JUDGMENT
B.S.A. Swamy, J.
1. The plaintiff in O.S. No.8 of 1985 on the file of Court of III Additional District Munsif, Chiltor, filed this second appeal. I need not refer to entire garnet of controversy in the suit. Parties are referred as arrayed in the suit in O.S. No.8 of 1985. He filed O.S. No.8 of 1985 for recovery of possession of the suit schedule properties from the 1st defendant by contending that he purchased the properties from the 2nd defendant under registered sale deed Ex.A1 dated 29-3-1984 for a consideration of Rs. 21,000/-. Subsequently, since the boundaries were not properly specified in Ex.A1, a rectification deed-Ex.A2 was also executed on 15-10-1984. When the plaintiff tried to get the land ploughed the 1st defendant forcibly entered into the lands, unyoked the bulls, took possession of the lands and started cultivating in the said lands. On that day, a legal notice-Ex,A4 dated 22-11-1984, was issued to the 1st defendant and the 1st defendant in his reply notice-Ex.A5 dated 3-12-1984 contended that the 2nd defendant entered into an agreement of sale in respect of three items of the suit schedule properties under Ex.B2 dated 28-3-1984 and the sale deed was brought into existence in collusion with the 2nd defendant to defeat his claims. In the reply notice the 1st defendant stated that the 2nd defendant has no right whatsoever in respect of the suit schedule properties. Hence, the plaintiff filed the suit for declaration that the suit schedule properties belongs to him, and to direct the defendants to deliver possession of Items Nos. 1 to 3 of the suit schedule properties, to pay mesne profits from 10-4-1984, costs and for other orders. The 1st defendant filed his written statement on the same lines as stated in his reply notice-Ex.A5 dated 3-12-1984. He also filed O.S. No.861 of 1984 for permanent injunction restraining the plaintiff in O.S. No.8 of 1985 from interfering with the possession over the properties. Likewise he also filed O.S. No.947 of 1984 seeking the relief of specific performance on the basis of agreement of sale-Ex.B2. All these three suits were clubbed together and evidence was recorded in O.S. No.8 of 1985.
2. On the basis of pleadings, the Trial Court framed the following issues and additional issues:
O.S. No.8 of 1985:
1. Whether the 2nd defendant has executed a registered sale deed on 29-3-1984 in favour of plaintiff and he was not put in possession of the suit property?
2. Whether the 2nd defendant has executed another relinquishment deed for consideration of Rs. 1,000/- on 1-10-1984 in favour of plaintiff?
3. Whether the 2nd defendant has executed an agreement of sale in favour of 1st defendant and the sale deeds dated 29-3-1984 and 1-10-1984 have come into existence to defraud his rights?
4. Whether the plaintiff is entitled for declaration of his title and recover possession from the 1st defendant of Item Nos. 1 to 3 of the schedule property?
5. Whether the plaintiff and 2nd defendant is liable to execute registered sale deed in favour of 1st defendant in pursuance of the agreement of sale executed by the 2nd defendant?
6. Whether there is cause of action to file this suit?
7. Whether the suit is bad for mis-joinder
of reliefs?
8. To what relief ?
Additional issues framed on 6-7-1990:
1. Whether the 1st defendant is the owner of S. Nos. 211 and 147/2B as contended by him in his additional written statement?
OS No.861 of 1984:
1. Whether one S. Vijayalakshmi has executed an agreement of sale on 28-3-1984 in respect of the suit property for Rs. 7,000/- and received advance of Rs. 4,000/-?
2. Whether she executed any registered sale deed in favour of defendant on 29-3-1984 which is nominal and fraudulent document?
3. Is there any suit filed by the plaintiff in O.S. No.947 of 1984 on the file of IA.D.M.C. Chittoor for specific performance of the agreement of sale?
4. Is this suit is hit by the provisions under Order 2, Rule 2 of CPC, in view of the suit O.S. No.947 of 1984?
5. Is there any suit O.S. No.8 of 1985 on the file of II A.D.M., Chittoor filed by the defendant against the plaintiff for declaration of title and for possession and for mesne profits?
6. Whether the agreement of sale executed in favour of plaintiff is valid, true and correct?
7. Whether the sale deed, dated 29-7-1984 executed by Vijayalakshmi in favour of plaintiff is binding on the plaintiff?
8. Whether the plaintiff is entitled for permanent injunction as prayed for?
9. There is any cause of action to file this suit?
10. To what relief ?
OS No.947 of 1984:
1. Is the suit agreement true and binding on defendants?
2. Is there no cause of action for this suit?
3. Is the plaintiff entitled to the specific performance of the contract dated 28-3-1984?
4. To what relief ?
3. The plaintiff got himself examined as P.W.I one C. Ramu and one Krishnaswamy were examined as P,Ws,2 and 3 and marked Exs.A1 to A6 i.e., Ex-A1registered sale deed dated 29-3-1984 executed by the 2nd defendant in favour of the plaintiff, Ex.A2 rectification deed dated 15-10-1984 executed by the 2nd defendant in favour of the plaintiff and notices that were exchanged between the parties. The 2nd defendant was examined as D.W.1 and 1st defendant got himself examined as D.W.2 and one Krishnan and one Natesa Mudali alleged to be the attesters of agreement of sale-Ex. B2 dated 28-3-1984 were examined as D.Ws.3 and 4 and marked Exs.B1 to B4 documents. From the Court side, Exs.C1 to C3 documents were marked.
