{"id":253115,"date":"2002-01-25T00:00:00","date_gmt":"2002-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/angammal-vs-komara-gounder-on-25-january-2002"},"modified":"2017-07-28T00:28:00","modified_gmt":"2017-07-27T18:58:00","slug":"angammal-vs-komara-gounder-on-25-january-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/angammal-vs-komara-gounder-on-25-january-2002","title":{"rendered":"Angammal vs Komara Gounder on 25 January, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Angammal vs Komara Gounder on 25 January, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n                 IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                          Dated:   25-1-2002\n\n                                Coram\n\n                The Honourable Mr.Justice A.S.VENKATACHALAMOORTHY\n\n  Second Appeal No.171 of 1990\n\n 1.Angammal\n  2.Subramaniam\n  3.Ramasamy                              ...             Appellants\n\n                Vs.\n\n 1.Komara Gounder\n  2.Sengali Gounder\n  3.Periyasamy                            ...             Respondents\n\n\n                        For Appellants          :  Mr.R.Loganathan\n\n                        For Respondents :  No appearance\n\n\n             Appeal against the decree and judgment of the learned Subordinate\n        Judge, Namakkal made in A.S.10 of 1988 confirming the decree and\n        judgment of the learned District Munsif in O.S.503 of 1985.\n\n:                                J U D G M E N T\n<\/pre>\n
                The Second appeal is preferred against the  Judgment  and
\n        Decree  of  the  learned Subordinate Judge, Namakkal in A.S.10 of
\n        1988 confirming the Judgment and Decree of the  learned  District
\n        Munsif, Namakkal in O.S.503 of 1985.\n<\/p>\n
                2.  The Plaintiff is the appellant herein.  The case of the
\n        plaintiff as set out in the plaint can be stated as follows:\n<\/p>\n
                The  suit  property  is  an  agricultural  land in Survey
\n        No.299\/8 in Lathuvadi village,  Namakkal  Taluk,  Salem  District
\n        with an  area  of  3.58 acres.  The case of the plaintiff is that
\n        one Vaiyapuri Gounder, who is the husband of the first  plaintiff
\n        and  father  of plaintiffs 2 and 3 purchased under two sale deeds
\n        viz., dated 7.11.1966 and 3.3.1969  and  since  then  he  was  in
\n        possession  and  enjoyment  of  the same without any interruption
\n        till his death.  After  the  demise  of  Vaiyapuri  Gounder,  the
\n        plaintiffs have  been enjoying the said property.  The defendants
\n        who have no manner  of  title  or  interest  in  the  above  said
\n        property,  at the instigation of some people who are ill-disposed
\n        of towards plaintiffs, claimed ownership to the suit property and
\n        that in fact from 16.6.1985 onwards they  have  been  interfering
\n        with  the  peaceful possession and enjoyment of the suit property
\n        by the plaintiffs.  The plaintiffs also claim that even  assuming
\n        defendants have any right or title, they have lost their right by
\n        non-enjoyment over  the  statutory period.  The plaintiffs sought
\n        for declaration that they are entitled to the suit  property  and
\n        for consequential permanent injunction.\n<\/p>\n
                3.  The first defendant filed a written statement adopted
\n        by  defendants  2  and 3 contending that defendants retaining for
\n        themselves 10 cents of land sold only the  balance  to  Vaiyapuri
\n        Gounder  in  the said survey number 299\/8 and actually the sister
\n        of the defendants was in possession of that property  (10  cents)
\n        and residing  therein.  After her death, it is the defendants who
\n        have been in possession and enjoyment of the  said  10  cents  of
\n        land.   The further case set out in the written statement is that
\n        in fact in respect of that 10 cents of land,  they  have  entered
\n        into  an  agreement  to sell to one Palanisamy, son of Chinnusamy
\n        Goundar for a total  consideration  of  Rs.9,000\/-  and  in  fact
\n        received an  advance  of Rs.3,500\/-.  It is also contended by the
\n        defendants that since they refused to sell the property viz.,  10
\n        cents  of  land  at  a  cheaper rate to the plaintiffs, they have
\n        filed the suit only to harass them.\n<\/p>\n
                4.    The   learned  District  Munsif  after  elaborately
\n        considering the  oral  and  documentary  evidence,  came  to  the
\n        conclusion  that  the  plaintiffs have not come to the Court with
\n        clean hands and since dispute between the parties was  only  with
\n        reference  to  10  cents of land and that further plaintiffs have
\n        not proved their  title  to  the  disputed  10  cents  of  lands.
