Muthiya Pillai v. Ramalingam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 17.12.2009CORAMTHE HON’BLE MR.JUSTICE M.JEYAPAULSECOND APPEAL NOS.1424 OF 1997AND1389 OF 2002Muthiya Pillai Appellant/Plaintiff inboth S.A'svs. RamalingamRespondent/Defendant inboth S.A'sFor appellant in both SA's : Mr.S.Sounthar For respondent : Mr.A.Muthukumarboth SA'sPrayer:- Second Appeals against the judgments and decrees of thelearned Principal Sub Judge, Mayiladuthurai dated 31.1.1997 andAdditional Subordinate Judge, Mayiladuthurai dated. 18.12.2001 madein A.S.Nos.30 of 1996 and 76 of 2001 respectively preferred againstthe judgments and decrees of the learned Additional District Munsif,Mayiladuthurai dated 19.1.1996 and 21.8.2001 made in O.S.Nos.335 of1990 and 114 of 1998 respectively.COMMON JUDGMENTThe plaintiff filed O.S.No.335 of 1990 seeking permanentinjunction restraining the defendant from interfering with thepossession and enjoyment of the Government poramboke land measuring12 cents in his possession. The other suit in O.S.No.114 of 1998was filed by the plaintiff praying for recovery of possession of Aschedule property and for permanent injunction with respect to Bschedule property or in the alternative for recovery of possession ofB schedule property. 2. As the parties in both the appeals are one and the same andthe suit properties are also found to be contiguous both the appealsare taken up for common disposal. 3. The plaintiff has contended in O.S.No.114 of 1998 that therewas a partition in the family in the year 1970. With the funds https://hcservices.ecourts.gov.in/hcservices/ provided by his father-in-law, the plaintiff purchased the propertydescribed in O.S.No.114 of 1998 on 25.12.1960. Only on permissiongranted by the plaintiff, the defendant, who is the only brother ofthe plaintiff, put up a small hut in the A schedule property and hasbeen residing over there. The earlier litigation initiated by thedefendant in O.S.No.306 of 1990 on the file of the court of theDistrict Munsif, Mayiladuthurai ultimately ended in favour of theplaintiff. Though the plaintiff's father entered into an agreementof sale with one Ramu for purchasing the suit property, he died evenbefore clinching the sale transaction. As there was no joint familyfunds for purchasing the suit property, the plaintiff, havingmobilised fund from his father-in-law, purchased the same. As thesuit property is self-acquired property of the plaintiff, the saidproperty did not form part of the partition that took place in theyear 1970 in the family. Having thus alleged, the plaintiff soughtfor the aforesaid reliefs.4. In the written statement filed by the defendant in O.S.No.114of 1998, it is contended that there was a family arrangement onlywith respect to the property situate at Manalmedu. There was nopartition with respect to all the suit properties. The plaintiffbeing the eldest member of the family, took control of the familyaffairs and purchased the suit property after the demise of hisfather, who already entered into an agreement of sale during hislifetime. The defendant controverted the allegation of the plaintiffthat he gave permission to the defendant to put up a house in Aschedule property. The defendant is enjoying the entire suitproperty alongwith the adjoining poramboke lands. Though the pleafor permanent injunction with respect to the suit property raised bythe defendant in O.S.No.306 of 1990 was rejected by the appellatecourt in A.S.No.37 of 1996 on the file of the Sub Court,Mayiladuthurai, there is no clear finding that the suit propertiesare the joint family properties. As A and B schedule properties arejoint family properties, the plaintiff is not the exclusive owner ofthe same. The finding rendered in A.S.No.37 of 1996 will operate asres judicata in respect of the contention raised by the plaintiff inthe present suit. Therefore, the defendant has sought for dismissalof the suit in O.S.No.114 of 1998. 5. The plaintiff in O.S.No.335 of 1990 would contend that thesuit property is a Government poramboke land. It is a coconut thope.Regularising possession of the property, the Government issued 2Cpatta. The entire poramboke land is in possession and enjoyment ofthe plaintiff. The defendant does not have any right over theproperty nor has he been in possession and enjoyment of the same.The plaintiff, having alleged that the defendant is making an attemptto encroach upon the suit property taking advantage of the enjoymentof the contiguous property owned by the plaintiff, sought forpermanent injunction. https://hcservices.ecourts.gov.in/hcservices/

