IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/03/2004
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
SECOND APPEAL No.849 of 1993
Mohammed Mohideen Lebbai .. Appellant
-Vs-
1. Mohammed Asan Tharaganar (died)
2. Asiyal
3. M.Abdul Khader
4. Jamal Mohideen
5. Meeran
6. Ali
7. Sulaiman
8. Rasidal
9. Mohideen Pathumal
10.Habida
(RR2 to 10 brought on record
as LRs of the deceased 1st
respondent vide order in CMP
5097/97 dated 12.6.97) .. Respondents
This second appeal is preferred under Sec.100 of the Code of Civil
Procedure against the judgment and decree made in A.S.No.108 of 1992, dated
6.4.1993 by the Subordinate Judge, Ambasamudram, reversing the judgment and
decree made in O.S.No.690/83 dated 31.1.90 by the Additional District Munsif,
Ambasamudram.
!For Appellant : Mr.K.Chandrasekaran
^For Respondents : Mr.A.Sankara Subramanian
for RR2 to 10
R1- died
:JUDGMENT
This second appeal has arisen from the judgment of the learned
Subordinate Judge, Ambasamudram, made in A.S.No.108/92, whereby the judgment
of the trial Court in a suit for permanent injunction granting the relief, was
reversed.
2. The following facts are noticed in the pleadings of the parties:
The suit property and other properties belonged ancestrally to the
plaintiff’s and his brother’s families, and they have been enjoying the same
solely. There was a registered partition between the heirs of K.K.Umar Lebbai
on 24.1.1949, wherein the suit property among others was allotted to the
plaintiff and other heirs through the second wife of Umar Lebbai, as item 27.
From that time onwards, the plaintiff was in possession and enjoyment of the
same. The defendant has no right, possession or interest in the suit
property. The property on the west of the suit property belonged to the
defendant’s predecessorin-title. In the said partition deed, the intervening
wall is shown as a common wall. On the east of the wall, the defendant has no
right, title or interest. This was also admitted by the defendant’s
predecessor-in-title namely Nalla Mohideen Lebbai in the rectification deed
dated 22.6.1938. Again on 15.12.1943, the grandfather of the defendant namely
Umar Lebbai had executed a gift deed, wherein he admitted the western wall of
the suit property as a common wall. Thus, the defendant is not entitled to
any right over the same. There was a Ghadi Kana in the plaint Schedule
property. The plaintiff was paying the kist. The defendant was trying to
interfere with the plaintiff’s peaceful possession and enjoyment of the suit
property. Hence, the suit.
3. The suit was resisted by the defendant stating that the plaintiff
was entitled to a space, measuring 2 + C.C. east west; that his brother
purchased the same from one Viswa Nalla Muhaideen Lebbai under a registered
sale deed dated 20.2.1943; that the plaintiff can claim only this extent; that
the partition deed was a self serving document, and it cannot confer any right
upon the plaintiff; that the recitals in the partition deed will not be
binding upon the defendant; that the defendant was not aware of the
rectification deed dated 22.6.1938; that the rectification deed was a
fraudulent one; that the plaintiff and his brother had fraudulently introduced
boundary recitals in the documents; that no wall was ever in existence ; that
the plaintiff made encroachment into the defendant’s site; that the suit
property originally belonged to Ahamed Meethi Lebbai, and after his death, his
two sons Kader Muhaideen Lebbai and Abu Bucker Lebbai and his daughter Saral
Ammal; that the daughter executed a sale deed on 17.5.1926 in favour of the
defendant’s grandfather Umar Lebbai and defendant’s mother Muhaideen
Bathummal, conveying her 3/8th share of the properties; that the defendant’s
grandfather purchased an extent measuring 5 C.C. east west and 55 C.C. north
south from Nalla Muhaideen Lebbai on 1.6.1938, and thus, Saral Ammal, Umar
Lebbai and Muhaideen Bathummal became entitled to 9.5 C.C. east west and 55
C.C. north south; that except 2 + C.C., the remaining extent in the suit
property belonged to the defendant; that Naina Mohammed Muhaideen Lebbai, the
maternal uncle of the defendant’s mother, was managing the properties
belonging to the defendant and his brothers; that taking advantage of the
close relationship, he has introduced false recitals in the documents, and
hence, the suit was to be dismissed.
4. On the above pleadings, the trial Court framed the necessary
issues, tried the suit and decreed the same. Aggrieved, the defendant took it
on appeal, wherein the finding of the trial Court was reversed, and the suit
was dismissed by the lower appellate Court. Hence, the plaintiff has brought
forth this second appeal.
5. At the time of admission, the following substantial questions of
law were formulated by this Court:
(1) Whether the lower appellate Court is right in reversing the decree and
dismissing the suit on the ground that the suit is filed for permanent
injunction simplicitor without a prayer for declaration of the title when such
a plea has not been raised in the written statement and more so when the trial
Court has decided the question of title and has given time for payment of
additional Court fee for the relief of declaration?
(2) Whether the lower appellate Court erred in reversing the decree on the
ground that the non-appointment of Commissioner when no material was before it
to come to the conclusion that by such nonappointment, the case of the
plaintiff has not been proved while on the other hand the defendant himself
has let in evidence relying upon the plan filed by the plaintiff?