\n        Ultimately the learned District Munsif dismissed the entire suit.\n<\/p>\n
                5.  On appeal the  appellate  Court  also  confirmed  the
\n        Judgment and Decree of the trial Court.\n<\/p>\n
                6.  At the time of admission, this Court formed following
\n        two substantial questions of law for consideration.\n<\/p>\n
                “(1) Whether the lower appellate Court was right in the view
\n        it  took  that  the  appellants  have not prescribed title to the
\n        property of an extent of 10 cents; and
\n                (2) Whether the courts below were right in dismissing the
\n        suit  in toto when the respondents have accepted the right of the
\n        appellants to the entire extent of the land,excepting 10 cents ?”\n<\/p>\n
                7.  The plaint schedule property is to an extent of  3.58
\n        acres of land in the village Lathuvadi in Namakkal Taluk in Salem
\n        District.   While  it  is  the case of the appellants\/ plaintiffs
\n        that they are entitled for the  entire  property  and  that  even
\n        assuming  defendants  had any right in any part of this property,
\n        the plaintiffs have perfected their title by adverse  possession.
\n        On  the  other  hand,  the case of the respondents\/ defendants is
\n        that they sold the property retaining 10 cents of  land  in  that
\n        survey  number  to  Vaiyapuri,  who  in  turn  sold  to  the  1st
\n        plaintiff’s husband and that they are not  claiming  anything  in
\n        the remaining land (i.e.,) 3.48 acres.  Similarly while it is the
\n        case  of  the  appellants\/ plaintiffs that respondents\/defendants
\n        are interfering with  their  enjoyment,  respondents\/  defendants
\n        would  contend  that  they  did not do so and propose to do so in
\n        future as well.\n<\/p>\n
                8.  From the pleadings as well as the evidence adduced
\n        before  the  Court  it  is  fairly  clear  that  the  appellants\/
\n        plaintiffs are  entitled  for 3.48 acres.  Now the question is as
\n        to whether the suit has to be dismissed in its  entirety  because
\n        appellants\/  plaintiffs  filed  a  suit  claiming declaration and
\n        enjoyment for the entire extent of 3.58 acres in survey No.299\/8.
\n        To  put  it  differently,  when   the   respondents\/   defendants
\n        themselves   admit   before   the   Court   the   title   of  the
\n        appellants\/plaintiffs for an extent of 3.48 acres, can the  Court
\n        refuse    to    declare    that    on   the   ground   that   the
\n        appellants\/plaintiffs have not come forward before the Court with
\n        the claim for a larger area.\n<\/p>\n
                9.  Way  back  in the year 1867, in PITAMBAR v.  RAM JOY,
\n        (1867) SOUTH W.R.93, the Courts have held  that  where  plaintiff
\n        claims  more  than  what  he  is  entitled to, the Court will not
\n        dismiss the suit but give the plaintiff only such relief as he is
\n        entitled to.  This view was later  on  affirmed  in  LAKSHMAN  v.
\n        HARI<\/a>, I.L.R.   4  BOMBAY  584; VENKATARAMANA v.  Verabalu, A.I.R.
