaving behind the plaintiffs as his legal heirs. While so, on 09.02.2008, the respondent/defendant who is no way connected with the appellants/plaintiffs, had purchased the property to an extent of 34 Mahs 44 Kuzhis in Cadastre O.S.No.340 from Balaguru Chettiar, Jayaramakrishnan and Narayana Deenadayalu with definite boundaries, which is evident from Exs.A-5 to A-8 sale deeds and thus, the defendant was put in possession of the said property(ies). Thereafter, the defendant had developed the land(s) by forming lay-out plots and sold as many as 125 plots to third parties. At this juncture, the appellants/plaintiffs have filed the present suit, http://www.judis.nic.in Page No.22/35 A.S.No.550 of 2018 claiming that the 8 Mahs 15 Kuzhis, as described in the schedule to the plaint, mingled with the property purchased by the defendant from Govindasamy Chettiar. Thus, the plaintiffs have sought for partition of 8 Mahz 15 Kuzhis from and out of larger extent of 108 Mahs 15 Kuzhis in the suit property. Now, we have to see as to whether the appellants/plaintiffs have any right to file the present suit for partition in the above background of the factual aspects of the matter.
20. According to the respondent/defendant, the appellants/plaintiffs are total strangers to him and he is in no way connected either with the plaintiffs or vendors of defendant. There was no existence of co-ownership or joint ownership over the land in question. The defendant and his vendors are third parties and at no point of time, neither the defendant nor his vendors held the property as joint owners either as co-owners with the plaintiffs or with the plaintiffs' ancestors. In the schedule to the plaint, the suit property is described as 108 Mahs 15 Kuzhs. In the prayer portion of the plaint, the plaintiffs seek partition and separate possession of 8 Mahs 15 Kuzhis from and out of a larger extent of 108 Mahs 15 Kuzhis in the suit property. For better appreciation, it is useful to extract the suit schedule of property:
"Pondicherry Registration District, Karaikal http://www.judis.nic.in Sub-Registry, Karaikal Revenue District, Page No.23/35 A.S.No.550 of 2018 Kottucherry Commune, Vaichikudy, South Village, Punja land measuring 108 Mahs 15 Kuzhis comprised of in O.S.No.340 situate East of Karaikal Road, West of Thiruvetakudi Road, North of Punja lands of Govindasamy Chettiar and Kottucherry Village boundary and South of the graveyard and punja lands of Somu Mudaliar and Ayyakannu."
21. From a reading of the above schedule of property as described in the plaint, it would show that the property was described on speculative basis. In other words, the plaintiffs are expecting the Court to identify their 8 Mahs 15 Kuzhs from and out of 108 Mahz 15 Kuzhis and to pass a preliminary decree of partition. As per Order 7 Rule 3 CPC, the plaint shall contain the description of the property sufficient to identify it. In the instant case, the description of the property is very bald and vague. In fat, the property had been well described in the sale deed, dated 18.04.1931 marked as Ex.A-3/A- 12, showing the sub-division of the property as 340/1/A2 with boundaries. The plaintiffs have suppressed and concealed the material facts while describing the property in the suit schedule. The plaintiffs have admitted in the plaint in paragraph 3 that the Government of Puducherry had acquired a portion of the land for public purpose for setting up Navodaya from Balaguru Chettiar Vagayara, i.e. the vendor of the defendant. When the plaintiffs themselves have stated that the Government of Puducherry had acquired the portion of the http://www.judis.nic.in Page No.24/35 A.S.No.550 of 2018 land from the vendor of the defendant, over which the plaintiffs have no claim, yet they have included the acquired extent of the property in the plaint schedule, even without adding the Government of Puducherry as a party- defendant in the suit itself, and thus, the suit as filed, is not maintainable.