6. This Court heard the learned Counsel for the appellant and also
the learned Counsel for the respondents 2 to 10 on those contentions.
7. While the plaintiff originally sought for a permanent injunction
that the defendant should be restrained from interfering with his peaceful
possession and enjoyment of the suit property, fully described in the
Schedule, annexed to the plaint, a relief of declaration was also included. A
specific issue was also framed by the trial Court, and the parties were also
given opportunity to put forth their evidence on the issues including the one
for declaration. The comment made by the first appellate Court that the
plaintiff had not made an attempt to seek a prayer for declaration in respect
of the suit property was one without proper looking into the case papers.
Hence, the said comment is not warranted for.
8. The specific case of the plaintiff before the trial Court was that
the suit property and other properties belonged ancestrally to the families of
the plaintiff and his brother; that they were enjoying the same; that there
was a registered partition on 24.1.1949 as evidenced by Ex.A1, wherein the
suit property is shown as 27th item; that in that partition, the suit property
was allotted to the plaintiff; that he has been in enjoyment of the same all
along; that the defendant, who has no manner of right, was making a false
claim and attempted to infringe over the rights of the plaintiff, and hence,
there arose a necessity for filing the suit. The defence plea was that the
plaintiff was entitled only to 2 + Carpenter Cubic (jr;R KHk;) and not, as
mentioned in the plaint, to an extent of 6 Carpenter Cubic (jr;R KHk;) east
west; that all the documents filed by both sides would clearly indicate that
the plaintiff was not entitled to the entire property as sought for in the
plaint, and hence, his claim was to be rejected. A careful consideration of
the documentary evidence would clearly reveal that the plaintiff was entitled
to the property as asked for. It is not in dispute that the plaintiff and his
brother entered into a partition in respect of the family properties on
24.1.1949 under Ex.A1, wherein the suit property was shown as 27th item. It
is also not in controversy that the plaintiff was put in possession of the
property, which was allotted to him in the partition, and has been enjoying
so. According to the plaintiff, Naina Muhaideen Lebbai, the brother of the
plaintiff, purchased the property from Viswa Nalla Muhaideen Lebbai, as
evidenced by Ex.B5 dated 20.2.1943. That apart, it was added by the plaintiff
that he was put in possession of the property by his brother, and he was
enjoying so. A perusal of both the documents would clearly indicate that
there has been a common wall dividing the property of the plaintiff and the
adjacent properties.
9. The defendant has claimed title to his adjacent property through a
gift deed marked as Ex.B4 dated 15.12.1943, wherein it has been clearly
referred to as “bghJ RtUf;F nkw;F”. The settlor under the same gift deed,
which was marked as Ex.A6 on the side of the plaintiff, got the property under
Ex.B1 sale deed dated 1.6.1938, wherein a mistake crept in while stating one
of the boundaries as “bghJ RtUf;F fpHf; F”, instead of “bghJ RtUf;F nkw;F”.
When the mistake was found, a rectification deed was executed under Ex.A5 on
22.6.1938. The subject matter of Ex.B1 dated 1.6.1938, which was subsequently
rectified under Ex.A5, was actually given by way of gift to the defendant on
15.12.1 943 under Ex.B4. This would clearly indicate that there was a common
wall dividing the properties. Above all, there was a candid admission made by
D.W.1 in the box that the plaintiff’s brother’s property was situated on the
east of the common wall. He has also further added that from 1946 onwards the
plaintiff’s brother was enjoying the property on the east of the common wall.
In such circumstances, it would be futile on the part of the defendant to
contend that there was neither a wall nor a common wall.
10. The trial Court only on consideration and appreciation of the
evidence, which was sufficient in the opinion of this Court, has recorded a
finding that the plaintiff was entitled to the property, and hence, the relief
of declaration and permanent injunction should be granted. But, the first
appellate Court on erroneous consideration, has reversed the said finding and
set aside the judgment of the trial Court. The first appellate Court has
pointed out in its judgment that the plaintiff, despite the denial of title,
has not asked for the relief of declaration of title. But, that finding was
not correct, since on the pleadings available, an issue whether the plaintiff
was entitled to the property in question was framed, and on evidence, the same
was discussed and decided by the trial Court in favour of the plaintiff. The
second ground, by which the judgment of the trial Court was reversed by the
first appellate Court, was that no appointment of Advocate Commissioner was
sought for by the plaintiff. This Court is of the firm opinion that the
available evidence, in particular the documentary evidence, would be clearly
pointing to the title of the plaintiff. In such circumstances, no need arose
for seeking an appointment of Advocate Commissioner to inspect the suit
property. Therefore, the judgment of the first appellate Court cannot be
sustained, and instead, it is a fit case, where the judgment of the trial
Court has got to be restored, and the plaintiff has to be granted the relief
as asked for.
11. In the result, this second appeal is allowed, setting aside the
judgment and decree of the first appellate Court and restoring the judgment
and decree of the trial Court. The parties are directed to bear their costs.
Index: yes
Internet: yes
To:
1. The Subordinate Judge
Ambasamudram
2. The Additional District Munsif
Ambasamudram
3. The Record Keeper
V.R. Section
High Court, Madras.
nsv/
