Madras High Court
R. Dhanalakshimi And Ors. vs Senthilkumari And Ors. on 10 July, 2007
Equivalent citations: 2008(1)CTC29
Author: K. Raviraja Pandian
Bench: K. Raviraja Pandian, P.R. Shivakumar
JUDGMENT K. Raviraja Pandian, J.
1. The appellants, who are defendants in original suits Nos. 209 of 1996 and 63 of 1995 filed Appeal Suits Nos. 233 and 234 of 2000 against the judgment and decree of the trial Court made in those suits granting the relief of permanent injunction as prayed for with declaratory relief, in favour of the respondents/plaintiffs. The other four appeals in Tr. A.S. Nos. 1027 to 1030 of 2001 are filed aggrieved by the dismissal of the suits filed by the respective appellants/plaintiffs in those suits, for injunction against the respondents/plaintiffs in Original Suits Nos. 353, 356, 359 and 404 of 1997.
2. The facts of the case is as follows:
The suit in O.S. Nos. 209 of 1996 was filed by one Senthil Kumari against Sundaram, Dhanalakshmi and the legal heirs of Ramadoss for the relief of permanent injunction on the ground that the suit property in an extent of 66 cents was originally owned by one Rengasamy Naidu. One of the sons Ramanujam Naidu filed a suit in O.S. No. 198 of 1937 against his father Rengasamy Naidu and his brother Rajagopal Naidu for the relief of injunction in respect of the suit property and other properties. In that suit a compromise decree was passed on 21.07.1937. In that decree 'A' schedule property was allotted to Ramanujam Naidu and 'B' schedule property was allotted to Rajagopal Naidu. The suit property was item No. 3 of 'B' schedule. By virtue of the compromise decree, the said Rajagopal Naidu had been in possession and enjoyment of the suit property. The said Rajagopal Naidu has also asserted his title in subsequent land acquisition proceedings in OP. No. 76 of 1955. In the said acquisition proceedings a portion of the property in survey No. 4045 was sought to be acquired for the formation of salai road extension. Consequently, an award was passed in Award No. 15 of 1954 on 23.11.1954 in his favour. The said acquisition proceedings has been quashed by the High Court in writ petition No. 17 of 1955. Consequently, the award passed in favour of Rajagopal Naidu was referred to the Revenue Divisional Officer, Trichy and the compensation was repaid and the land was repossessed by Rajagopal Naidu. Subsequently, the said Rajagopal Naidu obtained patta and adangal in his favour. The said Rajagopal Naidu executed a sale deed on 26.05.1994 in favour of the Government in respect of a portion of the property in survey No. 4045 (New No. 84) through his power agent Senthil Kumari under Ex. A.35 (4525 sq. ft.). Senthil Kumari purchased the property in an extent of 10.96 cents from Rajagopal Naidu under Ex. A1 by sale deed dated 27.04.1994. After the purchase of the property which is the subject matter of the suit from Rajagopal Naidu and his legal heirs, the respondents/plaintiffs are in actual possession and enjoyment of the same. As the property is a vacant site, the plaintiffs/respondents took steps to raise a compound wall on 19.03.1996. The appellants/defendants along with others attempted to interfere with the peaceful possession and enjoyment of the property. On that cause of action, the respondents/plaintiffs filed a suit for injunction.
3. The appellants/defendants resisted the suit by contending, inter alia, that Rajagopal Naidu and his legal representatives have no right, interest, or title over the suit property. Thus the sale deed executed by Rajagopal Naidu and his legal heirs in favour of the respondents/plaintiff would not confer any right or title on them. Ramanujam was the owner of the said property as he obtained the same under the compromise decree. Ramanujam Naidu executed a will in favour of his foster son Ramadoss. The defendants, the legal heirs of Ramadoss are the absolute owners. They are in possession and enjoyment of the suit property till date. The appellants/defendants also denied the factum that Rajagopal Naidu got the property in the compromise decree in O.S. No. 198 of 1937.
