Shanmugam Pillai vs Chellammal
2021 Latest Caselaw 22845 Mad

                                                           1

                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 23.11.2021

                                                      CORAM

                      THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

                                      Second Appeal(MD) No.726 of 2021 and
                                           CM.P.(MD)No.9647 of 2021


                     Shanmugam Pillai,(died)
                     S/o.Krishna Pillai                           ... 1st Appellant/1st Plaintiff

                     1.N.S.Krishna Pillai
                     2.S.Arumugam                              ...appellants 1 & 2/plaintiffs 2 & 3
                                                     Vs.

                     1.Chellammal
                     2.Valliammal
                     3.Velammal
                     4.Rajalakshmi
                     5.K.Radhakrishnan
                     6.K.Sankarram                   ....respondents 1 to 6/defendants 1 to 6
                     7.M.Balasubramanian             ... 7th Respondent/8th defendant


                     Prayer:- This Second Appeal has been filed under Section 100 C.P.C.,

                     against the judgement and decree dated 19.07.2018 made in A.S.No.17 of

                     2012 on the file of the Principal District Court, Kanyakumari District, at

                     Nagercoil confirming the judgement and decree dated 31.10.2011 made in

                     O.S.No.62 of 2006 on the file of the First Additional Sub Court, Nagercoil.

                                  For Appellant            : Mr.A.Arumugam for
                                                            M/s.R.Murugan
https://www.mhc.tn.gov.in/judis   For Respondents          : Mr.D.Nallathambi for RR1 to 6
                                                                    2


                                                             JUDGEMENT

This Second Appeal has been filed against the judgement and decree

dated 19.07.2018 made in A.S.No.17 of 2012 on the file of the Principal

District Court, Kanyakumari District, at Nagercoil confirming the

judgement and decree dated 31.10.2011 made in O.S.No.62 of 2006 on the

file of the First Additional Sub Court, Nagercoil by raising various grounds.

2.The plaintiffs have raised the following substantial questions of law

for consideration:-

(i)Whether the Courts below are wrong in holding that the suit is barred by principles of res-judicata enshrined in Section 11 of C.P.C., 1908 in view of earlier proceedings in O.S.No.700 of 1992, on the file of First Additional District Munsif Court, Nagearcoil ?

(ii)Whether the Courts below are wrong in relying on Commissioner's report filed in earlier suit in O.S.No.700 of 1992, especially when the defendants in the present suit have not chosen to examine the Commissioner in earlier suit, that too when the present plaintiffs were not parties in the earlier suit?

(iii)Whether the trial Court having come to the conclusion that the plaintiffs' predecessor in title Easwaramoorthy Chettiar has become the owner under https://www.mhc.tn.gov.in/judis the Partition Deed Ex.B65 is right in coming the exact opposite conclusion that he is not the owner and whether

the later finding is perverse on the face of it and liable to be set aside under Section 100 of C.P.C., 1908?

(iv)Whether the First Appellate Court has followed the letter, spirit and scope of Order 41 Rule 27 of C.P.C.., 1908 in the proper perspective and whether its failure to apply the provision of Order 41 Rule 27 of CPC., 1908 has vitiated the hearing of First Appeal?

(v)Whether the failure of the First Appellate Court in not framing of proper points of consideration under Order 41 Rule 31 of C.P.C., 1908 has vitiated the hearing of First Appeal to the detriment of appellants?

(vi)Whether the failure of the Courts below in not correctly construing the contents of legal effects of Ex.B65, Partition Deed has read to be dismissal of the suit and First Appeal to the detriment of appellants?

(vii)Whether the finding of the Courts below that the plaintiffs are not the owners of the plaint schedule properties is as a result of admission of immaterial, irrelevant and in-admissible evidence and rejection of relevant material and admissible evidence and whether such a legally unacceptable finding is liable to be set aside under Section 100 of C.P.C, 1908?

3.The case of the plaintiffs is as follows:

The plaint schedule property is comprised in Old S.No.1382/426 of

Nagercoil Village which is now correlated to R.S.No.D7/4,5,6,7 and 8 of

Nagercoil Village is a vacant site. On the northern side of the plaint https://www.mhc.tn.gov.in/judis

schedule property, the plaintiffs are having 4 cents of land and building

NMC.10/2-2 and 10/2-6. The plaintiffs are in exclusive possession and

enjoyment of the northern 4 cents and residing in the house and also

conducting tea stall. The northern 4 cents is not included in the plaint

schedule property for which no dispute is raised by the defendants 1 to 7.

On the southern side of the plaintiffs' undisputed 4 cents, there is an

existence of 3.3/4 cents of land which is lying as a vacant site, which is the

plaint schedule property. The entire plaint schedule property and remaining

4 cents on the northern side originally belonged to Easwaramoorthy

Chettiar, who inherited the same under a Partition Deed dated 25.03.1953.

