E.M.K.G. Rahila vs S. Shameema

B. Rajendran, J.—This second appeal is preferred by the defendants/appellants, challenging the judgment and decree dated 23.06.2014 passed by the learned Principal District Judge, Erode, Erode District in A.S.No. 93 of 2013 in confirming the judgment and decree dated 16.08.2012 passed by the learned I Additional Subordinate Judge, Erode in O.S.No. 902 of 2002.

The parties are referred to here under according to their litigative status and ranking before the trial Court.

The short facts that are necessary for the disposal of this Second Appeal would run thus:

(a) The respondents/plaintiffs filed the suit for declaration of their title over the suit property, for recovery of possession and for mesne profits. According to the plaintiffs, they got possession of the suit property by virtue of the gift settlement deed and thereafter by way of sale deed. After the plaintiffs 2 and 3 purchased the suit property, the defendants agreed to continue as a tenant in the ground floor under the plaintiffs 2 and 3 and they have been paying rent. It is the further case of the plaintiffs that the defendants after 01.06.2000 did not pay the rent. Hence, the plaintiff''s issued lawyer notice dated 12.08.2002, asking the defendants to vacate the suit property and for recovery of rent for their use and occupation. Since there was no response from the defendants, the present suit has been filed.

(b) The defendants filed the written statement as well as the additional written statement resisting the suit. It is the case of the defendants that earlier they filed a suit in O.S.No. 42 of 2007 on the file of the Additional District Judge cum Fast Track Court No. 1, Erode seeking partition of the suit property. Hence, the plaintiffs cannot raise the plea of res judicata. The defendants are in possession and enjoyment of the suit property. Suppressing the fact that the defendants are in possession of the first floor of the suit property, the plaintiffs have come with the present suit with regard to the ground floor alone, which is not maintainable. It is their further contention there was no landlord/tenant relationship between the parties. The plaintiffs have no share in the suit house. Hence, they are not liable to vacate the house. Accordingly, they prayed for the dismissal of the suit.

(c) The plaintiffs filed the reply statement stating that pending the present suit, the defendants filed the suit in O.S.No. 42 of 2007 seeking partition of the property. According to the plaintiffs, the parties to the issue are one and the same and the subject matter is also the same. The said suit was dismissed and no appeal was preferred as against the same. However, the third defendant, who remained exparte in the suit in O.S.No. 42 of 2007 had filed an appeal in A.S.No. 807 of 2010 before this Court and the same was dismissed as early as 02.11.2011.

(d) The trial Court framed the relevant issues.

(e) During trial, the first plaintiff/S.Shameema examined herself as P.W.1 and Exs.A1 to A17 were marked; and on the defendants'' side D2/Mohammed Iqbal examined himself as D.W.1 and Exs.B1 and B2 were marked.

Ultimately, the trial court after analysing the oral and documentary evidence adduced on both sides, decreed the suit directing the defendants to deliver vacant possession of the suit property within a period of two months. As against the same, the defendants preferred appeal for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court. Aggrieved against the same, the present second appeal has been filed by the defendants, raising the following substantial questions of law:

Whether the courts below were correct in granting the relief of declaration of the title of the respondents especially when the respondents themselves has given up the said relief during the course of evidence since the plaintiffs are entitled to relinquish any portion of their claim in the suit?

Whether the declaratory relief could be granted to part of the property especially when the buildings are inseparable?

Whether the third party could represent the minor without the permission of the court especially when minor''s parents are alive?

Whether the alleged gift without possession could be valid under Mohammedan law?

Heard the learned counsel for the appellants.

The learned counsel for the appellants/defendants would mainly contend that even though declaration was sought for by the plaintiffs and in the evidence, the plaintiffs themselves have voluntarily given up the declaration prayer, the trial court was not justified in decreeing the suit both for declaration as well as for injunction. He would further contend that the very suit for declaration would not be maintainable in view of the fact that in the earlier suit in O.S.No. 42 of 2007 filed by the defendants/appellants, seeking partition, the rights of the parties have been gone into. The learned counsel for the appellants/defendants would further submit that the first appellate court have also not taken into consideration that the property is in separable. Therefore, the plaintiffs cannot have asked for declaration in respect of the ground floor alone. Accordingly, he would pray for setting aside the judgments and decrees of both the courts below.

I have perused the records.

In fact, a careful reading of the judgments of both the courts below, would show that both the courts have gone into the oral and documentary evidence and have given a detailed judgment. Furthermore, it is clearly admitted that the appellants/defendants have earlier filed a suit for partition and separate possession of the property. In that suit, item No. 3, which is the subject matter of the present suit, the relief asked for by the defendants was dismissed. Thereafter, the third defendant, who remained exparte in the said partition suit, preferred appeal before this court and that was also dismissed. Therefore, once the right of the parties have been agitated and set at naught in the earlier partition suit, the present claim made by the appellants/defendants, as if the respondents/plaintiffs have no right over the property cannot be accepted. In fact, this is the reason, in the evidence, the plaintiffs themselves have given up the declaratory relief as it was already settled in the earlier partition suit. It is also seen that the first appellate court in its judgment had held that the judgment passed in the partition suit has attained finality and accordingly, the trial court had negatived the defendants plea of the permissive possession and held that the plaintiffs are entitled for declaration of title to the suit property. However, when we go through the decree, it is clear that the decree was ordered only for delivery of possession. Even otherwise, the property as well as the parties are one and the same in the partition suit also. Therefore, that point cannot be raised here at the second appeal stage.

In any view of the matter, when both the courts have categorically come to the conclusion that the plaintiffs are entitled for delivery of possession and when admittedly, the defendants are in possession of the ground floor, the question as regards the first floor is left open because even in the plaint, the description of property was only in respect of the ground floor, the suit was decreed accordingly. Hence, that also cannot be gone into in this second appeal. Accordingly, I do not find any illegality or infirmity in the judgments and decrees passed by the courts below, warranting interference in the second appeal.

At this juncture, the learned counsel for the appellants/defendants would pray for grant of time for delivering vacant possession of the property to the respondents/plaintiffs.

In the result, this second appeal is dismissed and the appellants/defendants are granted four months'' time from this date to vacate and deliver vacant possession of the suit property to the respondents/plaintiffs. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.