4. The case of the plaintiff in O.S. No. 63 of 1995 is as follows:
The suit in O.S. No. 63 of 1995 was filed by Mashmukhlal M. Vora, Jayashree M. Vora, Hansa J. Vora, T. Ashokan and Minor R. Vijayakumar against Dhanalakshmi, Ramdoss and the legal heirs of Ramadoss - R. Malarvizhi, Vanitha, Amudha, Kaliselvi and Kavitha. It was the case of the plaintiffs in this suit that Rajagopal Naidu and his legal heirs, by sale deed dated 11.07.1980, under Ex. A.15 sold 44 cents of land in suit the property to Varadarajan, Subramanian and Muruganandam, who inturn sold the same to one Mahendra Kumar Vora. The first plaintiff in this suit Mashmukhlal M. Vora purchased a portion of the said property by way of exchange deed dated 05.03.1992 under Ex. A.9. The rest of the properties were purchased by the plaintiffs 2 to 5 in this suit from Varadarajan and two others in different extents by means of five sale deeds under Exs. A.10 to A.14 dated 22.08.1990. Thus, the plaintiffs have been in actual possession and enjoyment of the property after purchase. Thereupon, in the year 1995 land acquisition proceedings were initiated and on private negotiations the plaintiffs executed a sale deed in favour of the Executive Engineer, PWD, Madurai for certain extent in the suit property. The defendants are utter strangers. They have no title to the property. During January, 1995 the defendants tried to encroach upon the property by putting up the fence. That was successfully prevented by the plaintiff. On that basis the said suit was filed.
5. The defendants in OS. No. 209 of 1996 and 63 of 1995 are one and the same. They resisted the suit on the same ground that the property was originally owned by Ramanujam and Ramanujam executed a will in favour of Ramadoss. After the death of Ramadoss, the legal heirs of Ramadoss, defendants are in enjoyment and possession of the property.
6. Though nothing was argued about the other appeals in Tr. Appeals Nos. 1027 to 1030 of 2001, which were filed against the dismissal of Original Suits Nos. 353, 356, 359 and 404 of 1997, for completion of the narration of facts, the details are narrated in a nut shell.
7(a) Before the District Munsif, Trichy, O.S. No. 38 of 1995, which was transferred to the file of I Additional Sub Judge, Trichy and renumbered as O.S. No. 353 of 1997 was filed by Dhanalakshmi and Ramadoss in respect of the suit property in S. No. 4045 and 4049 for the relief of injunction against Mahendra Kumar Vora and others on the same ground that Ramadoss Naidu was the owner of the property by virtue of the will executed by Ramanujam Naidu in the year 1985. The plaintiffs Dhanalakshmi and Ramadoss are in possession of the suit property. The defence in the suit, as taken in the earlier suit, is to the effect that Rajagopal Naidu got the property in S. No. 4045 under the compromise decree and thereupon, subsequently the same was sold to the defendants.
7(b). Before the District Munsif, Trichy, O.S. No. 866 of 1996 (later transferred to the file of the I Additional Sub Judge, Trichy and renumbered as O.S. No. 356 of 1997) was filed by Palaniammal and Amudha, the legal heir of Ramadoss Naidu against Ramasamy and Senthil Kumari, the plaintiff in O.S. No. 209 of 1996 on the ground that Amudha entered into a tenancy on a monthly rent of Rs. 750/- on an oral lease with Senthil Kumari. The purpose of tenancy was for running sheep farm. The plaintiffs improved the land by investing Rs. 30,000/-. The first plaintiff is assisting Amutha in the sheep farm. The defendants interfered with their possession and hence the suit.
7(c) O.S. 258 of 1996 was filed before the District Munsif, Trichy, which was latter renumbered as O.S. No. 359 of 1997 when transferred to the file of the I Additional sub Judge, Trichy, was filed by one Jegannathan against R. Chandra and others for the relief of injunction on the premise that the plaintiff is the lessee of the land on and from 01.03.1996 onwards on the basis of the lease entered into with one Vanitha, power of attorney of the real owner of the land. The defendants interfered and hence the suit.
