Booji v. Chinnavan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27.06.2007CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.1513 of 1996Booji .. Appellant/Plaintiff VersusChinnavan.. Respondent/2nd Defendant Appeal against the fair and decreetal order, dated 7.8.1996, made inA.S.No.6 of 1995, on the file of the Sub-Court, Tirupattur,N.A.A.District, partly reversing the fair and decreetal order, dated13.12.1994, made in O.S.No.503 of 1977, on the file of the PrincipalDistrict Munsif Court, Tirupattur, N.A.A. District.For Appellant : Mr.J.SaravanavelFor Respondent : No AppearanceJ U D G M E N TThis second appeal has been filed against the judgment and decree ofthe Sub-Court, Tirupattur, dated 7.8.1996, made in A.S.No.6 of 1995,partly reversing the judgment and decree of the Principal District MunsifCourt, Tirupattur, dated 13.12.1994, made in O.S.No.503 of 1977. 2. The plaintiff in O.S.No.503 of 1977 is the appellant in the presentsecond appeal. The suit had been filed, praying for a judgment and decreeto declare the right, title and interest of the plaintiff in the suitproperties and for a permanent injunction against the defendants, theirmen and agents, restraining them from interfering with the peacefulpossession and enjoyment of the suit properties by the plaintiff and forcosts of the suit and for other reliefs.3. The brief facts of the case, as stated by the plaintiff, are asfollows:The suit properties are ancestral properties. The plaintiff is inpossession and enjoyment of the suit properties. The plaintiff had soldthe suit properties to one Mariappan with an agreement of reconveyance and https://hcservices.ecourts.gov.in/hcservices/ had also effected reconveyance. The plaintiff had given the properties assecurity for a chit fund transaction, which was being managed by the firstdefendant. Therefore, the title deed of the properties concerned was withthe first defendant. Even though the chit amount had been discharged, thefirst defendant had not returned the title deed. The plaintiff is inpossession of the properties and the patta for the suit lands stands inhis name and he is paying the kist for the said properties. The plaintiffhas been cultivating the said lands with sugarcane, redgrams and othercrops. The first defendant had lent a sum of Rs.4,000/- to the plaintiffon a pronote and for which the plaintiff had given him 75 bags of jaggery,2 years after the execution of the pronote and 65 bags of jaggery and 2putties of paddy, four years thereafter. The plaintiff had also given asum of Rs.5,500/- in cash to the first defendant, without accounting forthe repayment made him, both in kind and in cash. The defendants hadobtained the plaintiff's thumb impression on three blank pronotes. Thishas been done by the defendants to illegally take possession of the suitproperties from the plaintiff. The defendants had been attempting tocommit trespass on the suit properties belonging to the plaintiff.Further, the defendants had attempted to destroy the crops cultivated bythe plaintiff in the suit properties and have also attempted to remove thebricklin belonging to the plaintiff and hence, the plaintiff had filed thesuit in O.S.No.503 of 1977, praying for a decree of declaration and forpermanent injunction. 4. Denying the claims made by the plaintiff, the defendants have filedseparate written statements: a) The first defendant had stated that the claim made by theplaintiff that he had executed a bond for a sum of Rs.4,000/-borrowed by him and that he had repaid the amount both by cash and inkind is false. The plaintiff has falsely stated that he had affixedhis thumb impression on 3 blank pronotes. In fact, the plaintiff hadborrowed a sum of Rs.7,000/-, on 1.8.1973, by executing a bond.Further, he has borrowed various amounts of money from the firstdefendant and others and he had not repaid the same. b) In the written statement filed by the second defendant, it hasbeen stated that the claims of the plaintiff that he had affixed histhumb impression on blank pronotes is totally false and it is theplaintiff, who has to prove his claims. By an agreement, dated28.10.1976, the plaintiff, after accepting a sum of Rs.75/-, hadpermitted the second defendant to have a brick kiln in 10 cents ofland, out of the 73 cents, in Survey No.353/3. The statement made bythe plaintiff that the second defendant has attempted to encroach onthe properties belonging to the plaintiff and that he has attemptedto take possession on the same are absolutely false, since the seconddefendant had no intention of taking possession of the suitproperties, illegally, as claimed by the plaintiff. The seconddefendant has no claims with regard to the suit properties, exceptwith regard to the brick kiln, which is on the 10 cents of land inSurvey No.353/3 of the suit properties. In such circumstances, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff is not entitled to the relief of injunction, withoutclaiming the relief of recovery of possession.c) In the written statement filed by the third defendant, it hasbeen