G.Punniyamoorthy, & Ors. vs Krishnamoorthy (Died), & Ors.

The defeated defendants are the appellants herein.

The plaintiff filed the suit, in O.S.No.1821 of 1990, before the learned II Additional District Munsif, Tiruchirappalli, for the relief of declaration

and recovery of possession with future profits.

After contest, the learned II Additional District Munsif, Tiruchirappalli, by Judgment and Decree, dated 31.01.2000, decreed the suit.

Aggrieved by the Judgment and Decree passed by the learned II Additional District Munsif, Tiruchirappalli, the defendants preferred an appeal,

in A.S.No.76 of 2000, before the learned I Additional Subordinate Judge, Tiruchirappalli.

After contest, the learned I Additional Subordinate Judge, Tiruchirappalli, by Judgment and Decree, dated 06.11.2001, dismissed the appeal

and confirmed the Judgment and Decree passed by the learned II Additional District Munsif, Tiruchirappalli.

Challenging the correctness of the Judgment and Decree passed by the learned I Additional Subordinate Judge, Tiruchirappalli, the defendants

have preferred the present second appeal.

During the pendency of the second appeal, the second defendant died and his legal representatives have been impleaded as appellants 3 to 8

and the sole plaintiff also died and his legal representatives have been impleaded as respondents 2 to 8.

The brief averments of the plaint that are necessary to decide this appeal are as follows:

The plaintiff is the owner of the suit properties. His father Subbiah Pillai purchased the same along with other portion of the house property under

two separate Sale Deeds, dated 09.01.1919 and he was in possession and enjoyment of the suit properties. Subbiah Pillai died in the year 1938,

leaving behind the plaintiff as his legal representative. Ever since the date of inheritance, the plaintiff is in possession of the suit properties. The suit

properties have been assigned with Door Number as 40 and the plaintiff has been paying the property tax. The defendants 1 and 2 were inducted

as tenants by the plaintiff in A and B suit schedule properties respectively during 1980. The defendants 1 and 2 agreed to pay Rs.25/- and Rs.75/-

respectively towards monthly rent in respect of their respective tenanted portion. But, they had not paid the rent as agreed. Since they were close

relatives, the plaintiff had not taken any legal action against them and they had been given all sorts of excuses. As they had denied the title of the

plaintiff over the suit properties, he had issued a notice to them on 04.07.1990 calling upon them to vacate the premises by the end of the tenancy

month of July, 1990 and to handover the vacant possession of the suit properties and filed the suit seeking the relief as stated above.

The brief averments of the written statement filed by the first defendant and adopted by the second defendant that are necessary to decide this

appeal are as follows:

The plaintiff''s father Subbiah Pillai and one Ganapathia Pillai are brothers. The first defendant is one among the sons of the said Ganapathia Pillai

and the second defendant is his paternal grandson. The suit properties were purchased in the name of Subbiah Pillai as he is the elder member of

the family. Even before the alleged sale, the said Subbiah Pillai and Ganapathia Pillai constituted an undivided Hindu Joint Family and in the year

1926, a family arrangement was made between them. The plaintiff''s father Subbiah Pillai was residing in the southern portion and the first

defendant''s father Ganapathia Pillai was residing in the northern portion of the house. During 1938, the plaintiff''s father died. After his demise, the

plaintiff has been residing in the southern portion. Ganapathia Pillai died in the year 1970 and after his demise, the defendants have been residing in

the northern portion of the house i.e., suit properties. In such circumstances, the plaintiff wanted to finalise the extent of the properties and

therefore, he suggested for an oral partition among the descendants of Subbiah Pillai and Ganapathia Pillai and it was taken effect in the year 1976.

In that oral partition, Suit-A schedule property was allotted to the first defendant and the Suit-B schedule property was allotted to second

defendant''s father Jeganathan. He had constructed a wall between the northern portion and southern portion of the main house and he died in the

year 1988. The oral partition was made in the presence of Panchayatdars, who are none other than the brothers-in-law of the plaintiff. The

defendants have been in possession and enjoyment of the suit properties by adverse possession and paying the municipal tax through the plaintiff

because the municipal registry stood in the joint name of the plaintiff''s mother Sundarathammal and others. The defendants are not tenants of the

suit properties at any point of time. There is no privity of contract between the plaintiff and the defendants as landlord and tenants. The defendants

and their predecessors have been in possession and enjoyment of the suit properties without any hindrance. They acquired the title of the suit

properties by adverse possession. The notice issued by the plaintiff is not valid under law. The suit is mala fide and malice. The description of the

suit properties is wrong and misleading. The suit is barred by limitation. The plaintiff has not come to the Court with clean hands. The plaintiff is not

entitled to any of the reliefs prayed for in the plaint.

