BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/06/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.264 of 1996 and C.M.P.(MD).No.2362 of 1996 1.Ramalingam Nadar 2.Poothankam 3.P.Kamalam 4.R.Muthukrishnan 5.R.Geetha 6.R.Vijaya 7.R.Radhakrishnan 8.R.Shanthi 9.R.Muthulakshmi (appellants 3 to 9 impleaded as per the order of this Court dt.05.12.2006 made in M.P.(MD)No.3/2006) ... Appellants Vs. 1.The Residents of Keezharamanputhoor Oor, Nagercoil Village, represented by its trustees. 2.Chellan 3.Ganapathi Nadar 4.T.Ayyappan 5.Madavarajan 6.R.Gopalan 7.N.Thavasilingam 8.P.Bhaskar (respondents 4 to 8 impleaded as per the order of this Court dt.22.06.2000 made in C.M.P.No.2343 of 1999) ... Respondents :Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 25.09.1995 made in A.S.No.69 of 1992 on the file of the Sub Court, Nagercoil, confirming the judgment and decree dated 27.04.1992 made in O.S.No.335 of 1983 on the file of the Principal District Munsif, Nagerocil. !For Appellants .. Mr.K.N.Thambi ^For RR-2 and 3 .. Mr.S.Vinayak For RR-4 to 8 .. Mr.C.Godwin :JUDGMENT
The second and third plaintiffs before the trial Court are the original
appellants 1 and 2 in the second appeal. The original suit, namely O.S.No.335
of 1983 was instituted by one Abayanarayanan Nadar (since deceased) and
Ramalingam Nadar, the second plaintiff (first appellant) for the relief of
declaration of their title in respect of one cent of land and a well situated
therein described in detail in the schedule attached to the plaint. During the
pendency of the suit, the first plaintiff Abayanarayanan Nadar died and one
Poothankam was impleaded as the legal representative of the deceased
Abayanarayanan Nadar. The learned Principal District Munsif, Nagercoil after
trial non-suited the plaintiffs and dismissed the suit in its entirety with cost
by judgment and decree dated 27.04.1992.
2. As against the said judgment and decree of the trial Court, the then
surviving plaintiffs Ramalingam Nadar and Poothankam filed an appeal on the file
of Sub Court, Nagercoil in A.S.No.69 of 1992. At the conclusion of hearing of
the first appeal, the learned Subordinate Judge, Nagercoil allowed the appeal in
part and granted a decree declaring the title of the plaintiffs in respect of
their 1/12th share in the suit property. So far as the remaining 11/12th share
in the suit property was concerned, the relief of declaration was negatived and
the relief of perpetual injunction in respect of the entire property was also
negatived.
3. Aggrieved by the same, the appellants 1 and 2 (Ramalingam Nadar and
Poothankam) preferred this second appeal before this Court. During the pendency
of the second appeal, the first appellant Ramalingam Nadar died and the
appellants 3 to 9 were impleaded as his legal representatives.
4. According to the case of the appellants/plaintiffs, the suit property,
an extent of one cent of land comprised in Survey No.1905/1 at Kottar Melakkadu,
Nagercoil Pakuthy, Agastheeswaram Taluk, Nagercoil Sub-Division, Kanyakumari
District and a well situated therein originally belonged to one Ponnamperumal
Nadar. For digging the well, 12 persons including the above said Ponnamperumal
Nadar provided the funds. In recognition of the contribution made by the other
11 persons for digging the well, Ponnamperumal Nadar executed a sale deed in
favour of those 11 persons on 05.05.1097 of Malayalam Era corresponding to the
English calendar year 1922, conveying common 1/12th share in the well alone to
the purchasers therein. According to them, a right to take water corresponding
to their share, namely 11/12th share, alone was conveyed and the title to the
property continued to remain with Ponnamperumal Nadar. Subsequently
Ponnamperumal Nadar died unmarried and the original plaintiffs, namely
Abayanarayanan Nadar and Ramalingam Nadar, being the sister’s sons of
Ponnamperumal Nadar, became entitled to the entire suit property as the legal
heirs of Ponnamperumal Nadar. Out of the eleven persons who got 11/12th share in
the well except the fifth defendant, all others are no more and their legal
heirs are not traceable by the plaintiffs.
