Chandranathan vs Esthar Rani and Others

M. Karpagavinayagam, J.—Chandranathan, first defendant in OS No. 98/83 on the file of the District Munsif, Villupuram, is the appellant

herein.

Respondents 1 to 3, the plaintiffs, filed a suit for declaration and permanent injunction. The trial Court decreed the suit in favour of the plaintiffs.

Though there are two defendants, the first defendant alone filed an appeal before the lower appellate Court in A. S. No. 24 of 1985, challenging

the judgment of the trial Court.

During the pendency of the appeal, both the parties filed some additional documents. The First Appellate Judge, after considering the

submissions made by the parties and on perusal of the evidence, oral and documentary, let in before the trial Court as well as the lower appellate

Court, confirmed the decree and judgment of the trial Court and dismissed the appeal. Hence, this Second Appeal by the first defendant, the

appellant herein.

The case of the plaintiffs is as follows :--

The first plaintiff is the mother and second and third plaintiffs are daughters. The suit properties belonged to the first plaintiffs husband, Jesudoss.

He got the same in an oral partition that took place in the year 1946 between him and his brother. The first defendant is the son of Devasagayam,

the elder brother of the said Jesudoss. Jesudoss died in the year 1982. After his death, the plaintiffs have been in possession and enjoyment of the

suit properties. Taking advantage of the death of the husband of the first plaintiff, the defendants tried to trespass into the suit properties on 5-2-

1983. Hence, the suit was filed.

The suit was contested by the first defendant, the appellant herein. His case is as follows :--

The suit properties and other properties were assigned to Devasagayam, his father. As an absolute owner, his father was enjoying the properties.

He permitted his brother. i.e., first plaintiffs husband to cultivate the suit properties, by allowing him to have a permissive possession. He filed

another suit in respect of some of the suit properties and the said suit was decreed by the lower appellate Court and as such, the present suit is

barred by res judicata. Some of the suit properties have been taken over by the Government. Therefore, the Government is the necessary party.

Hence, the suit is not maintainable.

The trial Court, after framing various issues, conducted the trial, in which, on the side of the plaintiffs, P. Ws. 1 to 3 were examined and Exs. A1

to A40 were marked, and on the side of the defendants, the first defendant was examined as DW-1 and Exs. B-1 to B-4 were marked. The

Advocate Commissioner''s report and his sketch were marked as Exhibits C1 and C2.

Taking into consideration the materials available on record, the trial Court held that the suit properties were obtained by Jesudoss in the partition

in 1946 and that, the legal representatives of the said Jesudoss would be entitled to declaration of title in respect of the suit properties and

permanent injunction.

In the appellate Court, on behalf of the defendants and the plaintiffs, additional documents were filed and the same were allowed to be admitted

by the lower Appellate Court as Exs. A41 to A45 on the side of the plaintiffs and Exs. B8 and B9 on the side of the defendant/appellant.

The lower appellate Court, in the light of the evidence available on record, found that the plaintiffs would be entitled to the relief sought for in the

suit and dismissed the appeal by confirming the judgment and decree passed by the trial Court.

At the time of admission, the only substantial question of law that was formulated by this Court is this :--

Whether the findings in S. A. No. 686 of 1979 would not bind the parties to this Second Appeal with reference to the properties involved in it?

The learned counsel for the appellant, though would submit in elaboration of the above substantial question of law, would mainly concentrate

on the point that the trial Court and the lower appellate Court have given a wrong finding on the basis of the inadmissible documents and at any

rate, the suit is liable to be dismissed on the ground of non-joinder of party, as the Government, which is the necessary party was not impleaded in

the suit. He would also cite the following authorities to substantiate the above submission :--

(Profulla Choron v.Satya Choron):

V.A. Amiappa Nainar (Died) and Others Vs. N. Annamalai Chettiar (Died) and Others,

Sri Ram Pasricha Vs. Jagannath and Others, .

