Madras High Court
K. Duraisamy vs R. Mohan on 28 June, 2021
S.A.No.1142 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1142 of 2010
and
M.P.No.1 of 2010
1. K. Duraisamy
2. Nallammal ...Appellants
Vs.
1. R. Mohan
2. P. Subramaniam
3. K. Sundaram
4. Selvarani ...Respondents
PRAYER: Second Appeal filed under section 100 of the Civil
Procedure Code against the Judgment and Decree in A.S.No.29 of 2006
on the file of the learned Subordinate Judge, Namakkal, dated
31.08.2009, confirming the Judgement and Decree in O.S.No.554 of
1998 on the file of the learned Additional District Munsif, Namakkal
dated 21.09.2005.
1/32
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S.A.No.1142 of 2010
For Appellants : Mr.C. Jagadish
For Respondents : Mr. D. Shivakumaran
for R1 to R3
R4- Served- No appearance
JUDGEMENT
The first and the third defendants are the appellants before this
Court. They have challenged the concurrent judgment and decree in
A.S.No.29 of 2006, Sub Court, Namakkal confirming the judgment and
decree in O.S.No.554 of 1998 on the file of the Additional District
Munsif, Namakkal.
2. The facts in brief are as follows and the parties are referred to
in the same status as in the suit:
2.1. The plaintiffs had filed the suit O.S.No.554 of 1998 on the
file of the Additional District Munsif, Namakkal for a declaration and
permanent injunction in respect of the properties situate in various
Survey numbers at Singlipatti Village, Namakkal.
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2.2. The case of the plaintiffs is that the suit property originally
belonged to one Kolanda Gounder who is the father of the first
defendant and the husband of the third defendant, who are the
appellants 1 and 2 respectively. The said Kolandai Gounder was
adjudged as an insolvent in the proceedings in I.P.No.75 of 1972 and
53 of 1973. Pursuant to his being adjudged as insolvent, the Official
Reciever has brought the properties to sale and one Pavayee Ammal
purchased the suit properties in the auction held on 09.08.1974. The
Official Receiver executed a sale deed dated 06.01.1975 in favour of
the said Pavayee Ammal.
2.3. Since an undivided share had been purchased, the said
Pavayee Ammal filed a suit for partition in O.S.No.19 of 1983. A
preliminary decree was passed on 27.01.1984 in the said suit, filed
against Kolandai Gounder and others. A final decree was passed on
28.09.1994. Thereafter, the said Pavayee Ammal had filed execution
proceedings for taking possession of the property in E.P.No.152 of
1996 against the said Kolandai Gounder and others and after the death
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of Kolandai Gounder, the 1st defendant was impleaded in the execution
proceedings. A Commissioner was appointed and ultimately possession
was taken on 26.04.1998 through Court. After the possession was taken
by the said Pavayee Ammal, she along with her children had sold the
property to the plaintiff under a sale deed dated 25.09.1998. The
plaintiff was put in possession of the property on the purchase of the
property. However the defendants started giving pinpricks in the
enjoyment of the property by the plaintiff and the plaintiff also came to
know that the second defendant, who is none other than the wife of the
first defendant, had filed a suit for partition, as guardian on behalf her
minor children wherein a collusive ex parte decree was obtained by her.
Pavayee Ammal was not made a party to this suit. However, the decree
was never acted upon since it was a collusive suit. The plaintiff had
submitted that since the said suit was fraudulently filed and decree
obtained they were ignoring the same. Hence the suit.
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3. Written Statement of the First Defendant:
3.1. The first defendant had filed a written statement on
18.09.2000 in which they had inter alia denied the insolvency
proceedings, the suit for partition as well as taking over possession by
the plaintiffs' predecessors in title.
