Madras High Court
Kader Mohideen vs K.S.A.Kader Meera Sahib on 28 March, 2012
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/03/2012 CORAM THE HONOURABLE Mr.JUSTICE P.DEVADASS Second Appeal (MD) No.67 of 2006 and C.M.P.(MD) No.536 of 2006 Kader Mohideen ... Appellant Vs 1. K.S.A.Kader Meera Sahib 2. K.M.N.Mohammed Ali ... Respondents Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree of II Additional Sub-Court, Tirunelveli passed in A.S.No.51 of 2005 dated 12/7/2005 reversing the judgment and decree of the District Munsif, Nanguneri passed in O.S.No.870 of 1995 dated 30/8/2004. !For Appellant ... Mr.P.Senthurpandian ^For Respondent ... Mr.P.Thiagarajan for M/s.N.Krishnaveni - - - - - - :JUDGMENT
1. The plaintiff in O.S.No.870 of 1996 on the file of the District Munsif, Nanguneri is the appellant.
2. The northern 3 cents comprised in S.No.579/2 situate in Eervadi in Nanguneri Taluk in Tirunelveli District is the suit property. On 14/2/1950, plaintiff's father Ibrahim Sahib purchased the suit property under a registered sale deed from one Peer Maideen. At an oral partition, it was allotted to plaintiff. Plaintiff is in enjoyment and possession of the property. The revenue records are in his name. He had cut and removed the dried trees. Defendants have no manner of right in the property. They tried to interfere in plaintiff's possession. In the circumstances, plaintiff filed the suit for declaration as to his title to the suit property and injunction.
3. The first defendant filed written statement resisting the suit. He contended that the suit property belongs to Jamath. He is its muthavalli. Pathummal Beevi, orally, gifted her 6 cents to Jamath. 3 cents belonged to Ibrahim. After him, on 15/4/1974, his son Abdul Khader gifted the 3 cents to the Jamath. In 1985, a third party filed O.S.No.270 of 1985 in the District Munsif's Court, Ambasamudhiram claiming right in the said 9 cents. The Court dismissed the suit holding that the property belongs to the Jamath. The Appeal in A.S.No.28 of 1989 was also dismissed. Thus, the total 9 cents belongs to Jamath. Neither plaintiff, nor his father nor the vendor Peer Maideen has title to the suit property. At no point of time, the property was in their possession. In the suit 9 cents, north south, Jamath has constructed 4 houses. On the west, a 5 feet compound wall has been constructed. The tenants in the property were provided with bore well and lavatory. In 1995, vembu trees in the property were cut and its sale proceeds were remitted to the Jamath account. This is known to the plaintiff also. Plaintiff should have sued the defendants in a representative capacity representing the Jamath. Plaintiff is not having possession. He ought to have filed a suit for possession. In plaintiff's title deed, it is undivided 3 cents. So, he should have filed a suit for partition. Thus, the suit as framed is not maintainable.
4. The trial Court framed four issues and tried the suit. During the trial, plaintiff Khader Mohideen examined himself as P.W.1 and Kuppusamy and his brother Meeran Sahib as P.Ws.2 and 3 and marked Exs.A.1 to A.6. On the side of the defendants, first defendant Khader Meera Sahib had been examined as D.W.1 and Exs.B.1 to B.25 have been marked. Commissioner's Report and Plan were marked as Exs.C.1 and C.2.
5. Appreciating the above oral and documentary evidence and the rival submissions, the trial Court did not find fault with the frame of the suit. It also held that since the plaintiff is not a party in O.S.No.270 of 1985 and in A.S.No.28 of 1989, the judgment and decree in that case will not bind him and a copy of the decree in the said judgment was also not filed. By Ex.A.1 and revenue records, plaintiff had proved his title as well as possession. Thus, decreed the suit for declaration and injunction as prayed for.
