Madras High Court
Dalmia Cement (Bharat) Limited, ... vs Uthandi Alias Peria Uthandi on 30 March, 2005
Equivalent citations: AIR2005MAD457, (2005)2MLJ584, AIR 2005 MADRAS 457, 2006 (1) ALL LJ NOC 68, 2006 (1) AJHAR (NOC) 69 (MAD), (2005) 2 MAD LJ 584, (2005) 3 MAD LW 319, (2005) 3 RECCIVR 82
JUDGMENT S. Sardar Zackria Hussain, J.
1. The plaintiff, who was successful before the trial Court and lost his case before the first Appellate Court, is the appellant in this second appeal.
2. The parties are referred to as per their rankings in the suit.
3. The plaintiff filed the suit for declaration, possession and for mesne profits. The case of the plaintiff as per the averments in the plaint is as follows:-
The plaintiff is the owner of the suit property bearing Survey No. 125/2 of Chetti Chavadi Village comprised in patta Nos. 1 and 2 in Salem Taluk measuring 0.48.0 Hectares dry land in which the defendant unlawfully occupied the portion measuring about 1.20 acres. The suit property was originally portion of Chetti Chavadi Jaghir in Salem Taluk, which is a Sarva Inam. The entire Jaghir was purchased by the Magnesite Corporation of India under two sale deeds dated 31.8.1945 and after purchase, the Magnesite Corporation of India has been in enjoyment of both Melwaram and Kudiwaram rights in the entire Jaghir. The assets and liabilities of the Magnesite Corporation of India were taken over by the plaintiff in the year 1964 and from then onwards, the plaintiff has been in possession and enjoyment of the entire Chetti Chavadi Jaghir including the suit property. As per the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act of 1963, the entire Chetti Chavadi Jaghir was taken over by the Government in the year 1971 and thereafter, survey operations were carried out and the Settlement Tahsildar, Salem, conducted enquiry regarding the issuance of patta for the said lands in which the defendant also participated. The suit property is in Survey No. 125/2. The Settlement Tahsildar in his S.R. Nos. 160, 161, 162, 164, 169 and 170 passed orders on 07.4.1972 granting Ryotwari Patta to the plaintiff for S. No. 125/2. The appeal preferred by the defendant and others before the Inam Abolition Tribunal, Salem, in M.I.A. No. 157 of 1974 was dismissed on 08.9.1975. The plaintiff was in possession of the suit property and grant of patta has been confirmed by the Inam Abolition Tribunal (Principal Subordinate Judge), Salem. The defendant attempted to trespass into the suit property on or about 20.12.1976 for which action could be initiated by the plaintiff only as per law. The defendant made several attempts to trespass into the suit property. The plaintiff filed O.S. No. 697 of 1976 on the file of the Sub Court, Salem, for permanent injunction against the defendant and others. The defendant unlawfully entered into the suit property and filed written statement stating that he was in possession of the portion of the suit property. The plaintiff has withdrawn the said suit filed in O.S. No. 697 of 1976 by filing an application in I.A. No. 344 of 1978 with liberty to file a comprehensive suit on the same cause of action and the said petition was allowed permitting the plaintiff to withdraw the suit and file a fresh suit on the same cause of action. The defendant unlawfully occupied the area measuring about 1.20 acres in Survey No. 125/2 in Chetti Chavadi Village and he is a trespasser. There are fruit bearing trees grown up by the plaintiff in the area occupied by the defendant. Therefore, the plaintiff is also entitled for mesne profits. Hence, the suit.
4. The suit is resisted by the defendant by filing written statement as under:- The plaintiff never had the kudivaram in Jaghir and also was never in possession of the suit property. The title and possession in an Inam Estate between the parties can be decided only by the Civil Court. The defendant has been in possession of the land for more than 50 years and his father was in possession of the same even before him. He has cultivated the land with wet crops with the help of a well sunk by his father and it was deepened by him. The allegation in the plaint that the defendant trespassed into the suit property on 20.12.1976 is denied. The suit filed by the plaintiff in O.S. No. 697 of 1976 was withdrawn because of the fact that the defendant was in possession of the suit property for the past more than 50 years and on the date of the suit, the defendant has perfected title of the suit property by adverse possession. The plaintiff is not entitled to mesne profits. There is a pucca house in the property built by the defendant and his father decades ago.
