(Plaintiff in O.S No. 230 of 1996)
1.Panchami
2.Sankar
3.Mani
4.Muthulakshmi
5.Kamala
6.Kandhimathi
7.Nallangal (died)
8.The Chief Executive, Arignar Anna Sugar Mills, Karungulam, Thanjavur. .. Respondents in S.A.759/97 (Defendants in O.S NO. 214 of 1991) PRAYER IN S.A.NO.31/1999: Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 17.11.1998 made in A.S.No.149/97 on the file of Sub Judge, Thanjavur, confirming the judgment and decree dated 28.07.1997 made in O.S.No.230 of 1996 on the file of District Munsif , Tiruvaiyaru.
PRAYER IN S.A.NO.759/1997: Appeal filed under Section 100 of C.P.C., against the decree and judgment in so far as the disallowed portion of claim is concerned in A.S.No.126/1993, dated 19.09.1995, on the file of the Subordinate Judge, Thanjavur, modifying the decree and judgment of the District Munsif, Thiruvaiyaru passed in O.S.No.214/1991, dated 22.03.1993.
In S.A.(MD)No.31 of 1999, the defendant is the appellant. The appeal is preferred against the decree and judgment in A.S.No.149/1997, confirming the decree and judgment in O.S.No.230 of 1996, which is filed for permanent injunction.
2.In S.A.(MD)No.759 of 1997 is filed by the sole plaintiff against the decree and judgment in A.S.No.126 of 1993, partially allowing the appeal as against the decree and judgment in O.S.No.214 of 1991, which was filed for partition of 1/6 share of the plaintiff along with his brothers and sisters.
3.Though both the Second Appeals are arising out of two different judgments in A.S.Nos.124 & 126/1993, since the parties are same and the issues and suit properties involved are one and the same, the appeals are taken up together for hearing and a common judgment is delivered.
4.The brief facts of the case leading to filing of injunction suit and a partition suit between the two brothers and sisters are as follows:-
The Plaintiff in O.S.No.214 of 1991 and in O.S.No.230 of 1996 is one Sambandam, the younger brother of the first defendant in O.S.No.214 of 1991 and the sole defendant in O.S.No.230 of 1996. The dispute relates to the II schedule of the suit, situated at Thiruchotruthurai, within the Registration District of Thanjavur and within the Sub Registration District of Thiruvaiyaru and certain other properties situated within the above said registration District at Uppukachipatti Village. For convenience sake, the plaintiff in O.S.No.214 of 1991, who is the plaintiff in O.s.No.230 of 1996 is referred as the plaintiff and the first defendant one Panchapakesan alias Panchami, the elder brother of the plaintiff, is referred as the defendant. The plaintiff and the defendant and one Sankar, Mani, Muthulakshmi and Kamala are the children of one Samiayya alias Samiyappa of Thiruchotruthurai, who acquired the land in R.S.No.143/1B, to an extent of 1 acre 50 cents at Thiruchotruthurai Village and died intestate in the year 1976. This property is shown as item No.1, in partition Suit No.214 of 1991. There are 12 items in Uppukachipettai Village, out of which, item Nos.1 & 2 in S.No.154/2-A and 154/11-A belonged to one Seenivasa Perumal, who allegedly sold to one Gomu. But, however, they are under the cultivating tenancy of the family. The plaintiff claims that he is the cultivating tenant and the defendant claims that he is the cultivating tenant. As far as the other properties are concerned, they are purchased by the wife of the first defendant and the plaintiff contents that they have been acquired from and out of the income from the joint family property. Therefore, they are the joint family properties and liable for partition. Per contra, the defendant claims that they are his self acquired properties, purchased in his wife's name.
5.As far as the suit survey Numbers, S.No.154/2-A and 154/11-A are concerned, a dispute arose between the plaintiff and the defendants, which lead to filing of a suit in O.S.No.78/1991, which is an earlier Suit by the defendant for permanent injunction, restraining his younger brother not to interfere with his possession. He claimed that after the death of his father, he being the eldest member of the family, was in possession and enjoyment of the family properties and continue to cultivate the lands as a cultivating tenant and later he entered into a sale agreement with one Gomu, who was the subsequent purchaser from the original owner Seenivasa Perumal and claimed to be of possession.