6. Aggrieved, the defendants have preferred A.S.No.51 of 2005. It was heard by the II Additional Sub-Judge, Tirunelveli. Since in its judgment, the trial Court had commented upon non-filing of the decree copy in O.S.No.270 of 1985, appellants took out I.A.No.41 of 2005 under Order 41 Rule 27 CPC. The Appellate Court had allowed the application and marked the decree copy as Ex.B.26.
7. Upon reappraisal of the entire evidence and the rival submissions, the Appellate Court held that there was no explanation as to the balance 6 cents out of 9 cents. In the presence of Ex.A.1 title deed, why the superfluous Ex.A.6 sale deed has not been explained by the plaintiff. Ex.B.3 and Ex.B.4 judgments in O.S.No.270 of 1985 and in A.S.No.28 of 1989 shows that the entire 9 cents belongs to Jamath and Ex.B.26 decree copy of O.S.No.270 of 1985 shows that it relates to the suit property. As there was no appeal as against Exs.B.3 and B.4 judgments, they have become final. Thus, the plaintiff has no title and possession and the property belongs to Jamath. Ultimately, allowed the appeal and dismissed the suit.
8. Aggrieved as against the said reversal judgment, plaintiff had directed this Second Appeal.
9. At the time of the admission of the Second Appeal, the following substantial questions of law were formulated for consideration:-
1. Whether the first Appellate Court is legally right in non suiting the Appellant/plaintiff relying upon the judgment and decree in O.S.No.270 of 1985 in which this appellant is not a party and therefore not binding?
2. Whether the First Appellate Court is legally right in totally ignoring the material title deeds of this appellant Ex.A.1 and A.6 and it failure to draw proper legal inference on the question of title of this appellant?
3. Whether the First Appellate Court is legally right in relying upon Ex.B.1 to B.21 which originated after the filing of the suit having no probative value as post litum documents and non suit the appellant?
4. Whether the First Appellate Court is legally right in relying upon kist receipts Ex.B.4 Electricity bill Ex.B.5 judgment and decree Ex.B.3, Ex.B.4 and Ex.B.26 as though they are documents of title on the side of the respondents and non suited the appellant?
5. Whether the First Appellate Court is legally right in non-suiting the appellant relying upon the oral gift and alleged written gift without the written gift deed produced and without any evidence whether the oral gift was accepted and acted upon which are sinequonon for the validity of a Mohammadan gift?
10. According to the learned counsel for the appellant/plaintiff, the suit property is northern 3 cents out of 9 cents. It has been enjoyed by the plaintiff's father with clear cut boundaries and that has also been mentioned in the suit schedule. The property has been purchased by plaintiff's father under Ex.A.1 on 14/2/1950. Subsequently, in 1967, one Khader Mohideen also claimed the property, by way of abundant caution, Ex.A.6 sale deed also has been executed. However, First Appellate Court had misconstrued it. Plaintiff produced his title deed. In 10 (1) Adangal extract Ex.A.3 plaintiff's name is mentioned. For the oral gift of Pathammal Beevi and the written gift of Abdul Khader, there is no evidence. The first defendant/D.W.1 himself admits that the property belongs to plaintiff's family. He also admits that the defendant has no title to the property. In Exs.B.3, B.4 and B.26 cases, plaintiff is not a party. Further, it is an injunction suit. It is not a suit on title. In the circumstances, Ex.B.3, B.4 and B.26 will not bind the plaintiff. Actually, the suit property is on the northern side. Exs.B.1, B.2 and B.5 to B.25 are all after suit. Further, they are not document of title. Further, they relates to the southern side of the property. Plaintiff had proved his title to the property. However, defendants have no documentary evidence to show that the property belongs to the Jamath. The property has been enjoyed by the plaintiff's father with definite boundary. The defendants were sued in their individual capacity since they interfered with the plaintiff's possession. Documents showing plaintiff's possession have been filed. In the circumstances, suing the plaintiff in representative capacity, filing a suit for recovery of possession or for partition will not arise. So, framing of the suit cannot be faulted. Exs.A.1 and A.6 are ancient documents. In view of Section 90 of the Evidence Act, their validity cannot be impeached now.