4. The Trial Court having appraised the oral and documentary evidence held that 2nd defendant’s husband got first Items 1 to 3 of the suit schedule properties in the oral partition and those lands were sold by the 2nd defendant in favour of the plaintiff under Ex.A1and the Trial Court further held that the plaintiff has no title to the other two items in the suit schedule properties i.e., S. Nos. 211/2 and 147/2B. Accordingly in paragraph 31, the Trial Court observed that the plaintiff is not entitled to claim title or possession over those two items of the suit schedule properties. In paragraph 32-the penultimate paragraph of the judgment, the Trial Court observed: “In the result, the suit of the plaintiff in O.S. No.8 of 1985 is decreed with costs as prayed for,” and the suits filed by the 1st defendant were dismissed with costs.
5. Aggrieved by the said judgment and decree, the 1st defendant filed A.S. No. 36 of 1991 against O.S. No. 8 of 1985, A.S. No. 40 of 1991 against O.S. No. 861 of 1994 and A.S. No. 41 of 1991 against O.S. No. 947 of 1984. The Appellate Court by a common judgment and decree dated 22-11-1994 while dismissing A.S. Nos. 40 of 1991 and 41 of 1991 modified the judgment and decree in O.S. No. 8 of 1985 against which A.S. No. 36 of 1991 was filed and limited the declaration only in respect of the first three items of the suit schedule properties. Hence this second appeal by the plaintiff.
6. The only question that falls for consideration in this second appeal would be – Whether the appellate Court is justified in interfering with the decree granted by the Trial Court without considering the objections raised by the plaintiff under Order 41, Rule 22 of the Code of Civil Procedure.
7. In nutshell, the case of the plaintiff is that though the Trial Court in the body of the judgment limited the relief to Items 1 to 3 of the suit schedule properties, in the relief portion, the Court decreed the suit as prayed, for. In other words the suit was decreed for Items 1 to 5 of the suit schedule properties. Since the suit was decreed in toto, he is handicapped in filing an appeal questioning the correctness of the finding recorded by the Trial Court that he is entitled for declaration of title and possession only for the first three items of the suit schedule properties. Hence, when the appellate Court tried to interfere, the plaintiff tried to canvass the correctness of the finding recorded by the Trial Court placing reliance on Order 41, Rule 22 of the Code of Civil Procedure which reads as follows:
“Upon hearing respondent may object to decree as if he had preferred a separate appeal :–(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court without one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation.–A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
(2) Form of objection and provisions applicable thereto–
Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.”
8. In fact I have gone through the Appellate Court judgment, the learned Judge having permitted the plaintiff to assail the finding of the Trial Court in respect of Items 4 and 5 of the suit schedule properties recorded the following finding:
“The learned Counsel for the respondent vehemently argued that since the 1st respondent did not plead how he got Items 4 and 5 he cannot lead any evidence and say that he got those properties in his family partition. But since the plaintiff as well as 2nd defendant in their evidence have specifically admitted that the husband of 2nd defendant was having lands only at 3 places, I consider that the findings of the lower Court regarding Items 4 and 5 is based on evidence and it need not be disturbed.”
9. Now in this second appeal, Sri P.V. Vidyasagar, learned Counsel for the appellant strenuously contends that in the light of the recitals in Ex.A1and the stand taken by the 1st defendant both at the time of exchange of notices and in the written statement, it is not open for the 1st defendant to contend that Items 4 and 5 of the suit schedule properties have fallen to his share.
10. From the evidence available on record, it is seen that one Manickya Mudali, Rajagopala Mudali, Arumuga Mudali and Narasimha Mudali are brothers and constitute a joint family. The brothers got joint family properties divided about 60 years back. Manickya Mudali had three sons viz., Krishna Swamy, eldest son, Murugesa Mudali, 2nd son, 1st defendant in the suit and Selvaraja Mudali, 3rd son, husband of the 2nd defendant. After the death of their father, the three brothers got divided orally the properties that fell to the share of their father about 25 years ago and they were in possession and enjoyment of the properties that fell to their shares respectively. While so, Selvaraja Mudali seemed to have died in the year 1973 and his wife Vijayalaxmi, the 2nd defendant was in possession of the properties that fell to the share of her husband. In 1984, Smt. Vijayalaxmi i.e., the 2nd defendant in the suit sold the properties to the plaintiff i.e., the son of her father-in-law’s brother Rajgopal Mudali under registered sale deed-Ex.Ai dated 29-3-1984. Thereafter, there seemed to be scramble for possession between the plaintiff and the 1st defendant. Of course, initially the 1st defendant started contending that the 2nd defendant entered into an agreement of sale dated 28-3-1984 to sell the properties of first three items of the suit schedule property to him. Subsequently in the additional written statement, he contended that Items 4 and 5 have fallen to his share in the oral partition and that they belonging to him.
