{"id":66426,"date":"2007-07-10T00:00:00","date_gmt":"2007-07-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-dhanalakshimi-vs-mool-chand-on-10-july-2007"},"modified":"2015-10-30T23:36:03","modified_gmt":"2015-10-30T18:06:03","slug":"r-dhanalakshimi-vs-mool-chand-on-10-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-dhanalakshimi-vs-mool-chand-on-10-july-2007","title":{"rendered":"R.Dhanalakshimi vs Mool Chand on 10 July, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
R.Dhanalakshimi vs Mool Chand on 10 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 10\/07\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN\nand\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nA.S.(MD).No.233 of 2000,\nA.S.(MD).Nos.234 of 2000\nand\nTr.A.(MD)Nos.1027 to 1030 of 2001\n\n\nR.Dhanalakshimi\t\tAppellant in\n\t\t\t\t   A.S.Nos.233, 234 of 2000 \t\t\t\n\t\t\t\t   and Tr.A.No.1027 of 2001\n\nJegannathan\t\t     \tAppellant in \t\t\t\t\n\t\t\t\t  A.S.No.233 of 2000 and\n\t\t\t\t  in Tr.A.No.1028 of 2001\n\nVanitha\nKavitha\t\t\t       Appellants in \t\t\n\t\t\t\t     A.S.Nos.233 & 234 of 2000\n\nMalarvhizhi\nAmutha\t\t \t  \tAppellants in \t\t\n\t\t\t\t  A.S.Nos.233 and 234 of 2000\n\t\t\t\t  and in Tr.A.No.1030 of 2001\t\n\nAmutha\t\t\t\tAppellant in \t\t\n\t\t\t\tA.S.Nos.233 and 234 of 2000\n\t\t\t\t   and in Tr.A.No.1029 of 2001\t\t\n\t\t\t\nPalaniammal\t\t\tAppellant in\n\t\t\t\t   Tr.A.No.1029 of 2001\n\n\t\t\t\t\t\t\t\t\t\nv.\n\n\n1.Senthilkumari\n2.N.sundaram\n3.Kalaiselvi\t\t\t Respondents in \t\t\t\n\t\t\t\t\tA.S.No.233 of 2000\n\n1.Hasmukhalal M.Vora\n2.Jayashree H.Vora\n3.Hansa J.Vora\n4.T.Asokan\n5.R.Vijayakumar\n6.Kalaiselvi\n7.Dr.A.Zameer Basha\n8.Dr.Shakita Zamer\n9.Dr.S.Zahvi Tawary\t\tRespondents in\n\t\t\t\t \t  A.S.No.234 of 2000\n\n(Respondents 7 to 8 have been\nimpleaded as respondent as per\norder  dated 23.08.2001)\t\t\n\n\nR.Chandra \t\t \t Respondent in\n \t\t\t\t\t    Tr.A.Nos.1027 & 1028 of 2001\n\nMahendra Kumar\nVeni Moorthi\nVaradharajan\nSubramani\nS.Muruganandam\t\t\t Respondents in\n\t\t\t\t    \t   Tr.A.No.1027 of 2001.\n\nT.Ashokan\nJayashri H.Wora\nHansa J.Wora\nVijayakumar\t\t\tRespondents in\n\t\t\t\t\tTr.A.Nos.1027 and 1030 of 2001\n\nR.Venkatesan\nR.Rajendran\nR.Radhakrishnan\nR.Chandrasekar\nR.Soundaravalli\nR.Saraswathi\t\t\t  Respondents in\n\t\t\t\t\tTr.A.Nos.1027 and 1028 of 2001.\n\n\nS.Jegadeesan\t\t\t Respondent in\n\t\t\t\t         Tr.A.No.1028 of 2001.\n\t\t\t\t\t\t\t\t\nRamasamy\nSenthilkumari\t\t\t Respondent in\n\t\t\t\t         Tr.A.No.1029 of 2001.\n\nHumsukkalal Wora\t\t Respondent in\n\t\t\t                   Tr.A.No.1030 of 2001.\n\n\n \tFirst Appeals filed under Section 96 CPC r\/w Order 41 Rule 1 CPC against\nthe common judgment passed by Subordinate Judge, Trichy dated 31.07.1997 in\nOriginal Suits Nos.209 of 1996, 353, 356, 359 of 1997, 63 of 1995 and 404 of\n1997.\n\n\n!For Appellants\t \t..    \tMr.AR.L.Sundaresan,\n\t\t\t\tSenior  Counsel, for\n\t\t\t\tMrs.AL.Gandhimathi\n\t\t\t\t\t\t\n^For Respondents \t..    \tMr.T.R.Rajagopal,\n\t\t\t\tSenior Counsel, for\n\t\t\t\tMr.T.R.Rajaraman\n\n\n:JUDGMENT\n<\/pre>\n
K.RAVIRAJA PANDIAN, J.\n<\/p>\n
\tThe appellants, who are defendants in original suits Nos.209 of 1996 and
\n63 of 1995 filed Appeal Suits Nos.233 and 234 of 2000 against the judgment and
\ndecree of the trial Court made in those suits granting the relief of permanent
\ninjunction as prayed for with declaratory relief, in favour of the
\nrespondents\/plaintiffs.  The other four appeals in Tr.A.S. Nos. 1027 to 1030 of
\n2001 are filed aggrieved by the dismissal of the suits filed by the respective
\nappellants\/plaintiffs in those suits, for injunction against the
\nrespondents\/plaintiffs in Original Suits Nos.353, 356, 359 and 404 of 1997.\n<\/p>\n
\t2. The facts of the case is as follows:\n<\/p>\n
\tThe suit in O.S. Nos.209 of 1996 was filed by one Senthil Kumari against
\nSundaram, Dhanalakshmi and the legal heirs of Ramadoss for the relief of
\npermanent injunction on the ground that the suit property in an extent of 66
\ncents was originally owned by one Rengasamy Naidu. One of the  sons Ramanujam
\nNaidu filed a suit in O.S. No.198 of 1937 against his father Rengasamy Naidu and
\nhis brother Rajagopal Naidu for the relief of injunction in respect of the suit
\nproperty and other properties.  In that suit a compromise decree was passed on
\n21.07.1937.  In that decree ‘A’ schedule property was allotted to Ramanujam
\nNaidu and ‘B’ schedule property was allotted to Rajagopal Naidu.  The suit
\nproperty was item No.3 of  ‘B’ schedule.  By virtue of the compromise decree,
\nthe said Rajagopal Naidu had been in possession and enjoyment of the suit
\nproperty.  The said Rajagopal Naidu has also asserted his title in subsequent
\nland acquisition proceedings in OP. No.76 of 1955. In the said acquisition
\nproceedings a portion of the property in survey No.4045 was sought to be
\nacquired for the formation of salai road extension.  Consequently, an award was
\npassed in Award No.15 of 1954 on 23.11.1954 in his favour.  The said acquisition
\nproceedings has been quashed by the High Court in writ petition No.17 of 1955.
