The appellant-second defendant has filed the Second Appeal against the judgment and decree dated 18.10.2001 in A.S.No.44 of 1999 on the file of the Sub-Court, Ranipet, Vellore District, reversing the judgment and decree dated 10.9.1999 in O.S.No.30 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Arcot.
2. The averments in the plaint are as follows:
The suit property was originally owned by one Thirugnanasammanda Mudaliar and he executed a Will in favour of his only daughter Balammal alias Bala Gujambal on 19.4.1926. On his demise, Balammal succeeded the property. She married one Natarajan, who is the father of the plaintiffs. Balammal alias Bala Gujambal died after giving birth to a son, by name M.N.Sammandan, who also died. So, on the death of his wife, the plaintiffs' father succeeded to the property. The plaintiffs are the sons through his second wife, by name Nani Ammal and till his death, he was in possession and enjoyment of the same. On 26.8.1985, the said Natarajan executed a Will. It was duly attested when he was sound and disposing state of mind. He died on 12.9.1985. So, the plaintiffs are in joint possession and enjoyment of the suit property for more than 50 years. They perfected title to the suit property. The defendants have no right in the property. They unlawfully removed the 'mulveli' trees on 1.7.1990 and notice was issued on them. A reply with false allegations has been received. Even if there is any sale in favour of the first respondent, it will not bind the plaintiffs at any cost. The defendants were trying to remove the mud in the schedule mentioned property. Hence, the plaintiffs were constrained to file the suit for injunction. After the filing of the written statement by the first defendant, the plaintiffs came to know that he purchased the property from the second defendant and hence for proper adjudication, the plaintiffs impleaded the second defendant as a party to the suit. Hence, the plaintiffs prayed for permanent injunction.
3. The gist and essence of the written statement filed by the first defendant are as follows:
The execution of the Will is denied. The plaintiffs have no right or title to the suit property. The plaintiffs are absolute strangers to the suit property. The plaintiffs' father, namely Natarajan never succeeded to the estate of the deceased wife. He was not the sole surviving legal heir to succeed the estate of his deceased wife. The alleged Will dated 26.8.1985 said to have been executed by Natarajan in favour of the plaintiffs is not true. Due execution and attestation of the Will have to be proved by the plaintiffs. The plaintiffs never succeeded to the suit property and never enjoyed the property. All along, the first defendant is in possession and enjoyment of the property. He purchased the suit property by means of registered sale deed in the year 1989 from his vendor Jothi Ramalingam and he was in possession and enjoyment of the same. The title to the suit property was recognised in O.S.No.7 of 1989 on the file of the District Munsif Court, Ranipet. The first defendant and his predecessor-in-title have perfected title to the suit 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 no title to the suit property. The suit filed by the plaintiffs is not maintainable. The plaintiffs neither prescribed title nor possession to the suit property. Hence, the first defendant prayed for dismissal of the suit.
4. The gist and essence of the written statement filed by the second defendant are as follows:
The suit filed by the plaintiffs without declaration for permanent injunction alone is not maintainable. O.S.No.85 of 1987 filed by the plaintiffs is still in adjudication, as appeal by the defendants in the said suit is still pending in Sub-Court, Ranipet. So, the plaintiffs are estopped from claiming title to the suit property basing on the decree in O.S.No.85 of 1987 on the file of the District Munsif Court, Ranipet. Both the Wills dated 19.4.1926 and 26.8.1985 were created by the plaintiffs and they are not true documents at all and that the plaintiffs have no right to the suit property 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 the written statement, has framed five issues and three additional issues 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 the plaintiffs have not proved the title to the property and they have also not proved the possession. Against that, the plaintiffs preferred 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 for determination and considering the arguments, came to the conclusion that the respondents-plaintiffs are the owners of the property and they are in possession and allowed the appeal, and decreed the suit as prayed for in the plaint. Against that, the present Second Appeal has been preferred by the second defendant.
6. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:
"(i) Whether the suit for an injunction without a prayer of declaration is maintainable and whether the court below is right in decreeing the suit holding that the defendants have not proved their title?
(ii) In the absence of definite proof regarding possession whether the court below is right on the basis of Exhibits A-2 to A-6 that the mere signature in those receipts by respondents 1 and 2 will prove their title and possession?"
Substantial questions of law:
7. The respondents as plaintiffs filed the suit for injunction stating that the suit property belongs to the grandfather Thirugnanasammanda Mudaliar. He executed the Will in favour of his daughter 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 alias Bala Gujambal. She died intestate giving birth to a son and he also died and so, as the sole heir, the father of the plaintiffs succeeded to the property. He executed the Will as per Ex.A-15 on 26.8.1985. He died on 12.9.1985, as seen from Ex.A-16. Since the defendants 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-first defendant purchased the property from the second defendant under Ex.B-1 on 18.9.1989 and he is in possession and enjoyment of the same and the respondents-plaintiffs are not in possession of the property. The defendants prayed for dismissal of the suit.
