S.Nanjayya Gounder (died) v. S.K.Merugiri

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 3.11.2009CORAMTHE HON’BLE MR.JUSTICE M.JEYAPAULSECOND APPEAL NO.1270 OF 19951. S.Nanjayya Gounder (died)2. Santhamani3. Sudhaganan 4. Vijayalakshmi5. Minor Vivek (Appellants 2 to 5 – brought onrecord as L.Rs. Of the deceased sole appellant vide order dated26.12.2002 in C.M.P.Nos.20248 to 20251 of 2001) (5th appellant is represented by his mother and next friendSanthamani vide order dated 26.12.2002 in C.M.P.No.20251 of 2001).. Appellants/I Defendant vs. 1. S.K.Merugiri2. S.K.Subbaiyan3. S.K.Thimmaiyan4. S.K.Ramachandran.. Respondents/II Plaintiff III to V DefendantsFor appellants : Mrs.Mythili Suresh for M/s.Sarvabhauman AssociatesFor R1 : Mr.R.T.DuraiswamiFor R2 : Mrs.P.T.AshaFor RR3 and 4 : No appearance. https://hcservices.ecourts.gov.in/hcservices/ Prayer:- Second Appeal against the judgment and decree of the learnedPrincipal District Judge, Coimbatore dated 5.4.1995 made inA.S.No.149 of 1994 preferred against the judgment and decree of thelearned III Additional District Munsif, Coimbatore dated 11.4.1994made in O.S.No.632 of 1987. JUDGMENTThe first defendant, who suffered a decree for declaration oftitle before the courts below prefers the present second appeal. 2. The plaintiff filed the suit for declaration of title andalso for recovery of possession. The court below, having rejectedthe plea for recovery of possession, granted a decree for declarationof title in favour of the plaintiffs. 3. The plaintiffs would contend that the first defendantNanjaiya Gounder and one Thoddanna Gounder are his brothers. Thesecond defendant is alleged to be the tenant of the suit propertyunder the first defendant and defendants 3 to 5 are the sons of thesecond defendant. The suit property is a maaniyam inam land. Thefirst plaintiff's father Subbe Gounder executed a Will dated 5.7.1939allotting share to each of his sons. Under the said Will, the suitproperty was allotted to the first plaintiff. Though the said Willwas cancelled on 28.9.1946, Subbe Gounder insisted that the divisionof the property must be as per the Will. The brothers of the firstdefendant and the first plaintiff executed a partition deed dated16.11.1957 between themselves and allotted the suit property to suittheir convenience. The partition deed refers as if the suit propertywas allotted to the first defendant. The said partition deed has nolegal force as against the first plaintiff. The first plaintiff andhis brothers were on loggerheads and were inimically disposed ofright from the year 1954. In the year 1967, the suit property wasgiven riotwari patta under the Minor Inam Abolition Act in the nameof the first plaintiff and the first defendant. In the year 1978,the first plaintiff sold 5 cents of land to one K.N.Vasu. Havingthus alleged, the first plaintiff prays for declaration of his sharein the property and also for recovery of possession with respectthereto. 4. In the written statement, the first defendant contended thatthe suit property has no connection with any service inam rendered byhis family members. The second defendant is the lessee of the suitproperty. The first defendant denies the allegation that the father https://hcservices.ecourts.gov.in/hcservices/ of the first defendant insisted that the division of the propertiesmust be as per the Will executed by him. Though all the threebrothers agreed for a division of the properties in the presence ofpanchayatdars, the plaintiff did not join in the execution of thepartition deed. The suit property was allotted to the firstdefendant under the partition deed dated 27.11.1954. The firstdefendant has become the absolute owner of the suit property. Thesecond defendant, who is a lessee under the first defendant has beenin possession of the property for the past 25 years. In thelitigation in O.S.No.994 of 1978 on the file of the District MunsifCourt, Coimbatore initiated by the second defendant, permanentinjunction was granted in his favour as against the first plaintiff.K.N.Vasu, who allegedly purchased 5 cents of land in the suitproperty, was not impleaded as necessary party to the suit. When theplaintiffs partitioned their family properties, the suit property wasnot shown as one of the properties in their possession. Therefore,the first defendant has sought for dismissal of the suit. 5. The third defendant has contended in the written statementthat his father, the second defendant in the suit, was in possessionand enjoyment of the suit property in his capacity as a lessee underthe first defendant for the past about 25 years. After his demise,the third defendant is managing the suit property. He also prays fordismissal of the suit. 6. On the side of the plaintiffs, the second plaintiff wasexamined as PW1 and one T.Ganesan was examined as PW2. As many as 16documents were marked on the side of the plaintiffs. On the side ofthe defendants, the first defendant was examined as DW1 and fivedocuments were marked on his side. 7. The courts below, having adverted to the evidence on record,has come to the decision that the plaintiffs have established thatthe first plaintiff is entitled to declaration of title with respectto 7 cents of land in the suit property. As specific boundaries werenot given in the plaint, the prayer for delivery of possession wasdenied by the courts below. 8. No appeal was preferred by the plaintiffs aggrieved by therejection of their prayer for delivery of possession. 9. The following substantial question of law was framed fordetermination at the time of admission of the appeal:-"Whether the suit is barred by limitation?" https://hcservices.ecourts.gov.in/hcservices/

