Lakshmanan .. Respondent / Defendant in SA.No.354/2017 Prayer:- Second Appeals filed under section 100 CPC against the Judgment and decree dated 05.02.2008 in AS.Nos.133/2006 and 179/2007 on the file of the learned Principal Subordinate Judge at Salem, confirming the Judgment and decree dated 19.08.2005 in OS.Nos.141/2003 and 1027/1998 on the file of the learned Principal District Munsif, at Salem.
For Appellants in both the appeals : Mr.D.Shivakumaran For Respondent in both the appeals : Mr.S.Kalyanaraman COMMON JUDGMENT These appeals are preferred against the impugned common judgment dated 05.02.2008 in AS.Nos.133/2006 and 179/2007. Hence, both the appeals are taken up together for hearing and are disposed of by the following common judgment.
SA.No.353/2017:-
2 The respondent / plaintiff filed OS.No.141/2003 praying for recovery of possession and it is the case of the plaintiff that while he was a minor, the suit properties were purchased under Ex.A.3 dated 13.10.1985 and his father, being the next friend and natural guardian, was in possession. The plaintiff / respondent would further aver that the defendants and one Manickam, had given enough trouble and his father Lakshmanan filed OS.No.922/1998 for the relief of permanent injunction against Manickam. Manickam died and prior to his death, the suit in OS.NO.334/1990, on the file of the Sub Court, Salem, was filed for partition and it was not pressed. It is the specific case of the plaintiff that the suit properties are his absolute properties by virtue of Sale Deed [Ex.A.3] dated 13.10.1985 and during the course of trial in OS.NO.922/1998, his father as PW1 as given evidence and only then, he became aware about the trespass committed by the defendants during March, 2000, and hence, came forward to file the present suit.
2.1 The 2nd defendant has filed a written statement and was adopted by the 1st defendant, wherein, they would aver that the suit property admeasures to an extent of 0.75 cents and for the past 40 years, their predecessors as well as the defendants are in possession and enjoyment of the same and all the revenue records are also in their name and they are doing cultivation and denied the fact that under Ex.A.3 that the plaintiff, as a minor, represented by his father and natural guardian, had purchased the property. The defendants would further aver that the details of the suit properties in OS.Nos.344/1990 and 922/1998 have been deliberately suppressed by the plaintiff and they do not trespass upon the suit property and they have also instituted a suit in OS.NO.1027/1998 for permanent injunction and it is also pending and they have also instituted another suit in OS.No.122/2002 against the Government to transfer patta in respect of Survey No.10/1 and it is also pending and hence, prayed for dismissal of the suit.
2.2 The defendants also filed additional written statement and an alternate plea was made that they have perfected the title to the suit properties by adverse possession and all the legal heirs of the deceased Manickam have not been arrayed as parties in the suit and on that ground also, the suit filed by the plaintiff is to be dismissed.
2.3 The Trial Court, on a consideration of the pleadings had framed the following issues in OS.No.141/2003 :-
[1] Whether the plaintiff is entitled to a decree for recovery of possession and other reliefs?
[2] To what other reliefs, the plaintiff is entitled to?
SA.No.354/2017:-
2.4 The defendants in OS.No.141/2003 had filed OS.NO.1027/1998 praying for the relief of permanent injunction against one Lakshmanan, father of Krishnaparamathma plaintiff in OS.No.141/2003 and contended that the suit properties belong to them and the first item of the suit property was purchased by their mother on 08.02.1993 and she died on 18.06.1994 and the suit second item are ancestral property and they succeed by estate by succession and they are in possession of both properties for over 40 years. It is further stated by the plaintiffs / defendants in OS.No.141/2003 that the defendant in OS.No.1027/1998, viz., Lakshmanan, is the adjacent neighbour/owner of the property and he prevailed upon the plaintiffs herein, to sell the suit properties and it was refused and on 14.10.1998, the defendant Lakshmanan attempted to commit illegal trespass and therefore, the plaintiffs were constrained to file a suit for permanent injunction in OS.No.1027/1998.