3.2. The defendants went to the extent of stating that they were
unaware about the insolvency proceedings and the suit for partition and
also the orders passed therein. They would contend that it was only the
first and third defendants who are in possession and enjoyment of the
property in question. He would further contend that the suit property
was the ancestral property of the first defendant's grandfather and that
the defendants have been in possession and enjoyment of the same for
over 60 years. Any possession taken by the plaintiff was only
symbolic and physical possession was not taken. The second defendant
had filed a written statement a month later contending that no
possession was handed over to Pavayee Ammal. However, if there is
such a record, the same, apart from being false would not bind the
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minor children of the second defendant. The second defendant is in
possession as guardian of the minors. That apart, the minors have not
been made as parties to the proceedings and therefore the plaintiff was
not entitled to the relief claimed for.
3.3. Pending the suit, the plaintiffs would contend that the
defendants had trespassed into the 2nd item of the suit property and
therefore they sought to amend the plaint to include the relief of
recovery of possession in respect of the second item of property.
3.4. An additional written statement was filed by the first
defendant denying the said allegations, stating that he has always been
in possession of the same. A plea of adverse possession was also taken
out by the defendants.
4. The above was the sum and substance of the pleadings taken
out by each party in the above suit.
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5. Trial Court:
5.1 The Trial Court based on the pleadings had framed the
following issues in the vernacular and the English translation of the
same is hereinbelow set out:
"1. Whether the plaintiff is entitled to the
relief of declaration and injunction as pleaded
by them ?
2. Whether it is true that the Official
Receiver had executed a sale deed dated
06.01.1975?
3. Whether it is true that the second
defendant and her minor children are in
possession and enjoyment as per the partition
in their favour?
4. Whether it is correct to say that the
decree for partition obtained against the
insolvent Kolaidaigounder and his partners
will not bind the second defendant and her
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minor children ?
5.To what relief is the plaintiff entitled
to?"
5.2. The Learned Additional District Munsif, Namakkal by the
judgment and decree dated 21.09.2005 was pleased to decree the suit as
prayed for. Challenging the said judgment and decree, the plaintiffs
had filed A.S.No.29 of 2006 A.S.No.29 of 2006 on the file of the
Subordinate Court, Namakkal. The learned Subordinate Judge also
confirmed the judgment and decree of the Trial court.
6.Challenging the same, the above Second Appeal has been filed.
7.The Second Appeal has been admitted on the following
Substantial Questions of Law on 01.12.2010:
"1.Whether the courts below are right in
law in relying on Ex.A.2 and Ex.A.3 in
construing possession of the plaintiffs when the
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executing court in REP No.152 of 1996 has not
followed the mandatory provisions of Order 21
Rule 35 and Order 21 Rule 36 of the Code of
Civil Procedure regarding delivery of
immovable properties and more particularly
when the plaintiffs have not proved title and
possession to the suit property ?
2.Whether the Courts below are right in
law in arriving at a conclusion that the
plaintiffs are in possession of the suit property
based on Exs.A.2 , A.3 and A.11 when the
description of property in Ex.A.3 receipt and
the Ex.A.4 sale deed under which the plaintiffs
claim to have purchased the suit property are
entirely different ?
3.Whether the Courts below have
properly considered the evidence of P.W.2,
P.W.4 and D.W.1 coupled with Exs.B.1 to B.14
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which proves title and possession of the
defendants ?
4.Whether the Courts below are right in
law in decreeing the suit of the plaintiffs
particularly when Pavayee Ammal the vendor
of the plaintiffs has not been examined to prove
title and possession of the suit properties and
as to whether she took possession of the suit
properties in accordance with Order 21 Rule
35 and 36 of the Code of Civil Procedure?
5.Whether the Courts below have
properly appreciated the law relating to
burden of proof, particularly Sections 101, 102
and 103 of the Indian Evidence Act, 1872?"
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8. Submissions:
8.1. Mr.C. Jagadish, learned counsel arguing on behalf of the
appellants would primarily put across his arguments questioning the
judgment and decree of the Courts below on the ground that the edifice
upon which the entire suit of the plaintiffs rests is the suit for partition
filed by Pavayee Ammal and the handing over of possession to her in
execution proceedings.