5. In the additional written statement, the defendant has raised a plea that the suit O.S. No. 1604 of 1982 filed by the plaintiff in respect of the same property against the defendant and 2 others for declaration of its title and possession, was dismissed as not pressed on 25.1.1983 and such dismissal of the suit O.S. No. 1604 of 1982 is a bar to the suit O.S. No. 182 of 1984, subject matter of this second appeal.
6. The plaintiff filed a rejoinder that since the suit O.S. No. 1604 of 1982 was dismissed as "not pressed for the present" and was not disposed on merits, the dismissal of the said suit is not a bar to the suit, subject matter of this second appeal.
7. The plaintiff examined one R. Subramaniam as P.W.1 and marked Exs.A-1 to A-6 before the trial Court and as against the evidence let in on the side of the plaintiff, the defendant examined himself as D.W.1 and marked Exs.B-1 to B-3 on his side. The trial Court, considering such evidence let in on both sides, decreed the suit for declaration and possession while refusing to grant the relief of mesne profits since no evidence was let in on that aspect. The said judgment was challenged by the defendant and the first Appellate Court dismissed the suit filed for declaration, possession and for mesne profits mainly on the ground that the suit is hit under Order 23 rule (1)(4) C.P.C., in view of the fact the plaintiff, Dalmia Cement(Bharat) Limited, after filing the suit O.S. No. 697 of 1976 for permanent injunction against the defendant herein and two others in respect of the suit property, has withdrawn the suit seeking permission to file a comprehensive fresh suit on the same cause of action which was ordered in I.A. No. 344 of 1978 dated 26.7.1978 and thereafter, it appears, the plaintiff filed another suit O.S. No. 1604 of 1982 against the very same defendants and which suit was dismissed as not pressed on 25.1.1983 and as such, the dismissal of the suit O.S. No. 1604 of 1982 is a bar to the present suit, subject matter of the appeal and hit under Order 23 rule (1)(4) C.P.C. The said judgment is under challenge in this Second Appeal.
8. The following substantial questions of law have been framed at the time of admission of the Second Appeal:-
(i) Whether Order 23 Rule 1(4) C.P.C. is not applicable as the prior suit was abandoned even before the defendant was served with summons; and
(ii) Whether the dismissal 'for the present' would amount to permission to file a fresh suit.
9. Heard the learned counsel for the appellant as well as the respondent.
10. The plaintiff claims that he is the owner of the entire property measuring 0.48.0 Hectares dry land in Survey No. 125/2 of Chetti Chavadi village comprised in patta Nos. 1 and 2 in which the defendant unlawfully trespassed in the portion, viz., suit property measuring about 1.20 acres. Further, according to the plaintiff, entire property was originally portion of Chetti Chavadi Jaghir and the entire Jaghir was purchased by the Magnesite Corporation of India as per sale deed dated 31.8.1945 and have been in enjoyment of both Melwaram and Kudiwaram rights in the entire Jaghir. It is also the case of the plaintiff that the assets and liabilities of the Magnesite Corporation of India were taken up by the plaintiff Dalmia Cement(Bharat) Limited in 1964 and was in possession and enjoyment of the entire Chetti Chavadi Jaghir including the suit property and thereafter, pursuant to Madras Inam Estates (Abolition and Conversion into Ryotwari) Act of 1963, the entire Chetti Chavadi Jaghir was taken over by the Government in 1971 and after enquiry, in which the defendant also participated, the Settlement Tahsildar, as per order Ex.A-1 dated 7.4.1972 granted Ryotwari Patta to the plaintiff for Survey No. 125/2 and granted patta under Ex.A-2. As per order dated 7.4.1972 patta book was also issued under Ex.A-3.