22. Further, it is pertinent to note that it is the specific case of the plaintiffs that their 8 Mahs 15 Kuzhis, were purchased in the year 1931 by their great grandfather Ponnusamy Padayachi, ,i.e. on 18.04.1931 (Ex.A-12) and after the demise of Ponnusamy Padayachi in the year 1939, there was a compendious partition in the year 1940 by way of execution of partition deed, between the four sons of the deceased Ponnusamy Padayachi, in which, 8 Mahs 15 Kuzhis were allotted to the share of Ramalinga Padayachi along with the other properties. Further it is seen that the said Ramalinga Padayachi had executed a Will dated 01.05.1965 (Ex.A-11) in favour of his son Nataraja Padayachi and after the death of Nataraja Padayachi, the property was inherited by the plaintiffs by way of succession. Therefore, according to the plaintiffs, 8 Mahs 15 Kuzhis were with them for more than 80 years and all along, they were keeping quiet. After the defendant had purchased the property measuring an extent of 34 Mahs 44 Kuzhis in the same O.S. No. 340 and started developing the properties, the plaintiffs have come forward with the http://www.judis.nic.in Page No.25/35 A.S.No.550 of 2018 present suit for partition stating that the suit property got mingled with the properties purchased by the defendant. Thus, the present suit for partition was filed after 80 years from the date of purchase of the property by the great grand father of the plaintiffs Ponnusamy Padayachi under Ex.A1. Further, from Ex.A-19 being the information obtained under the RTI Act, it could be seen that the property in O.S.340 had already been sub-divided as 340 1A, 340 1B and 340 1C with corresponding re-survey as Nos.340 1A Pt, 309/1/A, 340/1B Pt, 340/1 Ter-340/1/B-309/3, 340 Bis/309/4 and 340/2-310/1. Therefore, the claim of the plaintiffs to the effect that the suit property is not having any clear boundaries, is totally false.
23. Above all, it is the case of the defendant that 8 Mahs 15 Kuzhis had already been sold by Ramalinga Padayachi himself on 04.12.1947 itself by way of sale deed and in order to substantiate this stand, the defendant had also marked Ex.B-1. A perusal of the said sale deed would show that the said property was sold by Ramalinga Padayachi in the year 1947 in favour of Govindasamy Chettiar. Further, P.W.1 himself admitted in his evidence with regard to the sale by Ramalinga Padayachi. Such an admission made by PW1 would demolish the case set forth by the plaintiffs. In this context, a reference could be made to the decision of the Honourable Supreme Court in (Karam http://www.judis.nic.in Page No.26/35 A.S.No.550 of 2018 Kapahi and others Vs. Lal Chand Public Charitable Trust and another) reported in 2010 (4) SCC 753 wherein it was held that a party, on the admission of the other party, can pres for judgment, as a matter of legal right. In this case, P.W.1 had admitted in his evidence that the said property was sold to Govindasay Chettiar. The relevant portion of the evidence of P.W.1 (cross- examination) is as follows:
@// /// t/rh/M/12y; 1931k; Mz;L Mtzj;jpy;
11tJ ,yf;fkpl;l brhj;J 340-1V2. gug;gst[ 55 Mh; 55 rhe;jpahf my;yJ 4 kh 18 FHp vd;W fhl;lg;gl;Ls;sJ vd;why; rhpjhd;/ ,jpy; 4 vy;iyfs; Fwpg;gpl;Lf; fhl;lg;gl;Ljhd;
tpw;fg;gl;lJ vd;why; rhpjhd;/ mjpy; Fwpg;ghf 4 vy;iyfshf nfhl;Lnrhp vy;iyf;F tlf;F th';Fgth; g[";irf;F bjw;F nfhtpe;jhkp brl;oahh; g[";irf;F fpHf;F Ia;ahfz;Qq gps;is g[";irf;F nkw;F vd;W fhl;lg;gl;Ls;sJ vd;why; rhpjhd;/ mjdhy; th';Fgth; brhj;jpw;F bjw;F cs;s ,lk; Vw;fdnt bfhs;S jhj;jh bghd;Drhkp gilahr;rpf;F brhe;jkhd ,lkhf ,Ue;jjhy;jhSk; mt;thW xU vy;iyahf fhl;lg;gl;lJ vd;why; rhpjhd;/ nfhtpe;jrhkp brl;oahhpd; ,lKk; xU vy;iyahf fhl;lg;gl;Ls;SJ vd;why; rhpjhd;/ /// //// 1940w;F gpwF ,e;j brhj;J uhkyp';f gilahr;rpf;F brhe;jkhf ,Ue;jJ/ me;j brhj;ij mth;
1947y; tpw;gid bra;jhh; vd;why; rhpjhd;/ vd;dplk; fhl;lg;gLk; rhd;wpl;l efy; gp/th/rh/M1 MFk;/ mjd; jkpHhf;fk; gp/th/rh/2 MFk;/ 1947y; nfhtpe;jrhkp brl;oahhplk; ,e;j brhj;Jf;fis tpw;Ws;shh;/ ,e;j Mtzj;jpd;go fjh!;jh; gpshd; ek;gh; 340-1V gug;g[ 11 Vf;jh; 47 Mh; 25 rhe;jpahh; my;yJ 04 ntyp 5 kh 76 FHp 4-64 cs;sJ vd;why; rhpjhd;/ ,e;j 4 ntyp 5 kh 76 FHp Fwpg;ghf 340-1V. 340 1gp. 340 gh;. 340 RLfhL vd;W gphpj;J fhl;lg;gl;Ls;sJ vd;why;