8.2. He would submit that the procedure under which the
property was handed over to Pavayee Ammal is illegal and does not
confer any right whatsoever on the said Pavayee Ammal or the
plaintiffs.
8.3. He would submit that in the execution proceedings in
E.P.No.152 of 1996, the warrant that was issued to the Advocate
Commissioner and which has been marked as Ex.A6 directs the
Advocate Commissioner only to inspect the property as per decree,
note down the physical features and submit his report with plaint by
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17.03.1997.
8.4. The learned counsel would therefore submit that nowhere in
the warrant was a power given to the Advocate Commissioner to take
delivery of the property. The subsequent reliefs relating to taking over
possession and handing it over to the said Pavayee Ammal are all
without authority and therefore liable to be ignored. He would also
argue that the possession taken was only symbolic and that the
defendants continued to be in possession and enjoyment of the
properties to date.
8.5. He would also draw the attention of the Court to the cross
examination of the Advocate commissioner wherein he has admitted
that there was no direction given to him to take possession and hand it
over to the appellants.
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8.6. He would further submit that although the plaintiffs would
claim that they have taken possession of the suit properties, however, a
perusal of Ex.B12, which is the order of the Tahsildar, Namakkal
shows that the first defendant is in possession and enjoyment of the
property.
8.7. The learned counsel would further submit that the procedure
contemplated under Order 21 Rule 35 has not only been not been
followed but has also been flouted.
8.8. He would therefore submit that considering the blatant
miscarriage of justice in taking possession and the fact that the
possession continues with the first defendant, the decrees of the Courts
below deserve to be set aside and the Second Appeal allowed.
8.9. Mr. D. Shivakumar, learned counsel arguing on behalf of the
respondents would submit that this defense was not taken in the written
statements filed by the appellants/defendants 1 and 2. He would submit
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that in the execution proceedings the prayer sought for has been clearly
spelt out in column 11 of the execution petition. The warrant has been
erroneously prepared and for the mistake committed by the Courts the
plaintiff cannot be mulcted with an responsibility. However the parties
were clear about the relief that has been claimed by Pavayee Ammal in
the execution proceedings and the Commissioner had also proceeded in
those lines. In fact, the Court below has also granted police protection
to the Advocate Commissioner to take possession of the properties
when the second appellant/third defendant herein had attempted to
obstruct the taking of possession. He would further contend that the
first and third defendants who are very much aware about the suit and
the execution proceedings, particularly when the first defendant was a
party to the execution proceedings, had not taken any steps to set aside
the order of taking delivery. Delivery was taken as early as in the year
1998 and the appellants have not even cared to enter appearance in the
execution proceedings. No objections have also been filed to the
Advocate Commissioner's report.
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8.10. He would further submit that the plea of adverse possession
is rather strange considering the fact that the suit has been filed
immediately on taking possession of the property on the property being
sold to the plaintiffs herein. Further, the fact that the defendants 1 to 3
claim adverse possession only proves that they have recognised the
right of the plaintiff to the suit property.
8.11. He would also submit that when the Advocate
Commissioner was unable to take possession, he had filed a memo
before the court seeking police protection and police protection was
also granted. Even at this juncture, there was no protest by defendants
1 and 3 herein particularly when the first defendant was a party in the
execution proceedings. He would submit that procedure adopted is
only an error and procedure being a handmaiden of Justice such
procedural errors should be condoned.
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8.12. He would rely on the following Judgments in support of his
arguments:
"1.Shreenath & Another vs Rajesh &
Others reported in [(1998) 4 SCC 543]"
2.Mahadev Govind Gharge & Others vs.
The Special Land Acquisition Officer, Upper
Krishna Project, Jamkhandi, Karnataka &
Others reported in [(2011) 6 SCC 321]
3.V.Gandhimathi & Others Vs. G.