6.This suit was resisted by the plaintiff stating that the defendant was a Government Servant in Revenue Department and he was never in possession of these two properties and he is not the cultivating tenant. The suit was dismissed, against which, an appeal was preferred and the same was also dismissed and there was no second appeal. Immediately after the institution of the Suit in O.S.No.78/1991, the plaintiff filed a suit for partition, as stated above. The suit for partition was resisted by the defendant on the following grounds:-
(i) The suit is bad for partial partition
(ii)The properties at Thiruchotruthurai in R.S.No.143/1B, to an extent of 1 Acre 50 cents alone is joint family property and is available for partition.
(iii)S.No.152/2-A and 152/11-A of Uppukachipettai belonged to one Seenivasa Perumal, who sold the same to one Gomu and therefore, they are not joint family property and the defendant is the cultivating tenant.
(iv)The other items of the properties were purchased by the defendant and his wife and they are the exclusive properties of the defendant.
7.The learned trial Judge, after considering the the above issues in detail found that the partition suit is the counter blast to the injunction Suit in O.S.No.78 of 1991 and the plaintiff has not stated the entire facts and has not included the other properties and has wrongly included the properties belonging to the wife of the defendant and therefore, dismissed the suit in entirety. The plaintiff preferred the appeal in A.S.No.126 of 1993 and the first appellate Court found that the family house has already been partitioned between the brothers and the sisters and the suit is not hit by the partial partition; the properties situated at Thiruchotruthurai in R.S.No.143/1B, to an extent of 1 acre 50 cents alone was the joint family property, in which, the male members are entitled for 1/4 share along with the father and after the death of the father, the female members are also entitled to their share and thereby, passed a preliminary decree granting 8/28 share in R.S.No.143/1B, an extent of 1 acre 50 cents. As far as the properties in S.Nos.152/2-A and 152/11- A are concerned, the Court held that it is not the joint family property for partition. The Court further held that the lands are under cultivating tenancy, and the other properties belonged to the defendant and his wife, which was purchased out of his own income and not from the source of joint family property and therefore, has dismissed the relief for partition regarding these properties.
8.After the dismissal of the suit in O.S.No.214 of 1991 by the Learned District Munsif, Thiruvaiyaru, the plaintiff filed a Suit in O.S.No.230 of 1996, before the learned District Munsif, against the defendant for permanent injunction. The plaintiff alleged that after the dismissal of the partition suit, the defendant tried to interfere with his possession. This suit was resisted by the defendant.
9.The point arose for consideration before the trial Court was that whether the claim of the defendant that he is in possession as a cultivating tenant is barred by res judicata. The learned trial Judge found that the claim of the defendant that he is cultivating tenant was disbelieved in O.S.No.78 of 1991 which was also confirmed in the Appeal and therefore, his claim is is hit by the principle of res judicata and has granted the relief of injunction in favour of the plaintiff. Against which, the S.A.No.31/1997 has been preferred.
10.As the first appellate Court has allowed the appeal in A.S.No.126/1993 only to a limited extent of granting 8/28 share in the first schedule property, the plaintiff has preferred S.A.No.759/1997 on the following grounds:-
(i) that the Courts below having considered that the plaintiff has established the existence of joint family property in Thiruchottuthurai, which was possessed and enjoyed by the defendant and out of the income of that property only, he has purchased the properties in his wife's name.
(ii) that the Courts below have failed to consider that the plaintiff is in possession as a cultivating tenant and enjoyment of the property in S.No.152/2 and 152/11, which belong to Seenivasa Perumal, and the tenancy right is partible.
11.The defendant has preferred S.A.No.31/1997 on the following grounds:-
(i) that the Courts below have failed to consider that the plaintiff has to prove that he is the cultivating tenant under Seenivasa Perumal.
(ii) that the Courts below have failed to see that the decree and judgment in O.S.No.78 of 1991 will not operate as res judicata, as the plaintiff has to prove his possession and not the defendant.
12.This Court while admitting the Second Appeal in S.A.No.759 of 1997, has framed the following substantial questions of law:-
"Whether the judgment and decree of the lower appellate Court are liable to be reversed for not framing of proper points for consideration in the appeal?"
13. And while admitting the Second Appeal in S.A.No.31/1997, has framed the following substantial questions of law:-
"1.Whether the present suit is barred by the principle of res judicata in view of the judgment and decree in O.S.No.214 of 1991?
2.Being the final court of facts, is the learned subordinate Judge correct in decreeing the suit without considering the evidences on record "
14.As far as the partition Suit in O.S.No.241/1991 is concerned, the trial Court has dismissed the entire claim, though there was an admission by the defendant that the suit property in R.S.No.143/1-B to an extent of 1 acre 50 cents, alone is available for partition. However the first appellate court had granted a decree partition.
