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Judgment
First defendant in O.S.No.70 of 1985 on the file of Subordinate Judge, Sivaganga, aggrieved by the decree dated 8.12.88, has preferred the
above appeal. The plaintiffs/respondents 1 to 6 filed the said suit for declaration that the suit property belongs to them and the second defendant,
permanent injunction restraining the first defendant and his men from in any way interfering with possession of plaintiffs and second defendant. On
appreciation of evidence, the learned Subordinate Judge has decreed the suit as prayed for, hence the first defendant alone has filed the present
appeal.
The case of the plaintiffs is briefly stated hereunder;- The suit property belongs to the plaintiffs by ancestral right. It was purchased by great
grand father of the first plaintiff, one Palani Chettiar under deed dated 22.9.1887 for a sum of Rs.67. After taking delivery, the said Palani Chettiar
was in possession and enjoyment of the property. On the death of the said Palani Chettiar, his sons and grand sons have been in uninterrupted
possession and his descendant Palaniyandy Chettiar was the owner and after him his four sons, viz., plaintiffs 1,3 and 4 and one Arumugam
Chettiar enjoyed. Arumugam is now dead and his son is second plaintiff. The second plaintiff is the manager of his unit of the family. By virtue of
long un-interrupted possession and enjoyment from 1887 till date, the plaintiffs have also prescribed title to the suit property. The plaintiffs had
raised kitchen garden by planting rearing Casuarina, Eucalyptus trees. There is a Kattukaruvel tree fence. The suit property in its entirety was the
subject to partition between the plaintiffs in a partition suit O.S.No.3 of 1971 on the file of Subordinate Judge, Sivaganga as item 34 of A
schedule. In the course of final decree, this item was partitioned as plots A,B, C and D and allotted respectively to the plaintiffs. Even after the final
decree proceedings for the sake of convenience and due to family circumstances, the property is kept in common enjoyment of the plaintiffs
without actually taking possession of the respective plot.
The third plaintiff had mortgaged and dealt with his undivided share by document dated 18.9.67. The second plaintiffs father Arumugam had
also similarly dealt with his undivided share under a mortgage deed dated 12.5.72. The third plaintiff, after the partition in the final decree in
O.S.No.3 of 1971, has sold a portion of share allotted to him to the 2nd defendant. Thus, with the partition within the entire property, the entire
property belongs to the plaintiffs and the second defendant.
The first defendant is a stranger and has absolutely no manner of interest in the suit property, much less any manner of possession. Only from
June/July, 1985, the first defendant is attempting to lay claim to the suit properly.
The first defendant has armed himself with a deed of purchase from one Vairavan Chettiar and his brothers and one Kandasamy under a deed
dated 25.7.1985. The alleged vendors of the first defendant never had any manner of title or enjoyment of the suit property. Accordingly they filed
a suit for declaration that the suit property belongs to the plaintiff and the second defendant and consequently for a permanent injunction restraining
the first defendant and his men from in any way interfering with the possession of the plaintiffs and the second defendant.
The first defendant filed a written statement wherein he denied all the averments regarding, purchase of the suit property by their great great
grand father etc. He also denied the claim that suit property is the subject matter of the earlier litigation, namely O.S.No.3 of 1971. He also denied
the claim that the suit property has been subject to several mortgages. The plaintiffs never raised any crops much less kitchen garden. On the other
hand, the plaintiffs had never concerned with the suit property. The suit property comprised in S.No.277/1 originally belonged to Vairavan
Chettiar. Vairavan Chettiar has got two sons by name Kuppayandi Chettiar and Nagalingam Chettiar. Kuppayandi Chettiar has got only one son
by name Ayyavu Chettiar, who has got 3 sons, namely, Kuppayandi Chettiar, Vairavan Chettiar and Chockalingam Chettiar. Among the three,
Kuppayandi Chettiar died without issue. One Vairavan Chettiar is the son of Nagalingam Chettiar. The said Vairavan Chettiar has adopted one
Kandasamy Chettiar as his son. Thus, the said Vairavan Chettiar, Chockalingam Chettiar and Chockalingam Chetliar and Kandasamy Chettiar
were in possession and enjoyment of the suit property. The first defendant purchased the suit property from the afore- said persons on 25.7.85
and put up thorn fence on all 4 sides, and also put up 14 pillars made of stone on the eastern side and also constructed a small thatched house with
light roofing. The suit property is in possession of the first defendant and he never attempted to take possession from the plaintiffs. No complaint
has been given as alleged by the plaintiffs. He also is in possession and enjoyment of the suit property and prayed for dismissal of the same.
The second defendant filed a separate written statement accepting the case of the plaintiffs.
