Madras High Court
M.S.Abdul Kader vs M.Naina Mohamed @ Mothi on 20 January, 2021
S.A.(MD)No.189 of 2015.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.01.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.189 of 2015
M.S.Abdul Kader : Appellant
Vs.
1.M.Naina Mohamed @ Mothi
2.Meeras Maraikayar : Respondents
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree passed in A.S.No.34 of
2012 on the file of the Subordinate Court, Ambasamudram, dated
03.12.2013 confirming the judgment and decree passed in O.S.No.103 of
2008 on the file of the District Munsif-cum-Judicial Magistrate Court,
Cheranmahadevi, dated 12.04.2012.
For Appellant :Ms.Sivadharsana Kannappan
for Mr.M.P.Senthil
For Respondents :No Appearance
***
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S.A.(MD)No.189 of 2015.
JUDGMENT
The plaintiff in O.S.No.103 of 2008, a suit for declaration and
recovery of possession, has come with this second appeal, since the suit
was dismissed by the trial Court and the same was confirmed by the
appellate Court in A.S.No.34 of 2012.
2.The plaintiff has filed the suit for declaration of title claiming
that the suit property was allotted to him at a partition, that took place
between him and his brothers, on 05.05.1970. The plaintiff would also
plead that a portion of the land, ie., about 23 cents was acquired by the
Government and the first defendant has received the compensation taking
advantage of the fact that the sale certificate issued by the Government in
respect of the said land stood in his father's name. The sale by the first
defendant in favour of the second defendant was also termed as invalid,
since the property was allotted to the plaintiff at a partition, where the
father of the first defendant, Mohideen Pitchai, in whose name, the sale
certificate has been issued, was party. The plaintiff has also disclosed the
fact that he had earlier filed a suit in O.S.No.370 of 2001 seeking
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S.A.(MD)No.189 of 2015.
permanent injunction and its dismissal.
3.The suit was resisted by the defendants contending that the suit
is barred by res judicata in view of the findings rendered in O.S.No.370
of 2001. It was also contended that the plaintiff is estopped from
claiming title to the remaining extent of the property, in view of the
dismissal of the earlier suit. The second defendant would trace his title
through first defendant, who in turn, claimed title under his father,
Mohideen Pitchai, who had purchased the property at an auction held by
the Government in the year 1962.
4.At trial, the plaintiff was examined as PW-1 and Ex-A1 to Ex-A7
were marked. The first defendant was examined as DW-1 and Ex-B1 to
Ex-B25 were marked.
5.The trial Court, upon consideration of the evidence on record,
concluded that in view of the Ex-B2, the sale certificate, issued in favour
of the first defendant's father, the first defendant would be the absolute
owner of the property and the sale by the first defendant in favour of the
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S.A.(MD)No.189 of 2015.
second defendant is valid. The trial Court also concluded that the
partition deed, dated 05.05.1970 was not acted upon. The trial Court
rejected the claim of the defendants that the suit is barred by res judicata
and estoppel.
6.Aggrieved by the dismissal of the suit, the plaintiff preferred an
appeal in A.S.No.34 of 2012. The appellate Court, upon re-examination
of the evidence, concurred with the findings of the trial Court and
dismissed the appeal. Hence, the above second appeal.
7.The following substantial questions of law were framed at the
time of admitting the second appeal:
1.Whether the judgments and decree of the Courts
below could be sustained in law in rendering a finding with
regard to the document under Ex.A.8, the partition deed
dated 05.05.1970 on mere surmises and conjectures
absolutely without any cogent evidence or even a pleading?
2.Whether the Courts below are right in law in
holding that the documents under Ex.A.8 has not been acted
upon without adverting that it is not even the very plea of
the respondents, besides, it is not permissible under law to
contend contrary to the very recitals of the registered
document under Ex.A.8 in view of Section 92 of the Indian
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S.A.(MD)No.189 of 2015.
Evidence Act?
3. Whether the Courts below are right in law in
declining to grant a decree after having held that the earlier
proceedings under Ex.A.1 & A.2 will not constitute res
judicate as per Section 11 of C.P.C as well as will not
attract the bar provided under Order 2, Rule 2?
4. Whether the Courts below are right in law in
dismissing the suit without adverting that the appellant as
plaintiff has substantiated his plea on the basis of cogent
evidence under Ex.A.2 to A.8 corroborating the oral
testimony of P.W.1?
5.Whether the Courts below are right in law in
rendering a finding traversing beyond the pleadings as well
as brushing aside the very admission of D.W.1 which itself
would suffice to grant the decree for the appellant?
6.Whether the judgment and decree of the lower
appellate Court could be sustained in law which has
mechanically accepted the findings of the trial Court
absolutely without any independent consideration of either
the pleadings or the evidence after framing the proper
points for consideration has contemplated under Order 41,
Rule 31, which is held to be mandatory?”