15.The learned counsel for the appellant would submit that initial burden to prove the facts that there was a joint family property, within which, there was an income and the same was managed by the defendant, was discharged by the plaintiff and hence the presumption that the property purchased thereafter either in the name of the defendant or in the name of the members of the family, has to be raised to include all the properties as joint family properties. The learned counsel also pointed out that even the tenancy rights has to be subjected for partition, though the properties belonged to a different landlord.
16.The learned counsel for the respondent would submit that a person claiming the property was purchased from the income of joint family property has to prove the same and the plaintiff has not discharged the burden. The learned counsel pointed out that the defendant was a Government servant and the property was purchased during the year 1983 and the wife had also contributed to the same and the property was purchased in the name of the wife of the defendant and hence there cannot be any presumption that these properties were purchased out of the joint family nucleus. The self acquired properties cannot be thrown into common hotchpotch. In support of his contention, the learned counsel invited the attention of this Court to the judgment of this Court in Deivani Ammal Vs.Meenakshi Ammal reported in (2004 (3) M.L.J. 506), wherein it has been held as follows:-
"It is well-established principle of law that where a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value".
17.The wife of the defendant had filed a separate written statement stating that the properties purchased in her name and in the name of her children were purchased by her own resources and they are their self acquired properties. Both the Courts have dealt with the matter in detail and found that these properties were purchased much after the demise of the father of the plaintiff and the defendant and there is no proof to show that there was an income available from the joint family property of 1 acre 50 cents of land at Thiruchotruthurai. It is an admitted fact that when the father died, he left an extent of 1 acre 50 cents of land in R.S.No.143/1B at Thiruchotruthurai. The defendant also admitted that at the time of the death of his father, his brothers and sisters are minors and he was only managing the joint family properties. Where it is established or admitted that the family possessed some joint property the presumption arises that there was a joint family property, from which, the property in question might have been acquired. But, it is a rebuttable presumption and the person, who alleges that the other properties purchased are his self acquired properties, he has to prove such self- acquisition and establish affirmatively that the properties were acquired without the aid of the joint family income.
18.In the instant case, admittedly, there was a joint family property of 1 acre 50 cents, which was initially managed by the defendant. It is also admitted that he had become a Government servant and was working in the Revenue Department and only in the year 1983, the other properties were purchased under Exs.B8 to B10. It is also admitted fact that the defendant, after becoming a Government servant, had never lived with the joint family for all practical purposes and he had disassociated with the joint family. The availability of joint family property was admitted, but no presumption could be drawn unless it is proved that the income is so much that it is also probable that out of that income, the other properties claimed to be joint family properties could have been acquired.
19.On the contrary, if the presumption is convincingly rebutted, the self- acquisition is to be believed. The Courts below have correctly found that the properties purchased in the name of 6th defendant for herself and for her children are the self acquired properties of the 6th defendant and not the joint family properties.
20.The property in S.Nos.152/2 and 154/11 now sub-divided as 152/2A, 152/2B & 154/11A & 154/11B is a land originally belonged to Srinivasa Pillai and he had sold the property to one E.B.Gomu @ E.B.Ramakrishnan under Ex.B12. The plaintiff claims that it was under the family cultivation and now under his possession and enjoyment as cultivating tenant. The defendant has put up a rival contention that he was the cultivating tenant and after the sale to the said E.B.Gomu @ E.B.Ramakrishnan, he entered into a sale agreement and he was put on possession pursuant to the sale agreement and these two documents were also marked and considered by the Courts below. Since the plaintiff claimed 1/6 share in these two properties, as if they are the joint family properties, the Courts below have rightly rejected the plea stating that the cultivating tenancy has to be proved separately and the owners of the land are not parties to the suit. The record of tenancy was also not placed before the court and therefore, whether this property as such can be partitioned or the tenancy rights alone can be partitioned was not discussed by the Courts below and the same also need not be gone into in detail, as the plaintiff has filed a separate injunction suit and there is a decree in his favour.
21.The learned counsel for the appellant would submit that the lower appellate Court has not framed proper points for consideration. It is useful to refer Order 41, Rule 31 of C.P.C., which reads as follows:-
Rule 31.-Contents, date and signature of judgment.- The judgment of the Appellate court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
22.The court has to frame the points for consideration and simply can not say "Whether the decree and judgment of the lower court is sustainable?". More particularly ,when the parties have raised various grounds in the Appeal it is bound to frame points for consideration. Otherwise it will amount to non- application of mind. Time and again it is being pointed out by various decision of this court and Apex Court that the lower appellate court is bound to determine the points for consideration as the lower appellate court is the last court of facts.