With the above pleadings, the parties went to trial. The 3rd plaintiff has been examined as P.W.1 and 6 more witnesses as P.Ws.2 to 7. Exs. A-
1 to A-37 have been marked in support of their claim. On the other hand, the first defendant got himself examined as D.W.1 and he also examined
3 persons as D.Ws.2 to 4 in support of their defence. The learned Subordinate Judge after considering the oral and documentary evidence let in by
both sides, accepted the case of the plaintiffs and decreed the suit as prayed for.
During the pendency of the appeal, the sole appellant died and hence appellants 2 to 8 were brought on record as per the order of this court
dated 31.1.96. They are now pursuing the present appeal.
Heard the learned counsel for the appellants as well as respondents 1 to 6.
The point for consideration in this appeal is whether the plaintiffs are entitled to a decree for declaration and injunction and whether the court
below is right in granting the same?
The genealogical tree as per plaintiffs'' case is as follows :-
Palani Chettiar
|
Devi Chettiar
|
Palaniandi Chettiar
|
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| | | |
Sethu Arumugam Chettiar Palanikumar Chettiar Devi Chettiar
P-1 (died) P-3 P-4
|
---------------------------------------------------------
| | |
Selvarajan A. Saravanan A. Sivakumar
P-2 P-5 P-6
The genealogical tree as per first defendant''s case is as follows:-
Vairavan Chettiar
|
--------------------------------------------------------
| |
Kuppayandi Chettiar Nagalingam Chettiar
| |
Ayyavu (son) Vairavan Chettiar
| (Adopted son Kandasamy)
--------------------------------------------------------
| | |
Kuppayandi Vairavan Chockalingam
No issues
According to the plaintiffs, the suit property is purchased by Palani Chettiar from Vairavan Chettiar and two others for Rs.67 under Ex.A-12,
dated 22.9.1887. Plaintiffs 1, 3 and 4 are the great grand children of the said Palani Chettiar, while plaintiffs 2,5 and 6 are the children of
Arumugham Chettiar, another great grand son of Palani Chettiar, since deceased. The suit property was originally a ""chekkadi"" land and according
to them, now it is being used as a kitchen garden. They asserted that they planted Casuarina, Eucalyptus trees, ""Kattu Karuvel"" trees and Tamarind
trees. Since the consideration under Ex.A-12 is less then 100 rupees, the said document had not been registered. However, inasmuch as it is of the
year 1887 and being an ancient document, in the absence of examination of any one of the parities, I am of the view that Ex.A-12 is admissible and
more credence to be given to the validity and genuineness of the document. Under the said document, Palani Chettiar, the fore- father of the
plaintiffs acquired the suit property. It is over 100 years old and as stated earlier, since the purchase amount is Rs.67, registration is not required
and presumption u/s 90 of the Indian Evidence Act is also available.
The other document relied on by the plaintiffs is Ex.A- 1 dated 18.9.1987 which is a ""Othi"" Deed executed by the third plaintiff in favour of
Palani Chettiar for Rs.100. The third plaintiff was examined as P.W.1 and he proves the contents of the said document.
Under Ex.A-2 dated 12.5.72, Arumugham, father of plaintiffs 2,5 and 6 ""othied"" his share to one Velusamy who was examined as P.W.3. The
learned Subordinate Judge, on comparison, finds that the suit property is the same as described in Exs.A-1 and A-2.
It is the definite case of the first defendant that the property of the plaintiffs is situated west of the suit property. According to him, the suit
property comprised in S.N.277/1 belongs to Vairavan Chettiar and the mortgagee under Ex.A-1 did not enjoy the suit property. It is also his case
that the 2nd defendant has not taken possession of the property purchased by him. It is also his case that Vairavan Chettiar, Chockalingam
Chettiar and Kandasamy Chettiar came to possess and enjoy the suit property. He purchased the suit property under Ex.B-2 dated 25.7.85 from
the aforesaid 3 persons and put up thorn fence, stone pillars and also constructed a small thatched hut therein. It was leased out to one Amavasai.
