Madras High Court
S.Alphones vs M/S.M.E.Abbas & Brothers on 3 November, 2014
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.11.2014 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS S.A.(MD) Nos.392 of 2009 and S.A.(MD) Nos.556 of 2009 and M.P.(MD) No.1 of 2009 in S.A.(MD) No.392 of 2009 and M.P.(MD) No.2 of 2009 in S.A.(MD) No.556 of 2009 S.A.(MD) No.392 of 2009: 1.S.Alphones 2.G.Isabellah 3.G.Rajkumar Arokiaraj ... Appellants/Defendants 1 to 3 -Vs- 1.M/s.M.E.Abbas & Brothers, Iron & Steel Merchants, Rep. by its Partner A.Sirajudeen, S/o.Mohammed Ibrahim, 149, Sub Jail Road, Palakkarai, Trichy - 620 008. 2.A.Sirajudeen ...Respondents 1 & 2/Plaintiffs 1 & 2 3.Trichirappalli City Corporation, Rep. by its Executive Authority, The Commissioner, Corporation Complex, Bharathidasan Salai, Prominent Road, Cantonment, Trichy - 620 001. ... 3rd Respondent/4th Defendant PRAYER IN S.A.(MD) NO.392 of 2009 Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 14.08.2008, made in A.S.No.178 of 2000, on the file of the Principal Subordinate Court, Trichirappalli, reversing the Judgment and Decree, dated 28.09.2000, made in O.S.No.448 of 1989, on the file of the III Additional District Munsif Court, Trichirappalli. !For Appellants : Mr.R.Devaraj ^For 2nd Respondent : Mr.G.R.Swaminathan For Respondents 1, 3 and 4 : No appearance S.A.(MD) No.556 of 2009: 1.S.Alphones 2.G.Isabellah ... Appellants/Defendants -Vs- 1.M/s.M.E.Abbas & Brothers, Rep. by its Partner A.Sirajudeen, Iron & Steel Merchants, 149, Sub Jail Road, Palakkarai, Trichy - 620 008. 2.A.Sirajudeen ... Respondents/Plaintiffs PRAYER IN S.A.(MD) NO.556 of 2009 Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 14.08.2008, made in A.S.No.23 of 1999, on the file of the Principal Subordinate Court, Trichirappalli, reversing the Judgment and Decree, dated 18.12.1998, made in O.S.No.1394 of 1988, on the file of the I Additional District Munsif Court, Trichirappalli. For Appellants : Mr.R.Devaraj For 2nd Respondent : Mr.G.R.Swaminathan For 1st Respondent : No appearance :C O M M O N J U D G M E N T
In these twin Second Appeals, namely, S.A.(MD) Nos.392 and 556 of 2009, since the parties are same, factual matrix is same, substantial question of law is same and the arguments are same, we shall render a common judgment.
2. The suit in O.S.No.1394 of 1988 has been filed by the respondents/plaintiffs, seeking injunction with respect to the superstructure bearing Door No.24B, measuring 34' x 34' feet, having the assessment No.17252, put up in the site belonging to one Innasimuthu Pillai. The site has been taken permanently on lease by Innasimuthu Pillai from a temple. Under Innasimuthu Pillai, plaintiff became a tenant with respect to the site. He had put up the super structure thereon. After the demise of Innasimuthu Pillai, his son Soosairaj became the plaintiff's landlord. After the demise of Soosairaj, his wife Alphones (1st Defendant) became the landlady. While so, under some unholistic alliance 1st Defendant created an encumbrance by way of sale deed with respect to plaintiff's super structure in favour of Esabellah (2nd respondent). In the circumstances, alleging that they are interfering with the plaintiff's possession of super structure, plaintiff filed the suit in O.S.No.1394 of 1998 for injunction.
3. The suit has been resisted by the defendants by filing written statement contending that the superstructure belongs to Innasimuthu Pillai, first defendant succeeded to it by inheritance and in her own right she had sold it to second defendant.
