Jothi Ramalingam v. M.N.Sivagnana Prakasam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.12.2009CORAM:THE HONOURABLE MS.JUSTICE R.MALAS.A.No.191 of 2003Jothi Ramalingam .. Appellant/ 2nd DefendantVs.1. M.N.Sivagnana Prakasam2. M.N.Shanmugham3. V.Ramalingam .. Respondents/ Plaintiffs & I Defendant Second Appeal against the judgment and decree dated 18.10.2001in A.S.No.44 of 1999 on the file of the Sub-Court, Ranipet, VelloreDistrict, against the judgment and decree dated 10.9.1999 inO.S.No.30 of 1996 on the file of the District Munsif-cum-JudicialMagistrate Court, Arcot.For appellant : Mr.A.SeshanFor respondents: Mr.P.B.Ramanujam for RR-1 & 2 No appearance for R-3 JUDGMENTThe appellant-second defendant has filed the Second Appealagainst the judgment and decree dated 18.10.2001 in A.S.No.44 of1999 on the file of the Sub-Court, Ranipet, Vellore District,reversing the judgment and decree dated 10.9.1999 in O.S.No.30 of1996 on the file of the District Munsif-cum-Judicial MagistrateCourt, Arcot.2. The averments in the plaint are as follows:The suit property was originally owned by oneThirugnanasammanda Mudaliar and he executed a Will in favour of hisonly daughter Balammal alias Bala Gujambal on 19.4.1926. On hisdemise, Balammal succeeded the property. She married one Natarajan,who is the father of the plaintiffs. Balammal alias Bala Gujambaldied after giving birth to a son, by name M.N.Sammandan, who alsodied. So, on the death of his wife, the plaintiffs' father succeededto the property. The plaintiffs are the sons through his secondwife, by name Nani Ammal and till his death, he was in possession https://hcservices.ecourts.gov.in/hcservices/ and enjoyment of the same. On 26.8.1985, the said Natarajan executeda Will. It was duly attested when he was sound and disposing stateof mind. He died on 12.9.1985. So, the plaintiffs are in jointpossession and enjoyment of the suit property for more than 50years. They perfected title to the suit property. The defendantshave no right in the property. They unlawfully removed the 'mulveli'trees on 1.7.1990 and notice was issued on them. A reply with falseallegations has been received. Even if there is any sale in favourof the first respondent, it will not bind the plaintiffs at anycost. The defendants were trying to remove the mud in the schedulementioned property. Hence, the plaintiffs were constrained to filethe suit for injunction. After the filing of the written statementby the first defendant, the plaintiffs came to know that hepurchased the property from the second defendant and hence forproper adjudication, the plaintiffs impleaded the second defendantas a party to the suit. Hence, the plaintiffs prayed for permanentinjunction.3. The gist and essence of the written statement filed by thefirst defendant are as follows:The execution of the Will is denied. The plaintiffs have noright or title to the suit property. The plaintiffs are absolutestrangers to the suit property. The plaintiffs' father, namelyNatarajan never succeeded to the estate of the deceased wife. He wasnot the sole surviving legal heir to succeed the estate of hisdeceased wife. The alleged Will dated 26.8.1985 said to have beenexecuted by Natarajan in favour of the plaintiffs is not true. Dueexecution and attestation of the Will have to be proved by theplaintiffs. The plaintiffs never succeeded to the suit property andnever enjoyed the property. All along, the first defendant is inpossession and enjoyment of the property. He purchased the suitproperty by means of registered sale deed in the year 1989 from hisvendor Jothi Ramalingam and he was in possession and enjoyment ofthe same. The title to the suit property was recognised in O.S.No.7of 1989 on the file of the District Munsif Court, Ranipet. The firstdefendant and his predecessor-in-title have perfected title to thesuit property by long, continuous and uninterrupted possession. So,he prescribed title with the knowledge of the true owner and hence,he prescribed title by adverse possession. The plaintiffs have notitle to the suit property. The suit filed by the plaintiffs is notmaintainable. The plaintiffs neither prescribed title nor possessionto the suit property. Hence, the first defendant prayed fordismissal of the suit.4. The gist and essence of the written statement filed by thesecond defendant are as follows:The suit filed by the plaintiffs without declaration forpermanent injunction alone is not maintainable. O.S.No.85 of 1987filed by the