According to the learned counsel for the appellant, the finding given by the trial Court that the suit cannot be dismissed on the ground of non-

joinder of the Government as a party, since it was not established by the defendants that the suit properties were taken over by the Government, is

not correct.

On the other hand, it is contended by the counsel for the respondents that both the trial Court and the first appellate Court would deal with all

the factual aspects and correctly held that the plaintiffs would be entitled to the relief.

I have carefully considered the submissions made by the counsel for the parties.

It is true that if a necessary party in the suit has not been impleaded. as held in (cited supra), the plaintiffs will have no right to maintain the suit.

But, it shall be mentioned that this principle would apply only to the cases where the parties, who are not impleaded, must be held to be the

necessary parties. This issue has been framed as Issue No. 3. While answering this issue, the trial Court has clearly held that there is no relief

sought for by the plaintiffs as against the Government. The dispute which has given rise to the cause of action, is only between the plaintiffs and the

defendants. Therefore, the question of law, which has been raised now by the learned counsel for the appellant with regard to the non-joinder of

party, cannot be of any use to the appellant. Therefore, the contention re-garding non-joinder of the party has to fail.

In regard to the substantial question of law formulated, as indicated above, it is clear from the Judgments of the trial Court and the lower

appellate Court that the suit properties, relating to the present suit, are completely different from the suit properties in the other suit in O. S. No.

360 of 1975 and, therefore, the finding in S. A. No. 686/79 would not bind the parties to this Second Appeal, with reference to the properties

relating to the present suit.

Even though it is the case of the defendants in the written statement and the evidence adduced before the trial Court that the suit properties are

one and the same in both the suits, it is now contended by the counsel for the appellant that the Judgment of this Court in S. A. No. 686/79,

marked as Ex. B8, by the First Appellate Court, was only for the purpose of showing that the other properties were handed over to Jesudoss us a

permissive possession and not on any oral partition. He would also concede that the Judgment in S. A. No. 686/ 79 is not with reference to the

suit properties of the present case.

On going through Ex. 138, it is revealed that the suit filed by the first defendant, the appellant, against Jesudoss and his family, is in respect of

some other properties. It is also true that in respect of those properties, it was held that it was a permissive possession. But, that finding, as

correctly held by the lower appellate Court, would not be of any use to the appellant, to take a different view from that of both the Courts below,

in the present case.

As a matter of fact, the trial Court discussed threadbare all the documents i.e., Exs. A1 to A40 to hold that the suit properties were enjoyed by

Jesudoss and his family members, as absolute owners of the same.

It is contended by the counsel for the appellant that some of the documents would not be admissible as they would relate to the alienation by

the third party. This statement, in my view, would not make out much to hold that the oral partition was not proved.

As a matter of fact, the trial Court as well as the lower appellate Court considered the oral evidence of PWs. 1 to 3, who Would speak about

the recitals of the documents, on the basis of which, the factual findings were given to the effect that the plaintiffs would be entitled to declaration of

title to the suit properties. Furthermore, it has been clearly established, on the basis of the materials, that the plaintiffs have been in possession and

enjoyment of the suit properties, through Jesudoss, from 1946 and after his death on 23-10-1982.

On a careful scrutiny of the records of the case, I am of the view that both the Courts below have given satisfactory reasons for decreeing the

suit. As laid down by the Apex Court in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , the High Court cannot substitute its

own opinion for opinion of the first appellate Court, unless it is found that the conclusions arrived at by the lower appellate Court are erroneous.

When the Courts below are shown to have exercised their discretion in a judicial manner, it cannot be termed to be an error either of law or of

procedure requiring interference by this Court in Second Appeal.

Thus, it is clear that there is no question of law, much less any substantial question of law, involved in this Second Appeal, requiring

interference in exercising jurisdiction u/s 100 of Code of Civil Procedure.

Under these circumstances, the Second Appeal would fail and consequently, it shall stand dismissed. No costs.