IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25-1-2002
Coram
The Honourable Mr.Justice A.S.VENKATACHALAMOORTHY
Second Appeal No.171 of 1990
1.Angammal
2.Subramaniam
3.Ramasamy ... Appellants
Vs.
1.Komara Gounder
2.Sengali Gounder
3.Periyasamy ... Respondents
For Appellants : Mr.R.Loganathan
For Respondents : No appearance
Appeal against the decree and judgment of the learned Subordinate
Judge, Namakkal made in A.S.10 of 1988 confirming the decree and
judgment of the learned District Munsif in O.S.503 of 1985.
: J U D G M E N T
The Second appeal is preferred against the Judgment and
Decree of the learned Subordinate Judge, Namakkal in A.S.10 of
1988 confirming the Judgment and Decree of the learned District
Munsif, Namakkal in O.S.503 of 1985.
2. The Plaintiff is the appellant herein. The case of the
plaintiff as set out in the plaint can be stated as follows:
The suit property is an agricultural land in Survey
No.299/8 in Lathuvadi village, Namakkal Taluk, Salem District
with an area of 3.58 acres. The case of the plaintiff is that
one Vaiyapuri Gounder, who is the husband of the first plaintiff
and father of plaintiffs 2 and 3 purchased under two sale deeds
viz., dated 7.11.1966 and 3.3.1969 and since then he was in
possession and enjoyment of the same without any interruption
till his death. After the demise of Vaiyapuri Gounder, the
plaintiffs have been enjoying the said property. The defendants
who have no manner of title or interest in the above said
property, at the instigation of some people who are ill-disposed
of towards plaintiffs, claimed ownership to the suit property and
that in fact from 16.6.1985 onwards they have been interfering
with the peaceful possession and enjoyment of the suit property
by the plaintiffs. The plaintiffs also claim that even assuming
defendants have any right or title, they have lost their right by
non-enjoyment over the statutory period. The plaintiffs sought
for declaration that they are entitled to the suit property and
for consequential permanent injunction.
3. The first defendant filed a written statement adopted
by defendants 2 and 3 contending that defendants retaining for
themselves 10 cents of land sold only the balance to Vaiyapuri
Gounder in the said survey number 299/8 and actually the sister
of the defendants was in possession of that property (10 cents)
and residing therein. After her death, it is the defendants who
have been in possession and enjoyment of the said 10 cents of
land. The further case set out in the written statement is that
in fact in respect of that 10 cents of land, they have entered
into an agreement to sell to one Palanisamy, son of Chinnusamy
Goundar for a total consideration of Rs.9,000/- and in fact
received an advance of Rs.3,500/-. It is also contended by the
defendants that since they refused to sell the property viz., 10
cents of land at a cheaper rate to the plaintiffs, they have
filed the suit only to harass them.
4. The learned District Munsif after elaborately
considering the oral and documentary evidence, came to the
conclusion that the plaintiffs have not come to the Court with
clean hands and since dispute between the parties was only with
reference to 10 cents of land and that further plaintiffs have
not proved their title to the disputed 10 cents of lands.
Ultimately the learned District Munsif dismissed the entire suit.
5. On appeal the appellate Court also confirmed the
Judgment and Decree of the trial Court.
6. At the time of admission, this Court formed following
two substantial questions of law for consideration.
“(1) Whether the lower appellate Court was right in the view
it took that the appellants have not prescribed title to the
property of an extent of 10 cents; and
(2) Whether the courts below were right in dismissing the
suit in toto when the respondents have accepted the right of the
appellants to the entire extent of the land,excepting 10 cents ?”
7. The plaint schedule property is to an extent of 3.58
acres of land in the village Lathuvadi in Namakkal Taluk in Salem
District. While it is the case of the appellants/ plaintiffs
that they are entitled for the entire property and that even
assuming defendants had any right in any part of this property,
the plaintiffs have perfected their title by adverse possession.
