Marudamuthu (died) vs Lakshmanan

V.M. Velumani, J.—One Maruthamuthu, First Defendant in O.S. No. 223 of 2005, on the file of Principal District Munsif and Judicial Magistrate, Karaikudi, filed the above Second Appeal. Pending Second Appeal he died. His Legal Representatives were impleaded as Appellants 2 to 5.

The First Respondent filed O.S. No. 223 of 2005, on the file of Principal District Munsif and Judicial Magistrate, Karaikudi, for declaration of title to Suit property and for Permanent Injunction, against the original Appellant Maruthamuthu and his brother Chinnaiah, the Second Respondent herein. Chinnaiah is arrayed as Second Respondent as he did not file Appeal.

According to the First Respondent, the Suit property along with larger extent measuring 14 acres 26 cents, originally belonged to his paternal grandfather Chockalingam Chettiyar. His grandfather had two sons, viz., Athappa Chettiyar @ Manickam Chettiyar, the father of First Respondent and Nallappa Chettiyar. The two sons of Chockalingam Chettiyar inherited 7 acres each Nallappa Chettiyar, paternal uncle of First Respondent sold the property to Muthu Nadar, father of Maruthamuthu and Second Respondent Remaining 7 acres was in possession and enjoyment of First Respondent''s father viz., Athappa Chettiyar @ Manickam Chettiyar. The First Respondent inherited the said property and he is in possession and enjoyment of the Suit property. According to the First Respondent, the said Maruthamuthu and Second Respondent tried to interfere with the possession of First Respondent, during May 2005 and fraudulently changed the revenue records and were trying to disposes the First Respondent by using fence. The First Respondent issued a Notice to Appellant and the Second Respondent, filed Suit for the relief of Declaration of Title of Suit property and for Permanent Injunction.

According to Maruthamuthu and Second Respondent, they are sons of Muthu Nadar. Their father purchased half of the larger extent from Nallappa Chettiyar, paternal uncle of First Respondent. The other half of larger extent belonging to Athappa Chettiyar @ Manickam Chettiyar was sold in Court auction and the same was purchased by one Saraswathiammal Muthu Nadar purchased the said half share from Saraswathiammal. From the date of purchase, Muthu Nadar was in possession and enjoyment of entire property, including the Suit property. The Appellant and Second Respondent inherited the entire property from their father Muthu Nadar. They are paying Tax from 1996 and they are in possession and enjoyment openly and therefore, perfected the title by adverse possession and prayed for dismissal of Suit.

On these pleadings, the learned District Munsif framed necessary issues. In the trial, the First Respondent examined himself as PW1 and one Kumaresan was examined as PW2. 11 Documents were marked as Exs.A1 to A11 the said Maruthamuthu, First Defendant was examined as DW1 and marked 8 Documents as Exs.B1 to B8. The Trial Court considering the pleadings and evidence both oral and documentary, by the Judgment and Decree dated 10.4.2007, decreed the Suit.

Against the said Judgment and Decree, Maruthamuthu and Second Respondent filed A.S. No. 18 of 2007. on the file of Sub-Court, Devakottai.

According to said Maruthamuthu and Second Respondent, Trial Court failed to consider that Saraswathiammal purchased the Suit property in Court Auction in E.P. No. 424 of 1961 in O.S. No. 110 of 1960 and failed to consider the oral and documentary evidence, let in by them.

The Lower Appellate Court framed necessary points for consideration.

Before the Lower Appellate Court the said Maruthamuthu and Second Respondent filed I.A. Nos.53 & 94 of 2007, for marking of Additional Documents. The said Applications were allowed and Exs.B9 to B16 were marked in the First Appeal. The learned Subordinate Judge, Devakkottai rejected the Additional Documents marked the Exhibit-Ex B12. on the ground that other documents were only certified copies and no reason was given for not producing the original documents and has not given valid reasons for marking certified copies The learned Subordinate Judge, Devekottai considering all the materials on record and Judgment of Trial Court, dismissed the Appeal.

Against the said Judgment and Decree dated 21.2.2008, the said Maruthamuthu filed present Appeal the Second Respondent/Second Appellant in First Appeal did not join in filing Second Appeal. Therefore, he is arrayed as Second Respondent in this Appeal.

At the time of admission, this Court framed the following Substantial Questions of Law:

Whether both the Courts below have failed to note the claim made by the Plaintiff is barred by res judicata ?

Whether the Decree granted by both the Courts below is not in consonance with and in fact contrary to Exhibits B2 & B9 ?

Are the Courts below correct and justified in shifting the burden on the Defendant without adverting to the fundamental principle of law that the Plaintiff has to stand or fall on the strength of his own case and not on the weakness of the case of the Defendant ?

