IN THE HIGH COURT OFJUDICATURE AT MADRAS
DATED: 01/03/2002
CORAM:
THE HON'BLE MR. JUSTICE K. SAMPATH
S.A.No. 1371 of 1987
1. N.S. Ramanathan
2. N.R. Panchamirtha Iyer ... Appellants
Vs.
1. N. Krishnamoorthy Iyer (Died)
2. Chandran @ Chandrasekaran
3. Mohan
4. N. Ayyasamy
5. N. Narayanan
6. N. Sankaran
7. N. Srinivassan
8. Madhuram (Died)
Respondents 4 to 8 are brought on
record as the legal representatives
of deceased 1st respondent Vide
order dated 6-3-1996 in CMP No.12661/89.
9. P. Srinivasan
10.Vatsala
11.Ganesan
12.Rama
Respondents 9 to 12 are brought on
record as legal representatives of
deceased 8th respondent Vide order
dated 11-11-1993 in CMP No.17196/92 ... Respondents
!For Appellants: ... Mr.K. Hariharan
^For Respondents 4 to 7: Mrs.C.R. Rukmani
For other Respondents: No Appearance
This second appeal is filed against the judgment and
decree dated 8 -12-1988 made in A.S.No.89/87 on the file of the learned
District Judge, Chengalpattu.
:JUDGMENT
Defendants 1 and 2 in O.S.No.207/82 on the file of the
learned District Munsif, Chengalpattu, are the appellants in the second
appeal. The first respondent herein filed the suit for declaration of
his title over B Schedule property to the plaint and for a permanent
injunction. He died pending second appeal. His legal representatives
were brought on record as respondents 4 to 8. The eighth respondent also
passed away and her legal representatives were brought on record as
respondents 9 to 12.
2. The case of the plaintiff was as follows:
The suit A Schedule property was a vacant site allotted
to him in a partition suit in O.S.No.97/61 on the file of the Sub Court,
Chengalpattu. He was having his house opposite to this site. This house
also fell to his share in the partition. Prior to this suit, it was
enjoyed by the plaintiff’s family exclusively. He had put up a small
construction and was enjoying the same. On the eastern side of the
property, he had grown velikathan trees and using this portion for
tethering cattle and also parking carts. The property in dispute is
shown as B Schedule property being the eastern portion of A Schedule
property. The defendants did not have any right or title over the same
and as they were attempting to interfere with the plaintiff’s possession
as if the property belonged to them, the present suit for declaration of
his title to B Schedule property and for injunction against the
defendants came to be filed.
3. The first defendant filed a written statement and the
same was adopted by the second defendant. It was false to state that the
suit property was allotted to the plaintiff in a partition and that he
was in possession of the same. The plaintiff never enjoyed the eastern
23 feet east west shown as B Schedule in the plaint. The B Schedule
property originally belonged to one Duraiswamy Iyer and later inherited
by his only son Viswanatha Iyer, who endowed the property by way of a
gift deed along with his major sons on 27-10-1965. The defendants were
enjoying the properties as trustees of the Vinayagar Temple. The entire
A Schedule property was not allotted to the plaintiff’s share in the
partition suit. The fact that there was a partition and a compound wall
on the eastern side would itself show that there was no right, title or
interest to the plaintiff over the B Schedule property.
4. On the pleadings, the trial Court framed the
necessary issues and on the oral and the documentary evidence, held by
judgment and decree dated 28-4-1987 that the plaintiff had established
his title over the B Schedule property and that he was entitled to the
relief of injunction prayed for.
5. On appeal by defendants 1 and 2 in A.S.No.89/87 the
learned District Judge, Chengalpattu, confirmed the decision of the trial
Court. It is as against that, the present second appeal has been filed.
6. At the time of admission the following substantial
questions of law were framed for decision in the second appeal:
“1. The plaintiff having filed the suit for declaration of title and for
injunction, can the title be established without any title deed or
document of title?; and
2. Ex.A-1 which alone is contended to be the document of title being
only a judgment or order can the suit property be identified without
their being a decree?”
7. Mr.K. Hariharan, learned Counsel for the appellants,
submitted that the lower Appellate Court failed to see that the plaintiff
having specifically come forward with the case of declaration regarding B
Schedule property, part of A Schedule property, had not given the actual
extent and that from the description given, no identification was
possible. Ex.A-1 under which he claimed title to the suit property and
he had been allotted the suit A Schedule property, did not refer to the
suit property and in the absence of final decree in the partition suit,
no property could be identified from Ex.A-1, which is a mere judgment.
According to the learned Counsel, none of the exhibits filed on the side
of the plaintiff would in any way help his case to establish his title.
The approach by the Courts below is that the defendants having admitted
the plaintiff’s possession, there was no need for the plaintiff to prove
title independently. As the plaintiff, it was for him to establish his
title and he could not say that the defendants had not established their
case. In any event, according to the learned Counsel, Ex.B-2 the report
of the Commissioner in the earlier suit, would clearly show that the suit
B Schedule property had not been allotted to the plaintiff. The learned
Counsel also made a point of the fact that before the Appellate Court,
the appellants sought to produce an ancient document dated 10-11-1911.
It would clearly identify the suit property and establish the title of
the defendants to the suit property.