On the other hand, the case of the respondents/ defendants is
that they sold the property retaining 10 cents of land in that
survey number to Vaiyapuri, who in turn sold to the 1st
plaintiff’s husband and that they are not claiming anything in
the remaining land (i.e.,) 3.48 acres. Similarly while it is the
case of the appellants/ plaintiffs that respondents/defendants
are interfering with their enjoyment, respondents/ defendants
would contend that they did not do so and propose to do so in
future as well.
8. From the pleadings as well as the evidence adduced
before the Court it is fairly clear that the appellants/
plaintiffs are entitled for 3.48 acres. Now the question is as
to whether the suit has to be dismissed in its entirety because
appellants/ plaintiffs filed a suit claiming declaration and
enjoyment for the entire extent of 3.58 acres in survey No.299/8.
To put it differently, when the respondents/ defendants
themselves admit before the Court the title of the
appellants/plaintiffs for an extent of 3.48 acres, can the Court
refuse to declare that on the ground that the
appellants/plaintiffs have not come forward before the Court with
the claim for a larger area.
9. Way back in the year 1867, in PITAMBAR v. RAM JOY,
(1867) SOUTH W.R.93, the Courts have held that where plaintiff
claims more than what he is entitled to, the Court will not
dismiss the suit but give the plaintiff only such relief as he is
entitled to. This view was later on affirmed in LAKSHMAN v.
HARI, I.L.R. 4 BOMBAY 584; VENKATARAMANA v. Verabalu, A.I.R.
1940 MADRAS 308; KHAMTA MANDALASSI v. HEM KUMARI, A.I.R. 1941
PATNA 29; BHIKU v. PUTTU, (1905) 8 BOMBAY L.R. 106 (D.B.). This
Court is inclined to point out certain rulings of the Supreme
Court at this juncture which will further clarify the legal
position. (a) While dealing with the power of the Court to
grant smaller relief in a writ petition, the Supreme Court in
B.R.Ramabhadriah v. Secy., F.& A. Deptt., A.P. (A.I.R. 1981
S.C. 1653), observed thus, “5. It is true that the writ
petition contained a prayer for the quashing of the gradation
list in sofar as it related to the inter se ranking of the
petitioner vis-a-vis respondent Nos.3 to 8 and the petitioner
(appellant) had also sought the issuance of a writ of mandamus
directing respondents Nos.1 and 2 to forbear from implementing or
acting upon the said gradation list. But, subsequent to the
institution of the writ petition, the Central Government had
re-fixed the ranks of respondents Nos.1, 4, 5, 7 and 8 (Telengana
Officers) and placed them below the appellant thereby redressing
the grievance of the appellant in sofar as it pertained to the
ranking of the aforesaid respondents. It therefore became
unnecessary for the appellant to pursue his claim for relief with
respect to the ranks assigned to those five respondents. It was
under those circumstances, that the appellant submitted before
the learned single Judge of the High Court, at the time of final
hearing of the writ petition, that he was pressing the writ
petition only in so far as it related to his claim for seniority
over the 6th respondent. We fail to see how the fact that the
appellant had sought in the writ petition the issuance of a writ
of mandamus directing respondents 1 and 2 to forbear from
implementing or acting upon the provisional gradation list will
operate to preclude him from seeking a lesser relief, namely, the
quashing of the list only in so far as it pertains to the
fixation of the inter se seniority between himself and the 6th
respondent. The material facts and circumstances had undergone a
substantial change subsequent to the filing of the original
petition and it was in consequence thereof that it had become
unnecessary for the petitioner to pursue his original prayer for
the grant of a larger relief. Besides ignoring this crucial
aspect, the Division Bench of the High Court has also lost sight
of the well established principle that in an action where a party
has prayed for a larger relief it is always open to the court to
grant him any smaller relief that he may be found to be entitled
in law and thereby render substantial justice. The Court can
undoubtedly take note of changes circumstances and suitably hold
the relief to be granted to the party concerned in order to mete
out justice in the case. As far as possible the anxiety and
endeavour of the Court should be to remedy an injustice when it
is brought to its notice rather than deny relief to an aggrieved
party on purely technical and narrow procedural grounds. We do
not, therefore, find it possible to uphold the view expressed by
the Division Bench of the High Court that since the writ petition
was not pressed in sofar as it related to the officers belonging
to the Telengana region the question of inter se seniority
between the writ petitioner and the 8th respondent should not
have been considered by the single Judge and the writ petition
should have seen dismissed. 6. Accordingly, we set aside the
judgment of the Division Bench and remand the writ appeal to the
High Court for fresh disposal in accordance with law. The
parties will bear the irrespective costs in this appeal.”
