Madras High Court
Karuppiah vs M.Valliammal(Deceased) ... 1St ... on 23 June, 2021
S.A.No.1889 of 1998
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1889 of 1998
1.Karuppiah
2.Nachal ... Defendants 1& 2/Respondents 1 & 2
/Appellants
-Vs-
M.Valliammal(deceased) ... 1st Plaintiff / 1st Appellant / Respondent
1.M.Subbiah ... 2nd Plaintiff / 2nd Appellant / Respondent
2.Subramanian ... 3rd Defendant / 3rd Respondent / Respondent
3.Muthumari ... 4th Defendant / 4th Respondent / Respondent
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree dated 27.09.1996 made in A.S.No.
64 of 1994 on the file of the Court of the Subordinate Judge of Devakottai
reversing the Judgment and decree, dated 21.04.1994 made in O.S.No.286
of 1991 on the file of the District Munsif Court, Devakottai.
For Appellants : Mr.H.Lakshmi Shankar
For R1 : No appearance
For R2 & R3 : Mr.V.R.Shanmuganathan
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S.A.No.1889 of 1998
JUDGMENT
The defendants in O.S.No.286 of 1991 on the file of the District
Munsif Court, Devakottai, are the appellants in this second appeal.
2.The said suit was instituted by one Valliammal and her son
M.Subbiah through their power agent Subbiah. The appellants herein
figured as defendants 1 and 2.
3.The case of the plaintiffs was that the suit property comprised in
S.No.458 measuring 14 ½ cents and forming part of a larger extent
originally belonged to one Narayanan Ambalam and Meyyar Ambalam and
that the defendants have committed encroachment. The encroached portion
has been shown in the suit schedule. The suit was filed for directing the
defendants to deliver vacant possession of the suit property after removing
the superstructure.
4.The appellants herein filed a detailed written statement. The
appellants denied the plaint averments in toto. They specifically contested
the claim of the plaintiffs that the suit property originally belonged to
Meyyar Ambalam. According to the defendants, the suit property originally
belonged to Karaikudi Nattars and that by leave and license, the defendants
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S.A.No.1889 of 1998
had put up constructions. D3 and D4 set up an independent title by virtue of
Ex.B160 dated 05.12.1973. The defendants 3 and 4 claimed that they had
purchased from one Kulanthai Therasa.
5.Based on the divergent pleadings, the trial Court framed the
necessary issues. On behalf of the plaintiff, their power agent Subbiah
entered the witness box. Ex.A1 to Ex.A5 were marked. The first defendant
examined himself as P.W.1. Two other witnesses were examined on the side
of the defendants. Ex.B1 to Ex.B173 were marked. Court Ex.1 and Ex.2
were also marked. The trial Court, after considering the entire evidence on
record, by judgment and decree dated 21.04.1994 dismissed the suit.
Questioning the same, the plaintiffs filed A.S.No.64 of 1999. The appellate
Court by judgment and decree dated 27.09.1996 set aside the judgment and
decree passed by the trial Court and allowed the appeal. Challenging the
same, this second appeal came to be filed.
6.The second appeal was admitted on the following substantial
questions of law:-
“Whether the lower appellate Court was right in decreeing the
suit for the relief of declaration when there was no prayer for the said
relief and whether a mere payment of Court fee under a particular
head would entitle a party to get such a relief without a specific
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S.A.No.1889 of 1998
prayer?
2.Whether the appellate Court ought to have held that failure of
the plaintiffs in examining themselves is fatal to their case?”
7.During the pendency of these proceedings, the first plaintiff
Valliammal had passed away. Her son Subbiah second plaintiff was shown
as the first respondent in this second appeal. He had entered appearance
through counsel. But the counsel reported no instructions on the previous
occasion. In fact, the counsel had intimated the second plaintiff Subbiah
about the listing of this second appeal 'for disposal'. I am informed that the
counsel for the parties were requested to approach the second plaintiff
Subbiah in person to resolve the matter. It is further stated that the counsel
did approach Subbiah, but then, Thiru.Subbiah had stated that in view of
the difference of opinion between him and the power agent, he is no longer
interested in the matter. He had nothing to say in the matter. The name of
M.Subbiah is printed in the cause list.
8.Even though the contesting respondent is un-represented before this
Court, still this Court undertook an independent examination of the
evidence on record. As rightly pointed out by the learned counsel
appearing for the appellants, the defendants had set up an independent title.
They had specifically impeached the tracing of title by the plaintiffs. The
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S.A.No.1889 of 1998
case of the plaintiffs was anchored on the premise that the suit property
belonged to Narayanan Ambalam and Meyyar Ambalam. According to the
defendants, the property never belonged to them.
9.In such circumstances, it was incumbent on the part of the plaintiff
to have sought the relief of declaration and recovery of possession. The
plaintiff themselves have conceded that the suit property is in the
possession of the defendants and that is why, they sought the relief of
delivery of vacant possession. Though the defendants disputed the
plaintiff's title, the plaintiffs did not amend the suit prayer. The Hon'ble
Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by Lrs
and others (2008) 4 SCC 594 held that where the title of the plaintiff is in
dispute and he is not in possession, necessarily the plaintiff will have to file
a suit for declaration, possession and injunction. That is why, the trial
Court rightly non-suited the plaintiff. I therefore answer the first substantial
question of law in favour of the appellants.
10.There is one other issue. The plaintiffs did not enter the witness
box. On their behalf, only their power agent testified. The Hon'ble
Supreme Court in Janki Vashdeo Bhojwani and another Vs. Induslnd
Bank Ltd., (2005) 2 SCC 217 held that the holder of power of attorney who
is empowered to “act” on behalf of the principal cannot depose in place and
instead of principal. In Vidhyadhar Vs.Manikrao (1999) 3SCC 573, it was
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S.A.No.1889 of 1998
held that where a party to the suit does not enter into the witness box and
state his own case on oath and does not offer himself to be cross examined
by the other side, a presumption would arise that the case set up by him is
not correct.
11.A mere look at the cross examination of D.W.1 would show that he
was absolutely unaware of the most of the aspects pertaining to the case on
hand. He was utterly incompetent to speak about tracing of title.
Therefore, failure of the plaintiffs to enter the witness box is fatal to their
case. The second substantial question of law is also answered in favour of
the appellants. In this view of the matter, the judgment and decree passed
by the first Appellate Court is set aside and the judgment and decree of the
trial Court is restored. The second appeal is allowed. No costs.
12.At this stage, the learned counsel appearing for R2 and R3
(Subramanian and Muthumari) informs the Court that the power agent of
the plaintiff had executed sale deed dated 27.12.1996 in their favour and
that the outcome of this appeal one way or the other will not make any
difference to their interest.
23.06.2021
Internet : Yes/No
Index : Yes/No
rmi
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S.A.No.1889 of 1998
To
1.The Subordinate Judge of Devakottai.
2.The District Munsif Court, Devakottai.
3.The Section Officer, Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
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S.A.No.1889 of 1998
G.R.SWAMINATHAN. J.
rmi
S.A.No.1889 of 1998
23.06.2021
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