2.5 The father of the plaintiff in OS.No.141/2003, who was arrayed as the defendant in the present suit in OS.No.1027/1998, has filed the written statement and took a stand as that of the pleadings in OS.No.141/2003 and would state that the suit in OS.NO.1027/1998 is hopelessly barred by the principles of res judicata and in respect of item No.2, he having purchased the said item on 13.10.1985, is the absolute owner of the said property and further contended that the revenue records in respect of the suit property have been obtained fraudulently by the plaintiffs and the matter in issue has also reached this Court, which held against them. It is further stated that the suit filed by him in OS.No.922/1998 for permanent injunction is pending and that the present suit is only a counter blast and it is not maintainable and prays for dismissal of the suit with cost.
2.6 The Trial Court, on a consideration of the pleadings had framed the following issues in OS.No.1027/1998:-
[1] Whether the suit is barred by res-judicata?
[2] Whether the suit property is in possession of the plaintiffs?
2.7 Both parties had filed a joint Memo stating that both suits can be tried together and the evidence recorded in OS.No.141/2003 is to be treated as the evidence in OS.No.1027/1998 and accordingly, both suits were taken up together for joint trial by the Court of the Principal District Munsif, Salem.
2.8 During the course of trial, the defendant in OS.NO.1027/1998 examined himself as P.W.1 and Exs.A.1 to A.4 were marked. The first plaintiff in OS.No.1027/1998, examined himself as DW1 and also examined six other witnesses and Exs.B.1 to 43 were marked. Ex.X.1-True copy of Thandal Account extract of Dasayanaickenpatty Village was also marked as Court Exhibit.
2.9 The Trial Court, on a consideration of pleadings and the oral and documentary evidences, decreed the suit in OS.No.141/2003 and dismissed the suit in OS.No.1027/1998 vide common judgment and decree dated 19.08.2005. The defendants in OS.NO.141/2003 [appellants herein] / plaintiffs in OS.No.1027/1998, aggrieved by the said decision, filed AS.Nos.133/2006 and 179/2007 respectively on the file of the Court of Principal Subordinate Judge, Salem.
2.10 The Lower Appellate Court, on a perusal of the Memorandum of Grounds, has formulated the following points for determination:-
[a] Whether the plaintiff in OS.NO.141/2003 is entitled to the relief of recovery of possession and other reliefs? [b] Whether the suit in OS.NO.1027/1998 is barred by the principle of res-judicata? [c] Whether the plaintiffs in OS.NO.1027/1998 are in possession of the same and whether they are entitled to a decree for permanent injunction?
2.11 The Lower Appellate Court found that the first item of the suit properties in OS.No.1027/1998 was the subject matter of Second Appeal in SA.No.1354/1989 and the certified copy of the judgment dated 29.09.1989 was marked as Ex.A.1 and as per the said judgment, in respect of the property in S.No.10/2, a suit for permanent injunction was filed and it was dismissed and the appeal filed as against the said dismissal, was allowed and challenging the same, the Second Appeal in SA.NO.1354/1989 was filed, wherein this Court had decided the same in favour of the plaintiff in respect of Sale Deed dated 13.10.1985 and thereby, set aside the judgment and decree passed by the Trial Court, confirming the judgment of the Lower Appellate Court and held that the property in S.No.10/2 admeasuring an extent of 0.75 cents, belong to the plaintiff. The Lower Appellate Court further found that subsequent to the said litigation, the plaintiffs 1 and 2 in the suit in OS.No.1354/1989 along with his brother Manickam had filed OS.No.334/1990 on the file of the Court of Subordinate Judge for partition and it was not pressed as evidenced under Ex.A.2 dated 16.03.1998 and thereafter, the plaintiff through his father, filed a suit for permanent injunction in OS.No.922/1998 and subsequently, filed IA.No.80/2002 for amending the prayer to include the relief of recovery of possession and subsequently, the suit was dismissed as not pressed and thereafter, filed the present suit in OS.No.141/2003 for recovery of possession.
2.12 The Lower Appellate Court has considered the plea of adverse possession projected by the appellants herein and found that during pendency of the litigation, if any mutation or alteration takes places in the revenue records, it need not be taken cognizance and since the appellants took a plea of title, burden lies heavily upon them to probablise the same. The Lower Appellate Court found that the witnesses examined on their behalf, did not specifically state about their possession for over 40 years and in the light of the judgment rendered by this Court in SA.No.1354/1989, the Trial Court has rightly reached the conclusion that the said property is the property of the defendant, viz., Krishnaparamathma. The Lower Appellate Court further found that the plea of adverse possession has not at all been probablised by the appellants herein and found that the mother of the defendant Krishnaparamathma, under Ex.A.3 dated 13.10.1985, has disposed of the property and thereafter only, the matter has reached the portals of this Court in the form of Second Appeal which also went against them and therefore, recorded the finding that the impugned common judgment passed by the Trial Court warrants no interference.