(emphasis supplied)
(b) In the decision in Hindalco Industries Ltd. v.
Union of India (1 994 (2) SCC 594), while considering the scope
of Order 7 Rule 7 of Civil Procedure Code, the Supreme Court held
as under, “6. It is seen that the appellant sought for
declaratory relief that the rates being charged are ‘wholly
unjust and unreasonable’ and for a direction to the railways to
charge ‘reasonable rates’ on the basis of actual distance of 568
km together with other consequential relief. It is to be
remembered that the relief otherwise cognisable by Civil Court of
competent jurisdiction under Section 9 of the CPC has been,
statutorily conferred on the Tribunal with powers of a Civil
Court to decide the claims under the Act. Order 7, Rule 7, CPC
provides that every plaint shall state specifically the relief
which the plaintiff claims either simply or in the alternative,
and it shall not be necessary to ask for general or other relief
which may always be given as the Court may ‘think just’ to the
same extent as if it had been asked for, and the same rule shall
apply to any relief claimed by the defendant in his written
statement. Order 2, Rule 2 enjoins to claim the relief in
respect of a cause of action and under clause 3 of Order 2, Rule
2, if he omits to seek the relief, except with the leave of the
court, he shall be precluded thereafter for any relief so
omitted.”
(emphasis supplied)
In fact as Odgers would put it, where a party cannot be
exact, it is wiser to claim too much rather than too little as a
Judge does not give more than that which the plaintiff requires รป
Judex non Reddi injuriam subi datam punire.
But however, the legal position is, where the plaintiff
claims less than what he is entitled to, the Court will not grant
him any relief he has not specifically claimed unless the plaint
is amended before the judgment. It was so held way back in the
year 1838 in SOORIAH ROW v. COTAGHERY, (1838) 2 M.I.A. 113 and
the said view was later on confirmed in a subsequent ruling of
Calcutta High Court in the case PERCIVAL v. COLLECTOR OF
CHITTAGONG, (1900) I.L.R. 30 CALCUTTA 516. At the same time,
the Court should not refuse to grant a relief not specifically
claimed in the plaint, if such relief is obviously required by
the nature of the case and is not inconsistent with the relief
specifically claimed and raised by the pleadings. The Full Bench
of the Lahore High Court in MEHER CHAND v. MILKHI RAM, A.I.R.
1932 LAHORE 40 1 (F.B.), held that it is the duty of the Court to
mould the relief to be granted to the parties according to the
facts proved which, however, should not be inconsistent with the
pleadings.
Also relevant to mention in this context the ruling of
the Supreme Court in KEDAR LAL v. HARILAL, A.I.R. 1952 SUPREME
COURT 47 where it is held that the Court would be slow to throw
out a claim on a mere technicality of pleading when the substance
of the thing is there and no prejudice is caused to the other
side however clumsily or inartistically the plaint may be worded
and that in any event, it is always open to a Court to give a
plaintiff such general or other relief as it deems just to the
same extent as if it had been asked for, provided that occasions
no prejudice to the other side beyond what can be compensated for
in costs.
10. In the light of the settled legal position, this
Court has no hesitation to grant a decree in favour of the
appellants/plaintiffs for declaration and for permanent
injunction with reference to an extent of 3.48 acres comprised in
Survey No.299/8 in Lathuvadi village in Namakkal Taluk in Salem
District. A.S.VENKATACHALAMOORTHY,J.
11. The second appeal is allowed in part to the extent
indicated above.
Index: Yes/No. 25-1-2002 vr To 1.The District Munsif, Namakkal 2.The Subordinate Judge, Namakkal Pre-Delivery Judgment in S.A.No.171 of 1990