7(d) Original Suit No. 111 of 1997 was filed before the District Munsif, Dindigul and transferred to the I Additional Sub Judge, Trichy and renumbered as O.S. No. 404 of 1997. That suit was filed by Malarvizhi and Amutha, the daughters of Ramadoss and Dhanalakshmi against Hashmukhlal Vora and others on the premise that the plaintiffs were lessees of Ramadoss by lease deed dated 01.07.1995 and they are in possession.
8. The trial court, pursuant to the direction given by the High Court in C.R.P. No. 1173 of 1997 by order dated 24.04.1997 directing that all the suits above referred to pending before various Courts shall be transferred to Sub Court Trichy and heard and disposed off along with the suit pending before it, passed the common judgment by decreeing the suits in O.S. No. 209 of 1996 and 63 of 1995 and dismissing the rest of the suits.
9. Mr. AR. L. Sundaresan, learned senior counsel appearing for the appellants submits that the suit property in S. No. 4045 was allotted to the share of Ramanujam under the compromise decree made in O.S. No. 198 of 1937 dated 21.07.1937. In pursuance of the same, the said Ramanujam was in possession and enjoyment of S. No. 4045. Ramanujam being unmarried, executed a will in favour of his foster son one Ramadoss under Ex. B.18 dated 10.01.1985. After the death of Ramadoss on 01.04.1992 the appellants being the legal heirs of Ramadoss are in possession and enjoyment of the same. The revenue records under Exs. B.9 to B.17 would clinchingly prove that the defendants are in possession and enjoyment of the property. Exs. A.2 and A.16 certified copies of the compromise decree cannot be regarded as genuine ones in the face of Ex. B.1 compromise petition, Ex. B3 suit register and B.2 settlement register marked by the appellants. A cloud is cast on the Exs. A2 and A.16 which cannot be relied upon as the original copies are not available in Court. He further contended that the suit as framed was for permanent injunction. The trial Court has granted the decree of declaration also by directing amendment of the plaint and payment of Court fee for the declaratory relief, which is impermissible in law.
10. On the other hand, Mr. T.R. Rajagopal, learned senior counsel for the respondents/plaintiffs contended that Exs. A.2 and A.16 certified copies of compromise decree are the vital documents which cannot be simply brushed aside. The defendants who claim the right under Ramanujam by contending that the suit property has been allotted to Ramanujam in the compromise decree has not taken any care to file a copy of the compromise decree granted to prove their case, but simply stated that the application filed by them for the copy has been returned both by the District Court as well as Munsif Court as the original was not available. Ex. A.33, compromise petition signed by all the parties to the suit, is categorical in its term that the suit property in S. No. 4045 was allotted to the share of Rajagopal, who along with his legal heirs executed a sale deed in Ex. A.15 in favour of Varadarajan, Subramanian and Muruganandam, who in-turn executed sale deeds in favour of Mahendra Kumar Vora, Jayashree H. Vora, Hansa J. Vora, T. Ashokan and Minor R. Vijaykumar under Exs. A.10 to A.14. Mahendra Kumar Vora who purchased a portion of the property from Varadarajan and two others exchanged the same with Hashmukhlal Vora under Ex. A.9, exchange deed. Likewise, Senthilkumari, the plaintiff in O.S. No. 209 of 1996 purchased an extent of 10.96 cents from Rajagopal Naidu and his legal heirs by a sale deed dated 27.01.1994 under Ex. A.1. Thus, the plaintiffs have derived title and are in possession and enjoyment of the suit property. The decree granted by the trial Court cannot be assailed. He further contended that the Court, taking into consideration the desparate attempts made by the defendants in filing suit after suit in respect of the very same property in various Courts, went into the question of title also and has given a clear finding that the plaintiffs in O.S. 209 of 1996 and O.S. No. 63 of 1995 are entitled to the relief of injunction. The declaratory relief was granted taking into consideration the defence taken by the defendants. Because of the defence taken and the attitude of the defendants, the trial Court was forced to analyse the title dispute also and ultimately the Court held that the plaintiffs in OS. No. 209 of 1996 and 63 of 1995 are entitled to the suit property on the basis of the compromise decree, sale deeds and other documents and thus granted the relief of declaration also by directing the plaintiffs to amend the plaint and pay the Court fee, that too, having regard to the peculiar facts and circumstances of the present case. Pursuant to that the Court fee has also been paid. Contending thus, he prayed for dismissal of the appeals.