9. The trial Court, after framing necessary issues and after considering the oral and documentary evidence, dismissed the suit. Against that, the plaintiffs preferred appeal and the learned first appellate Judge has come to the conclusion that the respondents-plaintiffs are the owners of the property and they are in possession and set aside the judgment and decree of the trial Court, allowed the appeal and decreed the suit as prayed for in the plaint by way of granting injunction. Against that, the present Second Appeal is preferred by the appellant-second defendant.
10. Learned counsel for the appellant-second defendant would contend that the suit itself is not maintainable for bare injunction, because the appellant-second defendant claims title over the property under Ex.B-1, and since there is a cloud in the title of the respondents-plaintiffs, the plaintiffs ought to have filed 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, the respondents-plaintiffs are claiming title under Ex.A-15, but to prove Ex.A-15, the attestors to the document have not been examined before 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 the appellant-first defendant that the respondents-plaintiffs have filed suit in O.S.No.85 of 1987 and the appeal admittedly is pending. Learned counsel for the appellant-first defendant relied on the decisions of the Supreme Court reported in AIR 2009 SC 1103 (Bachhaj Nahar Vs. Nilima Mandal) and 2009 (1) M.L.J. 1001 (SC) (Anathula Sudhakar 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 would contend that even if the Court comes to the conclusion that Ex.A-15 is not proved, as per the Hindu Succession Act, if their father died, they are succeeding to the property and they are the owners. At this juncture, learned counsel for the appellant-first defendant would contend that without pleading, the respondents-plaintiffs cannot canvass the point.
14. Learned counsel for the respondents-plaintiffs would contend that the property is owned by their grandfather Thirugnanasammanda Mudaliar and he executed the Will in favour of his daughter Balammal alias Bala Gujambal under Ex.A-9. That has been probated as per Ex.A-22. On the death of Bala Gujambal, her husband Natarajan succeeded the property. Natarajan's second wife, by name Nani Ammal, and through her, the respondents-plaintiffs were born and so, the respondents-plaintiffs are entitled to the property. 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 possession and enjoyment of the same under the testamentary succession. Tax has also been paid as per Exs.A-2 to 6. Since it is a vacant site, the possession follows title. The first appellate Court considered these aspects in proper perspective and came to the correct conclusion and there is no irregularity in the judgment passed by the first appellate Court and hence, he prayed for dismissal of the Second Appeal. Learned counsel for the respondents-plaintiffs also relied on the decision of this Court reported in 1998 (2) M.L.J. 351 (Muthu Goundar Vs. Poosari alias Palaniappan).
15. While considering the first limb of argument advanced by the learned counsel for the appellant-first defendant that whether the suit for bare injunction is maintainable, it is pertinent to note that as per Ex.A-9, Thirugnanasammanda Mudaliar has executed the Will and as per Ex.A-22, the Will has been filed before the District Court, North Arcot, Vellore, in O.P.No.3 of 1927 and on his death on 17.10.1926, the Will has been probated. As per the Will, Balammal alias Bala Gujambal succeeded the property. The suit property is one of the items in Ex.A-9. Bala Gujambal married Natarajan, the father of the respondents-plaintiffs. She gave birth to a male child and that is evidenced by Ex.A-12, and the date of birth of the male child is 16.8.1933 and the child died on 25.5.1956, which is evidenced by Ex.A-13. The said Balammal died on 18.9.1940. Since Balammal alias Bala Gujambal died, the husband of Balammal, namely Natarajan, succeeded to the property, as her only son died on 25.5.1956 and he is in possession and enjoyment of the property. He executed the Will under Ex.A-15. The said Natarajan has married one Nani Ammal and through her, the respondents were born to him. In Ex.A-15, he has stated that he is having two sons, Sivagnana Prakasam and Shanmugam, who are the respondents-plaintiffs and a daughter Thirupurasundari. It is pertinent to note that Thirupurasundari is not party to the proceedings. It is well settled principle of law that a Will should be proved under Section 63 of the Indian Succession Act and
Section 68 of the Indian Evidence Act. But admittedly, no one has been examined. There is no evidence as to whether the daughter Thirupurasundari is alive or she died intestate leaving behind any children. In the above circumstances, the argument advanced by the learned counsel for the appellant-first defendant that the Will has not been proved in accordance with law, has to be accepted.
16. At this juncture, it has to be considered whether even if the Will has not been proved, as per the Hindu Succession Act, the respondents have succeeded to the property. This does not merit acceptance, in the absence of pleadings, as per the decisions of the Apex Court reported in AIR 2009 SC 1103 (cited supra) and 2009 (1) MLJ 1001 (SC). In AIR 2009 SC 1103 (cited supra), the Supreme Court held as follows:
"The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take."
In 2009 (1) M.L.J. 1101 (SC) (cited supra), the Supreme Court held as follows:
"The High Court in absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. High Court exceeded its jurisdiction under Section 100 C.P.C. in reexamining the questions of fact, by going into questions which were not pleaded, by formulating questions of law which did not arise in second appeal and lastly by interfering with the well reasoned judgment of first appellate court which held the plaintiffs ought to have filed a suit for declaration."