plaintiffs is still in adjudication, as appeal by the https://hcservices.ecourts.gov.in/hcservices/ defendants in the said suit is still pending in Sub-Court, Ranipet.So, the plaintiffs are estopped from claiming title to the suitproperty basing on the decree in O.S.No.85 of 1987 on the file ofthe District Munsif Court, Ranipet. Both the Wills dated 19.4.1926and 26.8.1985 were created by the plaintiffs and they are not truedocuments at all and that the plaintiffs have no right to the suitproperty and hence, prayed for the dismissal of the suit.5. The learned District Munsif-cum-Judicial Magistrate, Arcot,after considering the averments both in the plaint and in thewritten statement, has framed five issues and three additionalissues and considering the oral evidence of P.W.1, D.Ws.1 and 2,Exs.A-1 to A-22 and Ex.B-1, dismissed the suit, stating that theplaintiffs have not proved the title to the property and they havealso not proved the possession. Against that, the plaintiffspreferred appeal in A.S.No.44 of 1999 on the file of the Sub-Court,Ranipet, Vellore District. The learned Subordinate Judge, Ranipet,after hearing the arguments of the counsel, framed two points fordetermination and considering the arguments, came to the conclusionthat the respondents-plaintiffs are the owners of the property andthey are in possession and allowed the appeal, and decreed the suitas prayed for in the plaint. Against that, the present Second Appealhas been preferred by the second defendant.6. At the time of admission of the Second Appeal, the followingsubstantial questions of law were framed for consideration: "(i) Whether the suit for an injunction without aprayer of declaration is maintainable and whether thecourt below is right in decreeing the suit holding thatthe defendants have not proved their title?(ii) In the absence of definite proof regardingpossession whether the court below is right on the basisof Exhibits A-2 to A-6 that the mere signature in thosereceipts by respondents 1 and 2 will prove their titleand possession?"Substantial questions of law:7. The respondents as plaintiffs filed the suit for injunctionstating that the suit property belongs to the grandfatherThirugnanasammanda Mudaliar. He executed the Will in favour of hisdaughter Balammal alias Bala Gujambal, as per Ex.A-9 on 19.4.2006,i.e. in favour of the plaintiffs' father's first wife Balammal aliasBala Gujambal. She died intestate giving birth to a son and he alsodied and so, as the sole heir, the father of the plaintiffssucceeded to the property. He executed the Will as per Ex.A-15 on26.8.1985. He died on 12.9.1985, as seen from Ex.A-16. Since thedefendants attempted to interfere with the plaintiffs' possession,the plaintiffs have come forward with the suit for injunction.8. The defendants resisted the suit stating that the appellant- https://hcservices.ecourts.gov.in/hcservices/ first defendant purchased the property from the second defendantunder Ex.B-1 on 18.9.1989 and he is in possession and enjoyment ofthe same and the respondents-plaintiffs are not in possession of theproperty. The defendants prayed for dismissal of the suit.9. The trial Court, after framing necessary issues and afterconsidering the oral and documentary evidence, dismissed the suit.Against that, the plaintiffs preferred appeal and the learned firstappellate Judge has come to the conclusion that the respondents-plaintiffs are the owners of the property and they are in possessionand set aside the judgment and decree of the trial Court, allowedthe appeal and decreed the suit as prayed for in the plaint by wayof granting injunction. Against that, the present Second Appeal ispreferred by the appellant-second defendant.10. Learned counsel for the appellant-second defendant wouldcontend that the suit itself is not maintainable for bareinjunction, because the appellant-second defendant claims titleover the property under Ex.B-1, and since there is a cloud in thetitle of the respondents-plaintiffs, the plaintiffs ought to havefiled the suit for declaration of title and injunction and hence,the suit itself is not maintainable. 