10. Learned counsel appearing for the appellant/first defendantwould submit that even as per the own showing of the plaintiff, thecause of action for the suit has arisen wayback in the year 1967. Thesuit filed for declaration of title beyond the period of 12 years ishopelessly barred by limitation. It is her further submission thatinasmuch as there is a specific finding in the suit filed by thesecond defendant as against the first plaintiff that it was only thefirst defendant who had leased out the suit property to the seconddefendant and the second defendant has been in continuous possessionand enjoyment of the suit properties in his capacity as lessee, thesuit is hit by the principles of res judicata. Referring to theevidence of PW1, who is none other than the son of the firstplaintiff, she would submit that DW1 has categorically admitted thatin the notice issued in the year 1957 by the first plaintiff therewas no reference that the suit property was in the possession andenjoyment of the first plaintiff. The partition deed, Ex.B1 executedamong the family members of the plaintiffs would refer that there wasno other property of the family left out. It is her furthersubmission that one Vasu, who allegedly purchased 5 cents of land inthe suit property, was not impleaded as a proper and necessary partyto the suit. Therefore, the suit itself is not maintainable. 11. Learned counsel appearing for the second plaintiff/firstrespondent would submit that though riotwari patta was issued jointlyin the names of the first plaintiff and the first defendant in theyear 1967 under Ex.A8, subsequently a patta under Ex.A1 was issuedjointly in the name of the first defendant, first plaintiff and onePasu. Therefore, the suit, filed for declaration of title from thedate of issue of patta, Ex.A1, is well within the period oflimitation. It is his further submission that the joint riotwaripatta Ex.A8 issued in the name of the first defendant and the firstplaintiff with respect to the suit property would go to show thatthey are the joint owners of the suit property. In the suit filed bythe second defendant as against the first plaintiff for bareinjunction, the title of the suit property was not determined.Therefore, application of the principles of res judicata does notarise in this case. Though there is no reference in the lawyer'snotice issued by the first plaintiff to the defendant, the plaintiffshave independently established that they have got joint ownership tothe suit property under the riotwari patta, Ex.A8 issued by theSettlement Tahsildar. Therefore, he would submit that there is nowarrant for interference with the well considered judgments of thecourts below. https://hcservices.ecourts.gov.in/hcservices/

12. The first plaintiff has admitted in the plaint itself thatthere was a partition deed dated 16.11.1957 executed between thefirst defendant and yet another brother Thoddanna Gounder wherein thesuit property was allotted to the share of the first defendant. It isthe admitted case of both the parties that the first plaintiff,though he is one of the brothers of the first defendant and the saidThoddanna Gounder, was not one of the parties to the said partitiondeed. Therefore, the partition allegedly taken place between thefirst defendant and the said Thoddanna Gounder under the partitiondeed dated 16.11.1957 allotting the suit property to the share of thefirst defendant would not bind the plaintiff. 13. On facts, it is found that there was a settlement proceedinginitiated by the Settlement Tahsildar wayback in the year 1967. Thefirst defendant has given evidence marked as Ex.A13 to the effectthat the suit property was in joint possession and enjoyment of thefirst plaintiff and the first defendant. Based on the evidence letin before the Settlement Tahsildar, joint patta in the name of thefirst plaintiff and the first defendant was issued by the SettlementTahsildar on 20.1.1967 and the same was marked as Ex.A8. 14. It is contended by the learned counsel appearing for thefirst defendant that the statement given by DW1 before the SettlementTahsildar cannot be a basis for grant of riotwari patta in the jointnames of the first defendant and the first plaintiff. It is foundthat the Settlement Tahsildar conducted a roving enquiry and based onthe statement of the first defendant, he has arrived at a conclusionthat the suit property was in the joint possession of the firstplaintiff and the first defendant and chose to issue joint pattaunder Ex.A8 in the name of the first plaintiff and the firstdefendant. The first defendant cannot disown his statement whichculminated in the issuance of joint patta referred to above. If atall, the first plaintiff was not in joint possession of the property,the first defendant would not have come out with such a statementbefore the Settlement Tahsildar which culminated in the issuance ofjoint patta.15. On a careful reading of the certified copy of the judgmentEx.A7 in O.S.No.994 of 1978 it is found that in the suit laid by thesecond defendant as against the plaintiff on the ground that thesecond defendant was let in possession by the first defendant, thepossession of the second defendant was protected by the court byissuance of permanent injunction as sought for by the seconddefendant as against the first plaintiff. https://hcservices.ecourts.gov.in/hcservices/