He was in possession and enjoyment of the same and his legal heirs jointly

executed a registered Sale Deed dated 24.01.1984 in favour of the first

plaintiff's wife Ramalekshmi. From the date of execution of the Sale Deed,

the said Ramalekshmi was in possession and enjoyment of the plaint

schedule property along with plaintiffs 1 to 3. The first plaintiff is the

husband of deceased Ramalekshmi, who died on 20.09.2005. The plaintiffs

2 and 3 are the sons of deceased Ramalekshmi. Ramalekshmi's daughters

are given cash and jewels for their marriage and who in turn relinquished

their right over the plaint schedule property. The plaintiffs 1 to 3 are in

legal possession and enjoyment over the plaint schedule property. The said

Ramalekshmi had purchased 7.3/4 cents as per Sale Deed dated 24.01.1984 https://www.mhc.tn.gov.in/judis

including the suit schedule property and they have been paying municipal

tax to the authorities for the aforesaid property. On the southern side of the

plaint schedule property, one Nadarajan Chettiar owns some property.

After the death of the said Nadarajan Chettiar, his heirs sold the southern

side of the plaint schedule property in favour of Kumaraswamy Chettiar,

who died in the year 1984. His legal heirs are the defendants 1 to 7. The

plaintiff had filed a suit in O.S.No.700 of 1992 against the legal heirs of

Kumaraswamy as defendants 1 to 7 and Ramasubbu as 8th defendant and the

defendants 9 to 13 are the third parties in O.S.No.700 of 1992 with a prayer

for declaration of title and injunction in respect of 5.1/4 cents of property

with mandatory injunction to remove the windows and opening on the

southern wall. The Advocate Commissioner was appointed and filed the

report mentioning that the plaintiffs' 4 cents is not disputed by the

defendants in O.S.No.700 of 1992. But the plaint schedule property is

alleged to have been in possession of the defendants 1 to 8 in O.S.No.

700/1992 for which the Commissioner is incompetent to give finding

regarding possession.

4.According to the plaintiff, they are legally entitled to 3.3/4 cents out

of 5 cents mentioned by the Commissioner in his report and plan and

thereby, they are entitled for demarcation and fixation of boundary in

respect of 3.3/4 cents out of 5 cents area earmarked by the Commissioner https://www.mhc.tn.gov.in/judis

and also entitled for declaration of title and possession thereof. In the

earlier suit in O.S.No.700 of 1992, the plaintiff therein had mentioned only

5 cents as schedule property and never filed the suit for demarcation of

boundary within the said 5 cents and for putting up temporary wall, a

written agreement was made between 1st defendant and Ramalekshmi on

27.10.1984.

5.Therefore, on 17.4.2006, the plaintiffs had demanded the

demarcation of 3.3/4 cents to the defendants 1 to 7, but they denied the title

and possession of the plaintiffs over the suit property. Hence, the suit.

6.Resisting the suit, the defendants 1 to 7 filed a written statement,

inter alia, stating that the suit itself is not maintainable and the description

of plaint schedule property and the boundaries given therein, are misleading

and misconceived. The plaintiffs are not having any right in the said 4 cents

and the defendants 1 to 7 are in exclusive possession and enjoyment of the

same as absolute owners. The father of 1st defendant late Kumaraswamy

Chettiar purchased southern 1/4th cent in S.No.1382/425, southern 2 1/4

cents in S.No.1382/426 and 12 ½ cents in S.No.1382/427 i.e. 15 ½ cents in

all and the building situated therein as per the registered sale deed dated

18.12.1969 from Sakuntala Bai Natarajan widow of late Natarajan Chettiar.

Under the partition deed dated 23.05.1953, Easwaramoorthi Chettiar as https://www.mhc.tn.gov.in/judis

alleged by the plaintiffs, did not get plaint schedule property or the property

situated on north of the plaint schedule property and he has no right

whatsoever in the plaint schedule property any portion of the property

purchased by Kumaraswami Chettiar as per the sale deed dated 18.12.1960.

Out of 5 cents, Kumaraswami Chettiar had executed a registered gift deed

dated 05.05.1971 in favour of the 1st defendant with respect to western cents

and buildings thereon bearing N.M.C.No.10/2-3 and 10/2-6 and from the

date of gift deed, the 1st defendant has been in possession and enjoyment of

the western 2 ¾ cents and the building thereon and the remaining 2 ½ cents

on eastern side was enjoyed by Kumaraswami Chettiar during his life time

as absolute owner and after his death, the same was inherited by defendants

1 to 7 and thus, they are in exclusive possession and enjoyment of the said

entire 5 cents and the building thereon as absolute owners. Whatever the

property got Easwaramoorthy Chettiar was acquired by the State for

formation of road and compensation was also deposited in Sub Court in

LAOP NO.17 of 1931. Ramalekshmi had no right in plaint schedule

property and as such, relinquishment of right of her daughter does not arise.