11. Heard the learned senior counsel on either side and perused the materials available on record.
12. From the summation of facts, as stated above, the issue to be decided is whether the plaintiffs in O.S. Nos. 209 of 1996 and 63 of 1995 are entitled to the suit relief. Though the prayer was sought for permanent injunction, the fact in issue is as to the title, in the sense that the plaintiffs in O.S. No. 209 of 1996 and 63 of 1995 contended that they purchased the property from Rajagopal Naidu, who obtained the same under the compromise decree. The defendants denied the same and traced their title through Ramanujam under the same compromise decree.
13. Exs. A.2 and A.16 are certified copies of the compromise decree dated 21.07.1937. As seen from Ex. A.2, the application for issuance of certified copy of the decree was made on 03.02.1995 and Ex. A.2 was issued on 07.02.1995. For Ex. A.16, the copy application was made on 30.01.1942 and Ex. A.16 was issued on 05.02.1942. There is absolutely no discrepancy whatsoever in respect of these two documents. They are identical to each other. The relevant portions are extracted hereunder:
1. that A schedule properties described hereunder shall be owned absolutely by the plaintiff as and from this date with absolute power of alienation and that none of the defendants shall have any right or interest in the same.
2. that the B schedule properties described hereunder shall be owned absolutely by the second defendant and he shall enjoy the same as and from this date with full and absolute powers of alienation and that neither the plaintiff nor the 1st defendant shall have any right or interest in the same and,
3. that the parties do bear their own costs of this suit.
14. The petition filed by the parties to the suit in O.S. No. 198 of 1937 under Order XXIII Rule 3 of the Code of Civil Procedure has been marked as Ex. A.33. As per Ex. A.33, 'A' schedule properties should be owned absolutely by the plaintiff in OS. No. 198 of 1937, i.e., Ramanujam Naidu as and from that date with absolute power of alienation. None of the defendants therein shall have any right or interest in the same. On the same terminology, 'B' schedule property was allotted to the share of Rajagopal Naidu, the second defendant in that suit. It could be seen from Ex. A.33 that all the parties to the suit, i.e., Ramanujam Naidu, the plaintiff, Rengasamy Naidu, the first defendant and Rajagopal Naidu, the second defendant have signed the petition in each and every page upto the last page. In the last page, in addition to the parties' signature, counsels appearing for the parties have also signed. S. No. 4045 and 4049 come under 'B' schedule, which has been allotted to Rajagopal Naidu. On behalf of the appellants/defendants, a copy of the same compromise petition filed under Order XXIII Rule 3, CPC has been marked as Ex. B.1. In the Schedule to the same S. No. 4045 and 4049 are shown as item No. 4 under 'A' schedule. On a perusal of the 'A' schedule, it is apparent on the face of it that suit property was inserted in the schedule. All other items of properties in that schedule were identified with full details such as their extent with survey numbers and boundaries of the properties in all four sides with their respective survey numbers. But so far as item No. 4, 'A' schedule property is concerned, only the survey number was stated and not even the extent was stated.
15. Likewise, 'B' schedule shown in Ex. B.1 is filled with all Item No. 4 is the lower part of the item No. 2. It reads as under:
Item No. 2 refers to upper portion of the land in an extent of 36 1/2 cents out of 73 cents in surve No. 3857. Item No. 4 refers to lower portion in an extent of 36 1/2 cents out of 73 cents in the very same survey No. 3857. If the entire extent of 73 cents were agreed to be allotted in the 'B' schedule, there is no necessity for dividing 73 cents into two portions - upper and lower and also two different items (2 and 4) in 'B' schedule. Further more, by a mere perusal and reading of the schedule of Ex. B.1 it is manifestly clear that the schedule is a total mess as the same is having number of corrections, over writings, strikings and interpolations. In view of the above obvious discrepancies in the schedule to Ex. B.1, we are of the view that no credibility can be attached to Ex. B.1 and thus we reject the same as incredible.