stated that the plaintiff had borrowed a sum of Rs.8,250/- fromthe third defendant by executing a pronote, dated 19.7.1972. Theplaintiff had paid a sum of Rs.300/-, on 21.7.1973, as interest forthe loan amount. The plaintiff has not paid any other amount todischarge his liability. The third defendant had issued anappropriate notice with regard to the loan amount, due to be paid bythe plaintiff. Since the suit filed by the plaintiff is based onfalse claims, it is liable to be dismissed. d) The fourth defendant, in his written statement, has statedthat there are no details about the claims made by the plaintiff inthe plaint filed by him in O.S.No.503 of 1977. It is only with themalicious motive of causing unnecessary harassment to the fourthdefendant, the plaintiff has filed the suit. The claims made by theplaintiff are totally false and therefore, the suit deserves to bedismissed. 5. Based on the averments made by the plaintiff as well as thedefendants, the trial Court had framed the following issues forconsideration:"(i) Whether the agreement, dated 28.10.1976, asmentioned by the second defendant is genuine?(ii) Whether the second defendant is entitled tokeep the brick kiln, located in the land measuring 10cents in the suit property, under his possession?(iii) Whether the brick kiln was in possession ofthe plaintiff at that time of the filing of the suit?Whether the plaintiff has any right over the brickkiln?(iv) Whether it is true to allege that thedefendants had trespassed into the suit property, on17.12.1977?(v) Whether the defendants 1 and 3 are unnecessaryparties to the suit? Whether the defendants 1 and 3 areeligible to get exemplary costs?(vi) What other reliefs the plaintiff is entitledto?"6. The trial Court had framed the following issues as additionalissues, on 7.4.1986."(i) Whether the details and boundaries of the suit propertyare wrongly mentioned?(ii) Whether the fourth defendant is an unnecessary party tothe suit?"7. Based on the evidence adduced on behalf of the plaintiff, as wellas the defendants and considering the report and the sketch filed by the https://hcservices.ecourts.gov.in/hcservices/ Commissioner, the trial Court, while examining the issue with regard tothe alleged agreement, dated 28.10.1976, marked as Ex.B-1, had come to theconclusion that the alleged agreement is not true. 8. The trial Court had also come to the conclusion that the brick kilnwas in possession of the plaintiff and that he had the right in it, at thetime of the filing of the suit. Further, the trial Court had found thatthe second defendant had no right in the brick kiln in the 10 cents of theland forming part of the suit properties and also that the seconddefendant was not in possession of the said brick kiln.9. The trial Court had also found that the description of theproperties and boundaries had been properly given by the plaintiff in hisplaint filed in the suit in O.S.No.503 of 1977. It was further found thatthe defendant had attempted to encroach on the suit properties, on17.12.1977, as claimed by the plaintiff. The trial Court had also foundthat the defendants 1 and 3 were proper and necessary parties. Thus, thetrial Court had come to the conclusion that the plaintiff is entitled tothe reliefs prayed for in the suit O.S.No.503 of 1977. 10. Aggrieved by the judgment and decree of the trial Court, dated13.12.1994, made in O.S.No.503 of 1977, the second defendant had preferredan appeal before the Sub-Court, Tirupattur, in A.S.No.6 of 1995. 11. Based on the rival contentions and on the evidence available onrecord, the lower Appellate Court, had framed the following points forconsideration."(i) Whether it is true that the plaintiff had executedExhibit B.1 agreement in favour of the second defendant for theformation of brick kiln in the land measuring 10 cents out of the73 cents of land in Survey No.353/3?(ii) Whether the judgment and decree passed by the trialCourt is to be confirmed?"12. The lower Appellate Court had found that the trial Court was rightin granting the reliefs of declaration and permanent injunction as prayedfor by the plaintiff. However, based on the expert evidence of theHandwriting expert and based on the oral evidence adduced in support ofthe defendants, the lower Appellate Court had come to the conclusion thatthe agreement , dated 28.10.1976, marked as Exhibit B.1, made by theplaintiff in favour of the second defendant with regard to the 10 cents ofland in Survey No.363/3, is true and valid. It has also been found thatthe second defendant had established the brick kiln in the 10 cents of theland out of the 73 cents in Survey No.353/3, forming part of the suitproperty. Therefore, the lower Appellate Court had come to the conclusionthat the relief granted by the trial Court in favour of the plaintiff,with regard to the 10 cents of land in Survey No.353/3, is incorrect.Thus, the lower Appellate Court had allowed the appeal in part and grantedthe relief to the plaintiff with regard to the suit properties, except the https://hcservices.ecourts.gov.in/hcservices/ 10 cents of land, found to be forming part of the agreement, dated28.10.1976, marked as Ex.B-1.13. The plaintiff has filed the present second appeal challenging thejudgment and decree of the lower Appellate Court, dated 07.08.1996, madein A.S.No.6 of 1995, partly reversing the findings of the trial Court. Theappellant has raised various grounds forming part of the memorandum ofgrounds of appeal. 