11. The second limb of argument is that admittedly, therespondents-plaintiffs are claiming title under Ex.A-15, but toprove Ex.A-15, the attestors to the document have not been examinedbefore Court. In the abovesaid circumstances, the respondents-plaintiffs are not the owners of the property.12. It is further contended by the learned counsel for theappellant-first defendant that the respondents-plaintiffs have filedsuit in O.S.No.85 of 1987 and the appeal admittedly is pending.Learned counsel for the appellant-first defendant relied on thedecisions of the Supreme Court reported in AIR 2009 SC 1103 (BachhajNahar Vs. Nilima Mandal) and 2009 (1) M.L.J. 1001 (SC) (AnathulaSudhakar Vs. P.Buchi Reddy). The learned counsel for the appellant-second defendant prayed for allowing the Second Appeal.13. Learned counsel for the respondents-plaintiffs wouldcontend that even if the Court comes to the conclusion that Ex.A-15is not proved, as per the Hindu Succession Act, if their fatherdied, they are succeeding to the property and they are the owners.At this juncture, learned counsel for the appellant-first defendantwould contend that without pleading, the respondents-plaintiffscannot canvass the point. 14. Learned counsel for the respondents-plaintiffs wouldcontend that the property is owned by their grandfather https://hcservices.ecourts.gov.in/hcservices/ Thirugnanasammanda Mudaliar and he executed the Will in favour ofhis daughter Balammal alias Bala Gujambal under Ex.A-9. That hasbeen probated as per Ex.A-22. On the death of Bala Gujambal, herhusband Natarajan succeeded the property. Natarajan's second wife,by name Nani Ammal, and through her, the respondents-plaintiffs wereborn and so, the respondents-plaintiffs are entitled to theproperty. Furthermore, Natarajan also executed the Will under Ex.A-15 and from the date of the death of Natarajan, the respondents-plaintiffs have succeeded to the property and they are in possessionand enjoyment of the same under the testamentary succession. Tax hasalso been paid as per Exs.A-2 to 6. Since it is a vacant site, thepossession follows title. The first appellate Court considered theseaspects in proper perspective and came to the correct conclusion andthere is no irregularity in the judgment passed by the firstappellate Court and hence, he prayed for dismissal of the SecondAppeal. Learned counsel for the respondents-plaintiffs also reliedon the decision of this Court reported in 1998 (2) M.L.J. 351 (MuthuGoundar Vs. Poosari alias Palaniappan).15. While considering the first limb of argument advanced bythe learned counsel for the appellant-first defendant that whetherthe suit for bare injunction is maintainable, it is pertinent tonote that as per Ex.A-9, Thirugnanasammanda Mudaliar has executedthe Will and as per Ex.A-22, the Will has been filed before theDistrict Court, North Arcot, Vellore, in O.P.No.3 of 1927 and on hisdeath on 17.10.1926, the Will has been probated. As per the Will,Balammal alias Bala Gujambal succeeded the property. The suitproperty is one of the items in Ex.A-9. Bala Gujambal marriedNatarajan, the father of the respondents-plaintiffs. She gave birthto a male child and that is evidenced by Ex.A-12, and the date ofbirth of the male child is 16.8.1933 and the child died on25.5.1956, which is evidenced by Ex.A-13. The said Balammal died on18.9.1940. Since Balammal alias Bala Gujambal died, the husband ofBalammal, namely Natarajan, succeeded to the property, as her onlyson died on 25.5.1956 and he is in possession and enjoyment of theproperty. He executed the Will under Ex.A-15. The said Natarajan hasmarried one Nani Ammal and through her, the respondents were born tohim. In Ex.A-15, he has stated that he is having two sons, SivagnanaPrakasam and Shanmugam, who are the respondents-plaintiffs and adaughter Thirupurasundari. It is pertinent to note thatThirupurasundari is not party to the proceedings. It is well settledprinciple of law that a Will should be proved under Section 63 ofthe Indian Succession Act and Section 68 of the Indian Evidence Act.But admittedly, no one has been examined. There is no evidence as towhether the daughter Thirupurasundari is alive or she died intestateleaving behind any children. In the above circumstances, theargument advanced by the learned counsel for the appellant-firstdefendant that the Will has not been proved in accordance with law,has to be accepted. https://hcservices.ecourts.gov.in/hcservices/