It is also his case that he tied cattle, maintained dumping yards and put up a small fire wood shop therein. Exs. B-3 to B-5 are house-tax receipts,
whereas Exs.B-6 to B-8 are receipts for payment of licence fee for the fire-wood shop. By drawing my attention to Ex.B-2 - sale- deed - and
Exs.B-3 to B-8 as well as Exs. B-9 and B-10, learned counsel for the appellant would contend that the plaintiffs were never in possession of the
suit property at any point of time. I have already observed that the suit property and the property described in Exs.A-1 and A-2 is one and the
same. It is further seen from the materials placed on the side of the plaintiffs that the property of one Roshan Sharifa is situated south of the suit
property. This is evident from Exs.C-1 and C-2. The first defendant, who was examined as D.W.1, has state that one Kandasamy holds property
to the south of the suit property. However, D.W.1 admitted that one Karuppia Servai purchased from Kuppayandi Chettiar, the property situated
south of the suit property. Ex.A-36 dated 14.7.1957 is the copy of the said document. It is further seen that Roshan Sherifa purchase the property
south of the suit property from the said Karuppia Survey''s heirs, namely, Anandhammal, who has been examined as P.W.7. She is one of the
vendors under Ex.A-3 dated 2.7.1980. A perusal of the evidence of D.W. 1 would clearly show that Roshan Sharifa is the southern owner.
Another document to be considered is Ex.A-15 dated 30.4.1981, which is an agreement between the 4th plaintiff and three others and Roshan
Sharifa regarding the passage. It is to be noted that the said agreement is prior to the suit and anterior to the purchase made by the first defendant.
Though Roshan Sharifa failed to appear in Court inspite of summons taken by the plaintiffs, it is seen that P.W.4, the brother of the said Roshan
Sharifa''s husband was examined and he explained the agreement Ex.A-15.
Under Ex.A-34, dated 20.3.85, the third plaintiff who was examined as P.W.1, othied the west of the suit property to one Kamatchi Amrnal.
P.W.1 speaks about the same. The third plaintiff has sold his share to the 2nd defendant under Ex.A-9 dated 25.3.85: Ex.B-1. I have already
stated that the third plaintiff was examined as P.W. 1. The attestor under Ex.A-9 has been examined as P.W.5. Both of them explained the said
sale transaction. Ex. A-14 is the tree patta granted to the grand- father Devi Chettiar. All the above documents would prove the case of the
plaintiffs regarding their title and possession over the suit property.
I have already referred to the reliance on Ex.B-2 by the first defendant regarding his purchase of the suit property from Vairavan and others.
Ex.B-11, dated 19.9.85 showed that one Nagammal purchased a property from one Vairavan situated west of the suit property. D.W.1 in his
evidence has admitted that Ex.B-11 was made 2 months subsequent to his purchase. Inasmuch as it is a recent document and the same came to be
executed after Ex.B- 2, the learned Subordinate Judge is perfectly right in not jiving much reliance on the said transaction. No doubt, the first
defendant has produced Exs.B-3 to B-5 - house-tax receipts;""Exs.B-6 to B-8 - licence fees; Exs.B-9 and B-10 - professional tax receipts.
Admittedly, all these payments were made after the suit. In such a circumstance, I am in agreement with the conclusion arrived by the learned
Subordinate Judge in rejecting the case of the first defendant.
Another important aspect in favour of the plaintiffs'' case is that the suit property was included in the partition suit in O.S.No.3 of 1971 on the
file of Sub Court, Sivaganga amongst the family members and the same was shown as 34th item in A schedule. Admittedly, the said suit is long
prior to the dispute between the parties. Ex.A-10 dated 18.7.78 is the final decree in the suit. No doubt, it is contended by the first defendant that
Ex.A- 12 had not been produced in the proceedings, namely, O.S.No.3 of 1971. However, as rightly contended by the respondents, in the
partition suit, the parties had agreed about the availability of the property in the family, and hence it follows the title is not in dispute and the
question is with regard to the division. In such a circumstance, there was no occasion for production of Ex., A-12 in the partition suit. All the above
aspects have been considered in detail by the trial court and relying on Exs.A-1, A-2, A-3, A-10, A-12, A-14, A-15, A-34 and A-36, the
learned Judge has rightly held that the title in respect of the suit property is in favour of the plaintiffs. Though the first defendant has very much relied
on Exs.B-2 and B-11 regarding title and Exs.B-3 to B-10 regarding possession, the learned trial Judge on consideration of those documents, failed
to accept his case. As already referred by me earlier, Ex.B-11 came to be executed just 2 months subsequent to the purchase of the property
under Ex.B-2 and Exs.B-3 to B-10 were after the inception of the suit. Hence, I am of the view that the first defendant failed to prove his case
regarding title. The overwhelming oral and documentary evidence produced on the said of the plaintiffs would clearly prove their title to the suit
property and I am in agreement with the conclusion arrived at by the trial court.