14. This Court had admitted the second appeal on the followingsubstantial questions of law:"(1) Whether in a suit for declaration and permanentinjunction it is necessary to pray for possessory title for themovable property encompassed in the suit scheduled properties?(2) Whether the first Appellate Court is correct in grantingthe relief of declaration and possession by negating the claim ofthe plaintiff to the second defendant even without paying thenecessary Court-fees?(3) Whether an agreement for possession of land for 3 yearsfrom 28.10.1976, could be relied upon for granting possessoryright in 1996 even without a prayer or claim by the seconddefendant in the manner known to law?"15. The main point arising for consideration before this Court in thesecond appeal is, as to whether the agreement, dated 28.10.1976, markedas Exhibit B.1, has been sufficiently proved to be true and valid as heldby the lower Appellate Court, while partly reversing the judgment anddecree of the trial Court, dated 13.12.1994, made in O.S.No.503 of 1977.16. The other point for consideration is as to whether the lowerAppellate Court was right in holding that the second defendant had certainrights with regard to the brick kiln in the 10 cents of land in SurveyNo.353/3 in accordance with the said agreement, dated 28.10.1976. 17. Based on the agreement, dated 28.10.1976, marked as Ex.B-1, thelower Appellate Court had come to the conclusion that the second defendantwas in possession of the brick kiln in the 10 cents of land forming partof S.No.353/3. While holding that the evidence of P.W.2 cannot beconsidered in favour of the plaintiff, since he was found to be aninterested witness, the lower Appellate Court could not have based itsconclusion on the evidence of D.W.3 and D.W.4, who were, admittedly, closerelatives of the second defendant. 18. It was contended on behalf of the appellant that the lowerAppellate Court had erred in concluding that the suit filed by theplaintiff for the relief of declaration and permanent injunction was notmaintainable with regard to the 10 cents of land in Survey No.353/3. The https://hcservices.ecourts.gov.in/hcservices/ said conclusion has been arrived at by the lower Appellate Court based ona wrong finding that the plaintiff was not in possession of the brick kilnand that the brick kiln was set up by the second defendant, even though itwas not an issue framed by the lower Appellate Court for consideration. 19. Even if the agreement, dated 28.10.1976, marked as Ex.B-1 is takento be true, the lease period ought to have expired by the end of threeyears thereafter counting from the date of its execution. However, thelower appellate Court had passed its judgment and decree in the year 1996holding that the second defendant was in possession at that time, evenwithout a pleading being made by him, nor was there any evidence to showthat the second defendant had extended the lease beyond the period ofthree years from the year 1976 or that he continued to be in possessionafter the expiry of the original lease period of three years. 20. At the stage of the final hearing of the present second appeal,the learned counsel appearing on behalf of the appellant had placed beforethis Court a certificate of the concerned Village Administrative Officer,which reads as follows:rhd;W ntY}h; khtl;lk; jpUg;gj;J}h; jhY}f;fh bghk;kpFg;gk; kJuh jhjtyir fpuhkk;rh;nt bek;gh; 353-3y; 0.29.5 Vh;!; (0/73) brd;L ,jpy; g{uht[k; bgh$;$p ft[d;lh; mth;fspd; mDgtj;jpy; cs;sJ vd;W ehd; rhd;W mspf;fpnwd;/Further, the adangal extract has also been produced showing that theplaintiff is in possession of the 73 cents of land in S.No.353/3 which isthe subject matter of the suit in O.S.No.503 of 1977. Based on the saiddocuments, it has been contended by the learned counsel for the appellantthat the possession of the suit properties is with the plaintiff. Thisclaim made on behalf of the plaintiff has not been controverted by therespondent in the present second appeal.21. In such circumstances, the judgment and decree of the lowerAppellate Court, dated 07.08.1996 made in A.S.No.6 of 1995, partlyreversing the judgment and decree of the trial Court, dated 13.12.1994,made in O.S.No.503 of 1977, is set aside. Consequently, the second appealis allowed, confirming the judgment and decree of the trial Court, dated13.12.1994. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ lan/cshTo1. The Sub Judge, Tirupattur, N.A.A.District2. The Principal District Munsif Court, Tirupattur, N.A.A. District.3. The Section Officer,V.R.Section, High Court,Madras.1 CC To M/s.P.V.Bakthavachalam, Advocate, SR NO.38582.Second Appeal No.1513 of 1996 GK(CO)RVL 30.08.2007