11. Now the question is whether Items 4 and 5 of the suit schedule properties were sold by the 2nd defendant to the plaintiff.
12. In the plaint itself, the plaintiff did not state how many items of the suit schedule properties were purchased under the sale deed, but in the relief portion he sought for relief of delivery of possession of Items 1 to 3 of the suit schedule properties to him though he asked for the relief of title to all the suit schedule properties. From this, it is seen that he is not confident about Items 4 and 5 of the suit schedule properties. In the witness box, he categorically admitted that their father and his brothers got themselves divided 60 years ago and after the death of Manickya Mudali, his paternal uncle, his three sons got divided themselves about 25 years back. He also admitted that in the oral partition that while Krishna Swamy, elder son of Manickya Mudali, got 0.48 cents in S. No. 154 and 0.40 cents in S. No. 211, the 1st defendant i.e., Murugesa Mudali got 81 1/4 cents in S. No. 211/2 and 12 cents in S. No. l47/2B. These two survey numbers are in dispute. He also admitted that Selvaraja Mudali i.e., the husband of the 2nd defendant got 0.03 cents in S. No. 469 and 0.92 cents in S.N.470 and 0.20 cents in S. No. 451. The 2nd defendant in her evidence stated that she was not present at the oral partition between her husband and his brothers, but after the death of her husband, she inherited the lands in three survey numbers except the lands in these three survey numbers she do not possess any lands. She being an illiterate stated that plaintiff knows how much land her husband possessed and the situation of the lands and the details of the properties held by her husband during the lifetime of her husband are known to the plaintiff. From this, it is evident both the parties to the registered sale deed-Ex.A1 i.e., vendor and vendee categorically admitted that in the oral partition between the sons of late Manickya Mudali, Selvaraja Mudali got properties in three Items i.e., in S. Nos. 451, 469/1, 470/2 while Murugesa Mudali got 8 1/4 cents in S. No. 21 1/2 and 12 cents in 147/ 2B while Krishna Swamy got lands in S.Nos. 154 and 211. In fact as stated supra, the plaintiff in the suit sought for delivery of possession of Items 1 to 3 of the suit schedule properties. But Sri P.V. Vidyasagar, vehemently argued that if Items 4 and 5 of the suit schedule properties have fallen to the share of the 1st defendant, there is no need for him to take the plea that the 2nd defendant entered into an agreement of sale to sell the lands to him either in the exchange of notices or in the written statement. It is true that the 1st defendant has taken such a stand in the reply notice-Ex. A5 sent to the plaintiff and also in the written statement. But in his reply notice, he simply stated that he entered into an agreement of sale for the purchase of property covered by survey numbers of the suit schedule properties and he stated that the plaintiff nor his vendor has no title nor possession over the properties. At any rate the well settled principle of law is that the plaintiff should either stand or fall on the merits of his own case. From the day of filing of the suit till the last day i.e., both in the plaint and in the evidence he admitted that Selvaraja Mudali got properties in three survey numbers. This fact was corroborated by the vendor under Ex.A1i.e., the 2nd defendant in the suit. I have seen Ex.A1. While writing on Pages 1 to 4 was very legible and readable, the writing in the last page is clumsy and it contains erasers also. Hence, I have a feeling that contents of Page 5 were brought into existence at a later stage. My suspicion gained support from the extents of lands that were sold in these two survey numbers. As per the sale deed, the extent of land that was sold under S. No. 211 is 0.21 cents out of total extent of 0.62 cents. On the other hand, the total extent in S. No. 211 comes to Ac.1-56 cents; likewise the extent of land that was sold under S. No. l47/2A is 0.36 cents out of total extent of Ac.1-8 cents, whereas the land in dispute is 0.12 cents in S. No. l47/2B. Hence, the physical features of the extent of the land available in these two survey numbers i.e., 211/2 and 147/2B are not tallying with the extents shown in the registered sale deed-Ex.A1. It is also to be kept in mind that the 2nd defendant is an illiterate person. None of the relatives of the plaintiff or the defendant are associated with the sale transaction. Hence, I hold that since the extent of the land given in these two survey numbers i.e., 211/2 and 147/2B are not tallying with the physical measurements of the land, the recitals in document Ex.A1will not come to the help of the plaintiff. Except this document, in the oral evidence in the witness box, the plaintiff himself categorically admitted the extent of land that has fallen to the share of Selvaraja Mudali in the oral partition among the brothers after the death of their paternal uncle, Manickya Mudali vendor under Ex.A1and also stated that she got properties only in the first three survey numbers.
13. Looked from any angle and in the light of the admissions made by the plaintiff himself coupled with corroborating evidence of D.W.1, I hold that the appellate Court is fully justified in rejecting the objection raised by the plaintiff while modifying the operative portion of the judgment to bring it in conformity with the findings recorded by the Trial Court. Hence, I do not find any merit in the present second appeal.
14. The judgment and decree of the appellate Court in A.S. No. 36 of 1995 is confirmed and the second appeal is dismissed as devoid of merits. In the circumstances, no order as to costs.