\nConsequently, the award passed in favour of Rajagopal Naidu was referred to the
\nRevenue Divisional Officer, Trichy and the compensation was repaid and the land
\nwas repossessed by Rajagopal Naidu. Subsequently, the said Rajagopal Naidu
\nobtained patta and adangal in his favour.  The said Rajagopal Naidu executed a
\nsale deed on 26.05.1994 in favour of the Government in respect of a portion of
\nthe property in survey No.4045 (New No.84) through his power agent Senthil
\nKumari under Ex.A.35 (4525 sq. ft.). Senthil Kumari purchased the property in an
\nextent of 10.96 cents from Rajagopal Naidu under Ex.A1 by sale deed dated
\n27.04.1994.  After the purchase of the property which is the subject matter of
\nthe suit from Rajagopal Naidu and his legal heirs, the respondents\/ plaintiffs
\nare in actual possession and enjoyment of the same. As the property is a vacant
\nsite, the plaintiffs\/respondents took steps to raise a compound wall on
\n19.03.1996.  The appellants\/ defendants along with others attempted to interfere
\nwith the peaceful possession and enjoyment of the property.  On that cause of
\naction, the respondents\/plaintiffs filed a suit for injunction.\n<\/p>\n
\t3. The appellants\/defendants resisted the suit by contending, inter alia,
\nthat Rajagopal Naidu and his legal representatives have no right, interest, or
\ntitle over the suit property.  Thus the sale deed executed by Rajagopal Naidu
\nand his legal heirs in favour of the respondents\/plaintiff would not confer any
\nright or title on them.  Ramanujam was the owner of the said property as he
\nobtained the same under the compromise decree.  Ramanujam Naidu executed a will
\nin favour of his foster son Ramadoss.  The defendants, the legal heirs of
\nRamadoss are the absolute owners. They are in possession and enjoyment of the
\nsuit property till date. The appellants\/defendants also denied the factum that
\nRajagopal Naidu got the property in the compromise decree in O.S. No.198 of
\n1937.\n<\/p>\n
\t4. The case of the plaintiff in O.S. No.63 of 1995 is as follows :
\n\tThe suit in O.S. No.63 of 1995 was filed by Mashmukhlal M.Vora, Jayashree
\nM.Vora, Hansa J.Vora, T.Ashokan and Minor R.Vijayakumar against Dhanalakshmi,
\nRamdoss and the legal heirs of Ramadoss – R.Malarvizhi, Vanitha, Amudha,
\nKaliselvi and Kavitha.  It was the case of the plaintiffs in this suit that
\nRajagopal Naidu and his legal heirs, by sale deed dated 11.07.1980, under
\nEx.A.15 sold 44 cents of land in suit the property to Varadarajan, Subramanian
\nand Muruganandam, who inturn sold the same to one Mahendra Kumar Vora. The first
\nplaintiff in this suit Mashmukhlal M.Vora purchased a portion of the said
\nproperty by way of exchange deed dated 05.03.1992 under Ex.A.9.   The rest of
\nthe properties were purchased by the plaintiffs 2 to 5 in this suit from
\nVaradarajan and two others in different extents by means of five sale deeds
\nunder Exs.A.10 to A.14 dated 22.08.1990.  Thus, the plaintiffs have been in
\nactual possession and enjoyment of the property after purchase.  Thereupon, in
\nthe year 1995 land acquisition proceedings were initiated and on private
\nnegotiations the plaintiffs executed a sale deed in favour of the Executive
\nEngineer, PWD, Madurai for certain extent in the suit property. The defendants
\nare utter strangers. They have no title to the property. During January, 1995
\nthe defendants tried to encroach upon the property by putting up the fence.
\nThat was successfully prevented by the plaintiff.  On that basis the said suit
\nwas filed.\n<\/p>\n
\t5. The defendants in OS. No.209 of 1996 and 63 of 1995 are one and the
\nsame.  They resisted the suit on the same ground that the property was
\noriginally owned by Ramanujam and Ramanujam executed a will in favour of
\nRamadoss.   After the death of Ramadoss, the legal heirs of Ramadoss, defendants
\nare in enjoyment and possession of the property.\n<\/p>\n
\t6. Though nothing was argued about the other appeals in Tr. Appeals
\nNos.1027 to 1030 of 2001, which were filed against  the dismissal of Original
\nSuits Nos.353, 356, 359 and 404 of 1997, for completion of the narration of
\nfacts, the details are narrated in a nut shell.\n<\/p>\n
\t7(a) Before the District Munsif, Trichy, O.S.No.38 of 1995, which was
\ntransferred to the file of I Additional Sub Judge, Trichy and renumbered as O.S.
\nNo.353 of 1997 was filed by Dhanalakshmi and  Ramadoss in respect of the suit
\nproperty in S.No.4045 and 4049 for the relief of injunction against Mahendra
\nKumar Vora and others on the same ground that Ramadoss Naidu was the owner of
\nthe property by virtue of the will executed by Ramanujam Naidu in the year 1985.
\nThe plaintiffs Dhanalakshmi and Ramadoss are in possession of the suit property.