11. The learned counsel for the appellant further contended that when the First Appellate Court misread the documents, omitted to consider the documents and evidence, applied the principles of law, wrongly, construed Exs.B2, B.5 to B.25 as documents of title, under Section 100 CPC, in Second Appeal, High Court can interfere with such flawed findings of the First Appellate Court. When the findings of the First Appellate Court is manifestly error, in Second Appeal, High Court can correct the error.
12. In support of his said submissions, the learned counsel for the appellant cited the following rulings:-
(i). HERO VINOTH (MINOR) Vs. SESHAMMAL {2006 (4) CTC 79}
(ii). PALANIAMMAL Vs. NANJUNDA GOUNDER {2006 (3) 680 TLNJ (Civil)}
(iii). J.B.SHARMA Vs. STATE OF MADHYA PRADESH & ANOTHER {1998 (Supp) SCC 451}.
(iv). KANHAIYA SINGH AND OTHERS Vs. BHAGWAT SINGH AND OTHERS {AIR 1954 PATNA 326}.
13. On the other hand, the learned counsel for the respondents/defendants contended that Ex.A.1 and A.6 did not establish title of plaintiff to the suit property. Already in O.S.No.270 of 1985 and in A.S.No.28 of 1989, it was held that the suit property belongs to the Jamath. In the said case, Jamath had asserted its right to 9 cents of the property that was accepted and recognised. The present second defendant is a party in the said suit. Although the plaintiff is not a party to the suit, Exs.B.3, B.4 and B.26, judgments and decrees become admissible under Section 13 of the Evidence Act. In support of this, the learned counsel for the respondents cited TIRUMALA TIRUPATI DEVASTHANAMS Vs. K.M.KRISHNAIAH {1998 (3) SCC 331}.
14. The learned counsel for the respondents further contended that Jamath is in possession of the property. The title of Peer Maideen has not been established. Advocate Commissioner's report and plan Exs. C.1 and C.2 will show that the property is in the possession and enjoyment of Jamath. In the circumstances, the First Appellate Court has rightly reversed the findings of the trial Court, set aside the trial Court's judgment and decree and dismissed the suit.
15. In S.No.579/2, out of 9 cents, the northern 3 cents is the suit property. It is situate in Eervadi Town Panchayat in Nanguneri Taluk in Tirunelveli District.
16. According to plaintiff, his father purchased the property, and at an oral partition, the suit property was allotted to his share.
17. However, according to the defendants, the total 9 cents in suit survey number belongs to Eervadi Lebbai Valavu Street Jamath. It includes the suit 3 cents also. 1st defendant Kadermeera Sahib, who is Muthawalli of the said Jamath also deposed as D.W.1.
18. Ex.A.1 is the title deed relied on by the plaintiff. It is a sale deed dated 14.02.1950, whereunder Peer Maideen sold undivided 3 cents to Mohamed Ibrahim Sahib. It is more than 30 years old. It is an Ancient Document. In view of Section 90 of the Indian Evidence Act, 1872 its execution now cannot be impeached. Yet, under Ex.A.1 conveyance of the property to Mohamed Ibrahim Sahib has to be established.
19. Ex.A.6 is a sale deed dated 19.12.1967. The same property mentioned in Ex.A.1 has been mentioned in Ex.A.6. Ex.A.6 is also an Ancient Document. Now, its execution also cannot be impeached. But, it must be established that under Ex.A.6 property was conveyed.
20. According to P.W.1, since during 1967 one Kadharmeera Sahib also claimed titled to 3 cents of property, he and his brother P.W.3 obtained Ex.A.6 sale deed from him.
21. The First Appellate Court referring to this Ex.A.6 has rightly stated that if under Ex.A.1 the property was conveyed to the plaintiff's father, for the very same property why Ex.A.6 has been executed. It had also rightly held that the plaintiff has not clarified Ex.A.1 Vs. Ex.A.6 as to plaintiff's title to the suit property.