16. At this juncture, it has to be considered whether even ifthe Will has not been proved, as per the Hindu Succession Act, therespondents have succeeded to the property. This does not meritacceptance, in the absence of pleadings, as per the decisions of theApex Court reported in AIR 2009 SC 1103 (cited supra) and 2009 (1)MLJ 1001 (SC). In AIR 2009 SC 1103 (cited supra), the Supreme Courtheld as follows: "The object and purpose of pleadings and issues isto ensure that the litigants come to trial with allissues clearly defined and to prevent cases beingexpanded or grounds being shifted during trial. Itsobject is also to ensure that each side is fully aliveto the questions that are likely to be raised orconsidered so that they may have an opportunity ofplacing the relevant evidence appropriate to the issuesbefore the Court for its consideration. This Court hasrepeatedly held that the pleadings are meant to give toeach side intimation of the case of the other so thatit may be met, to enable courts to determine what isreally at issue between the parties, and to prevent anydeviation from the course which litigation onparticular causes must take."In 2009 (1) M.L.J. 1101 (SC) (cited supra), the Supreme Courtheld as follows:"The High Court in absence of pleadings andissues, formulated in a second appeal arising from asuit for bare injunction, questions of law unrelated tothe pleadings and issues, presumably because someevidence was led and some arguments were advanced onthose aspects. High Court exceeded its jurisdictionunder Section 100 C.P.C. in reexamining the questionsof fact, by going into questions which were notpleaded, by formulating questions of law which did notarise in second appeal and lastly by interfering withthe well reasoned judgment of first appellate courtwhich held the plaintiffs ought to have filed a suitfor declaration." 17. Moreover, the first substantial question of law has beenraised, namely whether the suit for injunction without a prayer fordeclaration, is maintainable. In this connection, it is pertinent tonote the decision of this Court reported in 1998 (2) MLJ 351 (citedsupra), wherein, this Court held as follows:"10. I have already observed that both the courtsbelow rejected the documents produced on the side of theplaintiff either as unacceptable or there is no need to https://hcservices.ecourts.gov.in/hcservices/ go into the title even incidentally. With regard to thefirst reason given by the Courts below, I shall considerat a later point of time. Regarding the objection thatsince the present suit is only for bare injunction, thereis no need to go into title, I am of the view that ifsufficient proof is there on the side of the plaintiffwith regard to his title apart from considering theevidence leading to injunction, it is open to the courtsto go into the title incidentally. In this regard it isworthwhile to refer to the decision of Nainar Sundaram,J.(as he then was) reported in Krishnan v. Lakshmi Ammal,(1989) 2 L.W. 76. In an identical circumstance, thelearned Judge has concluded:"To have her possession protected, the plaintiffhas to demonstrate that her possession could not beunlawful. Hence, for the purpose of finding outwhether the plaintiff has got right to lawfulpossession, so as to maintain that possession thequestion of title can certainly be gone into."With respect, I am in agreement with the view expressedby the learned Judge and the contrary view taken by boththe courts below in not considering the materialdocuments even for incidentally cannot be sustained." 18. Further, the Supreme Court in the decision reported in 2008(4) SCC 594 (Anathula Sudhakar Vs. P.Buchi Reddy), held as followsin paragraph 21(b): "21.(b) As a suit for injunction simpliciter isconcerned only with possession, normally the issue oftitle will not be directly and substantially in issue.The prayer for injunction will be decided with referenceto the finding on possession. But in cases where de jurepossession has to be established on the basis of titleto the property, as in the case of vacant sites, theissue of title may directly and substantially arise forconsideration, as without a finding thereon, it will notbe possible to decide the issue of possession."19. In view of the above decisions, a cloud is raised upon theplaintiffs, as they do not have possession and suit for declarationand possession with consequential injunction is the remedy. 