\nThe defence in the suit, as taken in the earlier suit, is to the effect that
\nRajagopal Naidu got the property in S.No.4045 under the compromise decree and
\nthereupon, subsequently the same was sold to the defendants.
\n\t7(b). Before the District Munsif, Trichy, O.S. No.866 of 1996 (later
\ntransferred to the file of the I Additional Sub Judge, Trichy and renumbered as
\nO.S. No.356 of 1997) was filed by Palaniammal and Amudha, the legal heir of
\nRamadoss Naidu against Ramasamy and Senthil Kumari, the plaintiff in O.S. No.209
\nof 1996 on the ground that Amudha entered into a tenancy on a monthly rent of
\nRs.750\/- on an oral lease with Senthil Kumari.  The purpose of tenancy was for
\nrunning sheep farm.  The plaintiffs improved the land by investing Rs.30,000\/-.
\nThe first plaintiff is assisting Amutha in the sheep farm.  The defendants
\ninterfered with their possession and hence the suit.\n<\/p>\n
\t7(c) O.S.258 of 1996 was filed before the District Munsif, Trichy, which
\nwas latter renumbered as O.S. No.359 of 1997 when transferred to the file of the
\nI Additional sub Judge, Trichy, was filed by one Jegannathan against R.Chandra
\nand others for the relief of injunction on the premise that the plaintiff is the
\nlessee of the land on and from 01.03.1996 onwards on the basis of the lease
\nentered into with one Vanitha, power of attorney of the real owner of the land.
\nThe defendants interfered and hence the suit.\n<\/p>\n
\t7(d) Original Suit No.111 of 1997 was filed before the District Munsif,
\nDindigul and transferred to the I Additional Sub Judge, Trichy and renumbered as
\nO.S. No.404 of 1997.  That suit was filed by Malarvizhi and Amutha, the
\ndaughters of Ramadoss and Dhanalakshmi against Hashmukhlal Vora and others  on
\nthe premise that the plaintiffs were lessees of Ramadoss by lease deed dated
\n01.07.1995 and they are in possession.\n<\/p>\n
\t8. The trial court, pursuant to the direction given by the High Court in
\nC.R.P. No.1173 of 1997 by order dated 24.04.1997 directing that all the suits
\nabove referred to pending before various Courts shall be transferred to Sub
\nCourt Trichy and heard and disposed off along with the suit pending before it,
\npassed the common judgment by decreeing the suits in O.S. No.209 of 1996 and 63
\nof 1995 and dismissing the rest of the suits.\n<\/p>\n
\t9. Mr.AR.L.Sundaresan, learned senior counsel appearing for the appellants
\nsubmits that the suit property in S.No.4045 was allotted to the share of
\nRamanujam under the compromise decree made in O.S.No.198 of 1937 dated
\n21.07.1937. In pursuance of the same, the said Ramanujam was in possession and
\nenjoyment of S.No.4045.  Ramanujam being unmarried, executed a will in favour of
\nhis foster son one Ramadoss under Ex.B.18 dated 10.01.1985.  After the death of
\nRamadoss on 01.04.1992 the appellants being the legal heirs of Ramadoss are in
\npossession and enjoyment of the same. The revenue records under Exs.B.9 to B.17
\nwould clinchingly prove that the defendants are in possession and enjoyment of
\nthe property.  Exs.A.2 and A.16 certified copies of the compromise decree cannot
\nbe regarded as genuine ones in the face of Ex.B.1 compromise petition, Ex.B3
\nsuit register and B.2 settlement register marked by the appellants. A cloud is
\ncast on the Exs.A2 and A.16 which cannot be relied upon as the original copies
\nare not available in Court.  He further contended that the suit as framed was
\nfor permanent injunction.  The trial Court has granted the decree of declaration
\nalso by directing amendment of the plaint and payment of Court fee for the
\ndeclaratory relief, which is impermissible in law.\n<\/p>\n
\t10.On the other hand, Mr.T.R.Rajagopal, learned senior counsel for the
\nrespondents\/plaintiffs contended that Exs.A2 and A.16 certified copies of
\ncompromise decree are the vital documents which cannot be simply brushed aside.
\nThe defendants who claim the right under Ramanujam by contending that the suit
\nproperty has been allotted to Ramanujam in the compromise decree has not taken
\nany care to file a copy of the compromise decree granted to prove their case,
\nbut simply stated that the application filed by them for the copy has been
\nreturned both by the District Court as well as Munsif Court as the original was
\nnot available.   Ex.A.33,   compromise petition signed by all the parties to the
\nsuit, is categorical in its term that the suit property in S.No.4045  was
\nallotted to the share of Rajagopal, who along with his legal heirs executed a
\nsale deed in Ex.A.15 in  favour of Varadarajan, Subramanian and Muruganandam,
\nwho in-turn executed sale deeds in favour of Mahendra Kumar Vora, Jayashree
\nH.Vora, Hansa J.Vora, T.Ashokan and Minor R.Vijaykumar under Exs.A.10 to A.14.
\nMahendra Kumar Vora who purchased a portion of the property from Varadarajan and
\ntwo others exchanged the same with Hashmukhlal Vora under Ex.A.9,exchange deed.
\nLikewise, Senthilkumari, the plaintiff in O.S. No.209 of 1996 purchased an
\nextent of 10.96 cents from Rajagopal Naidu and his legal heirs by a sale deed
\ndated 27.01.1994 under Ex.A.1. Thus, the plaintiffs have derived title and are
\nin possession and enjoyment of the suit property. The decree granted by the
\ntrial Court cannot be assailed. He further contended that the Court, taking into
\nconsideration the desparate attempts made by the defendants in filing suit after
\nsuit in respect of the very same property in various Courts, went into the
\nquestion of title also and has given a clear finding that the plaintiffs in O.S.
\n209 of 1996 and O.S. No.63 of 1995 are entitled to the relief of injunction. The
\ndeclaratory relief was granted taking into consideration the defence taken by
\nthe defendants.  Because of the defence taken and the attitude of the
\ndefendants, the trial Court was forced to analyse the title dispute also and
\nultimately the Court held that the plaintiffs in OS.No.209 of 1996 and 63 of
\n1995 are entitled to the suit property on the basis of the compromise decree,
\nsale deeds and other documents and thus  granted the relief of declaration also
\nby directing the plaintiffs to amend the plaint and pay the Court fee, that too,
\nhaving regard to the peculiar facts and circumstances of the present case.
