Challenge in this second appeal is to the Judgment and decree dated 19.12.1997 passed in Appeal Suit No.23 of 1997 by the Principal District Court, Pudukottai.
2. The respondents herein as plaintiffs have instituted Original Suit No.406 of 1992 on the file of the Additional Munsif Court, Pudukottai for the reliefs of declaration and perpetual injunction, wherein the present appellant has been shown as sole defendant.
3. It is averred in the amended plaint that the suit property and some other properties have been sold to one Soosai Udayar under a registered sale deed dated 28.08.1950 by one Chinniah Naicker who is none other than the brother of the father of the plaintiff viz., Palani Naicker and the plaintiff's father viz., Palani Naicker has purchased all the properties from the said Soosai Udayar under a registered sale deed dated 11.05.1952. Since then he has been in possession and enjoyment of the the same. After the demise of the father of the plaintiff, the plaintiff has been in possession and enjoyment of the suit property and patta for the suit property stands in the name of one Sebasthiar son of the said Soosai Udayar. Even though patta for the suit property stands in the name of Soosai Udayar, the plaintiff has been enjoying the suit property by way of paying kist etc., to the Government. The plaintiff has been working in Andakulam High School. The defendant is not having any manner of right, title and interest over the suit property and she is a Ceylon repatriate and she made a false claim to the effect that her father Palani Naicker has purchased the suit property and subsequently gone to Ceylon. Since the defendant has been making arrangement to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for therein.
4. In the written statement filed on the side of the defendant, it is stated that it is true to allege that the suit property has been purchased by Soosai Udayar from Chinniah Naicker under a registered sale deed dated 28.08.1950. The father of the defendant viz., Palani Naicker has purchased the suit property under a registered sale deed dated 11.05.1952 and subsequently in the year 1953 he has gone to Ceylon and entrusted the suit property with Soosai Udayar and in the year 1974 he has returned to India and he passed away in the year 1976. During Updating Registry scheme, the defendant has obtained patta for the suit property in her name. It is false to say that the suit property has been enjoyed by the father of the plaintiff and after his demise, he has been enjoying the same. The plaintiff is not having title to the suit property and there is no merit in the suit and the same deserves dismissal.
5. On the basis of the rival pleadings raised on either side, the trial Court has dismissed the suit. Against the Judgment and decree passed by the trial Court, the legal heirs of the deceased plaintiff as appellants (plaintiffs) have filed Appeal Suit No.23 of 1997 on the file of the first appellate Court. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court and consequently decreed the suit as prayed for. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been filed at the instance of the defendant as appellant.
6. At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration:
"(i) Whether the lower appellate Court is correct in coming to the conclusion that the plaintiffs are entitled to the suit property by placing reliance upon Exs.A10 and A11 in the absence of any evidence as required under section 50 read with
Section 104 of the Indian Evidence Act, 1872?
(ii) Whether the lower appellate Court is correct in coming to the conclusion that the plaintiffs are entitled for declaration and permanent injunction in the absence of necessary evidence for the same?"
7. The crux of the case of the plaintiff is that the suit property and other properties have been sold in favour of one Soosai Udayar under a registered sale deed dated 28.08.1950 by one Chinniah Naicker who is none other than the brother of the father of the plaintiff viz., Palani Naicker and the father of the plaintiff has purchased all the properties including the suit property from that Soosai Udayar under a registered sale deed dated 11.05.1952 and till his demise he enjoyed the same and after his death the plaintiff has succeeded his estate and he has been enjoying the suit property as rightful owner and the defendant is not having any title and interest over the suit property and now he has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying her title. Under the said circumstances the present suit has been filed for the reliefs sought for therein.
8. On the side of the defendant it has been contended that the father of the defendant by name Palani Naicker has purchased the suit property from Soosai Udayar under a registered sale deed dated 11.05.1952 and subsequently he has gone to Ceylon in the year 1953 by way of entrusting the suit property with the said Soosai Udayar and he returned to India in the year 1974 and passed away in the year 1976 and after his demise the defendant has obtained UDR patta in her name and therefore, the plaintiff is not having title to the suit property and altogether the present suit deserves dismissal.
9. The trial Court after considering the rival contentions raised on either side has dismissed the suit. But the first appellate Court after evaluating the evidence available on record has decreed the suit.
10. The only point that comes up for consideration in the present second appeal is as to whether the Judgment and decree passed by the first appellate Court are perfectly correct or the same need interference.