8. I have heard Ms.Sivadharsana Kannappan for Mr.M.P.Senthil,
learned Counsel for the appellant. The respondent, though served, does
not appear either in person or through Counsel duly instructed.
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S.A.(MD)No.189 of 2015.
9.Elaborating on the questions of law, Ms.Sivadharsana
Kannappan, learned Counsel for the appellant would contend that the
Courts below were not right in concluding that the partition deed, dated
05.05.1970 was not acted upon in the absence of any plea regarding the
same in the written statement filed by the first defendant or the second
defendant.
10.She would also point out that the father of the first defendant,
Mohideen Pitchai, in whose name the sale certificate, under Ex-B2,
stands, was a party to the partition deed. Pointing out the trial Court's
reference to certain documents, which were not marked as documents
during trial, the learned Counsel for the appellant would contend that the
trial Court had referred to documents which were not marked, would by
itself was vitiate the findings of the trial Court. She would further
contend that having held that the suit is not barred either by res judicata
or the plaintiff would be precluded from claiming title by estoppel, the
Courts below were not right in dismissing the suit on the premise that
Ex-A8, the partition deed, has not been acted upon. She would also draw
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S.A.(MD)No.189 of 2015.
my attention to Section 92 of the Indian Evidence Act, 1872, which
provides that a party or person claiming under a registered instrument
cannot claim title contrary to the recitals in the instrument.
11.I have considered the submissions of the learned Counsel for
the appellant.
12.The plaintiff has come to Court with a specific case that the
property was purchased by family and at a partition in the year 1970
under Ex-A8, dated 05.05.1970 was allotted to the plaintiff. A perusal of
Ex-A8 shows that the property of a larger extent measuring about 51
cents, was allotted to the plaintiff. The father of the first defendant,
Mohideen Pitchai, in whose name the property was purchased at an
auction held by the Government, was a party to the said instrument.
Once it is shown that the father of the first defendant was party to the
partition deed, the first defendant cannot claim title de hors the said
instrument.
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S.A.(MD)No.189 of 2015.
13.Mohaideen Pitchai purchased the property in the year 1962, as
evident from Ex-B2, the sale certificate. But the said property was made
subject matter of the partition, to which, the father of the first defendant
was party and the property purchased by him was allotted to the plaintiff
at the partition. Therefore, the first defendant, who is claiming title
under his father, cannot contend that the partition deed is not valid or that
the allotment is not true. It is not his case that the partition deed was not
acted upon.
14.Though a specific plea was raised by the plaintiff in the pliant
that the property was allotted to him under the partition deed, dated
05.05.1970, there is no plea regarding invalidity or otherwise of the
partition deed in the written statement. This is the reason why there is no
issue relating to the invalidity of the partition deed before the trial Court.
The trial Court, however, concluded that the partition deed was not acted
upon, on the basis that the first defendant has chosen to receive
compensation from the Government for the land acquired by the
Government. It is not demonstrated that the plaintiff had notice of such
acquisition and payment of compensation. That by itself would not
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S.A.(MD)No.189 of 2015.
prevent the plaintiff from establishing title over the suit property. In fact,
the Courts below have held that the plaintiff would not be estopped from
setting up title, merely because, the compensation has been paid to the
first defendant.
15.The conclusion of the Courts below that the partition deed,
dated 05.05.1970 was not acted upon is not supported by any pleadings
or evidence and such finding is erroneous and therefore, I am of the
considered opinion that the first and second questions of law have to be
answered in favour of the appellant to the effect that the partition deed,
dated 05.05.1970, Ex.-A8 is valid and the findings of the Courts below
that the partition deed, Ex-A8 was not acted upon is not supported either
by pleadings or evidence.
16.Once the first and second substantial questions of law relating
to the validity of Ex-A8 are answered in favour of the appellant, the other
questions of law relating to validity of the role by the first defendant and
second defendanant are insignificant and the appeal will have to be
allowed set asiding the judgment and decree of the Courts below.
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S.A.(MD)No.189 of 2015.
17.In fine, the second appeal is allowed and the judgment and
decree of the Courts below are set aside and the suit in O.S.No.103 of
2008 will stand decreed as prayed for, declaring the title of the plaintiff
to the suit second schedule property and granting a decree for recovery of
possession to the plaintiff in respect of the suit second schedule property.
The plaintiff would be entitled to move the Court under Order 20 Rule 12
C.P.C. seeking mesne profits. No costs.
Index : Yes/No
Internet: Yes/No 20.01.2021
cmr
To
1.The Subordinate Judge, Ambasamudram.
2.The District Munsif-cum-Judicial Magistrate, Cheranmahadevi.
3.The Section Officer,
Vernacular Record Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.189 of 2015.
R.SUBRAMANIAN, J.
cmr
Judgment made in
S.A.(MD)No.189 of 2015
20.01.2021
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