Regarding possession of the suit property, Mr.A. Sivaji, learned counsel for the appellant, by drawing my attention to the relief prayed for in
the suit, and also to the non-framing of specific issue regarding possession and specific finding by the trial court, would contend that the ultimate
decree for permanent injunction granted by the trial court cannot be sustained. It is true that the plaintiff has filed the suit praying for declaration that
the suit property belongs to the plaintiffs and the 2nd defendant and also prayed for permanent injunction restraining the first defendant in any way
from interfering with the possession of the plaintiffs and the 2nd defendant. Though the learned Subordinate Judge has framed as many as 6 issues,
there is no specific issue regarding possession of the suit property by the plaintiffs. Even though there is no separate issue regarding possession,
admittedly, the plaintiffs have made necessary averments not only with regard to the title, but also of their possession in the suit property. Evidence
was also let in in support of their claim. Mr.T.M. Hariharan, learned counsel for the respondents, while admitting the fact that there is no specific
issue regarding possession of the plaintiffs in the suit property, would state that the parties have let in sufficient evidence both oral and documentary
with regard to the possession. He also vehemently contended that the first defendant has trespassed the suit property and has put up construction
only after filing of the suit. He also contended that in such a circumstance, particularly in the light of the materials available before the Court
regarding possession, the non-framing of a specific issue is not fatal to the proceedings. For the said proposition, he very much relied on the
following decisions:-
(i) Nagubai Ammal and Others Vs. B. Shama Rao and Others, ; (ii) MD. Yusuf v. MD. Yusuf, AIR 1958 Mad. 527; and (iii) Nedunuri
Kameswaramma Vs. Sampati Subba Rao, .
In the light of the said contention, I have carefully perused the pleadings of both parties, issues framed, evidence let in and the ultimate discussion of
the learned Judge regarding possession. Except a specific issue regarding possession, necessary plea and evidence are available. As a matter of
fact, this aspect was considered in detail by the learned Subordinate Judge in paragraph 28 of his judgment and he had found that the plaintiffs
have estabiished their possession by placing acceptable oral and documentary evidence and that only after filing of the suit, the first defendant
forcibly entered the suit property and constructed a house. In para 28, the following conclusion by the learned Judge is relevant:-
It is clear that the trial court on the basis of documents produced categorically finds that the first defendant has trespassed into the suit property and
has put up construction only after the suit. It is further seen that immediately the plaintiffs have made a complaint to various authorities and officials
and in support of the said claim, they produced copies of the telegrams, petitions, complaints etc., - Ex.A-17 to A-33. These documents clearly
prove the case of the plaintiffs that the first defendant trespassed into the suit property subsequent to the filing of the suit, and accordingly the trial
court has rightly rejected the claim of the first defendant that the plaintiffs were not in possession on the date of the suit. Though the first defendant
has produced Ex.B-14, dated 18.9.67 to show that the vendors of the first defendant had leased out the property to one Manickam Pillai (DW3),
the trial court in the light of the overwhelming oral and documentary evidence showing that the plaintiffs and the predecessors are the owners in
possession and enjoyment, rejected the same. Though the materials placed are sufficient to reject the last contention of the learned counsel for the
appellant with regard to absence of specific issue regarding possession, it is but proper to highlight the legal position also. In the first case, namely,
Nagubai Ammal and Others Vs. B. Shama Rao and Others, , Their Lordships of the Supreme Court have held as follows:- (para 12)
12 ...... The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for
decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing
evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific
issue has been framed thereon, and adduce evidence relating thereto.
In the second decision namely, MD. Yusuf v. MD. Yusuf, AIR 1958 Mad. 527, a learned Single Judge of this Court has held that though specific
issue was not framed regarding a particular point, since the parties were aware and leading evidence on the said point, they cannot complain after
wards that they were taken by surprise. In the last decision, namely, Nedunuri Kameswaramma Vs. Sampati Subba Rao, . Their Lordships have
held that where the parities went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation
of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates
proceedings. Their Lordships have further held that the suit could not be dismissed on this narrow ground, and also there is no need for a remit, as
the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to
offer. All the decisions referred to above clearly show that if necessary materials are before the court in the form of pleadings, parties led evidence
and finding is also rendered by the Court, the said conclusion cannot be interfered with merely on the ground of omission to frame a specific issue.
Here in our case, as already referred to by me, there are necessary averments available in the pleadings, and the trial court after considering the
overwhelming oral and documentary evidence, arrive at a specific conclusion, namely, that the first defendant trespassed the suit property after
filing of the suit. In such a circumstances, I am of the view that there is no need to remit the matter to the trial court for considering the question
regarding possession as claimed by the learned counsel for the appellant.
In the light of what is stated above, I do not find any merit in the appeal and I am satisfied that the trial court has considered all the materials
placed before it; accepted the case of the plaintiffs regarding title and possession and rightly decreed the suit. Net result, the appeal fails and the
same is dismissed with costs.