11. Before the Settlement Tahsildar, the defendant P. Uthandi was examined as P.W.1. One R. Ramasami, formerly Director of the Magnesite Corporation of India was examined as R.W.1 and one K.V. Krishnamoorthy, Accountant, Dalmia Cement (Bharat) Limited was examined as R.W.2. Considering the evidence let in before the Settlement Tahsildar, the claim for grant of patta was rejected and ultimately passed order that it is only the plaintiff Dalmia Cement (Bharat) Limited that they have been personally cultivating the suit lands for a continuous period of 12 years immediately before 1.4.1960 and therefore, allowed for grant of patta in respect of Survey No. 125/2 and in the name of the plaintiff M/s. Dalmia Cement(Bharat) Limited.
12. The said Order of the Settlement Tahsildar was challenged before the Minor Inam Abolition Tribunal(Principal Subordinate Judge), Salem by the defendant Uthandi and 9 others and the appeal in M.I.A. No. 157 of 1974 was dismissed under Ex.A-4 on 8.9.1975. Therefore, the grant of patta in respect of 0.48.00 Hectares to the Dalmia Cement(Bharat) Limited has become final. The claim of the defendant for grant of patta in respect of that land was negatived. The Settlement Tahsildar also found in the order Ex.A-1 that the plaintiff Dalmia Cement(Bharat) Limited have been in enjoyment of the suit property in Survey No. 125/2 by constructing watchman's shed and raising mango tope and guava tope and hold that M/s. Dalmia Cement(Bharat) Limited and its predecessor Magnesite Corporation of India Limited have been in continuous possession and enjoyment of the guava tope in S. No. 125/2 of Chetti Chavadi village from the year 1946 to 1972 and have been maintaining the tope by employing a watchman and auctioning the right of gathering the fruits of the trees annually and that the company is eligible to get patta for S. No. 125/2.
13. It is claimed by the defendant in his written statement that he and before his father have been in possession of the suit property by cultivating wet crops with the help of well sunk by his father which was deepened by him and in his evidence he has stated that there is electricity connection and that there is house in the suit property in which house electricity connection also provided. Such a case has not been substantiated with supporting documents excepting the self evidence of the defendant as D.W.1. In fact, even before the settlement Tahsildar, the defendant failed to establish such a case. Therefore, in view of Exs.A-1 to A-4 and A-6 kist receipt, it is clear that only the plaintiff, who has got title to the suit property.
14. The only other question for consideration is as to whether the suit O.S. No. 182 of 1984, subject matter of the Second Appeal is hit under Order 23 Rule 1(4) C.P.C. Admittedly, the plaintiff filed the suit O.S. No. 697 of 1976 for permanent injunction against the defendant and two others and that suit was dismissed as withdrawn with liberty to file a fresh suit on the same cause of auction, as per order in I.A. No. 344 of 1978 under Ex.A-5 dated 26.7.1978. Thereafter, the plaintiff filed another suit O.S. No. 1604 of 1982 before filing the suit O.S. No. 182 of 1984, subject matter of this appeal, for declaration, permanent injunction, possession and mesne profits, against the defendant and two others and even before summons were served on the defendants, that suit was dismissed as not pressed, which is explained by P.W.1 that since the other two defendants in that suit handed over possession of the portion encroached by them that suit was dismissed as not pressed and thereafter, the suit O.S. No. 182 of 1984, subject matter of this appeal, was filed for the very same relief of declaration, possession and mesne profits against the defendant alone. Therefore, the defendant has raised a plea in the additional written statement that since the suit O.S. No. 1604 of 1982 filed by the plaintiff in respect of the same property against the defendant and 2 others for declaration of its title and possession, was dismissed as not pressed on 25.1.1983 and as such, the dismissal of the suit O.S. No. 1604 of 1982 is a bar to the suit O.S. No. 182 of 1984, subject matter of this second appeal, under Order 23 Rule 1(4) C.P.C.