This Court heard the Second Appeal and by the Judgment dated 22.10.2010 dismissed the Second Appeal. The said Maruthamuthu filed Review Application in Rev. Appln. (MD) No. 14 of 2011. Pending Review Application, the said Maruthamuthu died. The Appellants 2 to 5 were impleaded as Review Petitioners. In the Review Petition, the Appellants contended that this Court framed three Substantial Questions of Law. But, considered and decided only one Substantial Questions of Law. Therefore, the Judgment and Decree dated 22.10.2010, passed in Second Appeal is liable to be set aside. This Court accepting the said contention, allowed the Review Petition on 13.8.2013 and recalled the Judgment dated 22.10.2010 and re-opened the Second Appeal and directed the Registry to list the Second Appeal for final hearing.

By Order dated 10.6.2015, in M.P (MD) No 1 of 2015 in S.A (MD) No. 884 of 2008, the Appellants 2 to 5 were impleaded as Legal Representatives of deceased First Appellant-Maruthamuthu.

"10. The learned Senior Counsel appearing for the Appellants contended that:

(i) the Courts below failed to see that the Suit property was purchased through Court Auction in E.P. No. 424 of 1961 in O.S. No. 110 of 1960, by one Saraswathiammal, who in turn sold the property to Muthu Nadar, father of Maruthamuthu and Second Respondent.

(ii) The First Appellate Court erred in shifting the burden of proof on the Appellants.

(iii) The First Appellate Court having received Additional Documents ought to have held that the Appellants have proved then title to entire extent of property and dismissed the Suit.

(iv) The Courts below failed to see that Muthu Nadar purchased half share in the larger extent of property, under Ex.B1. from First Respondent''s paternal uncle Nallappa Chettiyar and purchased other half share from Saraswathiammal, who purchased the same in Court Auction Sale.

(v) The Courts below failed to see, in view of earlier proceedings in O.S No. 110 of 1960, on the file of Principal District Munsif and Judicial Magistrate, Karaikudi the First Respondent lost his title to the Suit property.

(vi) The Courts below failed to consider Exs.B2 to B16 in proper perspective. Exs.B3 to B16 clearly proved that the Suit property was purchased by Saraswathiammal in Court Auction Sale.

(vii) Ex.B2 proved that First Respondent''s father was Judgment-debtor in O.S. No.110 of 1960 and the Suit property was sold in Court Auction.

(viii) In view of Judgment and Decree in O.S. No.110 of 1960 and Court Auction Sale in E.P. No.424 of 1961, the claim of First Respondent is barred by principles of res judicata.

(ix) The Courts below failed to see from 1962 onwards Saraswathiammal, vendor of father of Muthu Nadar was in possession as Court Auction was confirmed and property was delivered to Saraswathiammal as per Ex.B2.

(x) The Courts below failed to see that person claiming title to the property cannot claim adverse possession.

The learned Senior Counsel for the Appellants relied on the following Judgments:

(i) Vinay Krisha v. Keshav Chandra and another, AIR 1993 SC 957, Para 13 reads as follows:

"13. From the reading of the Plaint it is clear that the specific case of the Plaintiff Jamuna Kunwar was that she was in exclusive possession of property bearing No.52 as well. She thought that it was not necessary to seek the additional relief of possession. However, in view of the Written Statement of both the First and the Second Defendant raising the plea of bar under Section 42, the Plaintiff ought to have amended and prayed for the relief of possession also. In as much as the Plaintiff did not choose to do so she took a risk. It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the Decree for Declaration."

(ii) Sagar Vidyalaya, Sagar v. V. Pandit Sadashiv Rao Harshe and others, AIR 1997 SC 1825, Para 14, reads as follows:

"14. It may be noted that once an Order was made under Order 21, Rule 92, confirming the sale, the title of the Auction-purchaser related back to the date of sale as provided under Section 65, C.P.C. The title in the property thereafter vests in the Auction-purchaser and not in the Judgment-debtor. The issue of Sale Certificate under Order 21, Rule 94, C.P.C., in favour of the Auction-purchaser though mandatory but the granting of Certificate is a ministerial act and not judicial "

(iii) Veluran @ Muthusamy Gounder (Deceased) and others v. Perumal Gounder, 2011 (4) CTC 720 : 2011 (3) LW 890, Para 41, reads as follows:

"41. In the present case on hand, the facts are different and the Suit was filed by the Plaintiffs, who after losing then right over the Suit property in the Court auction, filed the Suit for Declaration and Injunction and hence, the Judgment referred to supra, will not apply to the case on hand and the Substantial Question of Law No.(ii) is also answered against the Appellants."