23.However, the lower appellate court has discussed all the points relevant to the appeal and has decided the points accordingly and therefore the decree and judgment is not vitiated.
24.The first appellate Court has rightly found that the only property available for partition is the property acquired by the said Samiayya, the father of the plaintiff and the defendant in the year 1964, under Ex.B1. However, the lower appellate Court has proceeded under the presumption that it is an ancestral property. Proceeding further, the lower appellate Court had found that in the ancestral property, the father and the three sons are entitled to 1/4 share each and since the father died in the year 1976, out of his 1/4 share, the wife and daughters along with sons are entitled to each 1/7 share and therefore, the plaintiff is entitled to his 1/4 share and 1/28 share (1/7 out of through his father ) and therefore, 8/28 share. But, the presumption of the lower appellate Court is wrong, as the property was purchased by the father in the year 1964 and it cannot be an ancestral property available only for the co- parceners as it is the self acquired property of the father and as such after his death, the property is available for partition between the wife and the children and therefore, the plaintiff is entitled to 1/6 share as he has claimed.
25.For the above said reasons, in the partition suit, the plaintiff is entitled to 1/6 share in suit item number one of the property situate in R.S.No.143/1B to an extent of 1 acre 50 cents. As far as the other properties are concerned, the Courts below are right in dismissing the suit for partition.
26. Regarding S.A.No.31/1999, the suit properties are situated in S.No.152/2 and 152/11. Admittedly, these two properties originally belonged to the said Srinivasa Pillai, who sold the property to E.B.Gomu @ E.B.Ramakrishnan, under Ex.B2 and they are not parties to the suit. As stated earlier, the defendant has filed a suit in O.S.No.78/99 for a permanent injunction against the plaintiff claiming that he continues to be the cultivating tenant and he had also entered into a sale agreement with the land owner and he was put on possession. The contention was negatived by the trial Court and was also confirmed by the appellate Court. The defendant claimed that he continues to be the cultivating tenant as well as in possession in pursuant of the sale agreement. The Courts below have negatived his claim on the principle of res judicata.
27.The learned counsel for the appellant would submit that the Courts below are wrong in holding that the decree and judgment in O.S.No.78 of 1981 has become final and will operate as res judicata. The learned counsel would point out that in the comprehensive suit filed for partition, the claim of the plaintiff was negatived regarding these two properties and therefore, the finding in the partition suit will operate as res judicata only against the plaintiff and not against the defendant.
28.The learned counsel for the respondent would submit that a Government servant cannot be a cultivating tenant and the defendant's possession pursuant to the sale agreement was not proved and therefore, the courts below are right in holding that the decree and judgment in O.S.No.78/1991, has become final and operate as rejusdicata. In support of his contention, the learned counsel invited the attention of this Court to the judgment of this Court in Angu alias Angammal Vs. The Record Officer and Additional Tahsildar reported in (1988 (2) L.W. 41) wherein it has been held as follows:-
"Never it can be ever contemplated that a Government servant, who is in service to go to the field work in the field thereby transferring himself as a 'cultivating tenant' as per the Act, in addition to the Government job which says that he is a Government servant all the twenty four hours where ever he is, he is to be governed by the Government Servants Conduct Rules and other enactments including the Corruption Act. Under the circumstances, he never comes under the purview of S.2(b) of the Tamil Nadu Cultivating Tenants Protection Act, 1962. As such, the provisions of O.22, R6 C.P.C., cannot go to his help, especially when the petitioner died on 7th July, 1980 and he wants to step into the shoes".
29.The learned counsel, next invited the attention of the Court to the judgment of this Court in Subbiah Nadar Vs. Nallaperumal reported in (AIR 1973 MAD 432) wherein it has been held as follows:-
"9. ..... one can reasonably infer that the plaintiff could not have contributed physical labour in the cultivation of the suit lands. It is quite unbelievable that the plaintiff actually ploughed the lands as alleged by him. The reasonable inference is that the plaintiff would have employed only hired labour for the cultivation of the lands"
30.The learned counsel also drew the attention of this Court to the judgment of this Court in Mahalakshmi Ammal Vs. Kandaswamy reported in (2005 (2) M.L.J 648) wherein it has been held as follows:-
"When a party fails to produce any document to prove his alleged right, no decree for permanent injunction can be granted in his favour."