22. Ex.A.2 is encumbrance certificate in the name of plaintiff for the suit property. It is nothing but reflection of the entry made with respect to Ex.A.1, about which we have already seen. So also Ex.A.3 document. In Exs.A.4 and A.5 kist receipts suit survey number has not been mentioned.
23. In the plaint, plaintiff had stated that at an oral partition, the suit property was allotted to him. Plaintiff's brother P.W.3 Meera Sahib comes out with a different version. He says that he had released his share in favour of the plaintiff. He had not stated that he had gifted his share to the plaintiff. There is no clear cut evidence for partition of the property. P.W.2 Kuppusamy, who has been examined to speak to plaintiff's possession comes with another version. He had stated that he had seen the oral release document given by P.W.3 in favour of P.W.1 in 1993. Title to the property cannot be decided merely based on such oral evidence.
24. D.W.1 is first defendant Kadermeera Sahib. He is Muthawalli of the Jamath. He admits that he had not seen the patta in favour of Jamath. He had stated that once the property belongs to the family of the plaintiff. It is seen that a close relative of the plaintiff once held a part of the property and he is stated to have gifted the property to the Jamath. That is how, D.W.1 had stated so. Further, D.W.1 never admits that the suit property belongs to the plaintiff. There is no admission of plaintiff's title by D.W.1.
25. The case of the defendant is that the property belongs to the Jamath. It is pleaded in the written statement that long back 6 cents in the suit survey number has been gifted to the Jamath by Bathummal Beevi and the remaining 3 cents is the property of one Ibrahim, he acquired it by way of a sale deed and after him his son Hasan Abdul Kadher, on 15.04.1974 donated the property to the Jamath, thus, the Jamath owns the entire 9 cents.
26. Gift in Islamic law is called "Hiba". For Hiba, no written document is necessary. Even oral Hiba is permitted. But, its acceptance has to be established. It should be acted upon.
27. One Alipathu Beevi filed O.S.No.270 of 1985 in the District Munsif's Court, Ambasamudram as against S.K.Beer Mohammed and Ali claiming injunction with respect to several items of property. Second defendant, namely, Ali contended that the property belonged to Eervadi Lebbai Valavu Street Jamath. First item is 9 cents comprised in S.No.579/2. It is part of the suit property in the present suit in O.S.No.870 of 1996. This is what exactly the case pleaded by the defendants in the present suit in O.S.No.870 of 1996 also. The plea of the defendants in O.S.No.270 of 1985 was accepted by the Court and the suit was dismissed with costs. Copy of the judgment is Ex.A.B.3. Its decree is Ex.B.26. This was also upheld by the First Appellate Court in A.S.No.28 of 1989 (See Ex.B.4 copy of Appellate Court Judgment).
28. In O.S.No.270 of 1985, defendants have pleaded that 9 cents were gifted to the Jamath. This is what exactly pleaded by the present defendants in the present suit in O.S.No.870 of 1996. In O.S.No.270 of 1985 defendants have produced Exs.B.1 to B.14. They consist of the gift documents and the documents relating to the property having been enjoyed by the Jamath. Thus, the defendants have asserted the right and title of the Jamath to the said 9 cents. It was adjudicated upon and recognised by the Courts.
29. With regard to Exs.B.3, B.4 and B.26, judgments and decree the contention of the appellant is that since he is not a party to the said suit, the decisions rendered therein will not bind him.
30. The learned counsel for the respondents submitted that under Section 13 of the Indian Evidence Act, 1872 judgment not inter partes is admissible in evidence. In support of his submissions, the learned counsel for the respondent had cited TIRUMALA TIRUPATI DEVASTHANAMS Vs. K.M. KRISHNAIAH [1998(3) SCC 331].