4. Subsequently, the very same Abbas filed O.S.No.488 of 1989, in which he is the second plaintiff and their firm being the first plaintiff. Almost the suit has been filed on the very same plaint pleadings as in O.S.No.1394 of 1988 with little but shuttle difference. Now the plaintiffs prayed for declaration as to their title to super structure, pleading that already when plaintiffs faced danger from Innasimuthu Pillai and Soosairaj, they have filed O.S.No.1930 of 1969 in the Munsif's Court and in the suit they have filed I.A.No.1528 of 1969. A compromise was entered into between the parties outside the Court in the presence of panchayatars and in the panchayat the title of the plaintiff to the super structure has been acknowledged by Innasimuthu Pillai and Soosairaj and in terms of the said compromise, the said suit was disposed of. Thus, the plaintiff is the owner of the suit super structure. However, Alphones, the widow of Soosairaj sold the plaintiff' superstructure to Esabellah (2nd Defendant) and her son Rajkumar Arokiaraj is 3rd defendant. Further, the fourth defendant, Trichirapalli City Municipal Corporation is taking hectic steps to change the tax entry with respect to the superstructure from plaintiffs to the second defendant. Thus, the suit is a comprehensive suit.
5. The suit has been resisted by defendants 1 to 3 jointly reiterating the plea made in the written statement filed in the earlier suit in O.S.No.1394 of 1988. The fourth defendant, namely, the Trichirappalli Municipality filed a separate written statement pleading that it is not aware of the interse dispute between the plaintiff and defendants 1 to 3. It has also stated that it will abide by the decision of the Court.
6. In both the suits issues were framed. They were tried separately. Oral and documentary evidence were adduced. The compromise entered into between the plaintiff and 1st defendant's predecessor-in-title in O.S.No.1930 of 1969 assumed signal importance in this case. In O.S.No.1394 of 1988, it has been marked as Ex.A.10 and its xerox has been marked as Ex.A.19 in O.S.No.488 of 1989. Ex.A.10 has been the focal point for both sides.
7. It is a clear case of construction of a document, namely, Ex.A.10. The trial Court gave importance to the word ?fl;of; bfhLj;Jtpl Btz;oaJ? in Ex.A.10 and concluded that it indicates that the super structure does not exclusively belongs to the plaintiff and thus both the suits were came to be dismissed.
8. In the circumstances, plaintiff directed the first appeal in A.S.No.23 of 1999 as against the judgment and decree passed in O.S.No.1394 of 1988 and the plaintiff also directed A.S.No.178 of 2000 as against the judgment and decree passed in O.S.No.488 of 1989. The first appellate Court has construed the entire Ex.A.10 and concluded that the super structure exclusively belongs to the plaintiff and vacated the judgment and decree of the trial Court and decreed both the suits.
9.In the circumstances, as against the judgment in A.S.No.23 of 1999, defendants 1 and 2 in O.S.No.1394 of 1988 have directed the S.A.(MD) No.556 of 2009 and as against the judgment in A.S.No.178 of 2000, defendants 1 to 3 in O.S.No.488 of 1989 have directed S.A.(MD) No.392 of 2009. Now, since the original plaintiff Abbas has passed away, his son Sirajudeen has been impleaded as 2nd respondent in the two Second Appeals.
10. The then learned brother for purpose of both the Second Appeals framed the following question of law:
?1. Whether the courts below are right in considering the compromise decree under Ex.A.10 based on which both the parties have claimed right over the super structure??
11. The learned counsels appearing for each side have interpreted Ex.A.10 to their advantage. They have submitted that Ex.A.10 advances their client's case. Appellants says that Ex.A.10 shows that the superstructure belongs to the defendants. While, the respondents says that Ex.A.10 really shows that the title to the superstructure belongs to the plaintiffs. Actually here is a tie. Necessarily, it has to be untied.
12. In These Second Appeals a question misreading /misconstruing of Ex.A.10. Certainly, it will be a substantial question of law under 100 C.P.C.
13. We have already given the required factual matrix. Let us not duplicate it.
14. In the matter of construction of a document one need not be misled by title, heading, or its nomenclature of a document. Substance/contents of a document matters much. That will be the proper way of construing a document.