31.The learned counsel also invited the attention of this Court to the judgment of the Hon'ble Supreme Court in Sayed Mohammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and Others reported in (2004 (7) SCC 708) wherein it has been held as follows:- "The plaintiff could only succeed on the strength of its case and not on the weakness found in the case of the defendant."
32.The interesting question in this Second Appeal is , whether the claim of the plaintiff that he is in possession as cultivating tenant is barred by the principle of res judicata in view of the judgment and decree in O.S.No.214 of 1991 or the claim of the defendant that he is the cultivating tenant and also in possession pursuant to the sale agreement is barred by the principle of res judicata in view of the judgment and decree in O.S.No.78 of 1991?.
33.As far as the question who is the cultivating tenant is concerned, the same need not be gone into in this appeal as it was not an issue and it has to be decided before the appropriate forum. But, the fact remains that the suit property originally belonged to one Srinivasa Pillai and as per the alleged sale deed under Ex.B2, one E.B.Gomu @ E.B.Ramakrishnan, has purchased the said property. It is also admitted that the properties were under the cultivation of the family. Initially, the defendant claimed that he is in possession as a cultivating tenant and filed the suit in O.S.No.78 of 1991, which was dismissed and the appeal preferred by him was also dismissed. The plaintiff sought for a partition in O.S.No.214 of 1991 including these two properties as joint family property and his claim was also negatived by the Courts below, as the same is not available for partition. The plaintiff has filed a suit in O.S.No.230/96 on a cause of action that taking advantage of the dismissal of the partition suit before the lower Court, the defendant has interfered with the possession in these two properties and has sought for a permanent injunction. The Courts below had negatived the claim of the defendant that he is in possession as cultivating tenant and also in pursuant of the sale agreement, is barred by the principle of res judicata, in view of the judgment and decree in O.S.No.78/1991.
34. The argument of the defendant seems to be that the plaintiff, who has filed the present suit in O.S.No.230/1996 has to prove his possession on the date of filing of the suit and he can not rely on the weakness of the defendant. But what was decided in the partition suit was whether these two properties can be construed as joint family properties and can be divided among the sharers. This was considered by the Courts below and they found that these two properties belonged to some other person and cannot be joint family properties and they have rightly negatived the claim of the plaintiff. As far as the question of plaintiff's possession of these two properties, either as cultivating tenant or under any other capacity is concerned, it was not an issue before the Courts below.
35.It is useful to refer Section 11 of C.P.C.,which reads as follows:
"11.Res judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
36.Unless it was an issue decided in an earlier suit, the same cannot operate as res judicata in a subsequent suit. Therefore, in my considered view, the present Suit in O.S.No.230 of 1991, is not barred by the principle of res judicata in view of the judgment and decree in O.S.No.214/1991. As far as the principle of res judicata against the defendant in view of the judgment and decree in O.S.No.78/1991 is concerned, the issue before the trial Court was whether the plaintiff (the defendant herein) was in possession of the suit property and whether he is entitled to a relief of permanent injunction as on the date of filing of that suit and the defendant was found to be not in possession and the relief of injunction was negatived. In O.S.No.230 of 1996, the defendant claimed the same possession as a cultivating tenant and as well as in pursuant of the sale agreement as he claimed in the earlier suit. This issue was found to be already decided and the principle of res judicata was applied.
37.Therefore, in my considered view, as far as the plaintiff in the present suit in O.S.No.230/96 is concerned, it is not barred by the principle of res judicata in view of the judgment and decree in O.S.No.214 of 1991 and the Courts below have correctly decreed the suit after considering the evidence on record and I have no reason to interfere with the decree and judgment of the courts below in O.S.No.230/96 and in A.S.No.149/96. The points are decided accordingly.
38.In the result, S.A.NO.31/1997 is dismissed confirming the judgment and decree dated 17.11.1998 made in A.S.No.149/97 on the file of the learned Sub Judge, Thanjavur, confirming the judgment and decree dated 28.07.1997 made in O.S.No.230 of 1996 on the file of the learned District Munsif, Tiruvaiyaru. S.A.NO.759/1997 is partly allowed and the judgment in A.S.No.126/1993, dated 19.09.1995, on the file of the learned Subordinate Judge, Thanjavur, is modified and a preliminary decree for partition is passed for 1/6 share in R.S.No.143/1B, to an extent of 1 acre 50 cents at Thiruchotruthurai Village is passed. No costs.
Sd/-
To
1.The Subordinate Judge, Thanjavur.
2.The District Munsif, Tiruvaiyaru.