The brief averments of the additional written statement filed by the first defendant and adopted by the second defendant that are also necessary

to decide this appeal are as follows:

The allegations that the door number of the suit properties had been originally 39 and subsequently, the door number has been changed as 40 are

all false. On the other hand, the defendants have been in possession and enjoyment of Door No. 40 for more than 50 years. The door number has

not been changed at any point of time. The plaintiff and others sold the property bearing Door No.39 and the same is in the possession of one

G.Dhandapani Pillai.

Based upon the above pleadings, the Trial Court had framed as many as many as eight issues for consideration.

The plaintiff, in order to substantiate his plea, had examined Saravanan and P.Vasu as P.Ws.1 and 2 respectively and marked Exs.A1 to A31

and on the side of the defendants, the defendants 1 and 2 had examined themselves as D.Ws.1 and 2 and examined Srinivasan and Jayapaul as

D.Ws. 3 and 4 respectively and marked Exs.B1 to B10.

Based upon the pleadings of the parties and the evidence both oral and documentary, the Trial Court came to the conclusion that the plaintiff is

entitled to the relief of declaration and recovery of possession of the suit properties from the defendants as prayed for in the plaint with costs and

decreed the suit accordingly.

As stated supra, the defeated defendants preferred first appeal in A.S.No.76 of 2000, before the learned I Additional Subordinate Judge,

Tiruchirappalli and the learned First Appellate Judge, as stated above, dismissed the appeal and confirmed the Judgment and Decree passed by

the learned Trial Judge. Hence, the second appeal.

At the time of admission, the following substantial question of law was framed for consideration:

Whether the judgments and decrees of the Courts below are sustainable in law as the Courts below have not considered the relevant evidences,

which are required for the consideration of the issue raised and the provisions of law applicable to the facts of the case?

As stated supra, the first respondent / plaintiff filed the suit for declaration of title to the suit properties and for recovery of possession

contending that he is the absolute owner of the suit properties and further contending that the properties were purchased by his father Subbiah Pillai

under Exs.A1 and A2 and after his death, the suit properties devolved upon the first respondent / plaintiff and the appellants 1 and 2 / defendants

were inducted as tenants in the suit properties. Since they had not only denied the tenancy and set up title on themselves, the first respondent /

plaintiff was left with no other option except to file a suit to declare his title over the suit properties and consequential relief of recovery of

possession.

Per contra, the appellants 1 and 2 / defendants filed a written statement denying the title of the first respondent / plaintiff over the suit properties

and further contended that the suit properties are the joint family properties of Subbiah Pillai and his brother Ganapathia Pillai and since the said

Subbiah Pillai is the elder member of the family, the suit properties were purchased in his name and there was an oral partition in the presence of

Panchayatars and in which, the southern portion of the house was allotted to the first appellant / first defendant''s father Ganapathia Pillai and the

Door Number of the same is 40 and not 39 as stated in the plaint and they had also raised question of jurisdiction of the Civil Court for grant of

recovery of possession in their written statement.

After filing of the written statement by the appellants 1 and 2 / defendants, the first respondent / plaintiff had chosen to amend the door number

of the suit properties as 40 and also filed Ex.A31 letter, dated 29.11.1999, issued by Tiruchirappalli Municipal Corporation relating to correlation

new door number with old door number.

After amendment of the plaint, the appellants 1 and 2 / defendants filed their additional written statement. The appellants 1 and 2 / defendants

had taken a specific stand that the Civil Court has no jurisdiction to grant the relief of recovery of possession, since as per the plaint they are

tenants and both the plaintiff and the defendants are relatives and irrespective of nonpayment of rent, they were allowed to stay there.

After going into the question as to the maintainability of the suit before the Civil Court, the Trial Court as well as the Lower Appellate Court

have considered the plea of the appellants 1 and 2 / defendants raised in their written statement and come to the conclusion that since the

appellants 1 and 2 / defendants had chosen to deny the title of the first respondent / plaintiff over the suit properties, the suit has been filed seeking

the relief of declaration of title to the suit properties and for the consequential relief of recovery of possession and therefore, held that the suit is

maintainable and answered accordingly.

In Rukmani, P. v. R.Narayani and others, reported in 1996-1- L.W.689, His Lordship P.Sathasivam, J., (as he then was) has held that

although the jurisdiction of the Civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary

powers of the High Court and the Supreme Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the

statute.

In P.V.Jose v. Kanickammal (dead) by Lrs., reported in 2000 (II) CTC 176, the Hon''ble Supreme Court, while dealing with the similar

aspect has upheld the decision of this Court holding that the appellant herein had denied the title of the landlady with a mala fide intention of

defeating her claim and therefore she was entitled to the relief of recovery of possession and mesne profits against the appellant herein. Second

appeal filed against the said decision was dismissed by the High Court and the said view was confirmed by the Hon''ble Supreme Court in the

above said decision.