15. Let us extract hereunder the entire Ex.A.10:
"jfuk; milg;g[ rd; rPl; Rth; rk;ke;j cld;gof;if: -
1970-k; tU&k; $dthp khjk; 4-e; Bjjp jpUr;rpuhg;gs;sp jhYfh Kd;rPgy; lt[d; nUjag[uk; bjw;F 2-k; bjUtpy; fjt[ vz; 38 cs;s ny;yj;jpypUf;Fk; rPyhg[j;J]h;mg;ght[ gps;is Fkhuh; nq;qhrpKj;J gps;is 1. i& ny;yj;jpypUf;Fk; i& 1. byf;fkpl;lthpd; Fkhuh; R{iruh$; gps;is 2. i& jhYfh i& lt[d; rg; b$apy; Buhl;oy; giHa fjt[ vz; 24-gp. jw;BghJ fjt[ vz;.80 cs;s filapypUf;Fk; vk;.Kfk;kJ ng;whfPk; uht[j;jh; Fkhuh; nUk;g[ tpahghuk; vk;.N.mg;gh!; uht[j;jh; 3. Mfpa ehk; Kd;W Bgh;fSk; xUkpj;J vGjpf; bfhz;l jfu milg;g[ jfu rd; rPl; Rth; rk;ke;j cld; gof;if vd;d btd;why;.
Kd;rPgy; lt[d; rg; b$apy; Buhl;oy; fPH;g[wk; rh;Bt vz;: giHa fjt[ vz;.24-gp. g[jpa vz;:80 cs;s fpHBky; $hjpao 34. bjd; tly; $hjpao 34 cs;s fhyp kid 1 mz;L 2 byf;fkpl;lth;fSf;F ghj;jpaijapy; nUe;J tUfpwJ.
i& nlj;jpy; 3 byf;fkpl;lth; fhypkidf;F khjk; 1-f;F thlif U.65/- tPjk; thlif bfhLj;J bfhz;L i& kidapd; Bkw;gwk;, tlg[wk; Bky; jhH;thuk; rd;brl; milg;g[ jz;zPh; FHha; nizg;g[, kpd;rhu rh;tP!; fidf;rd; Kjypaitfs; jd;Rahh;$pj IBt$piaf; bfhz;L bryt[ bra;J 3 byf;fkpl;lth; mDBghfj;jpYk;, RthjPdj;jpYk; nUe;J tUfpwJ. i& jfu milg;g[ Bky; jhH; thuk; tifawht[f;Fk; 1 mz;L 2 byf;fkpl;lth;fSf;F vt;tpj rk;ke;jKk; ny;iy.
Bky; fz;l 3 byf;fkpl;lth; jfu milg;g[ tifawht[f;F tlg[wk; 1 md;L 2 byf;fkpl;lth; fl;olk; fl;Ltjw;F Maj;jk; bra;a[k; BghJ ekf;Fs; jfuhh; Vw;gl;L mjd; Bghpy; 3 byf;fkpl;lth; jpUr;rp o!;ohpf;fl; Kd;rPg; Bfhh;l;oy; 1930/69-y; 1 mz;L 2 byf;fkpl;lth;fs; Bghpy; jhthJlh;e;J fl;olk; fl;lhkypUg;gjw;F I.V.be.1528/69-y; jw;fhypf jil cj;jput[ bgw;W 1 mz;L 2 byf;fkpl;lth;fspdhy;
ft[z;lh; mtpltpl; jhf;fy; bra;J tprhuizf;fhf 2-1-70-e; Bjjp tha;jhtpy; Bghlg;gl;L i& 2.1.70-e; Bjjp tha;jhtpy; tprhuizf;fhf Bghlg;gl;L i& Bf!; bgz;oA;fpy; nUf;fpwJ.
ndp ekf;Fs; tPd; Bfhh;l; tptfhuk; jfwhh; Kjypaitfs; Vw;glhky; ehk; brs$d;dpakhf fz;zpaKld; thH Btz;Lbkd;gij ehk; czh;e;J njpy; rhR{p ifbaGj;J bra;a[k; gq;rhaj;jhh;fsplk; brhy;yp Bfl;Lf; bfhz;lgo gq;rhaj;jhh;fs; bra;j njdoapy; ne;j cld;gof;if vGjpf; bfhz;Blhk;.