6. In the written statement, the defendant has contended that theplaintiff, taking advantage of his management of the joint familyproperty, obtained 2C patta in his name and paid taxes. The coconuttrees were raised by the father who died in the year 1959. Theplaintiff did not raise any tree independently. The income from thetrees were utilized for the family benefit. The defendant has put upsuperstructure in the suit property believing the words of theplaintiff that the suit property would be allotted to the share ofthe defendant. The entire extent of the suit property is inpossession of the defendant in his capacity as joint family member.Disputing the allegation of the plaintiff that the suit property isthe sole property of the plaintiff, the defendant seeks for dismissalof the suit in O.S.No.335 of 1990. 7. In O.S.No.114 of 1998, the Trial Court, having found that thesuit property was the self-acquired property of the plaintiff andthat the defendant was only a permissive occupier, chose to decreethe suit as prayed for by the plaintiff in O.S.No.114 of 1998. 8. In the appeal preferred by the defendant, the first appellatecourt reversed the finding of the Trial Court. It rendered a findingthat the adverse finding recorded by the appellate court in A.S.No.37of 1996 on the file of the Sub Court, Mayiladuthurai that the suitproperty was the joint family property, operates as res judicata,inasmuch as the said adverse finding staring at the plaintiff was notchallenged by the plaintiff. Therefore, the first appellate courtheld that the plaintiff was not entitled to a decree for delivery ofpossession in respect of A schedule property and permanent injunctionwith respect to B schedule property. 9. The Trial Court, in O.S.No.335 of 1990, held that theporamboke land measuring 2 cents, which was the subject matter of thesaid suit, was the property of the joint family consisting of theplaintiff, the defendant and other brothers. Further, the defendantwas in possession and enjoyment of the said property. Therefore, theTrial Court held that one co-owner cannot seek for permanentinjunction as against the other who was found to be in possession ofthe property. The above findings of the Trial Court was upheld bythe first appellate court in the appeal preferred by the plaintiff. 10. During the course of admission of Second Appeal No.1424 of1997, the following substantial question of law was formulated:-"Whether the courts below misconstrued or omitted toconstrue the materials on record,both oral anddocumentary, in negativing the relief of permanentinjunction as prayed for by the appellant/plaintiff."11. While admitting Second Appeal No.1389 of 2002, the followingsubstantial questions of law were formulated for determination:-"1. Whether the judgment of the lower appellate court https://hcservices.ecourts.gov.in/hcservices/ is vitiated in holding that adverse finding inA.S.No.37 of 1996 will operate as res judicata againstthe present suit, when the appellant was a successfulparty in A.S.No.37 of 1996.2. Whether the appeal against mere adverse finding bysuccessful party is maintainable.3.Whether the burden of proof is not lying on theperson who claims a property as joint family propertyespecially when that property stands in the name ofanother individual."12. The plaintiff and the defendant are brothers. The plaintiffwould contend that he purchased the suit properties covered in boththe suits under the sale deed Ex.A6 marked in O.S.No.335 of 1990.There was a partition in the year 1970 in the family. The familymembers thought it fit not to include this property for the purposeof division of the same by the family members. The plaintiff alsocontends that the suit properties were purchased under Ex.A6 markedin O.S.No.335 of 1990 long after partition in the joint family.Therefore, he claims exclusive right over the suit properties. Asregards the patta lands, the plaintiff contends that the defendantcame to occupy the land on permission granted by the plaintiff. Asregards the poramboke land, the plaintiff would assert that he hasbeen in possession and enjoyment of the suit property. 13. Per contra, the defendant would contend that both the suitproperties are the joint family properties. The plaintiff, who wasmanaging the joint family properties, purchased the patta land in hisname and obtained 2C patta for the poramboke land taking advantage ofhis position as kartha of the joint family. It is contended by thedefendant that the plaintiff is not in possession of the suitproperties whereas he has been in possession and enjoyment of thesuit properties. 14. Let me first take up the plea of the defendant that the suitproperties are hit by the principle of res judicata. On a perusal ofthe judgment in A.S.No.37 of 1996, it is found that the defendantherein filed a suit in O.S.No.306 of 1990 on the file of theAdditional District Munsif, Mayiladuthurai as against the plaintiffpraying for permanent injunction with respect to the very same suitproperties. In the said suit, the defendant herein had contendedthat the suit properties were joint family properties. The firstappellate court, having adverted to the concrete stand taken by thedefendant herein in the suit filed by him in O.S.No.306 of 1990, heldthat the defendant herein had come out with a case that the suitproperties were joint family properties. When the suit propertieswere joint family properties even as per the version of the defendantherein, the defendant herein could not make a claim for permanentinjunction, it has been observed by the first appellate court inA.S.No.37 of 1996. https://hcservices.ecourts.gov.in/hcservices/