\n        1940 MADRAS 308; KHAMTA MANDALASSI v.  HEM KUMARI, A.I.R.    1941
\n        PATNA 29; BHIKU v.  PUTTU, (1905) 8 BOMBAY L.R.  106 (D.B.). This
\n        Court  is  inclined  to  point out certain rulings of the Supreme
\n        Court at this juncture  which  will  further  clarify  the  legal
\n        position.       (a)  While dealing with the power of the Court to
\n        grant smaller relief in a writ petition,  the  Supreme  Court  in
\n        B.R.Ramabhadriah v.  Secy., F.&  A.   Deptt., A.P.  (A.I.R.  1981
\n        S.C.  1653), observed thus,     “5.  It is  true  that  the  writ
\n        petition  contained  a  prayer  for the quashing of the gradation
\n        list in sofar as it related  to  the  inter  se  ranking  of  the
\n        petitioner  vis-a-vis  respondent  Nos.3  to 8 and the petitioner
\n        (appellant) had also sought the issuance of a  writ  of  mandamus
\n        directing respondents Nos.1 and 2 to forbear from implementing or
\n        acting upon  the  said  gradation  list.   But, subsequent to the
\n        institution of the writ  petition,  the  Central  Government  had
\n        re-fixed the ranks of respondents Nos.1, 4, 5, 7 and 8 (Telengana
\n        Officers)  and placed them below the appellant thereby redressing
\n        the grievance of the appellant in sofar as it  pertained  to  the
\n        ranking of  the  aforesaid  respondents.    It  therefore  became
\n        unnecessary for the appellant to pursue his claim for relief with
\n        respect to the ranks assigned to those five respondents.  It  was
\n        under  those  circumstances,  that the appellant submitted before
\n        the learned single Judge of the High Court, at the time of  final
\n        hearing  of  the  writ  petition,  that  he was pressing the writ
\n        petition only in so far as it related to his claim for  seniority
\n        over the  6th  respondent.   We fail to see how the fact that the
\n        appellant had sought in the writ petition the issuance of a  writ
\n        of  mandamus  directing  respondents  1  and  2  to  forbear from
\n        implementing or acting upon the provisional gradation  list  will
\n        operate to preclude him from seeking a lesser relief, namely, the
\n        quashing  of  the  list  only  in  so  far  as it pertains to the
\n        fixation of the inter se seniority between himself  and  the  6th
\n        respondent.  The material facts and circumstances had undergone a
\n        substantial  change  subsequent  to  the  filing  of the original
\n        petition and it was in consequence thereof  that  it  had  become
\n        unnecessary  for the petitioner to pursue his original prayer for
\n        the grant of a larger relief.    Besides  ignoring  this  crucial
\n        aspect,  the Division Bench of the High Court has also lost sight
\n        of the well established principle that in an action where a party
\n        has prayed for a larger relief it is always open to the court  to
\n        grant  him any smaller relief that he may be found to be entitled
\n        in law and thereby render substantial justice.    The  Court  can
\n        undoubtedly  take note of changes circumstances and suitably hold
\n        the relief to be granted to the party concerned in order to  mete
\n        out justice  in  the  case.    As far as possible the anxiety and
\n        endeavour of the Court should be to remedy an injustice  when  it
\n        is  brought to its notice rather than deny relief to an aggrieved
\n        party on purely technical and narrow procedural grounds.   We  do
\n        not,  therefore, find it possible to uphold the view expressed by
\n        the Division Bench of the High Court that since the writ petition
\n        was not pressed in sofar as it related to the officers  belonging
\n        to  the  Telengana  region  the  question  of  inter se seniority
\n        between the writ petitioner and the  8th  respondent  should  not
\n        have  been  considered  by the single Judge and the writ petition
\n        should have seen dismissed.     6.  Accordingly, we set aside the
\n        judgment of the Division Bench and remand the writ appeal to  the
\n        High Court  for  fresh  disposal  in  accordance  with  law.  The
\n        parties will bear the irrespective costs in this appeal.”
\n        (emphasis supplied)<\/p>\n
                (b) In the decision  in  Hindalco  Industries  Ltd.    v.