17. Moreover, the first substantial question of law has been raised, namely whether the suit for injunction without a prayer for declaration, is maintainable. In this connection, it is pertinent to note the decision of this Court reported in 1998 (2) MLJ 351 (cited supra), wherein, this Court held as follows:
"10. I have already observed that both the courts below rejected the documents produced on the side of the plaintiff either as unacceptable or there is no need to go into the title even incidentally. With regard to the first reason given by the Courts below, I shall consider at a later point of time. Regarding the objection that since the present suit is only for bare injunction, there is no need to go into title, I am of the view that if sufficient proof is there on the side of the plaintiff with regard to his title apart from considering the evidence leading to injunction, it is open to the courts to go into the title incidentally. In this regard it is worthwhile 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, the learned Judge has concluded:
"To have her possession protected, the plaintiff has to demonstrate that her possession could not be unlawful. Hence, for the purpose of finding out whether the plaintiff has got right to lawful possession, so as to maintain that possession the question of title can certainly be gone into."
With respect, I am in agreement with the view expressed by the learned Judge and the contrary view taken by both the courts below in not considering the material documents 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 follows in paragraph 21(b):
"21.(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession."
19. In view of the above decisions, a cloud is raised upon the plaintiffs, as they do not have possession and suit for declaration and 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, the plaintiffs have not filed the tax receipt. Exs.A-2 to A-4, the tax receipts stand in the name of the person who occupied the house. To prove the possession, only the first plaintiff was examined. Admittedly, the appellant-second defendant is at Chennai. Learned counsel for the respondents-plaintiffs would contend that if sufficient proof is there on the side of the plaintiffs with regard to the title, apart from considering the evidence leading to injunction, it is open for the Court to go into the title incidentally. But here, the respondents-plaintiffs filed the suit on the basis of Ex.A-15, which has not been proved by them. The legal heirs are the respondents-plaintiffs, and one Thirupurasundari, who is also the daughter of the said Natarajan, and they succeeded to the estate of the deceased Natarajan. As already observed in earlier paragraphs, since there is no pleading, that cannot be decided here.
21. The appellant-first defendant is claiming title over the property on the basis of Ex.B-1. It is also pertinent to note that as per Ex.A-1, the respondents-plaintiffs have filed already filed a suit against the appellant-second defendant and others for declaration of title and recovery of possession. Against that suit, admittedly, appeal has been filed. But there is no evidence to show that the property in the said suit, is the subject matter of the present suit. The decree obtained has also not been filed before the Court.
22. In the above circumstances, Ex.A-1 has not created any right over the suit property. Since there is dispute with regard to the title between the plaintiffs and the defendants, the respondents-plaintiffs ought to have proved their possession. Since the 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 settled proposition of law, the possession follows title and then only they are entitled to injunction. But here, the respondents-plaintiffs have not proved their title. Admittedly, the suit property is a vacant site. The appellant-first defendant is also claiming title under Ex.B-1. In the above circumstances, I am of the view that the respondents-plaintiffs are not entitled for injunction.
23. The trial Court in its judgment, in paragraph 10 has come to the conclusion that the respondents-plaintiffs have not proved their title to the suit property and in paragraph 11 of the judgment, it came to the conclusion that P.W.1 is not able to depose as to who is in possession of the property. Hence, the trial Court dismissed the suit. But, the learned first appellate Judge, in paragraphs 17 to 19, came to the conclusion that since the defendants have not proved their case, nor denied the fact, the plaintiffs are entitled to a decree. In paragraph 19, the learned first appellate Judge came to the conclusion that Natarajan has succeeded to the property on the death of his wife Balammal alias Bala Gujambal, which is not disputed. But the respondents-plaintiffs have succeeded to the property as heirs of the said Natarajan, which has not been proved.
24. As already stated, the first appellate Court, without giving sufficient reasons, set aside the judgment and decree passed by the trial Court and since the trial Court has come to the correct conclusion that there is dispute in respect of the suit property, the respondents have not proved their title to the property, and the respondents-plaintiffs were not able to depose as to who is in possession of the property, which was a tiled house and since the suit property is now a vacant site, it is the duty of the respondents-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 the opinion that the trial Court has considered all these aspects in proper perspective and came to the correct conclusion, whereas, the first appellate Court has shifted the burden on the defendants and decreed the suit, by setting aside the judgment and decree of the trial Court as perverse and hence, the judgment and decree of the first 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 are set aside,
(ii) the judgment and decree of the trial Court are restored.
(iv) O.S.No.30 of 1996 is dismissed.
No costs.
19.12.2009 Index: Yes Internet: Yes cs To
1. Sub-Court, Ranipet, Vellore District.
2. District Munsif-cum-Judicial Magistrate, Arcot.
3. The Section Officer, V.R. Section, High Court, Madras.
R.MALA,J cs Judgment in S.A.No.191 of 2003 19.12.2009