15. The Order 23 Rule 1(4) says thus:-
"Withdrawal of suit or abandonment of part of claim:- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
(2) x x x x x (3) x x x x x (4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
Strictly speaking Order 23 Rule 1(4) C.P.C. is not applicable to the fact of the present case since, the suit O.S. No. 1604 of 1982 filed before the suit O.S. No. 182 of 1984, subject matter of this second appeal, was only dismissed as not pressed even before the defendant entered appearance after receiving summons and since the suit or part of the suit was not abandoned by the plaintiff.
16. (1) In Manohar Lall v. Narain Dass and Anr. , it is held that under Order 23 Rule 1 C.P.C. the second suit cannot be considered to have been brought in respect of the same subject matter as first suit, where subject matter and cause of action and relief claimed in the second suit not the same as cause of action and relief claimed in first suit, following the judgment of Supreme Court in Vallabh Dass v. Madanlal and Ors. .
(2) The Supreme Court had occasion to consider the same in Vallabh Dass v. Dr. Madanlal and Ors. and stated thus:-
"Subject-matter in Order 23, Rule 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit."
As held in the said decisions which are relied on by the learned counsel for the appellant/plaintiff, the suit O.S. No. 1604 of 1982 was filed against the defendant and two others, which was dismissed as not pressed, but the present suit, subject matter of this appeal has been filed only against the respondent/defendant and therefore, the cause of action and the relief claimed is not the same as it was in the suit O.S. No. 1604 of 1982. It follows, even assuming that the suit O.S. No. 1604 of 1982 or part of that suit was abandoned by the plaintiff, it cannot be said that the suit O.S. No. 182 of 1984 subject matter of this appeal is hit under Order 23 Rule 1(4) C.P.C.
17. But the learned counsel for the respondent/defendant relied on the following decisions:-
(1) Laxmidas Ramji v. Smt. Lohana Bai Savita Tulsidas and Ors. , in which it is held that where under Order 23 Rule 1 C.P.C. permission only granted to withdraw the suit and there was no specific prayer to file a fresh suit, such withdrawal is a bar for fresh suit.
(2) Papinayakanahalli Venkanna and Ors. v. Janadri Venkanna Setty , in which it is held thus:-
"The permission to withdraw from suit with liberty to institute a fresh suit contemplated under Order 23 Rule 1(4) is required to be specifically granted by an order if so requested by the plaintiff."
"Where the memo for the withdrawal of petition filed by the petitioner contained the words "the petition is not pressed for the present", it could not be said that petitioner had made a request for permission as contemplated under Order 23 rule 1(4) and the same was granted by the Courts."
(3) Upadhyay & Co. v. State of U.P. and Ors. , in which it is held by the Supreme Court that under Order 23 Rule 1(3) C.P.C. there is ban for filing fresh suit if the suit is withdrawn without seeking permission for purpose of filing fresh suit.
But, here also before filing the present suit, subject matter of this appeal, the earlier suit O.S. No. 1604 of 1982 filed against the defendant and two others was dismissed as not pressed before the summons were served on the defendant and before their appearance. The said decisions relied on by the learned counsel for the respondent/defendant are not applicable to the facts of the present case. Therefore, the dismissal of the suit O.S. No. 1604 of 1982 as not pressed cannot be said as abandonment of the entire suit or part of the suit claim and as such no permission is necessary to file fresh suit.
18. Since O.S. No. 1604 of 1982 was dismissed as not pressed before the defendants were served with summons and in that view Order 23 Rule 1(4) C.P.C. is not applicable and therefore, the suit O.S. No. 182 of 1984 is not hit under order 23 Rule 1(4) C.P.C. It follows the judgment of the first appellate Court being erroneous is to be set aside.
19. In the result, in view of the discussions made above, the Second Appeal is allowed, setting aside the decree and judgment dated 20.1.1993 in A.S. No. 124 of 1992 passed by the Principal District Court, Salem, restoring the decree and judgment dated 11.2.1992 in O.S. No. 182 of 1984 passed by the Additional District Munsif Court, Salem. No costs.