16. From Exs. A2 and A.16 which are certified copies of the compromise decree issued by the competent court it is evident that S. No. 4045 is item No. 3 of B schedule to the compromise decree, which was allotted to Rajagopal Naidu. As per Section 79 of the Indian Evidence Act, the Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer who is duly authorised thereto. Ex. A2 and A.16 conform with the legal requirements.
17. In addition to that, the document (Ex. A16) is also ancient document issued by a competent Court in the year 1942. There is absolutely no discrepancy whatsoever in Exs. A2 (which was issued in the year 1995) and A16 and there is no iota of material to doubt the credibility of the document, Ex. A.16. Of-course as to how those documents came to the possession of the respondents/plaintiffs was questioned by Mr. AR. L. Sundaresan, learned senior counsel and for that purpose he referred to the oral evidence of P.W. 1. It may be true that in the oral evidence of P.W. 1 there are certain inconsistencies as to the possession and time when it was handed over by the vendor. The mere ipse dixit in the evidence of P.W. 1 as to the time and how he came to possess Exs. A2 and A.16 would not militate the issue or eschew the admissibility or credibility of the two documents when legal sanctity has been attached to them as per the Evidence Act. Hence, we are of the view that Exs. A.2 and A.16 are true and genuine documents and as per the same, the disputed property in S. No. 4045 was allotted in favour of Rajagopal Naidu.
18. Subsequent to the compromise decree, to prove that the said Rajagopal Naidu has asserted title to the suit property, land acquisition proceedings initiated in respect of a portion of the suit property have been marked as Exs. A4 and A.5. They are O.P. No. 76 of 1958 and 57 of 1958. It is clear from the above documents that an extent of 5281 sq. ft in S. No. 4045/1 and 4141 sq. ft in the same survey numbers have been acquired. In the said proceedings Rajagopal Naidu and three of his legal heirs were parties. It could be seen from the said proceedings that a compensation amount of Rs. 624.94 and Rs. 413.17 have been awarded in respect of the lands acquired in survey No. 4045. Further, Rajagopal Naidu, it is evident from Ex. A.38 dealt with the property in S. No. 4045 by executing an indemnity deed in favour of the District Court for the appointment of one Sankaran Pillai as Amin.
19. Apart from that, Ramanujam Naidu has dealt with the properties allotted to him (A schedule) in terms of the compromise decree by executing a sale deed on 16.01.1961 in document No. 147 of 1961, under Ex. A.36, by which he conveyed some portion of S. No. 3857, which is item No. 4 in the A schedule to the compromise decree, to one Palanichamy Naidu. Ex. A.37 is the mortgage deed by which Ramanujam Naidu mortgaged the property of an extent of 38 cents in T.S. No. 3802, which is item No. 5 in the A schedule to the Compromise decree, to one Vaithialinga Pillai. Ex. A.32 is the sale deed executed by the said Ramanuja Naidu by which 15 flats in T.S. No. 3831/2B, 3833 and 3834, which are items Nos. 1 to 3 in the A schedule to the said compromise decree were sold out. Thus, the properties described in A schedule have been dealt with by Ramanujam Naidu, which establishes the fact that A schedule properties were allotted to Ramanujam Naidu and B schedule properties, in which s. No. 4045 is one of the items, was allotted to Rajagopal Naidu and thus, Exs. A.32, A.36 and A.37 establish the correctness of Exs. A2 and A.16. It further establishes that the parties have acted upon on the basis of Exs. A2 and A.16.