Thiyagarajan & Others reported in [CDJ
2019 MHC 2736 ]
4.S. Dhanalakshmi vs. M.K.
Satyanarayana Rao reported in [2012 (3)
CTC 482]"
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S.A.No.1142 of 2010
9. Discussion:
9.1. The entire argument of the defendants 1 and 3 revolves only
around the legality of the possession taken by Pavayee Ammal, the
vendor of the plaintiffs, in the proceedings in REP.No.152 of 1996.
The contention of the appellants/defendant 1 and 3 is that the warrant
issued to the Advocate Commissioner was only to note down the
physical features of the suit property and submit his report. Therefore,
there was no authority vested upon the Advocate Commissioner to take
delivery of the suit property and that the Advocate Commissioner has
acted contrary to the provisions of Order 21 Rule 35 of the Code of
Civil Procedure. Order 21 Rule 35 deals with the procedure to be
followed by an executing court for executing a decree for delivery of
possession of immovable property and Rule 36 talks above delivery of
possession in the occupation of a tenant. Rule 35 is hereinbelow
extracted:
"35. Decree for immovable property. -
(1) Where a decree is for the delivery of any
immovable property, possession thereof shall
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be delivered to the party to whom it has been
adjudged, or to such person as he may appoint
to receive delivery on his behalf, and, if
necessary, by removing any person bound by
the decree who refuses to vacate the property.
(2) Where a decree is for the joint
possession of immovable property, such
possession shall be delivered by afixing a copy
of the warrant in some conspicuous place on
the property and proclaiming the beat of drum,
or other customary mode, at some convenient
place, the substance of the decree.
(3) Where possession of any building on
enclosure is to be delivered and the person in
possession, being bound by the decree, does
not afford free access, the Court, through its
officers, may, after giving reasonable warning
and facility to any woman not appearing in
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public according to the customs of the country
to withdraw, remove or open any lock or bolt
or break open any door or do any other act
necessary for putting the decree-holder in
possession "
(Emphasis is mine).
9.2. The said order contains the following contingencies in which
the Executing Court steps into take possession of an immovable
property as per the decree:-
"a) Where the person bound by the
decree refuses to vacate the property;
b) Where joint possession is decreed;
c) Where there is an obstruction to the
taking of delivery."
9.3. A reading of this provision clearly indicates the manner in
which a decree for immovable property has to be executed and the Rule
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mandates that possession has to be delivered to the decree holder. It is
only in the third contingency that the words "shall be delivered" is
absent. The manner in which an objection to the taking of possession is
provided under Order 21 Rule 97 of the Code of Civil Procedure.
9.4. From the records, it is seen that both the defendants 1 and 3
were aware about the decree for partition and the execution
proceedings as the first defendant was a party to the execution
proceedings. The two of them have taken no steps whatsoever to
question the execution proceedings in the earlier suit for partition.
Therefore, the Final Decree and taking of possession have attained
finality. The execution proceedings which have reached a finality is
sought to be re-opened in the instant suit. If the Execution Petition in
E.P.No.152 of 1996, which is marked as Ex.A.5 is examined, it is very
clear that the plaintiffs' predecessors in title in Column No.11 of the
Execution Petition has sought for the following relief which is
translated from the vernacular as follows:
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"Praying to implead the respondents 11
and 12 as the legalheirs of the deceased 2nd
defendant and to appoint a Commissioner to
demarcate the 1/13th share shown as the
Portion "C" in the Decree and as per the
Decree, handover separate possession to the
petitioner. Petition filed under Order 21 Rule
35 of CPC and Order 22 Rule 4 of CPC."
9.5.The Order dated 17.07.1996 and 27.08.1996 of the learned
District Munsif, Namakkal, in Ex.A.5 would clearly show that the
execution was instituted only for the purpose of obtaining delivery of
possession of the portions marked "C" in the plan attached to the
Decree. The 1st defendant who was the 12th respondent in the
execution proceedings had not entered appearance despite being served
with the notice.