gq;rhaj;jhh;fs; bra;j igry; jPh;khdk;: -
1) 3 byf;fkpl;lth; jd;Rahh;$pj IBt$piaf; bfhz;L Bky;fz;lgo tl g[wk; jfuj;jhy;
fpHBky; 34 mo ePsj;jpy; milj;jpUf;Fk; jfu milg;g[ MA;fpy; Kjypaitfisa[k; rd;brl;L Bghl;oUg;gija[k; vLj;Jtpl Btz;oaJ. 6x3 bfulh; J]z; ehd;F tlg[wk; nUg;gJ, nUe;J tuBtz;oaJ. Bky; fz;lgo Bky; jhH;thuk; m!;bgz;lh!; rPl;oy; Bghl;oUf;Fk; mA;fpy;ou!; M!;bg!;lh!; rPl; jhH;thuk; Bky;g[wk; jfu milg;g[ tifawh jz;zPh; FHha; nizg;g[, kpd;rhu nizg;g[ Kjypaitfs; Kd;dhy; nUf;fpwgo nUe;J tu Btz;oaJ.
2) Bky; fz;lgo fpHBky; epsj;jpy; milj;jpUf;Fk; jfuj;ij 3 byf;fkpl;l vk;.N.mg;gh!; uht[j;jh; vLj;Jf; bfhz;lJk; cld; 1 mz;L 2 byf;fkpl;lth;fs; brhe;j brytpy; fpHBky; 34 mo ePsj;jwpw;F 18 mo cauj;jpw;F 1 1/2 fy; bfl;or; Rtuhf fl;o bfhLj;J tplBtz;oaJ. i& Rtw;wpy; 10 mof;F Bky; 2 1/2 x 2 1/2 mstpy; $d;dy; Kd;W itj;Jf; bfhLf;f Btz;oaJ. i& Rtw;wpy; bjd;g[wk; hpg;Bgh; kuhkj;Jf;fis 3 byf;fkpl;lth; bra;J bfhs;s Btz;oaJ. tlg[wk; kuhkj;Jf;fis 1 & 2 byf;fkpl;lth; bra;J bfhs;s Btz;oaJ. i& Rtw;iw ehk; bghJtpy; mDgtpj;Jf; bfhs;s Btz;oaJ. i& Rtw;wpy; 1 mz;L 2 byf;fkpl;lth;fs; ml;il Kjypaiffs;itj;Jf; fl;of; bfhs;s Btz;oaJ. me;jg;go ml;il Kjypaitfs; fl;Lk; BghJ 3 byf;fkpl;lth; filf;F btspr;rj;jpw;F nilq;ry; ny;yhky; fl;l Btz;oaJ.
3) Bky; fz;lgo 1 mz;L 2 byf;fkpl;lth;fs; cld; Rth; vLf;fhky; fhy jhkjk; Vw;gl;L mjdhy; 3 byf;fkpl;ltUf;F Rth; vLf;Fk;goahd epiyik vw;gl;lhy; mjdhy; 3 byf;fkpl;ltUf;F Vw;gLk; rfy e&;lj;jpw;Fk; 1 mz;L 2 byf;fkpl;lth;fs; fl;Lg;gl;L vt;tpj Ml;Brgida[k; bra;ahky; cld; bfhLf;f Btz;oaJ.
4) ne;j cld;gof;ifia mDrhpj;J 3 byf;fkpl;th; bjhlh;e;jpUf;Fk; i& x.v!;.be.1930/69. I.V.be.1528/69-Ia[k; jhthit ehk; uh$pahfptpl;ljhf vGjpf; bfhLj;J i& jhthit thg!; bgw;Wf; bfhs;s Btz;oaJ.
5) i& nlj;jpd; Bky;g[wk; jw;BghJ jfu milg;g[ nUg;gij vLj;J tpl;L Rth; vLj;J fjt[ epyt[fs; itj;Jf; bfhs;Sk;goahd re;jh;g;gk; 3 byf;fkpl;lth;f;F Vw;gl;lhy; 1 mz;L 2 byf;fkpl;ltUf;F bjhptpj;J 3 byf;fkpl;lth; brhe;j brytpy; Rth; vLj;J fjt[ epyt[fs; itj;Jf; bfhs;s Btz;oaJ. mg;go Bky;g[wk; Rth; vLf;Fk;BghJ tlg[w Rtw;wpy; xl;o Rth; vLj;J bfhs;s Btz;oaJ.
ne;jg;go gq;rhaj;jhh;fs; bra;j 1 Kjy; 5 igry; jPh;khdj;jpw;F kdg;g{h;zkha; rk;kjpj;J ne;j cld;gof;if g{guht[k; thrpj;J ghh;j;J rhR{pfshfpa gq;rhaj;jhh;fs; Kd;dpiyapy; ne;j cld;gof;ifapy; ifbaGj;J bra;J bfhz;oUf;fpBwhk;.
ne;j cld;gof;if ilg; bra;J mry; 1 mz;L 2 byf;fkpl;lthplK; efy; 3 byf;fkpl;lthplKk; nUf;fpwJ."