20. Now coming to the documents relied upon by the appellants/defendants, Ex. B.1, the compromise petition filed under Order XXIII Rule 3 of the Code of Civil Procedure, the genuineness of which has been dealt with in the earlier portion of this judgment and held to be containing manipulations, over writings, strikings and absurdity and hence Ex. B.1 cannot in any way advance the case of the appellants/defendants and the same has to be rejected. Likewise, Ex. B.3, the suit register on which reliance was placed by the learned senior counsel for the appellants/defendant has also to be rejected for the reason of manipulation, because as and when suits are filed, the particulars about the names of the plaintiffs, counsel appearing for the plaintiffs, names of the defendants, counsel appearing for the defendants and the relief prayed for in the suit are entered in the register. Of course the properties scheduled in the plaint also entered in the suit registers. After the disposal of the suit, the nature of disposal would be indicated in the relevant column of the suit register. However, it is peculiar in this case that under Ex. B.3, the schedule of properties have been divided into 'A' and 'B' schedules. When the division of A and B schedules, as found in the copy of the suit register is compared with Ex. A.17, the plaint copy in O.S. No. 198 of 1937, no such division has been found. Hence, the division noted in the certified copy of the suit register under Ex. B.3 could only be regarded as an improvement done for the benefit of the appellants/defendants. The properties contained in Ex. B.3 suit register are also not co-relatable with the properties in the plaint in Ex. A.17, in the sense that the number of the survey numbers which are not available in the plaint schedule (Ex. A.17) have been incorporated in Ex. B.3. Likewise, in the disposal column, it is written that A schedule property has been allotted to Ramanujam Naidu in which S. No. 4045 is included as one of the items. For the reasons stated above, Ex. B.3 has also to be rejected as a document of manipulation, manipulated for the purpose of gaining advantage by the appellants.
21. Once we come to the conclusion that the disputed property in S. No. 4045 has been allotted to Rajagopal Naidu, the other documents which are revenue records produced by the appellants/defendants need not be dealt with in detailed fashion. Ex. B.4, which is inquiry proceedings under Section 5A of the Land Acquisition Act in respect of the said land in which Ramanujam appeared in person and objected to the land acquisition. Mere appearing and objecting to the acquisition of a particular land under Section 5A of the Land Acquisition Act, by itself would not give any title to the person objecting the same. A third party can very well, on behalf of the real owner, object the land acquisition giving valid reasons. Ex. B.2 Survey and Settlement register shows the name of Rengasamy Naidu as the pattadar. Exs. B.9 to B.14 are revenue records. Entries in these records were changed in the name of the appellants post suit, cannot be taken as more credible than Exs. A.2 and A.16. Further, it is well settled proposition that revenue records would not confer any title. See Guru Amarjit Singh v. Rattan Chand ; Durga Das v. Collector ; Dalip Singh v. Sikh Gurdwara Prabhandak Committee ; Suman Verma v. Union of India .
22. It is interesting to note that the consistent case of the defendants is that the suit property was allotted to the share of Ramanujam Naidu and that Ramanujam Naidu executed a will Ex. B.18 in favour of Ramadoss, his foster son. As already stated, we are not able to concur with the stand of the defendants that survey No. 4045 was allotted to Ramanujam Naidu. The learned Counsel for the appellants/defendants did not advance any argument with reference to the Will. However, the trial Court has given a very detailed and categorical finding that the Will has not been proved as required under law. It is pertinent to mention that the trial Court has criticised the way in which the case has been projected by the appellants/defendants with reference to the Will on which they claim title to the effect that in the plaint filed by the defendants in O.S. No. 209 of 1996, not even the date and month of the Will was mentioned. Likewise, there was no mention about the names of the attestors and scribe of the Will and about their availability or non availability in a specific manner. A clear cut denial over the sound disposing state of mind of the testator has been put forth by the defendants in O.S. No. 353 of 1997 in the written statement by attacking the genuineness of the will. D.W. 1, for the first time stated in her evidence that she was physically present when the Will was executed by Ramanujam Naidu. But there is no whisper about the important aspect by way of specific pleading. DW1 has not spoken about the non availability of the attestors or scribe, when he was examined in chief partly on 15.07.1996 and further examination in chief on 17.07.1997 and even at the cross examination on 17.07.1997, 22.07.1997 and then on 23.07.1997. After the cross examination was over, DW1 came forward to state by subjecting for further examination on 29.07.1997 that the attestors and the scribe were dead. From the evidence, the trial Court came to the conclusion that DW 1 has not participated in the execution of the Will directly by affixing signature on it. Further, the trial Court has held that no evidence has been adduced to support the claim that attestors and scribe of the Will were actually dead, and found that it was an after-thought to get over the non examination of the attestors and scribe. The trial Court has also found that in Ex. B.18 will, there is a mention about the earlier will dated 01.07.1982 and about the rectification will dated 05.01.1985 which are not produced and there was no satisfactory explanation for non production of the same. Further, it was found that the allegation that the signature of the attestor and scribe has not been proved to the satisfaction of the Court by the competent person who claims knowledge about the signature of such attestors and scribe. Nothing was argued before this Court to reject the same. Hence, for the foregoing reasons, we are of the view that the appellants have not made any case so as to reverse the factual finding of the trial Judge, which is based on materials.