31. Exactly the very same contention as put up before us by the appellant has been made in KRISHNAIAH (Supra).
32. In KRISHNAIAH (supra) the appellant had contended as under:
"8. It was argued by the learned counsel for the plaintiff-respondent that the earlier judgment in OS No.51 of 1937 dated 15-6-1942 was rendered in favour of the TTD against Hathiramji Mutt, that the plaintiff was not a party to that suit and hence any finding at to TTD's tile given therein is not admissible as evidence against the present plaintiff in this suit."
The Hon'ble Apex Court held as under:
"9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In SRINIVAS KRISHNARAO KANGO Vs. NARAYAN DEVJI KANGO [AIR 1954 SC 379] speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter partes is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in SITAL DAS Vs. SANT RAM [AIR 1954 SC 606] held that a previous judgment not inter partes, was admissible in evidence under Section 13 of the Evidence Act as a "transaction" in which a right to property was "asserted" and "recognised". In fact, much earlier, Lord Lindley held in the Privy Council in DINOMONI CHOWDHRANI Vs. BROJO MOHINI CHOWDHRANI [ILR (1902) 29 Cal 190 (PC)] (ILR at P.
198) that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in DINOMONI Vs. BROJO MOHINI [ILR (1902) 29 Cal 190 (PC)] and RAM RANJAN CHAKERBATI Vs. RAM NARAIN SINGH [ILR (1895) 22 Cal 533] by Sir John Woodroffe in his Commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in COLLECTOR OF GORAKHPUR Vs. RAM SUNDAR MAL [AIR 1934 PC 157].
10. For the aforesaid reasons, we reject the contention of the learned counsel for the respondent -plaintiff and hold that the TTD could rely on the judgment in O.S.No.51 of 1937 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit.
Point 1 is held accordingly against the respondent."
33. So, the contention of the appellant that the decision in Exs.B.3, B.4 and B.26 will not bind him cannot be accepted.
34. As already we have seen that in O.S.No.270 of 1985 the defendants have asserted title of the Jamath contending that the 9 cents of the property belongs to the Jamath by way of gift made by certain persons and documents have also been produced. It was adjudicated upon and the right and title of the Jamath in the said 9 cents was recognised. So, Exs.B.3, B.4 and B.26 throws much light on the plea of title to the suit property claimed by the plaintiff. It was very clearly held that the said 9 cents which includes the suit 3 cents, belongs to the Jamath.
35. Ex.B.1 is the Sketch Map. Ex.B.2 is proceedings concerning the suit survey number issued by the Executive Officer, Eervadi Town Panchayat. Exs.B.5 to B.25, no doubt, are not title documents. They are tax receipts and E.B. receipts. They are after Exs.B.3, B.4 and B.26. They shows the continuous enjoyment of the property by Jamath. The Advocate/Commissioner's Report and Plan Exs.C.1 and C.2 would show that the 9 cents of property is without division as 3 cents and 6 cents. It shows that there is compound wall demarcating 9 cents from others property and within the property there are several constructions made by the Jamath. In O.S.No.270 of 1985 (See Ex.B.3), D.W.2 Kandasamy V.A.O. had stated to the Court that the 9 cents in S.No.579/2 belongs to the Jamath and the property is in the possession of Jamath. On 29.06.1987, in O.S.No.270 of 1985 the Court held that the entire 9 cents is in the possession of the Jamath. All goes to show that the Jamath is in possession of the suit property.
36. In the light of the above, it is clear that the plaintiff had not established his title as well as possession of the suit property. On the other hand, the defendants have established that the suit property is the property of the Jamath and Jamath is in possession of the suit property.
37. In the circumstances, no interference to the findings of the First Appellate Court is called for. Thus, the substantial questions of law are answered against the appellant.
38. In the result, the Second Appeal is dismissed confirming the decree and judgment of the First Appellate Court, reversing the decree and judgment of the trial Court. In the circumstances, of the case the parties are left to bear their own costs. Consequently, connected C.M.P.(MD) No.536 of 2006 is dismissed.
sj To
1.The II Additional Subordinate Judge, Tirunelveli.
2.The District Munsif, Nanguneri.