In Dhandapani (Died) & another v. Karpakam, reported in 2003-3-L.W.656, this Court has held that the respondents / plaintiffs are perfectly

justified in having instituted the civil suit, without resorting to the remedy under the provisions of the Rent Control Act, in view of the fact that the

appellants have denied the title of the landlord.

In view of the catena of decisions referred above, when the appellants 1 and 2 / defendants denied the title of the first respondent / plaintiff and

set up their title on themselves, the scheme of the suit as such framed for the relief of declaration of title and recovery of possession is maintainable

and the similar view expressed by both the Courts below relying upon the decisions of the Apex Court does not call for any interference by this

Court and the same is hereby confirmed.

The other contention raised by the appellants 1 and 2 / defendants before the Courts below was as to the door number of the suit properties,

namely, the suit was originally instituted with Door No.39 and after filing of the written statement, the door number was renumbered as 40. In

order to substantiate the said plea, the first respondent / plaintiff produced a communication received from Tiruchirappalli Municipal Corporation,

dated 29.11.1999, wherein it is stated that

VERNACULAR MATTER OMITTED

Based upon the said communication from Tiruchirappalli Municipal Corporation that the door number of the suit properties was originally 39

and subsequently, it has been renumbered as 40, the contention raised by the appellants 1 and 2 / defendants has been negatived by the Courts

below and the said finding is well considered and well founded and the same also does not warrant interference by this Court, since the same is

based on legal evidence.

It is to be stated that the first respondent / plaintiff has come forward with the specific case that the suit properties were purchased by his father

Subbiah Pillai, who died in the year 1938 and thereafter, he is in possession of the same. Per contra, the appellants 1 and 2 / defendants have

stated that the younger brother of Subbiah Pillai is one Ganapathia Pillai and the said Ganapathiah Pillai is the father of first appellant / first

defendant and paternal grandfather of second appellant / second defendant. Since the said Subbiah Pillai is the eldest member of the family, as the

Kartha of the family, the suit properties were purchased in his name and he died in the year 1938, while the said Ganapathia Pillai died in the year

1970. There was an oral partition in the year 1976, between the descendants of the said Subbiah Pillai and Ganapathia Pillai, in the presence of the

Panchayatars, whereby and whereunder A-Schedule property was allotted to the first appellant / first defendant and the B-Schedule property was

allotted to the second appellant / second defendant. In support of the said contention, the first appellant / first defendant has examined himself as

D.W.1 and also examined one Srinivasan (Panchayatar) as D.W.3. D.W.1, in his oral evidence, has deposed that there was a family arrangement

in the year 1926 between the said Subbiah Pillai and Ganapathia Pillai, whereby the said Subbiah Pillai was allotted southern portion and the said

Ganapathia Pillai was allotted northern portion of the house and thereafter, in the year 1976, there was another oral partition after the death of

Subbiah Pillai among the descendants of Subbiah Pillai.

Much reliance has been given to the recital in Ex.A1 Sale Deed, dated 09.01.1919. On perusal of the said document, it is seen that the subject

matter of the suit properties were conveyed to Subbiah Pillai in the year 1919, wherein it is stated that the said Subbiah Pillai was a Police

Constable in the Department of Police. Except the same, there is nothing to indicate that the suit properties were purchased in the name of Subbiah

Pillai as he is the eldest member of the family or Kartha of the family.

The learned counsel appearing for the appellants has drawn the attention of this Court to Ex.B4 Mortgage Deed, dated 24.08.1938, and made

submissions that in the said document, there is a recital to the effect that Rg;igah gps;is bgahpy; fpiuak; thA;fp mDgtpj;J tUfpw and he has stated

that the suit properties were mortgaged by Ganapathia Pillai and his son Dhandayuthapani Pillai to meet the marriage expenses of Dhandayuthapani

Pillai and subsequently, they redeemed the said mortgage and hence, he has contended that the suit properties are the joint family properties and

purchased in the name of the eldest member of the family, namely, Subbiah Pillai.

This Court finds hard to accept the contentions of the learned counsel appearing for the appellants for more than one reason that the first

appellant / first defendant, who examined himself as D.W.1, has deposed that

VERNACULAR MATTER OMITTED

Thus, it is crystal clear that

one Balasubramani is eldest member of the family, while Subbiah Pillai is the younger brother of Balasubramani. Therefore, the contention of the

learned counsel for the appellants that the suit properties were purchased in the name of Subbiah Pillai as he is the Kartha of the family has no leg

to stand, since he is not the eldest member, while Balasubramani is the eldest member of the family. He can only be the Kartha of the family.