\nPursuant to that the Court fee has also been paid. Contending thus, he prayed
\nfor dismissal of the appeals.\n<\/p>\n
\t11. Heard the learned senior counsel on either side and perused the
\nmaterials available on record.\n<\/p>\n
\t12. From the summation of facts, as stated above, the issue to be decided
\nis whether the plaintiffs  in O.S. Nos.209 of 1996 and 63 of 1995 are entitled
\nto the suit relief. Though the prayer was sought for permanent injunction, the
\nfact in issue is as to the title, in the sense that the plaintiffs  in O.S.
\nNo.209 of 1996 and 63 of 1995 contended that they purchased the property from
\nRajagopal Naidu, who obtained the same under the compromise decree.  The
\ndefendants denied the same and traced their title through Ramanujam under the
\nsame compromise decree.\n<\/p>\n
\t13. Exs.A2 and A.16 are certified copies of the compromise decree dated
\n21.07.1937. As seen from Ex.A.2, the application for issuance of certified copy
\nof the decree was made on 03.02.1995 and Ex.A.2 was issued on 07.02.1995. For
\nEx.A.16, the copy application was made on 30.01.1942 and Ex.A.16 was issued on
\n05.02.1942. There is absolutely no discrepancy whatsoever in respect of these
\ntwo documents.  They are identical to each other. The relevant portions are
\nextracted hereunder:\n<\/p>\n
”\t1. that A schedule properties described hereunder shall be owned
\nabsolutely by the plaintiff as and from this date with absolute power of
\nalienation and that none of the defendants shall have any right or interest in
\nthe same.\n<\/p>\n
\t2. that the B schedule properties  described hereunder shall be owned
\nabsolutely by the second defendant and he shall enjoy the same as and from this
\ndate with full and absolute powers of alienation and that neither the plaintiff
\nnor the 1st defendant shall have any right or interest in the same and,\n<\/p>\n
\t3. that the parties do bear their own costs of this suit.<\/p>\n
\n\nDescription of Property\nA. Schedule\n\nrh;nt vz;\t  \tjp. jh.\trpe;jhkzp fpuhkj;jpy;\n\t\t\t                  V. br.                 jPh;it\n\n1. 3831\/2 \t            0.59  eQ;ir     8.7.0\n2. 3833\t\t\t\t  0.33   i\\   \t   4.11.0\n3. 3834\t\t\t\t  0.66   i\\\t   9.7.0\n4. 3857 \t\t\t       0.83y; fPH;ghfk; oRky; 37r\n5. 3802\t\t \t\t  0.35y; fPH;ghfk; oRky; 17r\n\nB Schedule\n\trh;nt vz;\t  \tjp. jh.   rpe;jhkzp fpuhkj;jpy;\n\t\t\t                  V. br.                 jPh;it\n\n1. 3857 \t                 0.73y; nky;ghfk; oRky; 36r\n2. 3802\t\t\t\t  0.35y; nky;ghfk; oRky; 17r\n3. 4045\t\t\t\t  0.66   eQ;ir jPh;it :U9.7.0\n4. 4049 \t\t\t       0.22    eQ;ir jPh;it\t3.2.0\n\n\n<\/pre>\n
\t14. The petition filed by the parties to the suit in O.S. No.198 of 1937
\nunder Order XXIII Rule 3 of the Code of Civil Procedure has been marked as
\nEx.A.33.  As per Ex.A.33,  ‘A’ schedule properties should be owned absolutely by
\nthe plaintiff in OS. No.198 of 1937, i.e., Ramanujam Naidu as and from that date
\nwith absolute power of alienation.  None of the defendants therein shall have
\nany right or interest in the same.  On the same terminology, ‘B’ schedule
\nproperty was allotted to the share of Rajagopal Naidu, the second defendant in
\nthat suit.  It could be seen from Ex.A.33 that all the parties to the suit,
\ni.e., Ramanujam Naidu, the plaintiff, Rengasamy Naidu, the first defendant and
\nRajagopal Naidu, the second defendant have signed the petition in each and every
\npage upto the last page.  In the last page, in addition to the parties’
\nsignature, counsels appearing for the parties have also signed. S.No.4045 and
\n4049 come under ‘B’ schedule, which has been allotted to Rajagopal Naidu.  On
\nbehalf of the appellants\/defendants, a copy of the same compromise petition
\nfiled under Order XXIII Rule 3, CPC has been marked as Ex.B.1. In the Schedule
\nto the same S.No.4045 and 4049 are shown as item No.4 under ‘A’ schedule.  On a
\nperusal of the ‘A’ schedule, it is apparent on the face of it that suit property
\nwas inserted in the schedule.  All other items of properties in that schedule
\nwere identified with full details such as their extent with survey numbers and
\nboundaries of the properties in all four sides with their respective survey
\nnumbers.  But so far as item No.4, ‘A’ schedule property is concerned, only the
\nsurvey number was stated and not even the extent was stated.\n<\/p>\n
\t15.  Likewise, ‘B’ schedule shown in Ex.B.1 is filled with all
\nambiguities.  Item No.2 of ‘B’ schedule read as follows :\n<\/p>\n
\tnkw;go> nkw;go> nkw;go> rpe;jhkzp F:U:g; jpUj;jhe;njhzp fpuhkj;jpy; mad;
\neQ;irahapUe;J jw;fhyk; bjd;de;njhg;g[ lt[z; rh;nt 3857> butpd;a{ rh;nt 107\/2>
\nehd;bfy;iy nkw;fpy; 3849> tlf;fpy; 3856> fpHf;fpy; 3858> bjw;fpy; ciwa{h; nuhL
\n,jw;Fl;gl;lJ.  o 73y; nky;ghfk; o 36 1\/2.  ,e;j epyj;Jf;F fPH;ghfk; tHpahfj;
\njz;zPh; gha;r;rpf;bfhs;s ghj;jpak; cl;gl.\n<\/p>\n
Item No.4 is the lower part of the item No.2.  It reads as under :
\n\tnkw;go> nkw;go> nkw;go> rg; o];l;hpf;l;> g[j;J}h; khfhzk;> rpe;jhkzp
\nF:U:g; jpUj;jhe;njhzp fpuhkj;jpy; mad; eQ;irahapUe;J jw;fhyk; bjd;de;njhg;g[
\nlt[z; rh;nt 3857> butpd;a{ rh;nt vz; 107\/2> ehd;bfy;iy nkw;fpy; 3842> tlf;fpy;
\n3856> fpHf;fpy; 3858> bjw;fpy; ciwa{h; nuhL ,jw;Fl;gl;lJ.  orpky; 73y; fPH;ghfk;
\norky; 36 1\/2.  ,jw;F nky;g[wk;; tofhy; ghj;jpak; cl;glt[k;.\n<\/p>\n
Item No.2 refers to upper portion of the land in an extent of 36 r cents out of
\n73 cents in surve No.3857.  Item No.4 refers to lower portion in an extent of 36
\nr cents out of 73 cents in the very same survey No.3857.  If the entire extent
\nof 73 cents were agreed to be allotted in the ‘B’ schedule, there is no