5. On the strength of the above said pleadings and with a further
contention that the villagers were not only denying the title of the plaintiffs
to the entire suit property but also trying to interfere with their right to
peaceful possession and enjoyment of the same, the suit had been instituted for
the reliefs of declaration and injunction.
6. The suit was resisted on the ground that the same was not maintainable
for non-joinder of necessary parties in so far as the vendees or legal heirs of
the vendees under the sale deed dated 05.05.1097 of Malayalam Era were not made
parties to the suit. On merit also the defendants contended that by virtue of
the sale deed dated 05.05.1097 of Malayalam Era, the vendees therein, namely
Appavoo Nadar and 10 others had become the absolute owners of the suit
properties and that the vendees in turn sold it to the Keela Ramanpudhur,
Nagercoil Village, Muttharamman Temple Trust by a registered sale deed dated 8
Masi 1110 of Malayalam Era. A plea that the suit was barred by the limitation
was also raised in the written statement.
7. After framing necessary issues, the learned District Munsif conducted
the trial in which one witness was examined and seven documents were marked as
Exs.A-1 to A-7 on the side of the plaintiffs and one witness was examined and
nine documents Exs.B-1 to B-9 were marked on the side of the defendants. At the
conclusion of trial, on an appreciation of evidence, the trial Court answered
all the issues against the plaintiffs and dismissed the suit in its entirety
with cost. As against which, A.S.No.69 of 1992 was preferred on the file of the
Sub Court, Nagercoil. The lower appellate Court, on a re-appreciation of
evidence, came to the conclusion that the plaintiffs were entitled to a common
1/12th share in the suit property and granted a decree of declaration declaring
the 1/12th share of the plaintiffs in the suit property. So far as the relief of
declaration in respect of the remaining 1/12th share and the relief of
injunction in respect of the entire suit property, the claim of the plaintiffs
were rejected. Hence the appellants are before this Court.
8. As projected by the appellants, the following question has been framed
as the substantial question of law involved in this appeal:
“Whether the lower Appellate Court is correct in dismissing in part the
Appeal before him, without considering the appellants’ vital and relevant
documents under Exs.A-1,A-3,A-4,A-6 and A-7?”
9. The Court heard the arguments advanced by Mr.K.N.Thambi, learned
counsel appearing for the appellants, Mr.S.Vinayak, learned counsel appearing
for the respondents 2 and 3 and also Mr.C.Godwin, learned counsel
appearing for the respondents 4 to 8.
10. Upon such a hearing and after perusing the relevant records, this
Court is of the considered view that the appellants must fail in this second
appeal. The reasons are found in the succeeding paragraphs.
11. Exs.A-3,A-4,A-6 and A-7 are none other than the kist receipts and
property tax receipts evidencing payment of kist and property tax by the
appellants. The certified copy of the sale deed dated 05.05.1097 of Malayalam
Era is Ex.B.1. Another certified copy of the same sale deed is Ex.A.2.
Admittedly, the sale deed was executed by the appellants predecessor-in-title
conveying a common 11/12 th share in the suit well to 11 persons including D-5.
According to the plaint averments, what was conveyed was only a right to take
water from the well and not any share in the well or in the land in which the
well has been dug. This Court is not in a position to accept the above said
contention for the simple reason that the document itself recites that 11/12th
share in the land as well as well was the subject matter of conveyance under
Ex.B.1. All the documents Exs.A-3,A-4,A-6 and A-7 came into existence subsequent
to the above said sale deed. By Ex.B.1 the entire suit property was not
conveyed. A common 1/12th share in the suit property (land and well) was
retained by the vendor. As such, the vendor, namely Ponnamperumal Nadar, from
the date on which Ex.B.1 – sale deed was executed, continued to be a co-owner in
respect of the suit property. There is no wonder in a co-owner paying the kist
and property tax in respect of the common property. Hence the above said
documents, namely Exs.A-3,A-4,A-6 and A-7 are not enough to establish exclusive
title of Ponnaperumal Nadar or his legal heirs, namely the plaintiffs.