20. As far as the suit for injunction simpliciter is concerned,and it is only for possession, and to prove the possession, theplaintiffs have not filed the tax receipt. Exs.A-2 to A-4, the taxreceipts stand in the name of the person who occupied the house. Toprove the possession, only the first plaintiff was examined.Admittedly, the appellant-second defendant is at Chennai. Learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the respondents-plaintiffs would contend that ifsufficient proof is there on the side of the plaintiffs with regardto the title, apart from considering the evidence leading toinjunction, it is open for the Court to go into the titleincidentally. But here, the respondents-plaintiffs filed the suit onthe basis of Ex.A-15, which has not been proved by them. The legalheirs are the respondents-plaintiffs, and one Thirupurasundari, whois also the daughter of the said Natarajan, and they succeeded tothe estate of the deceased Natarajan. As already observed in earlierparagraphs, since there is no pleading, that cannot be decidedhere. 21. The appellant-first defendant is claiming title over theproperty on the basis of Ex.B-1. It is also pertinent to note thatas per Ex.A-1, the respondents-plaintiffs have filed already filed asuit against the appellant-second defendant and others fordeclaration of title and recovery of possession. Against that suit,admittedly, appeal has been filed. But there is no evidence to showthat the property in the said suit, is the subject matter of thepresent suit. The decree obtained has also not been filed before theCourt. 22. In the above circumstances, Ex.A-1 has not created anyright over the suit property. Since there is dispute with regard tothe title between the plaintiffs and the defendants, therespondents-plaintiffs ought to have proved their possession. Sincethe suit property is a vacant site and the possession is not proved,it is unsafe to grant injunction in favour of the respondents-plaintiffs. If the respondents prove their title, as per the settledproposition of law, the possession follows title and then only theyare entitled to injunction. But here, the respondents-plaintiffshave not proved their title. Admittedly, the suit property is avacant site. The appellant-first defendant is also claiming titleunder Ex.B-1. In the above circumstances, I am of the view that therespondents-plaintiffs are not entitled for injunction. 23. The trial Court in its judgment, in paragraph 10 has cometo the conclusion that the respondents-plaintiffs have not provedtheir title to the suit property and in paragraph 11 of thejudgment, it came to the conclusion that P.W.1 is not able to deposeas to who is in possession of the property. Hence, the trial Courtdismissed the suit. But, the learned first appellate Judge, inparagraphs 17 to 19, came to the conclusion that since thedefendants have not proved their case, nor denied the fact, theplaintiffs are entitled to a decree. In paragraph 19, the learnedfirst appellate Judge came to the conclusion that Natarajan hassucceeded to the property on the death of his wife Balammal aliasBala Gujambal, which is not disputed. But the respondents-plaintiffshave succeeded to the property as heirs of the said Natarajan, whichhas not been proved. https://hcservices.ecourts.gov.in/hcservices/

24. As already stated, the first appellate Court, withoutgiving sufficient reasons, set aside the judgment and decree passedby the trial Court and since the trial Court has come to the correctconclusion that there is dispute in respect of the suit property,the respondents have not proved their title to the property, and therespondents-plaintiffs were not able to depose as to who is inpossession of the property, which was a tiled house and since thesuit property is now a vacant site, it is the duty of therespondents-plaintiffs to prove the prima-facie title and then only,they are entitled to the relief sought for. The respondents-plaintiffs have failed to prove the same and hence, I am of theopinion that the trial Court has considered all these aspects inproper perspective and came to the correct conclusion, whereas, thefirst appellate Court has shifted the burden on the defendants anddecreed the suit, by setting aside the judgment and decree of thetrial Court as perverse and hence, the judgment and decree of thefirst appellate Court are liable to be set aside. 25. In fine,the Second Appeal is allowed.(i) the judgment and decree of the first appellate Court areset aside,(ii) the judgment and decree of the trial Court are restored. (iv) O.S.No.30 of 1996 is dismissed.No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.csTo1. Sub-Judge, Ranipet, Vellore District. 2. District Munsif-cum-Judicial Magistrate, Arcot. 3. The Section Officer, V.R. Section, High Court, Madras.1 cc to Mr.A. Seshan, Advocate, SR. 701981 cc to Mr.P.B. Ramanjuam, Advocate, SR. 70014S.A.No.191 of 2003PA (CO)kk 21/1