\n        Union  of  India<\/a> (1 994 (2) SCC 594), while considering the scope
\n        of Order 7 Rule 7 of Civil Procedure Code, the Supreme Court held
\n        as under,       “6.  It is seen that  the  appellant  sought  for
\n        declaratory  relief  that  the  rates  being  charged are ‘wholly
\n        unjust and unreasonable’ and for a direction to the  railways  to
\n        charge  ‘reasonable rates’ on the basis of actual distance of 568
\n        km together with  other  consequential  relief.    It  is  to  be
\n        remembered that the relief otherwise cognisable by Civil Court of
\n        competent  jurisdiction  under  Section  9  of  the CPC has been,
\n        statutorily conferred on the Tribunal  with  powers  of  a  Civil
\n        Court to  decide  the claims under the Act.  Order 7, Rule 7, CPC
\n        provides that every plaint shall state  specifically  the  relief
\n        which  the  plaintiff claims either simply or in the alternative,
\n        and it shall not be necessary to ask for general or other  relief
\n        which  may  always  be given as the Court may ‘think just’ to the
\n        same extent as if it had been asked for, and the same rule  shall
\n        apply  to  any  relief  claimed  by  the defendant in his written
\n        statement.  Order 2, Rule  2  enjoins  to  claim  the  relief  in
\n        respect  of a cause of action and under clause 3 of Order 2, Rule
\n        2, if he omits to seek the relief, except with the leave  of  the
\n        court,  he  shall  be  precluded  thereafter  for  any  relief so
\n        omitted.”\n<\/p>\n
        (emphasis supplied)<\/p>\n
                In fact as Odgers would put it, where a party  cannot  be
\n        exact,  it is wiser to claim too much rather than too little as a
\n        Judge does not give more than that which the plaintiff requires \u00fb
\n        Judex non Reddi injuriam subi datam punire.\n<\/p>\n
                But however, the legal position is, where  the  plaintiff
\n        claims less than what he is entitled to, the Court will not grant
\n        him  any relief he has not specifically claimed unless the plaint
\n        is amended before the judgment.  It was so held way back  in  the
\n        year 1838 in  SOORIAH ROW v.  COTAGHERY, (1838) 2 M.I.A.  113 and
\n        the said view was later on confirmed in a  subsequent  ruling  of
\n        Calcutta High  Court  in  the  case  PERCIVAL  v.    COLLECTOR OF
\n        CHITTAGONG, (1900) I.L.R.  30 CALCUTTA 516.  At  the  same  time,
\n        the  Court  should  not refuse to grant a relief not specifically
\n        claimed in the plaint, if such relief is  obviously  required  by
\n        the  nature  of  the case and is not inconsistent with the relief
\n        specifically claimed and raised by the pleadings.  The Full Bench
\n        of the Lahore High Court in MEHER CHAND v.   MILKHI  RAM,  A.I.R.
\n        1932 LAHORE 40 1 (F.B.), held that it is the duty of the Court to
\n        mould  the  relief  to be granted to the parties according to the
\n        facts proved which, however, should not be inconsistent with  the
\n        pleadings.\n<\/p>\n
                Also  relevant  to  mention in this context the ruling of
\n        the Supreme Court in KEDAR LAL v.  HARILAL, A.I.R.  1952  SUPREME
\n        COURT  47  where it is held that the Court would be slow to throw
\n        out a claim on a mere technicality of pleading when the substance
\n        of the thing is there and no prejudice is  caused  to  the  other
\n        side  however clumsily or inartistically the plaint may be worded
\n        and that in any event, it is always open to a  Court  to  give  a
\n        plaintiff  such  general  or other relief as it deems just to the
\n        same extent as if it had been asked for, provided that  occasions
\n        no prejudice to the other side beyond what can be compensated for
\n        in costs.\n<\/p>\n
                10.   In  the  light  of the settled legal position, this
\n        Court has no hesitation to  grant  a  decree  in  favour  of  the
\n        appellants\/plaintiffs   for   declaration   and   for   permanent
\n        injunction with reference to an extent of 3.48 acres comprised in
\n        Survey No.299\/8 in Lathuvadi village in Namakkal Taluk  in  Salem
\n        District.  A.S.VENKATACHALAMOORTHY,J.\n<\/p>\n
                11.  The second appeal is allowed in part to the extent
\n        indicated above.\n<\/p>\n
Index: Yes\/No.                                                  25-1-2002\nvr\nTo\n1.The District Munsif, Namakkal\n2.The Subordinate Judge, Namakkal\n\n\n\n\t\t\t\t\t\tPre-Delivery Judgment in\n\t\t\t\t\t\tS.A.No.171 of 1990\n\n\n\n\n\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Angammal vs Komara Gounder on 25 January, 2002 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-253115","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAngammal vs Komara Gounder on 25 January, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/angammal-vs-komara-gounder-on-25-january-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Angammal vs Komara Gounder on 25 January, 2002 - 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