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9.6. The Executing Court has therefore appointed the Advocate
Commissioner to execute the Decree. The Court while drafting the
warrant had directed the Commissioner to inspect the property as per
the Decree and note down the physical features which was not the
relief which was claimed in the execution proceedings and neither the
order passed on 10.02.1997. On 10.02.1997 the order that was passed
by the learned District Munsif was as follows:
"10.02.97:Court Notice - Served. Postal
notice returned. R1 called absent set ex parte.
recognised R11, R12 as L.R.s of R2
Thiru.A.Dhanasekaran, Advocate is appointed
as Commissioner to inspect the suit properties
and to divide the properties as per Decree and
submit the report with Plan by 17.03.91. The
Commissioner's fee is fixed at Rs.600/- to be
paid by the petitioner. Id/-VR.ADM. (As per
Ex.A.5)"
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9.7.However, it appears that the error in the warrant went
unnoticed by the Court and by the Advocate Commissioner and the
Advocate Commissioner proceeded to execute the warrant as per the
relief claimed in Column 11 of the execution proceedings. It also
appears that while executing the warrant, the Commissioner had filed a
Memo stating that he was prevented from executing the warrant and
the Memo is marked as Ex.A.7. Thereafter, orders were passed for
police protection and the Advocate Commissioner had visited the
property on 26.04.1998 at about 10.00a.m and allotted the properties
marked "C" in the Decree to the said Pavayee Ammal which is detailed
in the Commissioner's report marked as Ex.A.10. Though on
30.07.1997, the 3rd defendant, the 2nd appellant herein had prevented
the Commissioner no steps were taken to file any application either
questioning the execution or the Decree. Therefore, the defendants 1
and 3 had acquiesced to the taking of possession and therefore, are
estopped from questioning the same. The argument that the Advocate
Commissioner has exceeded the warrant may not be of any assistance
to defendants 1 and 3 as the same is only a procedural error to which
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even the defendants 1 and 3 have acquiesced and consequently, waived
their right to question the same.
9.8.The Courts of Law have time and again held that procedure is
nothing but the handmaid of justice. Technical objections should not
be stretched to defeat justice if the error does not strike at the very Rule
of Law.
9.9.The Hon'ble Supreme Court in the Judgment reported in 1976
(1) SCC 719 [State of Pubjab v. Shamlal Murari] observed as
follows"
"Procedural law is not to be a tyrant but a servant,
not an obstruction but an aid to justice. Procedural
prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of Justice."
9.10. In an other Judgment of the Hon'ble Supreme Court
reported in (1992) 1 Supreme Court Cases 31 [Syram Pestonji
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Gariwala v. Union Bank of India and others], the learned Judges were
called upon to decide as to whether the order passed by the Bombay
High Court rejecting the application by the Decree Holder against the
defendant was valid and binding on the parties when the Compromise
was signed only by the learned counsel and not by the parties and
further, the defendant had not chosen to respond to the notice issued
under Order 21 Rule 22 of the Code of Civil Procedure, resulting in
order being made under Order 21 Rule 23 of the Code of Civil
Procedure. The learned Judges observed as follows:
"In the present case, the notice issued under
Order XXI Rule 22 was personally served on the
defendant, but he did not appear or show cause
why the decree should not be executed. The notice
was accordingly made absolute by order dated
23.1.1990 and leave was granted to the plaintiff to
execute the decree."
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9.11. In the Judgment of the Hon'ble Supreme Court reported in
(2005) 4 Supreme Court Cases 480 [Kailash v. Naniku and others],
the Court was considering whether the provisions of Orders 8 Rule 1 of
the Code of Civil Procedure is applicable to the trial of an Election
Petition, whether the Rules framed by the High Court governing the
trial of election petitions would override the provisions of the Code of
Civil Procedure and whether the time limit of 90 days prescribed by the
proviso to Order 8 Rule 1 of the Code of Civil Procedure was
mandatory or directory in nature.