(v) Rahamathulliah Shuthari alias Peer Hazzrath v. The Muslim Jamath of Eachmpatti by its Secretary Kamai Batcha and others, 1997 (3) LW 662, Para 13. reads as follows:

"13. Under normal circumstances, and that too in a Suit for Injunction, when two Courts have found that Plaintiff is in possession, this Court is not expected to interfere under Section 100 of the Code of Civil Procedure. The question as to who is in possession is purely a finding of fact, out of which no Question of Law much less Substantial of Law arises. But in this case, I find that the Courts below have violated all the nouns of Judicial procedure. They have not taken into consideration the evident let in by the Appellant. Both the Courts below have proceeded as if the Defendants have not let in any evidence. Even though numerous documents have been filed and oral evidence has also been let in by Defendants to prove the same, there is not even on sentence in the Judgments of both the Courts below about the evidence let in by them. Both the Courts below have held in their Judgments that the Defendants have not produced any document to prove then possession.

Per contra, the learned Counsel for the First Respondent contended that:

(i) The First Respondent has proved his title tracing the same from his paternal grandfather and his father.

(ii) The First Respondent has proved his possession through oral and documentary evidence.

(iii) The said Maruthamuthu and Second Respondent failed to prove that Suit property was sold in Court auction sale and the same was purchased by Saraswathiammal and that possession was delivered to her.

(iv) They have also failed to prove that Muthu Nadar purchased the Suit property from Saraswathiammal.

(v) Ex.B2, Suit extract and Ex.B9-Sale Certificate do not disclose that property involved in earlier proceedings is that of Suit property.

(vi) In the earlier Suit, title of Suit property is not an issue and title was not decided in the said Suit.

(vii) In the circumstances claim of Appellant and Second Respondent that suit O.S. No. 223 of 2005 filed by First Respondent hit by Principles of res judicata is contrary to facts.

(viii) The Suit filed by the First Respondent is for Declaration of Title and Injunction is maintainable.

(ix) The First Respondent has discharged his burden of proving title and possession by cogent and oral and documentary evidence by examining himself as PW1 and examining PW2, the official from Devasthanam.

(x) The contention of the learned Senior Counsel for the Appellants that burden of proof was wrongly shifted on the Appellants and Second Respondent is not correct. The First Respondent proved his claim by acceptable evidence.

(xi) Both the Courts below, have accepted the contentions of First Respondent by properly appreciating the pleadings and evidence and granted Decree as prayed for.

(xii) The Appellant is challenging in the Second Appeal, the concurrent finding of facts. In the Second Appeal, under Section 100, CPC only Substantial Questions of Law will be considered and decided by this Court. The concurrent finding of facts by the Courts below will not be interfered by this Court in Second Appeal. In the present case, there is no reason to interfere by this Court with the concurrent finding of facts of the Courts below. Therefore, prayed for dismissal of Second Appeal.

The learned Counsel for the Second Respondent submitted that he is adopting arguments of learned Senior Counsel for Appellants.

Heard the learned Senior Counsel appearing for the Appellants and learned Counsel appearing for Respondents and perused the materials on record.

Substantial Question of Law 1:

The learned Senior Counsel for the Appellants contended that present Suit O.S. No. 223 of 2005 filed by Appellant is hit by Principles of res judicata, in view of Judgment and Decree passed in O.S. No. 110 of 1960 and E.P. No.464 of 1961. The learned Senior Counsel for the Appellants relied on Judgment reported in Veluran @ Muthusamy Gounder (Deceased) and others v. Perumal Gounder, 2011 (4) CTC 720 : 2011(3) LW 890, and contended that First Respondent lost his right over Suit property in Court auction and therefore, present Suit for Declaration and Injunction is not maintainable and hit by Principles of res judicata. The said Judgment is not applicable to the facts of the present case From the records it is seen that Suit in O.S. No 110 of I960 is for recovery of money. Based on Promissory Note as evidenced by Ex. B2, a Money Decree was passed Further, the Appellants and Second Respondent have not proved that Suit property was sold in the Court Auction. Therefore, the contention of learned Senior Counsel for the Appellants that present Suit in O.S. No. 223 of 2005 is hit by Principles of res judicata is untenable O.S. No. 223 of 2005 is for declaration of title while O.S. No. 110 of 1969 is for recovery of money and title of Suit property. Therefore, the Substantial Question of Law 1 is answered against the Appellants.

Substantial Questions of Law 2 & 3:

The learned Senior Counsel contended that Ex.B9 is the Sale Certificate issued by competent Court evidencing the Court auction sale of the Suit property and purchased by Saraswathiammal. The First Appellate Court is not correct in rejecting the same solely on the ground that the same is only certified copy. Similarly, Ex.B2 is the extract of the Suit Register which clearly shows that property was sold in Court auction and property was delivered. Therefore, the Judgment of First Appellate Court is contrary to evidence.