Furthermore, on perusal of Ex.B4 mortgage deed, it is crystal clear that the suit properties were purchased by Subbiah Pillai and the Ganapathia

Pillai and his son Dhandayuthapani Pillai were also joined as a party, since they were borrowing money to meet the marriage expenses of

Dhandayuthapani Pillai and there is no indication to the effect that the mortgaged properties were purchased in the name of Subbiah Pillai as he is

the Kartha of the family, which assumes more significance. Further, in the mortgage deed it is stated that

VERNACULAR MATTER OMITTED

Thus, it is seen that the suit properties purchased by Subbiah Pillai were mortgaged to meet the marriage expenses of Dhandayuthapani Pillai, son

of Ganapathia Pillai. In the said mortgage deed, the said Ganapathia Pillai and his son Dhandayuthapani Pillai were also made as parties and that

cannot be loom large to say that they are the owners of the suit properties. This Court is unable to affix the seal of approval for the contention of

the appellants since Subbiah Pillai is not the eldest member of the family as discussed in the preceding paragraphs and the suit properties were

purchased in the name of Subbiah Pillai as a Constable and the said Ganapathia Pillai and his son were allowed to raise loan for marriage purpose

and subsequently, they have repaid the loan amount and therefore, the contentions of the learned counsel for the appellants do not hold ground and

hence, the similar finding arrived at by the Courts below is well considered and well founded and the same does not warrant any interference by

this Court.

Though the appellants 1 and 2 / defendants raised a plea of adverse possession, during their cross-examination they have foregone the plea of

adverse possession, since they claimed title over the suit properties independently. In view of the said admission in the cross-examination both the

Courts below have hold that the plea of adverse possession is not proved and the same is also well considered and well founded.

Further, though the learned counsel for the appellants submitted that there was an oral partition in the year 1926 between Subbiah Pillai and

Ganapathia Pillai, there is absolutely no evidence to show that there was oral partition. In the absence of any legal evidence, the said plea cannot

be held proved. Furthermore, the appellants 1 and 2 / defendants in the written statement have raised a specific plea that in the year 1976, after the

death of Subbiah Pillai, there was an oral partition among the family members for allotment of the suit properties. In this connection, one of the

Panchayatars has been examined as D.W.3, who has categorically deposed that

VERNACULAR MATTER OMITTED

Thus, this Court finds that the portion for which, the appellants 1 and 2 / defendants have to re-array themselves after the death of Ganapathia Pillai

and there was no oral partition between the family members of Subbiah Pillai or Ganapathia Pillai and both the Courts below have correctly

appreciated the evidence of D.W.3 and come to the conclusion that the alleged oral partition has not been proved in the manner known to law and

the similar finding arrived at by the Courts below is perfectly valid and it does not warrant interference by this Court.

On perusal of the evidence of P.W.1 and Ex.A1 Sale Deed, dated 09.01.1919, Subbiah Pillai is the original owner of the suit properties and

he enjoyed the same in his individual capacity and after his death, the first respondent / plaintiff became the absolute owner of the suit properties

and the suit properties were originally having Door No.39 and subsequently changed to Door No.40 as could be seen from Ex.A31 and as the

appellants / defendants chosen to deny the title of the first respondent / plaintiff over the suit properties, they set up title on themselves under the

plea of oral partition and adverse possession. Though they have not pressed the plea of adverse possession during the stage of trial, the scheme of

the suit filed by the first respondent / plaintiff for declaration of title to the suit properties and consequential relief of recovery of possession from the

appellants 1 and 2 / defendants is maintainable and since the appellants 1 and 2 / defendants have raised the plea of oral partition and they have not

proved the same in the manner known to law, it is held that the plea of oral partition was not proved and adverse possession was also not proved

in the manner known to law. This Court holds that the first respondent / plaintiff is the absolute owner of the suit properties and entitled to the relief

of recovery of possession from the appellants. The similar finding arrived at by both the Courts below is perfectly valid and legally sustainable in

law and the substantial question of law does not arise for consideration in the facts and circumstances of the case as stated supra. However, it is

answered against the appellants and the appeal is devoid of merits.

In the result, the second appeal is dismissed and the Judgment and Decree, dated 06.11.2001, made in A.S.No.76 of 2000, by the learned I

Additional Subordinate, Tiruchirappalli, confirming the Judgment and Decree, dated 31.01.2000, made in O.S.No.1821 of 2000, by the learned II

Additional District Munsif Court, Tiruchirappalli, are confirmed. No costs.

Consequently, connected civil miscellaneous petition is closed.