\nnecessity for dividing 73 cents into two portions – upper and lower and also two
\ndifferent items (2 and 4) in ‘B’ schedule.  Further more, by a mere perusal and
\nreading of the schedule of Ex.B.1 it is manifestly clear that the schedule is a
\ntotal mess as the same is having number of corrections, over writings, strikings
\nand interpolations.   In view of the above obvious discrepancies in the schedule
\nto Ex.B.1, we are of the view that no credibility can be attached to Ex.B.1 and
\nthus we reject the same as incredible.\n<\/p>\n
\t16.  From Exs.A2 and A.16 which are certified copies of the compromise
\ndecree issued by the competent court it is evident that S.No.4045  is item No.3
\nof B schedule to the compromise decree, which was allotted to Rajagopal Naidu.
\nAs per section 79 of the Indian Evidence Act, the Court shall presume to be
\ngenuine every document purporting to be a certificate, certified copy or other
\ndocument, which is by law declared to be admissible as evidence of any
\nparticular fact and which purports to be duly certified by any officer who is
\nduly authorised thereto.  Ex.A2 and A.16 conform with the legal requirements.\n<\/p>\n
\t17. In addition to that, the document (Ex.A16) is also ancient document
\nissued by a competent Court in the year 1942. There is absolutely no discrepancy
\nwhatsoever in Exs.A2 (which was issued in the year 1995) and A16 and there is no
\niota of material to doubt the credibility of the document, Ex.A.16.   Of-course
\nas to how those documents came to the possession of the respondents\/plaintiffs
\nwas questioned by Mr.AR.L.Sundaresan, learned senior counsel and for that
\npurpose he referred to the oral evidence of P.W.1.  It may be true that in the
\noral evidence of P.W.1 there are certain inconsistencies as to the possession
\nand time when it was handed over by the vendor.  The mere ipse dixit in the
\nevidence of P.W.1 as to the time and how he came to possess Exs.A2 and A.16
\nwould not militate the issue or eschew the admissibility or credibility of the
\ntwo documents when legal sanctity has been attached to them as per the Evidence
\nAct.  Hence, we are of the view that Exs.A.2 and A.16 are true and genuine
\ndocuments and as per the same, the disputed property in S.No.4045 was allotted
\nin favour of Rajagopal Naidu.\n<\/p>\n
\t18.  Subsequent to the compromise decree, to prove that the said Rajagopal
\nNaidu has asserted title to the suit property, land acquisition proceedings
\ninitiated in respect of a portion of the suit property have been marked as
\nExs.A4 and A.5. They are O.P.No.76 of 1958 and 57 of 1958. It is clear from the
\nabove documents that an extent of 5281 sq. ft in S.No.4045\/1  and 4141 sq. ft in
\nthe same survey numbers have been acquired.  In the said proceedings Rajagopal
\nNaidu and three of his legal heirs were parties. It could be seen from the said
\nproceedings that a compensation amount of Rs.624.94 and Rs.413.17 have been
\nawarded in respect of the lands acquired in survey No.4045.  Further, Rajagopal
\nNaidu, it is evident from Ex.A.38 dealt with the property in S.No.4045 by
\nexecuting an indemnity deed in favour of the District Court for the appointment
\nof one Sankaran Pillai as Amin.\n<\/p>\n
\t 19. Apart from that, Ramanujam Naidu has dealt with the properties
\nallotted to him (A schedule) in terms of the compromise decree by executing a
\nsale deed on 16.01.1961 in document No.147 of 1961, under Ex.A.36, by which he
\nconveyed some portion of S.No.3857, which is item No.4 in the A schedule to the
\ncompromise decree, to one Palanichamy Naidu.  Ex.A.37 is the mortgage deed by
\nwhich Ramanujam Naidu mortgaged the property of an extent of 38 cents in T.S.
\nNo.3802, which is item No.5 in the A schedule to the Compromise decree, to one
\nVaithialinga Pillai.  Ex.A.32 is the sale deed executed by the said Ramanuja
\nNaidu by which 15 flats in T.S. No.3831\/2B, 3833 and 3834, which are items Nos.1
\nto 3 in the A schedule to the said compromise decree were sold out.  Thus, the
\nproperties described in A schedule have been dealt with by Ramanujam Naidu,
\nwhich establishes the fact that A schedule properties were allotted to Ramanujam
\nNaidu and B schedule properties, in which s.No.4045 is one of the items, was
\nallotted to Rajagopal Naidu and thus, Exs.A.32, A.36 and A.37 establish the
\ncorrectness of Exs.A2 and A.16.   It further establishes that the parties have
\nacted upon on the basis of Exs.A2 and A.16.\n<\/p>\n
\t20. Now coming to the documents relied upon by the appellants\/defendants,
\nEx.B.1, the compromise petition filed under Order XXIII Rule 3 of the Code of
\nCivil Procedure, the genuineness of which has been dealt with in the earlier
\nportion of this judgment and held to be containing manipulations, over writings,
\nstrikings and absurdity and hence Ex.B.1 cannot in any way advance the case of
\nthe appellants\/defendants and the same has to be rejected.  Likewise, Ex.B.3,
\nthe suit register on which reliance was placed by the learned senior counsel for
\nthe appellants\/defendant has also to be rejected for the reason of manipulation,
\nbecause as and when suits are filed, the particulars about the names of the
\nplaintiffs, counsel appearing for the plaintiffs, names of the defendants,
\ncounsel appearing for the defendants and the relief prayed for in the suit are
\nentered in the register.  Of course the properties scheduled in the plaint also
\nentered in the suit registers.  After the disposal of the suit, the nature of
\ndisposal would be indicated in the relevant column of the suit register.