11. The learned counsel appearing for the appellant/defendant has strenuously contended that the suit property and other properties have been sold by one Chinniah Naicker in favour of Soosai Udayar under a registered sale deed dated 28.08.1950 and the suit property has been purchased by the father of the plaintiff by name Palani Naicker under a registered sale deed dated 11.05.1952 and in order to eke out his livelihood he has gone to Ceylon in the year 1953 and entrusted the suit property with the said Soosai Udayar and he returned to India in the year 1974 and passed away in the year 1976 leaving behind him the present defendant as his legal heir. During Updating Registry scheme the defendant has obtained patta in her name and therefore, the defendant is the absolute owner of the suit property and whereas, the plaintiff is not having title to the same and the trial Court after considering all the contentions raised on either side has rightly dismissed the suit. But the first appellate Court without considering the available evidence on record has erroneously decreed the suit mainly on the basis of Ex.A11 and Ex.A11 has come into existence during the pendency of the suit and no credence can be given to it and therefore, the Judgment and decree passed by the first appellate Court are totally perverse and the same require interference.
12. In order to remonstrate the argument advanced by the learned counsel appearing for the appellant/defendant, the learned counsel appearing for the respondents/plaintiffs has also equally contended that the suit property and some other properties have been sold in favour of Soosai Udayar by the brother of the father of the plaintiff viz., Palani Naicker under a registered sale deed dated 28.08.1950 and subsequently the father of the plaintiff has purchased all the properties including the suit properties under a registered sale deed dated 11.05.1952 from the said Soosai Udayar and the District Revenue Officer, Pudukottai after considering the rival claims made on either side, has passed an order to the effect that the deceased first plaintiff is the legal heir of the deceased Palani Naicker and subsequently granted patta in his favour for the suit property and the trial Court without considering the order passed by the District Revenue Officer has erroneously dismissed the suit. But the first appellate Court after considering all the evidence available on record has rightly decreed the suit and further in the plaint it has been specifically pleaded that the sale deed dated 28.08.1950 has been executed by the brother of the father of the plaintiff and the same has not been specifically denied in the written statement. On that score also, the contention urged on the side of the plaintiff can be accepted and therefore, the entire argument advanced on the side of the appellant/defendant is liable to be eschewed.
13. It is an admitted fact that the suit property and some other properties have been sold by the said Chinniah Naicker in favour of Soosai Udayar under a registered sale deed dated 28.08.1950 and a registration copy of the same has been marked as Ex.A1. The properties mentioned in Ex.A1 have been purchased by Palani Naicker from the said Soosai Udayar under a registered sale deed dated 11.05.1952 and a registered copy of the same has been marked as Ex.A2. The final order passed by the District Revenue Officer has been marked as Ex.A11.
14. The specific contention urged on the side of the plaintiffs is that the suit property and some other properties have been sold by the junior paternal uncle of the deceased plaintiff viz., Chinniah Naicker and subsequently the father of the deceased plaintiff has purchased all the properties under Ex.A2. It is stated on the side of the defendant that the father of the defendant is also Palani Naicker S/o Pulian. On the side of the plaintiffs, it is claimed that the plaintiffs are having title to the suit property and likewise on the side of the defendant it is claimed that the defendant is having title to the suit property. Therefore, it is the duty of the Court to find out as to whether the plaintiffs are having title to the suit property or the defendant is having title to the same on the basis of the documents filed on either side.
15. On the side of the plaintiffs the registration copies of sale deed executed by Chinniah Naicker in favour of Soosai Udayar as well as executed by Soosai Udayar in favour of Palani Naicker have been marked as Exs.A1 and A2 and the same have also been marked as Exs.B1 and B2 on the side of the defendant.
16. In the instant case, Ex.A11 plays a pivotal role. Ex.A11 is an order passed by the District Revenue Officer. In fact, the District Revenue Officer has analysed all the rival claims and ultimately found that the deceased plaintiff is the legal heir of the purchaser of the suit property by name Palani Naicker and therefore, it is quite clear that the plaintiffs are having title to the suit property. At this juncture, it would be more useful to look into the oral evidence adduced on the side of the plaintiffs. One Michel has been examined as P.W.2 and one Subbiah has been examined as P.W3. Both of them have clearly stated in their evidence that the suit property has been purchased by the father of the deceased plaintiff and he enjoyed the same. But at the same time on the side of the defendant, nobody has been examined to prove the above aspect. On the basis of the evidence of defendant alone, the Court cannot come to a conclusion that the defendant is having title to the suit property.