On the other hand, the learned Counsel for the First Respondent contended that Appellant and Second Respondent have not filed originals of Sale Certificate and certified copy filed in the First Appellate Court cannot be relied on. The First Appellate Court has rightly rejected the same by giving valid reasons. Further, Exs.B2 & B9 do not prove that the property sold in Court auction is the Suit property.

Ex.B2 is Suit Extract and Ex.B9 is Sale Certificate Ex.B9 was filed only in the First Appeal Ex.B9 is certified copy. The Appellant and Second Respondent have not explained as to what happened to original of Ex.B9 and as to why the same was not produced. In the circumstances, the said document was rejected by First Appellate Court. The First Appellate Court has given proper and valid reasons for not accepting the said document.

The learned Senior Counsel for the Appellants relied on Sagar Vidyalaya, Sagar v. V. Pandit Sadashiv Rao Harshe and others, AIR 1993 SC 957; Vinay Krisha v. Keshav Chandra and another, 1997 (3) LW 662; Rahamathulliah Shuthari alias Peer Hazzrath v. The Muslim Jamath of Eachmpatti by its Secretary Kamal Batcha and others, and contended that once Court Auction sale is confirmed. Auction Purchaser becomes absolute owner from the date of Court Auction and issue of Sale Certificate is only a ministerial act. He further contended that as per Section 65 of CPC, the property sold in Execution of Decree and such sale having become absolute, purchaser became owner of the property, from the time when the property is sold. The said contention of the learned Senior Counsel and the Judgments relied on by him are not applicable to the facts of the present case, as the Appellants and Second Respondent not proved the Suit property was sold in the Court Auction.

In Ex.B9, the extent of property sold is 14 Acres 24 Cents. It is not the case of the Appellants and Second Respondent that entire extent of 14 acres 24 cents was sold in Court auction. Further, no Survey number was mentioned with regard to this extent of 14 acres 24 cents, even though, Survey Numbers in respect of other properties were mentioned in Ex.B9. In Ex.B2 description of property sold is not given. It has been stated that Item Nos.1 to 4 were sold to Assignee/Decree-holder for the amounts mentioned therein. Therefore, the Trial Court has rejected Ex.B2 and the First Appellate Court rejected Exs.B2 & B9, by giving proper and valid reasons.

The Courts below have considered the pleadings and materials on record and held that First Respondent has proved his title to the Suit property and that he is in possession and enjoyment of the same. Based on the said finding only the Suit was decreed and First Appeal was dismissed. In the Judgments, the Courts below have considered the contentions of Appellants and Second Respondent and gave a finding that they have not proved their defence to the Suit with regard to Court auction and purchase by Muthu Nadar from Court Auction Purchaser.

Considering the materials on record, the Courts below have given finding that Appellant and Second Respondent have not proved their case as contended in Written Statement and Grounds of Appeal. This will not amount to shifting the burden on the Appellants and Second Respondent and decreeing the Suit and dismissing the First Appeal on the ground that Appellant and Second Respondent have failed to prove their purchase and title.

The question of possession of Suit property is matter of fact. Both the Courts below on consideration of pleadings and evidence have come to the conclusion that First Respondent is in possession of Suit property. The Appellant and Second Respondent have not proved their possession by any acceptable evidence. The learned Senior Counsel for the Appellants has not substantiated the claim of the Appellants that they are only in possession and First Respondent is not in possession. There is nothing on record to show that Courts below have not considered the materials on record in proper perspective to come to the conclusion with regard to possession of the First Respondent and the Suit property.

The First Respondent has proved his possession by both the oral and documentary evidence. Therefore, there is no necessity for the First Respondent to seek rebel of possession by amending the Plaint. In view of this fact, the Judgment relied on by learned Senior Counsel for the Appellants reported in Vinay Krishna v. Keshav Chandra and another, AIR 1993 SC 957, is not applicable to the facts of the present case.

This Court in the Second Appeal cannot interfere in finding of fact by Courts below unless it is established that said finding is contrary to pleadings and evidence on record and the said finding of fact is perverse.

The contention of the learned Counsel for the First Respondent that in Second Appeal, only Substantial Questions of Law will be considered and decided and concurrent finding of facts will not be interfered, has considerable force. This Court, normally, will not interfere with finding of fact. Only when the finding is not based on any materials or the Courts below failed to consider the materials on record in proper perspective, this Court will interfere in the finding of fact. In the present case, the Courts below have properly considered all the materials and have given proper and valid reasons for arriving at the findings. There is no circumstances warranting interference with concurrent findings of fact, by the Courts below, by this Court in Second Appeal.

For the reasons stated above both the Substantial Questions of Law are answered against Appellants.

In the result, the Second Appeal is dismissed. No costs.