16. In the suit schedule in O.S.No.488 of 1989, the full description of the suit property has been given.
17. It is in Trichy City Municipality Corporation limits, in Palakkarai Sub-Jail Road, vacant site belongs to the 1st defendant with the super structure immediately in the east thereon belongs to the plaintiff. It bears the Door No.24-B, New Door No.149, measuring 34' x 34' with assessment No.17252. Actually, the suit property is of two items. The first item is the vacant site. This vacant site belongs to a temple. It has been taken on lease by Innasimuthu Pillai. Under Innasimuthu Pillai, plaintiff became a tenant of the site. This is an admitted aspect in this case. The second part of the suit property is within the said site a super structure measuring 34' x 34' having the Old Door No.24-B. It has been subjected to municipal tax.
18. The dispute is with regard to the said second part of the suit property, namely, the super structure. The appellants/ defendants says it belongs to them. While, the respondents/ plaintiffs says, it belong to them.
19. If one read Ex.A.10 line by line carefully, it would show that when the plaintiff entered into the lease arrangement with Innasimuthu Pillai it was a vacant site, the lease itself for site rent and at a corner there is a tin sheet with sun shade and in one part of the property, on the southern side, a super structure measuring 34' x 34', on the norther side, when Innasimuthu Pillai and his son Soosairaj attempted to put up a super structure, dispute arose between them.
20. Under the said circumstances, plaintiff filed O.S.No.1930 of 1969 in the Munsif Court. Ex.A.10 shows that Innasimuthu Pillai and Soosairaj put up a permanent structure on the northern side, in between their respective portions there is a wall. On the Southern side Abbas and on the Northern side Innasimuthu Pillai. Wall has been put up by Innasimuthu Pillai. It is a partition wall. It is a common wall. The repairing, whitewashing etc. should be done on the Southern side by the Abbas. However, the wall should be treated as a common wall. The phrase ?fl;of; bfhLj;Jtpl Btz;oaJ? in Ex.A.10 refers to this wall. However, this has been misconstrued by the trial Court as superstructure. Actually, the superstructure of the plaintiff is on the southern side. It has been described as second part of the suit property. The trial Court misconstrued this wall as a superstructure. The first appellate Court considered the terms and conditions of Ex.A.10 very carefully and correctly found that the word ?fl;of; bfhLj;Jtpl Btz;oaJ? in Ex.A.10 refers to common wall and not the superstructure on the southern side. At the very beginning of Ex.A.10, it has been stated clearly that what was leased out to the plaintiff was only a vacant site. Plaintiff enjoyed the tenanted portion by putting a super structure with a tin shed and a sun shade. Further, the tax for the superstructure stands in the name of plaintiff. In the circumstances, the first appellate Court has properly construed Ex.A.10 and came to the correct conclusion that the said super structure belongs to the plaintiff. Thus, the substantial question of law is answered as against the appellants.
21. Finally, both the Second appeals fails and are dismissed, confirming the decree and judgment of the Principal P.DEVADASS, J.
sj Subordinate Court, Tiruchirappalli in A.S.No.23 of 1999 and A.S.No.178 of 2000. However, in the facts and circumstances, the parties are left to bear their own costs in the Second Appeals. Consequently, connected Miscellaneous Petitions are also dismissed.
03.11.2014 Index :Yes Internet :Yes sj To
1.The Principal District Judge, Tiruchirappalli.
2.The Principal Subordinate Judge, Tiruchirappalli.
3.I Additional District Munsif, Tiruchirappalli.
4.The III Additional District Munsif, Tiruchirappalli.
S.A.(MD) Nos.392 and 556 of 2009 and M.P.(MD) No.1 of 2009 in S.A.(MD) No.392 of 2009 and M.P.(MD) No.2 of 2009 in S.A.(MD) No.556 of 2009