http://www.judis.nic.in Page No.27/35 A.S.No.550 of 2018 rhpjhd;/ ,e;j gj;jpuj;jpy; mtUf;F brhe;jkhf nfhl;Lr;nrhp fpuhkj;jpy; 4 ntyp 5 kh 76 FHp 4-64 cila jphR epy';fs; vd;W brhy;yp cs;shh; vd;why; rhpjhd;/ jdf;F 108 kh ghfk;
bfhLf;fg;gl;Ls;sjhft[k; mjpy; 4 ntyp 5 kh 76 FHp 4-64 cila epyj;ij kl;Lk; tpw;gjhf Fwpg;gpl;L Twg;gl;Ls;sjh vd;why; mt;thW Twg;gltpy;iy/ ,nj gj;jpuj;jpy; vd;Dila jhj;jh brhj;Jf;fs; Fwpj;J TLjy; Fiwa vd;W Twpa[s;shh; vd;why; rhpjhd;/ // ///@
24. Therefore, on the date of filing the present suit for partition, the suit property was not with the plaintiffs, rather, it was already alienated. The plaintiffs, without any semblance of right over the suit property have filed the suit for a partition as though the property was owned by them or they are in possession of the property and that the property got mingled with the property purchased by the defendant. Thus, it is clear that the present suit has been filed with false claim. As contended by the learned counsel for the respondent/ defendant, the appellants/plaintiffs have deliberately suppressed the sale deed dated 04.12.1947 Ex.B-1 and Ex.B-2 executed by Ramalinga Padayachi in favour of Govindasamy Chettiar. Hence, the present suit filed is a classic example of clear abuse of process of law by setting up a false plea.
25. The Honourable Supreme Court in the case of (K.K.Modi Vs.K.N.Modi) reported in 1998 (3) SCC 573, in (S.P.Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs) 1994 (1) SCC 1 and also in http://www.judis.nic.in Page No.28/35 A.S.No.550 of 2018 the decision reported in (Goa State Co-operative Bank Ltd. Vs. Krishna Nath) 2019 SCC Online SC 1058 had an occasion to consider the effect of ingenuine litigant approaching the Court for relief by suppressing material particulars and thereby abusing the process of law. Useful reference can be made to the observation of the Honourable Supreme Court in the case of Chengalvaraya Naidu case mentioned supra which reads as follows:-
“Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
.....
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get advantage.
Jagannath was working as a clerk with Chunilal Sowcar. He urchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex.B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on http://www.judis.nic.in the Court. We do not agree with the observations of the High Page No.29/35 A.S.No.550 of 2018 Court that the appellants-defendants could have easily produced the certified registered copy of Ex.B15 and non- suited the plaintiff. A litigant who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite side.”
26. In this case, the appellants/plaintiffs have been keeping quiet for the past 80 years and have suddenly woken up from deep slumber by filing the present suit for partition by suppressing material particulars. The suit was filed after the defendant had purchased the property and started developing it. The plaintiffs, who have approached the Court, must furnish all material particulars to enable the Court to adjudicate the issues touching upon their claim. As mentioned above, the pleadings in the plaint are bald and vague and are not capable of inference without the written statement filed by the defendant in which several material particulars relating to the execution of document by the predecessors of the plaintiffs have been brought to the notice of the Court. In A. Shanmugam vs. Arya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, by its President and others) reported in (2012) 6 Supreme Court Cases 430 it was held that every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. http://www.judis.nic.in Page No.30/35 A.S.No.550 of 2018 The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. Once the Court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. Applying the above ratio laid down by the Honourable Supreme Court to this case, the plaintiffs, who have failed to furnish the correct particulars in the plaint and for having suppressed the material particulars, we are of the view that the plaintiffs have abused the process of this Court and thereby wasted the valuable time of the Courts, which would have been judicially utilised for dispensation of justice in any other case.