\nHowever, it is peculiar in this case that under Ex.B.3, the schedule of
\nproperties have been divided into ‘A’ and ‘B’ schedules.  When the division of A
\nand B schedules, as found in the copy of the suit register is compared with
\nEx.A.17, the plaint copy in O.S. No.198 of 1937, no such division has been
\nfound.  Hence, the division noted in the certified copy of the suit register
\nunder Ex.B.3 could only be regarded as an improvement done for the benefit of
\nthe appellants\/defendants. The properties contained in Ex.B.3 suit register are
\nalso not co-relatable with the properties in the plaint in Ex.A.17, in the sense
\nthat the number of the survey numbers which are not available in the plaint
\nschedule (Ex.A.17) have been incorporated in Ex.B.3.  Likewise, in the disposal
\ncolumn, it is written that A schedule property has been allotted to Ramanujam
\nNaidu in which S.No.4045 is included as one of the items.  For the reasons
\nstated above, Ex.B.3 has also to be rejected as a document of manipulation,
\nmanipulated for the purpose of gaining advantage by the appellants.\n<\/p>\n
\t21. Once we come to the conclusion that the disputed property in S.No.4045
\nhas been allotted to Rajagopal Naidu, the other documents which are revenue
\nrecords produced by the appellants\/defendants need not be dealt with in detailed
\nfashion. Ex.B.4, which is inquiry proceedings under section 5A of the Land
\nAcquisition Act in respect of the said land in which Ramanujam appeared in
\nperson and objected to the land acquisition. Mere appearing and objecting to the
\nacquisition of a particular land under section 5A of the Land Acquisition Act,
\nby itself would not give any title to the person objecting the same.  A third
\nparty can very well, on behalf of the real owner, object the land acquisition
\ngiving valid reasons.  Ex.B.2 Survey and Settlement register shows the name of
\nRengasamy Naidu as the pattadar.  Exs.B.9 to B.14 are revenue records.  Entries
\nin these records were changed in the name of the appellants post suit, cannot be
\ntaken as more credible than Exs.A.2 and A.16. Further, it is well settled
\nproposition that revenue records would not confer any title. (See Guru Amarjit
\nSingh v. Rattan Chand,<\/a> (1993) 4 SCC 349;  Durga Das v. Collector,<\/a> (1996) 5 SCC
\n618; Dalip Singh v. Sikh Gurdwara Prabhandak Committee,<\/a> (2003) 10 SCC 352; Suman
\nVerma v. Union of India,<\/a> (2004) 12 SCC 58.)<\/p>\n
\t22. It is interesting to note that the consistent case of the defendants
\nis that the suit property was allotted to the share of Ramanujam Naidu and that
\nRamanujam Naidu executed a will Ex.B.18 in favour of Ramadoss, his foster son.
\nAs already stated, we are not able to concur with the stand of the defendants
\nthat survey No.4045 was allotted to Ramanujam Naidu. The learned counsel for the
\nappellants\/defendants did not advance any argument with reference to the Will.
\nHowever, the trial Court has given a very detailed and categorical finding that
\nthe Will has not been proved as required under law.  It is pertinent to mention
\nthat the trial Court has criticised the way in which the case has been projected
\nby the appellants\/defendants with reference to the Will on which they claim
\ntitle to the effect that in the plaint filed by the defendants in O.S. No.209 of
\n1996, not even the date and month of the Will was mentioned.  Likewise, there
\nwas no mention about the names of the attestors and scribe of the Will and about
\ntheir availability or non availability in a specific manner.  A clear cut denial
\nover the sound disposing state of mind of the testator has been put forth by the
\ndefendants in O.S. No.353 of 1997 in the written statement by attacking the
\ngenuineness of the will.  D.W.1, for the first time stated in her evidence that
\nshe was physically present when the Will was executed by Ramanujam Naidu. But
\nthere is no whisper about the important aspect by way of specific pleading.  DW1
\nhas not spoken about the non availability of the attestors or scribe, when he
\nwas examined in chief partly on 15.07.1996 and further examination in chief on
\n17.07.1997 and even at the cross examination on 17.07.1997, 22.07.1997 and then
\non 23.07.1997.  After the cross examination was over, DW1 came forward to state
\nby subjecting for further examination on 29.07.1997 that the attestors and the
\nscribe were dead.  From the evidence, the trial Court came to the conclusion
\nthat DW1 has not participated in the execution of the Will directly by affixing
\nsignature on it. Further, the trial Court has held that no evidence has been
\nadduced to support the claim that attestors and scribe of the Will were actually
\ndead, and found that it was an after-thought to get over the non examination of
\nthe attestors and scribe.  The trial Court has also found that in Ex.B.18 will,
\nthere is a mention about the earlier will dated 01.07.1982 and about the
\nrectification will dated 05.01.1985 which are not produced and there was no
\nsatisfactory explanation for non production of the same.  Further, it was found
\nthat the allegation that the signature of the attestor and scribe has not been
\nproved to the satisfaction of the Court by the competent person who claims
\nknowledge about the signature of such attestors and scribe. Nothing was argued
\nbefore this Court to reject the same. Hence, for the foregoing reasons, we are
\nof the view that the appellants have not made any case so as to reverse the
\nfactual finding of the trial Judge, which is based on materials.\n<\/p>\n
\t23. As regards the other point that the trial Court has erred miserably
\nexpanding its jurisdiction in granting a decree for declaration, we are of the
\nview that technical objections need not been given much weight, when Procedure
\nCode provides for amendment of pleading at any time.  Admittedly, in this case,
\nthe proviso introduced by 2002 amendment is not applicable.  Useful reference
\ncan be had to the decision of the Full Bench of this Court in the case of    Hi.