23. As regards the other point that the trial Court has erred miserably expanding its jurisdiction in granting a decree for declaration, we are of the view that technical objections need not been given much weight, when Procedure Code provides for amendment of pleading at any time. Admittedly, in this case, the proviso introduced by 2002 amendment is not applicable. Useful reference can be had to the decision of the Full Bench of this Court in the case of Hi. Sheet Industries v. Litelon Ltd. 2007-1-LW 32.
24. In this case, the fact in issue is that item No. 3 T.S. No. 4045 of 'B' schedule property was allotted to Rajagopal Naidu under the compromise decree made in O.S. No. 198 of 1937. That was denied and rather, it was claimed that the above said S. No. 4045 was allotted to Ramanujam Naidu and that was item No. 4 in 'A' schedule. Thus, the claim is under the compromise decree and the fact in issue is whether the property was allotted to Ramanujam Naidu or Rajagopal Naidu. The respondents/plaintiffs claim title under Rajagopal Naidu and the appellants/defendants claim title under Ramanujam Naidu. This is factually a title suit. The pleadings - the averments in the plaint and written statement have concentrated only on that issue. Evidence was also let in concentrating on the core issue of title to the suit property. However, the prayer sought for was only for injunction. Order VI Rule 17 provides that the Court may at any stage of the proceedings allow either part to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. So, the Court was vested with the power to allow the parties to amend the pleadings at any stage of the proceedings. The further requirement of the provision is that the amendment shall be made as may be necessary for the purpose of determining the real question in controversy between the parties vide B.K. Narayana Pillai v. Parameswaran Pillai .
25. The Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 PC 249 has observed that:
All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject matter of the suit.
26. The object of law of pleadings is that the Court and the respective parties should fully know the case and contentious issue before the parties go in for trial so that the trial may proceed in the well defined channel.
27. In the case on hand also, the real question in controversy is only title to the suit property based on which the relief of injunction has been sought for. When the entire plaint is read together, though the relief sought for is for injunction, while considering the stand taken in the written statement, the dispute is only in respect of the title. By allowing this amendment no prejudice is caused or stated to have been caused to the appellants/defendants. Only technical plea was raised. Fairplay in action must inhere in judicial approach and Court's approach should be oriented with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties. - vide Bhagwan Swaroop v. Mool Chand . The Supreme Court in the case of Santokh Singh v. Mahant Iqbal Singh (2000) 7 SCC 215, while considering the case in a suit for possession, where the declaratory relief has not been prayed for, observed as follows:
It is correct that such a declaration should have been sought. Normally in the absence of such a declaration such a suit would not be maintainable. However, in this case, we find that even though there was no prayer to the effect that the lease deed was not valid and/or void and/or not binding, the necessary averments are there in the plaint. The appellants thus knew that the lease deed was being challenged. They met the challenge in their written statement. Thereafter issues, namely, issues 4 and 5 had been framed. Evidence was led by the parties on those issues. Arguments were advanced on those issues. Therefore, this question has been agitated by the parties in all the Courts. Thus even though there was no formal prayer was asked for (sic), no prejudice has been caused to the appellant inasmuch as he has not been prevented from leading evidence on this aspect and has not been precluded from raising contentions in this behalf. In our view, all that was necessary to cure the defect was an amendment by incorporating one prayer. This could have been done at any stage. In this view of the matter and particularly in view of the fact that we are in agreement with the findings that the property is a trust property and that the lease in question was not for consideration or for legal necessity, we see no reason to interfere.
The above said observation of the Supreme Court would aptly apply to the facts of the present case.