.
27. It is needless to mention that the plaintiffs have filed the suit on the ground that the property owned and possessed by them got mingled or mixed with the property purchased by the defendant. But on a reading of the plaint, particularly the description of the property given in the plaint schedule, it is seen that the plaintiffs have described the entire extent of 108 Mahz 15 Kuzhis but they concede that they have right only in respect of 8 Mahz and 15 Kuzhis. Thus, the plaintiffs want the Court to identify the property allegedly owned and possessed by them and to pass a preliminary decree for partition http://www.judis.nic.in Page No.31/35 A.S.No.550 of 2018 thereof. This is in direct contravention to Order VII Rule 3 of CPC, which require a plaintiff to describe the property sufficient to identify it. However, for the reasons best known, the plaintiffs have filed the suit for partition as if they have a semblance of right over the property which is in possession of the defendant. Further, in a partition suit, the burden of proof is on the part of the plaintiffs to substantiate his pleadings and in it's absence, the plaintiffs are not entitled to a preliminary decree of partition. This position of law is reiterated by the Honourable Supreme Court in (Rangammal Vs, Kuppusdwami and another), 2011 (12) SCC 220. In Para No.43 of this judgment, it was held as follows:-
“43. The appellant who claimed to be in occupation and peaceful possession of her share to the extent of half which is situated on the eastern side of the schedule property, had no reason to file a suit assailing the sale deed when she was in actual possession of her share and suddenly out of the blue, a partition suit was filed by Respondent 1- plaintiff wherein the property of the appellant also was included in the schedule of the partition suit which was to be partitioned between the two brothers by metes and bounds by setting a cooked up story that the appellant's share, who belonged to an altogether different branch of the family, had been given away by her de facto guardian Kumara Naicker by executing a sale deed in favour of the respondents' predecessor way back on 24.02.1951 when the appellant admittedly was a minor.
44. .....
45. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which the family has clear title and unambiguously belong to the members of the joint family http://www.judis.nic.in which is sought to be partitioned and if someone else's property Page No.32/35 A.S.No.550 of 2018 meaning thereby disputed property is included in the schedule of the suit for partition and the same is contested by a third party who is allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property did not belong to the plaintiff's joint family in regard to which decree for partition is sought.”
28. In this case, the plaintiffs and defendant are not related to each other. According to the defendant, the plaintiffs are stranger. Except the fact that the plaintiffs predecessor were in possession of a property which lies adjacent to the property of the defendant, there was no semblance of relationship between the parties. In such circumstances, the burden is heavy on the plaintiffs to prove the nature of relationship between the parties, their right, if any, in the property to which a decree for partition is sought. In the present case, plaintiffs have failed to establish their case by letting in adequate evidence and by pleadings. The trial court, on appreciating the oral and documentary evidence, has rightly dismissed the suit filed by the plaintiffs. We see no reason to interfere with such a well considered Judgment of dismissal passed by the trial court.
29. For all the above reasons, the Appeal Suit is liable to be dismissed with costs of Rs.10,000/- to be paid by the appellants/plaintiffs to the http://www.judis.nic.in Page No.33/35 A.S.No.550 of 2018 respondent/defendant. Accordingly, the appeal suit is dismissed with costs. Consequently, connected Civil Miscellaneous Petition is closed.
(R.P.S.J) (R.P.A.J)
04.06.2020
Index: Yes
Speaking Order : Yes
cs/rsh
To
1. The District Judge, Karaikal.
2. The Section Officer, V.R. Section, High Court, Madras. http://www.judis.nic.in Page No.34/35 A.S.No.550 of 2018 R.SUBBIAH, J and R.PONGIAPPAN, J cs/rsh Pre-delivery Judgment in A.S.No.550 of 2018 04.06.2020 http://www.judis.nic.in Page No.35/35