\nSheet Industries v. Litelon Ltd.,<\/a> 2007-1-LW 32.\n<\/p>\n
\t24. In this case, the fact in issue is that item No.3 T.S.No.4045 of ‘B’
\nschedule property was allotted to Rajagopal Naidu under the compromise decree
\nmade in O.S. No.198 of 1937.  That was denied and rather, it was claimed that
\nthe above said S.No.4045 was allotted to Ramanujam Naidu and that was item No.4
\nin ‘A’ schedule.  Thus, the claim is under the compromise decree and the fact in
\nissue is whether the property was allotted to Ramanujam Naidu or Rajagopal
\nNaidu.  The respondents\/plaintiffs claim title under Rajagopal Naidu and the
\nappellants\/defendants claim title under Ramanujam Naidu.  This is factually a
\ntitle suit.  The pleadings – the averments in the plaint and written statement
\nhave concentrated only on that issue.  Evidence was also let in concentrating on
\nthe core issue of title to the suit property.  However, the prayer sought for
\nwas only for injunction.  Order VI Rule 17 provides that the Court may at any
\nstage of the proceedings allow either part to alter or amend his pleadings in
\nsuch manner and on such terms as may be just, and all such amendments shall be
\nmade as may be necessary for the purpose of determining the real questions in
\ncontroversy between the parties.  So, the Court was vested with the power to
\nallow the parties to amend the pleadings at any stage of the proceedings.  The
\nfurther requirement of the provision is that the amendment shall be made as may
\nbe necessary for the purpose of determining the real question in controversy
\nbetween the parties vide B.K.Narayana Pillai v. Parameswaran Pillai,<\/a> 2000 (1)
\nSCC 712.\n<\/p>\n
\t25. The Privy Council in the case of Ma  Shwe Mya v. Maung Mo Hnaung, AIR
\n1922 PC 249 has observed that :\n<\/p>\n
All rules of Courts are nothing but provisions intended to secure the proper
\nadministration of justice and it is, therefore, essential that they should be
\nmade to serve and be subordinate to that purpose, so that full powers of
\namendment must be enjoyed and should always be liberally exercised, but
\nnonetheless no power has yet been given to enable one distinct cause of action
\nto be substituted for another, nor to change by means of amendment, the subject
\nmatter of the suit.\n<\/p>\n
\t26. The object of law of pleadings is that the Court and the respective
\nparties should fully know the case and contentious issue before the parties go
\nin for trial so that the trial may proceed in the well defined channel.\n<\/p>\n
\t27. In the case on hand also, the real question in controversy is only
\ntitle to the suit property based on which the relief of injunction has been
\nsought for.  When the entire plaint is read together, though the relief sought
\nfor is for injunction, while considering the stand taken in the written
\nstatement, the dispute is only in respect of the title.  By allowing this
\namendment no prejudice is caused or stated to have been caused to the
\nappellants\/defendants. Only technical plea was raised.  Fairplay in action must
\ninhere in judicial approach and Court’s approach should be oriented with this
\nview whether substantial justice is done between the parties or technical rules
\nof procedure are given precedence over doing substantial justice in Court.  A
\ncode of procedure is designed to facilitate justice and further its ends; not a
\npenal enactment for punishment and penalties.  – vide Bhagwan Swaroop v. Mool
\nChand,<\/a> (1983) 2 SCC 132.  The Supreme Court in the case of Santokh Singh v.
\nMahant Iqbal Singh,<\/a> (2000) 7 SCC 215, while considering the case in a suit for
\npossession, where the declaratory relief has not been prayed for, observed as
\nfollows :\n<\/p>\n
“It is correct that such a declaration should have been sought.  Normally in the
\nabsence of such a declaration such a suit would not be maintainable.  However,
\nin this case, we find that even though there was no prayer to the effect that
\nthe lease deed was not valid and\/or void and\/or not binding, the necessary
\naverments are there in the plaint.  The appellants thus knew that the lease deed
\nwas being challenged.  They met the challenge in their written statement.
\nThereafter issues, namely, issues 4 and 5 had been framed.  Evidence was led by
\nthe parties on those issues.  Arguments were advanced on those issues.
\nTherefore, this question has been agitated by the parties in all the Courts.
\nThus even though there was no formal prayer was asked for (sic), no prejudice
\nhas been caused to the appellant inasmuch as he has not been prevented from
\nleading evidence on this aspect and has not been precluded from raising
\ncontentions in this behalf.  In our view, all that was necessary to cure the
\ndefect was an amendment by incorporating one prayer.  This could have been done
\nat any stage.  In this view of the matter and particularly in view of the fact
\nthat we are in agreement with the findings that the property is a trust property
\nand that the lease in question was not for consideration or for legal necessity,
\nwe see no reason to interfere.”\n<\/p>\n
The above said observation of the Supreme Court would aptly apply to the facts
\nof the present case.\n<\/p>\n
\t28. Here is a case in which, we are of the view that the attitude and
\nconduct of the appellants\/defendants have to be taken note of for the purpose of
\ndeciding the issue.  The appellants are defendants in O.S. No.209 of 1996 and
\nO.S.No.63 of 1995. They defended the suits as if the property has been allotted
\nto Ramanujam Naidu and the said Ramanujam Naidu executed a will in favour of his
\nfoster son Ramadoss Naidu and accordingly to his heirs.  Again, when the suits
\nwere pending, in a desparation to get the property somehow or the other,
\nDhanalakshmi and Ramadoss filed another suit in O.S. No.38 of 1995 (renumbered
\nas O.S. No.353 of 1997) before the District Munsif, Trichy for injunction
\nagainst the plaintiffs in O.S.No.63 of 1995 or their predecessors in title.  The
\ndaughter of Ramadoss Naidu  Amutha along with one Palaniammal filed a suit
\nbefore the District Munsif, Trichy in O.S. No.866 of 1996 (renumbered as O.S.