16. It is found that the aforesaid suit was filed not by a co-sharer but by a lessee under the co-sharer alleging interference withhis possession in his capacity as lessee and obtained a decree forpermanent injunction. The said suit was filed basically for therelief of permanent injunction. The issue as to the title to theproperty was not germane to the said suit filed for permanentinjunction. No such issue also was raised and answered by the TrialCourt in the said suit. Of course, there is a passing reference inthe said suit that it was only the first defendant, who leased outthe suit property to the second defendant, who has been in possessionand enjoyment of the suit property. The present suit is not one forpermanent injunction based on the plea of possession. On thestrength of the joint riotwari patta issued in the year 1967 and thesubsequent patta issued in the year 1986 under Ex.A1, the suit hasbeen basically filed for declaration of title. Therefore, theobservation made in the aforesaid suit with respect to leasing of theproperty will not have much bearing on the present suit fordeclaration of title. Any observation made therein will not operateas res judicata for the present suit filed for declaration of title.17. Though the plaintiffs have filed kist receipts, Exs.P10 toP12, it is found that the kist receipts, Exs.A11 and A12 relate tothe period subsequent to filing of the suit. Ex.A10 does not relateto the suit property. Occupancy may be with the second defendant inhis capacity as lessee. But, recognizing the joint possession, ajoint patta was issued under Ex.A1 in the year 1986 in the name ofthe first plaintiff, the first defendant and one Pasu. Therefore, itis not as if the plaintiffs filed the suit beyond the period oflimitation inasmuch as they got joint patta in the year 1986, oneyear prior to the filing of the suit. Therefore, the suit is notbarred by limitation. 18. It is true that PW2, in his evidence, would admit that inthe year 1957, his father issued a legal notice wherein the suitproperty was not shown as one of the properties under theirpossession. The fact remains that joint possession of the propertywas admitted by the first defendant in the settlement proceedings andas a result of which joint riotwari patta was issued under Ex.A8 inthe name of the first plaintiff and the first defendant. Therefore,the failure to refer to the suit property as one of the properties inthe possession of the plaintiffs' family in the notice issued in theyear 1957 does not have any bearing. Under Ex.B1 partition deed, the https://hcservices.ecourts.gov.in/hcservices/ family members of the plaintiffs partitioned their properties. Ithas been specifically averred therein that no other property was leftout of the scope of the partition in the family. It is found thatthe riotwari joint patta issued in the year 1967 would go to showthat the first plaintiff and the first defendant was in jointpossession of the property and as a result of which, they have beenissued with joint patta. The joint possession was also admitted bythe first defendant in the said proceedings as found from Ex.A13marked before the Trial Court. The first plaintiff also got jointpatta one year earlier to the suit under Ex.A8. Therefore, the nonreference of the suit property in the partition deed, Ex.B1 executedamong the family members of the plaintiffs would not deprive theright of the first plaintiff in the suit property as otherwiseaccrued to him.19. It is pointed out by the learned counsel appearing for thefirst defendant that the plaintiffs cannot get a decree fordeclaration of title with respect to the half share of the suitproperty inasmuch as the first plaintiff had already alienated 5cents of land in favour of one K.N.Vasu alias K.N.Pasu. It issubmitted that the suit itself is not maintainable as proper andnecessary party viz., K.N.Pasu was not impleaded as a party to thesuit. 20. The plaintiffs have not burked any fact as to the executionof the sale deed with respect to 5 cents of the suit property infavour of the said K.N.Pasu. When the alienation of part of the suitproperty was admitted, the plaintiffs cannot have a decree withrespect thereto. But, at any rate, when the plaintiffs havecategorically admitted that the first plaintiff had already alienated5 cents of land in the suit property and as a consequence theplaintiffs cannot get a decree for the entire half share in the suitproperty, the non impleadment of the said K.N.Pasu will not affectthe scope of the suit. 21. It is found that the plaintiffs have established that thefirst plaintiff had got half share in the suit property. He hasadmittedly alienated 5 cents out of 7 cents he was entitled to, infavour of K.N.Pasu. Therefore, he can at best get a decree fordeclaration with respect to the remaining 2 cents out of 14 cents ofthe suit property. https://hcservices.ecourts.gov.in/hcservices/

22. In view of the above, holding that the second plaintiff isentitled to a decree for declaration of title in respect of only 2cents out of 14 cents in the suit property, the suit is decreed onlywith respect thereto. The judgment of the courts below is modifiedto that extent. With the aforesaid modification in the judgment ofthe courts below, the appeal stands dismissed. There is no order asto costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssk. To1. Principal District Judge, Coimbatore.2. III Additional District Munsif, Coimbatore.3. The Section Officer, V.R.Section, High Court, Madras.+ 1 cc to M/s.Sarvabhauman Associates, SR 58425+ 1 cc to Mr.R.T.Duraisamy, Adovate, SR 58459S.A.No.1270 of 1995KA (CO)RH (22.12.09)