8. Per contra, Mrs.C.R. Rukmani, learned Counsel for
the contesting respondents, submitted that in the earlier proceedings,
the property had been described as a vacant site though without
measurement and it was not the case of the appellants that there was any
vacant site other than the suit site, which was the subject matter of the
earlier suit. Further, the defendants had not put forward their claim
for the suit property at any earlier point of time and in fact, they had
admitted that they were not in possession of any portion of the suit
survey number as would be evident from the reply notice Ex.A-12 issued by
them during the prior suit.
9. During the course of the hearing, I directed the
contesting respondents’ Counsel to produce the final decree and
accordingly, she has produced the final decree passed by the Court in the
earlier suit. Ex.A-1 which is the printed copy of the judgment in the
earlier suit O.S.No.97/61, shows that the second and the third items in
the schedule to the earlier plaint, viz., the house at Nemmeli Village
and the vacant site in that village were allotted to the plaintiff’s
share. No doubt, from Ex.B-1, copy of the plaint in the earlier suit, in
A Schedule, for the second item, the house at Nemmeli Village and the
third item, the site opposite to the Nemmeli house shown as item 2, no
measurements are given. Whatever the family possessed in Nemmeli
Village, viz. the house (item 2) and the site (item 3) came to be
allotted to the plaintiff’s share. In the Commissioner’s report in the
previous suit marked as Ex.B-2 in the present suit, the measurements are
given as 22.3 feet by 184.3 feet extending practically till the next
street. There is nothing to show that there was any other property to
the east of this vacant site in the same survey number belonging to
anybody else and in particular, defendants 1 and 2 herein. This is
fortified by the contents of Ex.A12. Ex.A-12 is the reply notice given
by the first defendant herein to the notice Ex.A-11 given on behalf of
the plaintiff herein on 31-12-1971. Ex.A-11 runs as follows:
“My client has been appointed as receiver in I.A.No.310/71 in
O.S.No.97/61 by the Additional Sub Judge, Chengalpattu. You are in
possession of Gramanatham S.No.150/7 a vacant site opposite to the suit
house. In your letter dated 24-10-1971, you have stated that 8 marakkals
of chilli was harvested by you during March, 1971. There were number of
trees which you have cut and the late Advocate Commissioner Thiru C.V.
Krishnaswamy Iyengar auctioned it previously. You know that the
properties are under civil litigation. You said that 4 marrakals of
chill was taken by you as waram. The balance of 4 marrakkals you have to
account for my client. You are hereby prohibited from interfering with
the said land without previous sanction from my client or the Court.”
Ex.A12, which is the reply from the first defendant herein on 26-1-19 72
runs as follows:
“I am not aware of your client being a receiver. I am not in possession
of S.No.150/7. In January, 1971 I approached your elder brother for
permission to raise chilly crop. As I had arranged to raise a similar
crop on the vacant land adjoining the said survey number and I also tried
to contact your client, who was then living at Kancheepuram, but since
your client was not available and as the season for raising the chilly
crop was closing, I have raised the crop. I am in possession of the said
vacant site after harvest of the chilly crop was over. I do not propose
to interfere with your client’s possession as I have a lot of landed
properties.”
10. As rightly pointed out by the Courts below, this
reply should clinch the issue in favour of the plaintiff. Defendants 1
and 2 do not claim any right in S.No.150/7 in which the suit property is
situate. When once there is a vital admission on the side of the
contesting defendants disowning any claim in the suit property, they
cannot try to take advantage of the want of measurements to the suit
property in the previous suit. At no point of time did they claim that
they were in possession of the present suit as trustees of Vinayagar
Temple. They are estopped from claiming any right in the suit property
in view of the prior admission of plaintiff’s right to be in possession
under Ex.A-12.
11. The learned Counsel for the appellants wanted to
point out that the measurements given by the commissioner in the previous
suit did not at all tally with the claim made by the plaintiff in the
present suit. May be with regard to measurements the plaintiff has not
tallied. But, that by itself will not disprove his right to the suit
property. As long as defendants 1 and 2 have not produced any material
to show their title to the suit property, they cannot defend the present
suit.
12. The lower Appellate Court also dealt with the
application for reception of additional evidence and in my view, rightly
rejected the same on the ground that the defendants failed to produce any
documents between 1911 and 1961 to prove that B Schedule property was
allotted to their predecessor in title long after the document sought to
be produced as additional evidence. The suit property had been divided
in the family of the plaintiff and the same had been allotted to the
share of the plaintiff.
13. On the records available, the Court is entitled to
find title in favour of either of the parties. When it has been
established that defendants 1 and 2 have no right whatsoever in the suit
property, in view of the prior proceedings and the vital admission made
by the first defendant in Ex.A-12, the plaintiff’s suit has been rightly
decreed by the Courts below. The substantial questions of law are
answered against the appellants.
14. The second appeal fails and the same is dismissed.
There will be no order as to costs.
1-3-2002
Index: Yes
IGP
To
1. The District Judge,
Chengalpattu (with records).
2. The District Munsif,
Chengalpattu.
3. The Record Keeper, V.R. Section,
High Court, Madras.
K. SAMPATH, J.
Judgment
in
S.A.No.1371 of 1989
1-3-2002