\nNo.356 of 1997) claiming oral tenancy from the plaintiff in O.S. No.209 of 1996
\nin respect of the very same suit property.  Then another suit came to be filed
\nin O.S. No.258 of 1996 before District Munsif, Trichy (renumbered as O.S. No.359
\nof 1997)  on the basis of lease with Vanitha, one of the daughters of the
\nRamadoss Naidu and for injunction against the husband of the plaintiff in OS
\nNo.209 of 1996 and others (Defendants in OS.No.353 of 1997).  Likewise, in suit
\nin O.S. 111 of 1997 (renumbered as OS.No.404 of 1997) has been filed by
\nMalarvizhil and Amutha, daughters of Ramadoss Naidu against the plaintiffs in
\nO.S. No.63 of 1995 as if they are lessees of their own father Ramadoss Naidu of
\nthe land.  The desparation of the defendants is manifestly made clear from the
\nfiling of suit after suit as stated above.  If the relief of declaration is not
\ngranted, it is obvious that several spate of suits would be filed once again by
\nthe appellants resulting in multiplicity of litigation.\n<\/p>\n
\t29. The Supreme Court, in the case of Bhagwan Swaroop vs. Mool Chand,<\/a>
\n(1983) 2 SCC 132 has observed that the laws of procedure by themselves do not
\ncreate any impediment or obstruction in the matter of doing justice to the
\nparties.  On the other hand, the main purpose and object of enacting procedural
\nlaws is to see that justice  is done to the parties. In the absence of
\nprocedural laws regulating procedure as to dealing with any dispute between the
\nparties, the cause of justice suffers and justice will be in a state of
\nconfusion and quandary.  Difficulties arise when parties are at default in
\ncomplying with the laws of procedure.  As procedure is aptly described to be the
\nhand-maid of justice, the Court may in appropriate cases ignore or excuse a mere
\nirregularity in the observance of the procedural law in the larger interest of
\njustice.  It is always to be borne in mind that procedural laws are as valid as
\nany other law and are enacted to be observed and have not been enacted merely to
\nbe brushed aside by the Court.  Depending on the facts and circumstances of a
\nparticular case in the larger interests of administration of justice the Court
\nmay and the Court in fact does, excuse or overlook a mere irregularity or a
\ntrivial  breach in the observance of any procedural law for doing real and
\nsubstantial justice to the parties and the Court passes proper orders which will
\nserve the interests of justice best.\n<\/p>\n
\t30. In the very same judgment, the Court observed that laws  of procedure
\nare devised for advancing justice and not impeding the same. The Supreme Court
\nin that judgment quoted from the decision in the case of Sangram Singh v.
\nElection Tribunal, Kotah, AIR<\/a> 1955 SC 425 wherein it was observed that a code of
\nprocedure is designed to facilitate justice and further its ends; not a penal
\nenactment for punishment and penalties; not a thing designed to trip people up.
\nThis was reaffirmed in the decision in the case of Kalipada Das v. Bimal Krishna
\nSen Gupta,<\/a> (1983) 1 scc 14.\n<\/p>\n
\t31. The appellants\/defendants are also not in a position to advance any
\nargument to the effect that because of the action of the Court in granting the
\ndeclaratory relief by directing the plaintiff to pay the Court fee, substantial
\nprejudice has been caused to the appellants\/defendants. The parties were alive
\nto the occasion to the effect that they are fighting for title only.  In the
\nabsence of any prejudice caused or likely to be caused to the
\nappellants\/defendants, the procedure adopted by the Court, when all the relevant
\nmaterials available before it, cannot vitiate the proceedings.\n<\/p>\n
\t32. In somewhat comparable facts, the Supreme Court in the case of
\nCorporation of City of Bangalore v. M.Papaiah,<\/a> (1980) 3 SCC 612 has held that
\nfor non seeking of relief of declaration, a suit for injunction cannot be
\ndismissed.  That was a suit filed for decree of perpetual injunction restraining
\nthe Corporation from interfering with the possession of the plaintiff.  The case
\nof the Corporation was that the disputed area was acquired for house on a burial
\nground under G.O. and compensation was paid to the plaintiffs out of Municipal
\nfunds and land was in possession of the defendants since then.  The plaintiff’s
\ncase was that the alleged GO was cancelled and the land settled under another GO
\nto persons who subsequently sold it to the plaintiff.  The plaintiff also got
\nhis name entered into the revenue records.  The suit was decreed by the trial
\nCourt, but the decision was reversed in the first appeal.  The plaintiff’s
\nsecond appeal was allowed by the High  Court and the trial Court’s decision was
\nrestored.  In this factual situation of the case, the Supreme Court held that
\nthe foundation of the claim of the plaintiff was title which was pleaded in the
\nearlier part of the plaint and for deciding the nature of the suit, the entire
\nplaint has to be read and not merely, the relief portion.  The plaint in that
\ncase does not leave any manner of doubt that the suit has been filed for
\nestablishing title of the plaintiff and on that basis, getting an injunction
\nagainst the Corporation.  The Court fee payable was also assessed accordingly.\n<\/p>\n
\t33. The above observations of the Supreme Court perfectly match with the
\nfacts of the present case and thus we find no justifiable reasons to reverse the
\njudgment of the trial Court.\n<\/p>\n
\t34. For all the above reasons,  we are of the view that all the appeals
\ndeserve to be dismissed and are accordingly dismissed.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court R.Dhanalakshimi vs Mool Chand on 10 July, 2007 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 […]<\/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-66426","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nR.Dhanalakshimi vs Mool Chand on 10 July, 2007 - 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\/r-dhanalakshimi-vs-mool-chand-on-10-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Dhanalakshimi vs Mool Chand on 10 July, 2007 - 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