BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/07/2007 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.(MD).No.233 of 2000, A.S.(MD).Nos.234 of 2000 and Tr.A.(MD)Nos.1027 to 1030 of 2001 R.Dhanalakshimi Appellant in A.S.Nos.233, 234 of 2000 and Tr.A.No.1027 of 2001 Jegannathan Appellant in A.S.No.233 of 2000 and in Tr.A.No.1028 of 2001 Vanitha Kavitha Appellants in A.S.Nos.233 & 234 of 2000 Malarvhizhi Amutha Appellants in A.S.Nos.233 and 234 of 2000 and in Tr.A.No.1030 of 2001 Amutha Appellant in A.S.Nos.233 and 234 of 2000 and in Tr.A.No.1029 of 2001 Palaniammal Appellant in Tr.A.No.1029 of 2001 v. 1.Senthilkumari 2.N.sundaram 3.Kalaiselvi Respondents in A.S.No.233 of 2000 1.Hasmukhalal M.Vora 2.Jayashree H.Vora 3.Hansa J.Vora 4.T.Asokan 5.R.Vijayakumar 6.Kalaiselvi 7.Dr.A.Zameer Basha 8.Dr.Shakita Zamer 9.Dr.S.Zahvi Tawary Respondents in A.S.No.234 of 2000 (Respondents 7 to 8 have been impleaded as respondent as per order dated 23.08.2001) R.Chandra Respondent in Tr.A.Nos.1027 & 1028 of 2001 Mahendra Kumar Veni Moorthi Varadharajan Subramani S.Muruganandam Respondents in Tr.A.No.1027 of 2001. T.Ashokan Jayashri H.Wora Hansa J.Wora Vijayakumar Respondents in Tr.A.Nos.1027 and 1030 of 2001 R.Venkatesan R.Rajendran R.Radhakrishnan R.Chandrasekar R.Soundaravalli R.Saraswathi Respondents in Tr.A.Nos.1027 and 1028 of 2001. S.Jegadeesan Respondent in Tr.A.No.1028 of 2001. Ramasamy Senthilkumari Respondent in Tr.A.No.1029 of 2001. Humsukkalal Wora Respondent in Tr.A.No.1030 of 2001. First Appeals filed under Section 96 CPC r/w Order 41 Rule 1 CPC against the common judgment passed by Subordinate Judge, Trichy dated 31.07.1997 in Original Suits Nos.209 of 1996, 353, 356, 359 of 1997, 63 of 1995 and 404 of 1997. !For Appellants .. Mr.AR.L.Sundaresan, Senior Counsel, for Mrs.AL.Gandhimathi ^For Respondents .. Mr.T.R.Rajagopal, Senior Counsel, for Mr.T.R.Rajaraman :JUDGMENT
K.RAVIRAJA PANDIAN, J.
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.A2 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.A2 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.
Description of Property A. Schedule rh;nt vz; jp. jh. rpe;jhkzp fpuhkj;jpy; V. br. jPh;it 1. 3831/2 0.59 eQ;ir 8.7.0 2. 3833 0.33 i\ 4.11.0 3. 3834 0.66 i\ 9.7.0 4. 3857 0.83y; fPH;ghfk; oRky; 37r 5. 3802 0.35y; fPH;ghfk; oRky; 17r B Schedule rh;nt vz; jp. jh. rpe;jhkzp fpuhkj;jpy; V. br. jPh;it 1. 3857 0.73y; nky;ghfk; oRky; 36r 2. 3802 0.35y; nky;ghfk; oRky; 17r 3. 4045 0.66 eQ;ir jPh;it :U9.7.0 4. 4049 0.22 eQ;ir jPh;it 3.2.0
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
ambiguities. Item No.2 of ‘B’ schedule read as follows :
nkw;go> nkw;go> nkw;go> rpe;jhkzp F:U:g; jpUj;jhe;njhzp fpuhkj;jpy; mad;
eQ;irahapUe;J jw;fhyk; bjd;de;njhg;g[ lt[z; rh;nt 3857> butpd;a{ rh;nt 107/2>
ehd;bfy;iy nkw;fpy; 3849> tlf;fpy; 3856> fpHf;fpy; 3858> bjw;fpy; ciwa{h; nuhL
,jw;Fl;gl;lJ. o 73y; nky;ghfk; o 36 1/2. ,e;j epyj;Jf;F fPH;ghfk; tHpahfj;
jz;zPh; gha;r;rpf;bfhs;s ghj;jpak; cl;gl.
Item No.4 is the lower part of the item No.2. It reads as under :
nkw;go> nkw;go> nkw;go> rg; o];l;hpf;l;> g[j;J}h; khfhzk;> rpe;jhkzp
F:U:g; jpUj;jhe;njhzp fpuhkj;jpy; mad; eQ;irahapUe;J jw;fhyk; bjd;de;njhg;g[
lt[z; rh;nt 3857> butpd;a{ rh;nt vz; 107/2> ehd;bfy;iy nkw;fpy; 3842> tlf;fpy;
3856> fpHf;fpy; 3858> bjw;fpy; ciwa{h; nuhL ,jw;Fl;gl;lJ. orpky; 73y; fPH;ghfk;
orky; 36 1/2. ,jw;F nky;g[wk;; tofhy; ghj;jpak; cl;glt[k;.
Item No.2 refers to upper portion of the land in an extent of 36 r cents out of
73 cents in surve No.3857. Item No.4 refers to lower portion in an extent of 36
r 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, (1993) 4 SCC 349; Durga Das v. Collector, (1996) 5 SCC
618; Dalip Singh v. Sikh Gurdwara Prabhandak Committee, (2003) 10 SCC 352; Suman
Verma v. Union of India, (2004) 12 SCC 58.)
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 DW1 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, 2000 (1)
SCC 712.
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, (1983) 2 SCC 132. 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 vs. Mool Chand,
(1983) 2 SCC 132 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, AIR 1955 SC 425 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, (1983) 1 scc 14.
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.