12. So far as Ex.A-1 is concerned, it is a patta pass book issued in the
name of Ramalingam Nadar, the first appellant in which the survey numbers are
N2/30 and 45. There is no evidence to correlate the above said survey numbers to
the suit properties.
13. Taking note of all the above said facts and circumstances of the case,
this Court is of the considered view that the contention raised on behalf of the
appellants that the lower appellate Court did not consider the above said
documents does not hold water. The lower Court has correctly come to the
conclusion that those documents are not enough for establishing the plaintiffs’
contention that the entire suit property exclusively belonged to the plaintiffs.
14. The basic contention on which the appellants want to sustain their
claim is that under Ex.B-1 only a right in the user of the well alone was sought
to be conveyed and that the title in respect of the well as well as the land
continued to vest with Ponnamperumal Nadar. This contention is factually
incorrect. Ex.B.1 itself contains the following recitals:
“i\ brhj;jpYk;> fpzw;wpYk; 1/12 gq;F vd;jdJf;F ePf;F kPjp 11 gq;F
mgfhrj;ija[k; i\ fpzw;wpw;f;F nghf;Ftuj;Jf;F tlf;fUfpy; bjd;tlyhf i\ mof;F 5 mo
tPjpapy; To tHp elg;gjw;Fs;s ghj;jpaija[k; nrh;j;J i\ahh;fs; tpiybaGjpf;bfhLj;J
thq;fpd bjhif gzk; 175/- ,g;gzk; E}w;wpvGgj;jQ;Rk; ,d;W buhf;fk; gw;wpf; bfhz;L
i\ brhj;ij tpiyahf vGjpf;bfhLj;jpUf;fpwjpdhy;…”
The said recital is enough to non-suit the plaintiffs in respect of their
plea for a declaration of their supposed exclusive title to the entire suit
property. The lower appellate Court has correctly held that the plaintiffs were
entitled to a common 1/12th share alone in the suit property. The approach made
by the learned Single Judge in holding that the plaintiffs were entitled to
1/12th share alone in the suit property cannot be termed either infirm or
discrepant and the same deserves the stamp of approval of this Court. The
learned counsel for the appellants drawing the attention of the Court to
paragraph – 12 of the judgment of the lower appellate Court argued that the
lower appellate Court gave a finding to the effect that the plaintiffs were
entitled to a decree for permanent injunction in respect of their 1/12th share
in the property and by mistake in the operative portion of the judgment, the
lower appellate Court has rejected the prayer for permanent injunction in its
entirety. That apart, in the previous paragraph (paragraph 11), a clear finding
has been recorded that the plaintiffs were not entitled to the relief of
permanent injunction. In fact, the mistake is found only in paragraph 12 in so
far as the sentence was couched in the affirmative form instead of negative
form. What is relevant is the decree drafted based on the operative portion of
the judgment. Ultimately the lower appellant Court has rejected the relief of
permanent injunction sought for in its entirety. The rejection of the relief for
permanent injunction even in respect of the common 1/12th share of the
plaintiffs can be sustained on the following grounds:
(i) The appellants/plaintiffs have sought for an injunction against the
co-owners who hold 11/12th share in the suit property. In respect of enjoyment
of a common property, a co-owner cannot get an injunction against another co-
owner.
(ii) The plaintiffs have prayed for injunction restraining the defendants
including the co-owners from interfering with their possession and enjoyment, as
if they are entitled to the exclusive possession and enjoyment of the entire
suit property, which is untenable as pointed out supra.
15. For all the reasons stated above, this Court hereby comes to the
conclusion that there is no merit in this appeal and the appellants have failed
in their attempt to challenge the judgment and decree passed by the lower
appellate Court and that the appeal must fail. Accordingly the judgment and
decree of the lower appellate Court are sustained and the Second Appeal is
dismissed with cost. Consequently, the connected miscellaneous petition is also
dismissed.
26.06.2007
Index:Yes/No
Internet:Yes/No
SML
To
1.The Sub Court,
Nagercoil.
2.The Principal District Munsif,
Nagerocil.