28. Here is a case in which, we are of the view that the attitude and conduct of the appellants/defendants have to be taken note of for the purpose of deciding the issue. The appellants are defendants in O.S. No. 209 of 1996 and O.S. No. 63 of 1995. They defended the suits as if the property has been allotted to Ramanujam Naidu and the said Ramanujam Naidu executed a will in favour of his foster son Ramadoss Naidu and accordingly to his heirs. Again, when the suits were pending, in a desparation to get the property somehow or the other, Dhanalakshmi and Ramadoss filed another suit in O.S. No. 38 of 1995 (renumbered as O.S. No. 353 of 1997) before the District Munsif, Trichy for injunction against the plaintiffs in O.S. No. 63 of 1995 or their predecessors in title. The daughter of Ramadoss Naidu Amutha along with one Palaniammal filed a suit before the District Munsif, Trichy in O.S. No. 866 of 1996 (renumbered as O.S. No. 356 of 1997) claiming oral tenancy from the plaintiff in O.S. No. 209 of 1996 in respect of the very same suit property. Then another suit came to be filed in O.S. No. 258 of 1996 before District Munsif, Trichy (renumbered as O.S. No. 359 of 1997) on the basis of lease with Vanitha, one of the daughters of the Ramadoss Naidu and for injunction against the husband of the plaintiff in OS No. 209 of 1996 and others (Defendants in OS. No. 353 of 1997). Likewise, in suit in O.S. 111 of 1997 (renumbered as OS. No. 404 of 1997) has been filed by Malarvizhil and Amutha, daughters of Ramadoss Naidu against the plaintiffs in O.S. No. 63 of 1995 as if they are lessees of their own father Ramadoss Naidu of the land. The desparation of the defendants is manifestly made clear from the filing of suit after suit as stated above. If the relief of declaration is not granted, it is obvious that several spate of suits would be filed once again by the appellants resulting in multiplicity of litigation.
29. The Supreme Court, in the case of Bhagwan Swaroop v. Mool Chand has observed that the laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best.
30. In the very same judgment, the Court observed that laws of procedure are devised for advancing justice and not impeding the same. The Supreme Court in that judgment quoted from the decision in the case of Sangram Singh v. Election Tribunal Kotah wherein it was observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in the decision in the case of Kalipada Das v. Bimal Krishna Sen Gupta .
31. The appellants/defendants are also not in a position to advance any argument to the effect that because of the action of the Court in granting the declaratory relief by directing the plaintiff to pay the Court fee, substantial prejudice has been caused to the appellants/defendants. The parties were alive to the occasion to the effect that they are fighting for title only. In the absence of any prejudice caused or likely to be caused to the appellants/defendants, the procedure adopted by the Court, when all the relevant materials available before it, cannot vitiate the proceedings.
32. In somewhat comparable facts, the Supreme Court in the case of Corporation of City of Bangalore v. M. Papaiah (1980) 3 SCC 612 has held that for non seeking of relief of declaration, a suit for injunction cannot be dismissed. That was a suit filed for decree of perpetual injunction restraining the Corporation from interfering with the possession of the plaintiff. The case of the Corporation was that the disputed area was acquired for house on a burial ground under G.O. and compensation was paid to the plaintiffs out of Municipal funds and land was in possession of the defendants since then. The plaintiff's case was that the alleged GO was cancelled and the land settled under another GO to persons who subsequently sold it to the plaintiff. The plaintiff also got his name entered into the revenue records. The suit was decreed by the trial Court, but the decision was reversed in the first appeal. The plaintiff's second appeal was allowed by the High Court and the trial Court's decision was restored. In this factual situation of the case, the Supreme Court held that the foundation of the claim of the plaintiff was title which was pleaded in the earlier part of the plaint and for deciding the nature of the suit, the entire plaint has to be read and not merely, the relief portion. The plaint in that case does not leave any manner of doubt that the suit has been filed for establishing title of the plaintiff and on that basis, getting an injunction against the Corporation. The Court fee payable was also assessed accordingly.
33. The above observations of the Supreme Court perfectly match with the facts of the present case and thus we find no justifiable reasons to reverse the judgment of the trial Court.
34. For all the above reasons, we are of the view that all the appeals deserve to be dismissed and are accordingly dismissed. No costs.