3 Mr.D.Shivakumaran, learned counsel appearing for the appellants would vehemently contend that admittedly, the earlier suit was withdrawn without giving any opportunity to file a fresh suit for the same cause of action and as such, the suit is not maintainable and would further urge that through the testimonies of the revenue officials, the appellants herein, had amply proved that they are in possession of the suit property for over 40 years and thereby, described their title by adverse possession. It is further contended that the Courts below have failed to appreciate the oral and documentary evidences in proper perspectives and prays for interference.
4 Per contra, Mr.S.Kalyanaraman, learned counsel appearing for the respondent / Caveator would contend that the findings rendered by the Courts below are concurrent in nature and in the absence of any perversity, it may not be interfered with and prays for dismissal of the appeals with cost.
5 This Court paid its best attention to the rival submissions and also perused the impugned judgments passed by the Courts below.
6 The primordial submission of the learned counsel appearing for the appellants insofar as SA.No.353/2017 is concerned, is with regard to the non-seeking of the leave before instituting a suit and without describing the title by way of adverse possession.
7 The Courts below found that the plaintiff in OS.NO.141/2003 / respondent in SA.No.353/2017 by virtue of Ex.A.3-Sale Deed dated 13.10.1985 and it was purchased while he was a minor and the defendants claim right in respect of the suit property in S.No.10/2 for which, the plaintiff in OS.No.141/2003 does not claim right. The Courts below further found that as per Ex.A.1 Judgment in SA.NO.1354/1989 dated 29.09.1989, his right, title and possession is based upon Ex.A.3-Sale Deed dated 13.10.1985 and it was also an issue which ultimately reached the portals of this Court and decided in favour of the plaintiff in OS.No.141/2003 and no further appeal has been preferred before the Hon'ble Supreme Court of India and as such, it is not open to the appellants herein to take a contra stand despite the said judgment.
8 As regards the plea of adverse possession, which would be based upon mutation of revenue records pending litigation, the Courts below found that alteration / mutation of revenue records during pendency of the legal litigation, would not give any right to the appellants herein. The testimonies of the witnesses are also of no help to the appellants. The Courts below had also considered the plea of limitation by the appellants herein and by placing reliance upon very many judgments, found that as per
Article 65 of the Limitation Act, the limitation period of 12 years from the date of possession of the defendants was adverse to the plaintiff and the plaintiff had already proved that he was in possession and enjoyment of the suit property till 29.09.1989 and thereafter, he was dispossessed during November 2000 when the suit was pending and prior to that, OS.No.334/1990 was also pending and as such, it is not barred by limitation.
9 As regards adverse possession, it must be proved by the appellants herein / defendants in OS.No.141/2003 ; but they have failed to prove their continuous possession and enjoyment of the property even from the year 1975 and the oral testimonies of the witnesses were also of no help.
10 The Courts below had also dealt with the suit for permanent injunction filed by the appellants herein in OS.No.1027/1998 and found that the respondent / plaintiff in SA.No.353/2017 alone was in possession and subsequently only, he was dispossessed and as such, the appellants herein are not entitled for permanent injunction.
11 This Court had also gone through the findings recorded by the Courts below and is of the considered opinion that the said findings are based upon proper appreciation of the oral and documentary evidences and also based upon the settled legal position and the findings recorded by the Courts below are not said to be perverse or based upon 'no evidence'. The substantial questions of law raised in these Second Appeals have considered by the Courts below and therefore, there are no substantial questions of law arise for consideration in these Second Appeals.
12 Hence, both the Second Appeals are dismissed at the admission stage confirming the Judgments passed by the Court below. No costs. Consequently, the connected miscellaneous petitions are also dismissed.
08.06.2017 Index : Yes / No Internet : Yes / No AP M.SATHYANARAYANAN, J., AP To
1.The Principal Subordinate Judge Salem.
2.The Principal District Munsif Salem.
Copy to The Section Officer VR Section High Court, Madras.
SA.Nos.353 & 354/2017 08.06.2017 http://www.judis.nic.in