17. The learned counsel appearing for the respondents/plaintiffs has vehemently argued that the specific averment made in the plaint to the effect that the vendor found in Ex.A1 is the junior paternal uncle of the deceased plaintiff and the same has not been specifically denied in the written statement and therefore, a clear admission has been made on the side of the defendant.
18. In fact, at paragraphs 4 and 5 of the amended plaint it has been specifically stated that the vendor found under Ex.A1 viz., Chinniah Naicker is the brother of the father of the deceased plaintiff viz., Palani Naicker and further it is stated that in Ex.A2 it has been mentioned that all the properties mentioned in Ex.A2 have been sold by the brother of the purchaser mentioned therein. But as rightly pointed by the learned counsel appearing for the respondents/plaintiffs, in the written statement no specific denial has been made with regard to the alleged relationship mentioned in the plaint.
19. At this juncture, it would be more useful to look into the following provisions of law.
20. Order 8 Rule 3 of the Code of Civil Procedure 1908 (Act 85, 1908) reads as follows:
"3.Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages.
21. Order 8 Rule 5(1) of the said Code says that "every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability".
22. From the cumulative reading of the said provisions, it is easily discernible that if a particular fact has been averred in the plaint, there must be a specific denial in the written statement and in the absence of specific denial, the fact in question is deemed to have been admitted by the defendant concerned.
23. Section 58 of the Indian Evidence Act, 1872 reads that "no fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings".
24. From the reading of provision of the said section, it is also made clear that admitted facts need not be proved.
25. In the instant case, as noted down earlier, in the amended pliant it has been clearly stated that the vendor under Ex.A1 viz., Chinniah Naicker is the brother of vendee under Ex.A2. But the said fact has not been specifically denied in the written statement. Therefore, as per the provisions of Order 8 Rule 3 and 5(1) of the Code of Civil Procedure and also as per the provision of Section 58 of the Indian Evidence Act, 1872 it is needless to say that the defendant has clearly admitted the fact to the effect that the vendor under Ex.A1 is the brother of the vendee under Ex.A2.
26. In (2007) (6) Supreme Court Cases 401 (M.Venkataramana Hebbar (dead) By Lrs. Vs. M.Rajagopal Hebbar and others), the Honourable Apex Court has held that "as per provisions of Order 8 Rule 3 and 5 of Civil Procedure Code, 1908 coupled with provision of 58 of the Indian Evidence Act, 1872, if a particular plea has not been specifically denied, the same would amount to admission".
27. It has already been pointed out in many places, that in the amended plaint it has been specifically pleaded that the vendor in Ex.A1 is the brother of the vendee found in Ex.A2. Since the relationship mentioned in the plaint has not been specifically denied on the side of the defendant, it is very clear that the contentions urged on the side of the plaintiffs, can easily be accepted and further on the side of the defendant, except the ipse dixit of the defendant, no oral evidence is available so as to prove that the suit property has been purchased by her father and he enjoyed the same.
28. The trial Court without considering the available evidence on record has simply dismissed the suit on the ground that Ex.A11 is a document which has come into existence during the pendency of the suit. But the first appellate Court has taken much pain and ultimately found that the plaintiffs are having title to the suit property and further in Ex.A11 it has been clinchingly stated that the deceased plaintiff is the legal heir of the purchaser of the suit property viz., Palani Naicker. It is also an everlasting principle of law that subsequent event can also be taken into consideration.
29. The Honourable Apex Court in AIR 1992 Supreme Court 700 (Ramesh Kumar Vs. Kesho Ram) has clearly held that subsequent event can also be taken into consideration for the purpose of deciding the real dispute that exists betwixt the parties. Therefore, viewing from any angle, the argument advanced by the learned counsel appearing for the appellant/defendant is sans merit and whereas the argument advanced by the learned counsel appearing for the respondents/plaintiffs is really having merit and further all the substantial questions of law formulated in the present second appeal are not factually and legally sustainable and altogether the present second appeal deserves to be dismissed.
30. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost. The Judgment and decree passed in Appeal Suit No.23 of 1997 by the Principal District Court, Pudukottai are confirmed.
mj To
1.The Principal District Court, Pudukottai
2.The Additional District Munsif Court, Pudukottai