15. On a perusal of the judgment passed in A.S.No.37 of 1996, itis found that the appellate court, in fact left open the issue as towhether the suit properties were the self-acquired properties fordetermination in a properly instituted suit. The appellate court hasfound that in a suit for bare injunction laid by the defendantherein, the question of determination as to whether the suitproperties were the joint family properties or not was out ofpurview. In other words, taking into consideration the very standtaken by the defendant that the suit properties were the joint familyproperties, the first appellate court held that the defendant hereinwas not entitled to an order of injunction as prayed for by him. Asrightly pointed out by the learned counsel appearing for theappellant, the aforesaid finding recorded by the appellate court inA.S.No.37 of 1996 would not even distantly operate as res judicatafor the suit which has been laid by the plaintiff. Further, it isfound that there was no issue framed by the Trial Court in O.S.No.306of 1990 or any point for determination was formulated by the firstappellate court in A.S.No.37 of 1996 as to whether the suitproperties were the joint family properties of the family consistingof the plaintiff, the defendant and their other brothers. No findingas to the nature of the property was also recorded in the judgmentpronounced by the first appellate court. Even otherwise, it is foundthat the said appeal was determined in favour of the plaintiffherein. The plaintiff, having won his case in the appeal preferredby him before the first appellate court in A.S.No.37 of 1996, is notexpected to file any appeal as against the adverse finding, if any,made in the said judgment. 16. The learned counsel appearing for the appellant referred tothe decision in M/s.RAM MOHAN AND CO. AND ANOTHER v. M/s.GANESARGINNING CO. P. LTD., COIMBATORE AND OTHERS (AIR 2000 MADRAS 1)wherein it has been unambiguously held by this court that an appealcan lie only as against the decree or order for which an appeal isexpressly provided under Order 43 Rule 1 of the Code of CivilProcedure and no appeal would lie as against a mere finding. 17. Firstly, it is found that there was no finding that the suitproperties were the joint family properties in A.S.No.37 of 1996.Secondly, it is found that the said appeal, in fact, ended in favourof the plaintiff herein. Even assuming for the sake of argument thatthere was some adverse finding as against the plaintiff, theplaintiff, who went on appeal, cannot prefer any appeal as againstthe mere finding in the said judgment. In view of the above factsand circumstances, I find that the principle of res judicata will notoperate in this case. 18. The plaintiff has categorically admitted that originally hisfather entered into an agreement for sale with one Ramu forpurchasing the suit properties. It is his contention that as hisfather had passed away beforeever the sale could be executed and https://hcservices.ecourts.gov.in/hcservices/ registered, the suit properties were purchased by the plaintiff outof the funds provided by his father-in-law as there was no jointfamily income. 19. The learned counsel appearing for the plaintiff would submitthat the very fact that the sale deed, Ex.A6 marked in O.S.No.335 of1990 stands in the name of the plaintiff would give rise topresumption that he is the absolute owner of the suit properties.Per contra, it is contended by the learned counsel appearing for thedefendant that the plaintiff has admitted during the course ofevidence that the plaintiff managed the joint family properties afterthe demise of his father. Unless the plaintiff, who had acted askartha, produces evidence to show that he had independent source ofincome, it has to be presumed that the property purchased in the nameof the kartha was only for the benefit of the joint family, it issubmitted.20. As rightly pointed out by the learned counsel appearing forthe defendant, the plaintiff, during the course of cross-examination,has unambiguously admitted that after the demise of his father, hewas in the management of the family properties. Of course, it iscontended by the learned counsel appearing for the plaintiff thatsuch a stray version found in the cross-examination cannot betruncated and viewed in isolation. On a careful perusal of theevidence given by the plaintiff, it is found that though theplaintiff has originally come out with the case that he was notmanaging the family properties, as there was an oldest member in thefamily, he has categorically admitted during the course of cross-examination that it was he who managed the the entire familyproperties after the demise of his father. Therefore, such anadmission of the plaintiff cannot be simply ignored by this court. 