9.12. The Hon'ble Supreme Court after considering the various
Judgments on procedure observed as follows:
"28.All the rules of procedure are the
handmaid of justice. The language employed by
the draftsman of procedural law may be liberal
or stringent, but the fact remains that the object
of prescribing procedure is to advance the
cause of justice..."
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The learned Judges proceeded to allow the application by
holding that the extension of time for filing the Written Statement could
be granted as valid and sufficient cause has been shown."
9.13. In the Judgment reported in 2012 (3) CTC 482
[S.Dhanalakshmi v. M.V.Satyanarayana Rao], the Division Bench of
this Court was considering a petition filed to amend the defect in a
Decree dated 14.02.2002 in L.P.A.No.3 of 1998, nearly nine years after
the passing of the Decree. While allowing the LPA, the Decree was
drafted as follows:
"The Decree passed in the exercise of
the Appellate jurisdiction of the High Court in
A.No.111 of 1985 be and is hereby set aside
the the Appeal allowed".
9.14. When execution proceedings were initiated the
respondent/Judgment Debtor had raised a preliminary objection that the
Decree was not executable as the Decree did not set out that the decree
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was for declaration and recovery of possession. The Bench relied upon
the Judgment of the Apex Court in Thilak Raj v. Baikunthi Devi (D)
by the legal representatives reported in 2009 SAR Civil 407 S.C.,
wherein the Apex Court held as follows:
"15.Since the court exists to dispense
justice, any mistake which is found to be
clerical in nature should be allowed to be
rectified by exercising inherent power vested in
the court for sub-serving the cause of justice.
The principle behind the provision is that no
party should suffer due to bona fide mistake.
Whatever is intended by the court while
passing the order or decree must be properly
reflected therein otherwise it would only be
destructive of the principle of advancing the
cause of justice. In such matters, the courts
should not bind itself by the shackles of
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technicalities."
The Division Bench ultimately proceeded to amend the Decree.
9.15.A reading of the above Judgments would clearly show that
the procedure is nothing but a means to ultimately render justice and
the same cannot be derailed by raising technical objections. The
defendants 1 and 3 who had not chosen to question the Decree and
delivery of possession cannot challenge it in a subsequent proceeding,
without having challenged the original order. Therefore, the Question
of Law No.1 is answered against the appellant/defendants 1 and 3.
9.16. In the case on hand also a reading of the Ex.A.7 to A.10 the
proceedings of the Court and the Advocate Commissioner in
E.P.No.192 of 2006 would clearly demonstrate that the drafting of the
warrant was a clerical mistake and the Court and the Advocate
Commissioner was conscious of the relief sought for in E.P.No.192 of
2006 and has delivered possession to Pavayee Ammal.
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9.17. From a perusal of Ex.A.10, it is also seen that the Advocate
Commissioner has handed over the properties which had been
described and marked with letter "C" to the said Pavayee Ammal.
Possession has also been handed over after obtaining orders of police
protection from the Court. The difference in the description of the
property in Ex.A.3 and Ex.A.4 is on account of the Sub division of the
Survey No.92 and there is no ambiguity in the same. That apart this
defense has not been raised earlier. The Question of Law No.4 is
answered against the appellant.
9.18. That apart, the appellant has not raised the defense which
covers Question of Law Nos.2, 3and 5 at any point of time earlier and
the same is answered infavour of the plaintiff/respondent. The non
examination of Pavayee Ammal is not fatal to the case since the
documentary evidence has been produced to prove the taking of
possession.
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In the result, the Second Appeal is dismissed. Consequently,
connected Miscellaneous Petition is closed. No costs.
28.06.2021
mrn/mps
Index : Yes/No
Speaking order/non-speaking order
To
1.The Subordinate Court,
Namakkal.
2.The Additional District Munsif Court,
Namakkal.
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P.T.ASHA, J.
mrn/mps
S.A.No.1142 of 2010
and
M.P.No.1 of 2010
28.06.2021
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