21. As per the own admission of the plaintiff, he has been at thehelms of the affairs of the joint family managing the joint familyproperties. It is the admitted case of the plaintiff that theagreement for sale was actually entered into by his father with theoriginal owner Ramu for purchasing the suit properties. If at allthe plaintiff had originally intended to purchase the suit propertyout of his individual income, the father, the then kartha of thejoint family would not have entered into an agreement for sale forpurchasing the suit property. In this context, the learned counselappearing for the defendant cited a decision of a Division Bench ofthis court in P.R.KANNAIYAN (DIED) & 7 OTHERS v. RAMASAMY MANDIRIS/o.GOVINDA MANDIRI & 10 OTHERS (2005-3-LW 627) wherein it has beenobserved by this court as follows:-"It is apparent that an exception is carved out in thematter relating to acquisition in the name of Karta,where it is proved that Karta had no independent incomeand he is in possession of some nucleus and notnecessarily sufficient nucleus of the joint family https://hcservices.ecourts.gov.in/hcservices/ property. In such a case, even where sufficientnucleus is not proved but existence of some nucleus isproved and it is further proved that Karta or Manager,in whose name property had been purchased, had noindependent income, the burden is shifted to the Kartato prove that the property has been acquired withoutthe aid of the joint family and with the own separateincome of the Karta or the Manager."22. It is pertinent to note that the plaintiff has categoricallyadmitted during the course of evidence that there was no otherindependent income for him. He, having come out with a plea that hepurchased the suit properties out of the funds provided by hisfather-in-law, had not let in any evidence touching upon such a plea.As already pointed out by this court, he had admitted that he actedas Karta immediately after the demise of his father and that thejoint family properties were in the management of the plaintiff. Thejoint family members might not have provided sufficient nucleus forpurchasing the suit properties. But, the very admission of theplaintiff would go to show that there had been some nucleus for thejoint family. In the light of the aforesaid decision of this court,the Kartha, in whose name, the property stands, has to establish thathe had independent source of income for purchasing the suit propertyin his name. The burden is very heavy on the kartha to establishthat he purchased the suit properties in his name without the aid ofthe nucleus of the joint family property. 23. Coming to the partition that took place in the year 1970 inthe family of the plaintiff and the defendant, the plaintiff wouldadmit that only one property situate at Manalmedu alone waspartitioned. He would also depose that the said property wasoriginally owned by his mother Rathna Aachiammal. There was noevidence to show that the other properties of the joint family werepartitioned in the year 1970. Just because the suit properties werenot included in the partition that took place in the joint family inthe year 1970, we cannot presume that the suit properties were notincluded in the said partition only because these properties were theseparate properties of the plaintiff. 24. The description found in Ex.A6 marked in O.S.No.335 of 1990would go to establish, as found by the courts below, that the entireproperties covered both in O.S.No.335 of 1990 and O.S.No.114 of 1998which are located contiguously, have been fenced together and enjoyedby the defendant. Such a factual finding cannot be disturbed by thesecond appellate court unless the said finding is perverse. TheAdvocate Commissioner has pointed out that both the properties werecombinedly fenced. The plaintiff also has deposed that whenever heproceeded to the poramboke property for the purpose of plucking thecoconuts, stiff resistance was put up by the defendants. These factshad weighed the mind of the court below to arrive at a conclusion https://hcservices.ecourts.gov.in/hcservices/ that it was only the defendant who has been in possession of theporamboke land also. The courts below have rightly analysed thematerials on record both oral and documentary and rejected the reliefof permanent injunction sought for by the plaintiff with respect tothe joint family poramboke property. 25. In view of the above facts and circumstances, I find thatthere is no warrant for interference with the well consideredjudgments of the courts below. Therefore, confirming the judgmentspronounced by the first appellate court in both the first appeals,the second appeals stand dismissed. There is no order as to costs. Sd/-Asst. Registrar/true copy /Sub Asst.Registrarssk. To1. The Principal Sub Judge, Mayiladuthurai. 2. The Additional Subordinate Judge, Mayiladuthurai3. Additional District Munsif, Mayiladuthurai.•1 CC to Mr.Sounthar, Advocate, Sr.No.69876•1 CC to Mr.A.Muthukumar, Advocate, Sr.No. 69351S.A.Nos.1424 of 1997 and 1389 of 2002 RSM (CO)SS (03.02.2010)