Therefore, the averments made in the plaint that the plaintiffs 1 to 3 are in

legal possession and enjoyment of the schedule property are totally false.

With these averments, the defendants 1 to 7 sought for dismissal of the suit.

7.The 8th defendant also filed a Written Statement, wherein, it is https://www.mhc.tn.gov.in/judis

stated that the plaintiffs nor their vendors have got any title over the plaint

schedule property. The property was originally belonging to one Ramadhas

who got through partition as per partition deed, who got 5 ½ cents in Old

Survey No.1382/426 and 2 ½ cents in S.No.1382/427 both lie as a single

plot. For formation of new road, 1 ½ cents was acquired by the Government

and east of this property adjacent is a poramboke measuring 9 /12 cents was

also in possession and enjoyment of Ramadhas, who sold the plaint

schedule property and poramboke enjoyment right to one Murugeswari on

4.4.1985. The 1st plaintiff is a tenant under Ramadhas. The property of

Easwaramoorthy Chettiar was acquired by the Government for formation of

new road and the compensation amount was also deposited in LAOP No.17

of 1981 before the Sub Court, Nagercoil. The 1st plaintiff's wife got the sale

deed from persons having no right and title and by using the fraudulent

document, the 1st plaintiff's wife got municipality assessment in her name

for the buildings NMC No.10/2-2 and 10/2-6. But when Murugeswari

purchased from Ramadhas and the vendor to this defendant filed petition to

the authorities and thereby, the assessment in favour of the 1st plaintiff 's

wife came to be cancelled by the Municipal authorties and assessment was

made in the name of Murugeswari. She filed RCOP against the 1st plaintiff

and during pendency of the eviction proceedings, the 8th defendant

purchased the property from Murugeswari. The earlier suit in O.S.No.700

of 1992 filed by the plaintiffs for declaration and injunction was dismissed https://www.mhc.tn.gov.in/judis

and no appeal has been preferred by them. Therefore, the present suit filed

by the plaintiffs is hit by doctrine of res judicata. With these averments, the

8th defendant also sought for dismissal of the suit.

8.The trial Court, on consideration of both oral and documentary

evidence adduced on behalf of the parties, by framing necessary issues,

dismissed the suit vide judgment and decree dated 31.10.2011. Aggrieved

by the said judgment and decree of the trial Court, the plaintiffs/appellants

have preferred an appeal in A.S.No.17 of 2012. By judgment and decree

dated 19.07.2018, the lower appellate Court dismissed the appeal

confirming the decree and judgment of the trial Court.

9.Challenging the concurrent judgments and decree of the Courts

below, the plaintiffs/appellants have come forward with the present appeal.

10.The learned counsel appearing for the appellants would contend

that both the Courts below have erroneously held that the appellants are not

entitled to the suit property without properly appreciating the evidence,

particularly documentary evidence available in favour of the appellants,

since Ex.B65 clearly establishes the right of the appellants and their

predecessor in title over the suit properties and the respondents cannot

dispute the same since it is more than 30 years old and that under Ex.A1, https://www.mhc.tn.gov.in/judis

sale deed, the first plaintiff's wife got the suit property and also north side of

suit property. He would also contend that the lower appellate Court ought

to have considered that the appellants have produced subsequently

necessary documents to correlate the old survey numbers and new survey

numbers, viz., Old S.No.1382/426 is correlated to New S.No.7/4, 5,6,7 of

Nagercoil, by filing application under Order 41 Rule 27 CPC, but without

proper reasons, the said application came to be dismissed and thereby

deprived the appellants to project their case. He also contended that the

respondents.

11.According to the learned counsel for the appellants, the Courts

below failed to consider the northern boundary recitals in Ex.B2 which

clearly shows as “south of Easwaramoorthy Chettiar's land, while the Courts

below wrongly relied upon earlier suit proceedings in O.S.No.700 of 1992

and erroneously held that the suit is barred. Therefore, the learned counsel

for the appellants would pray this Court to set aside the concurrent findings

of the Courts below.

12.On the other hand, the learned counsel appearing for the

respondents would submit that the Courts below have rightly appreciated

the evidence available on record and the respondents have established that

the appellants are not entitled to the suit schedule property and that already, https://www.mhc.tn.gov.in/judis

the dispute has been settled in O.S.No.700 of 1992 filed by one

Ramalekshmi as regards the suit schedule property and thereby, correctly

held that the suit is barred by res judicata and therefore, no interference by

this Court is required.

13.Heard the learned counsel for the appellant and the learned

counsel for the respondents 1 to 6 and perused the entire materials available

on record.

14.The appellants claimed the suit property situated in S.No.1382/426

of Nagercoil measuring to an extent of 3.3/4 cents on southern side of their

property which was originally belonged to one Easwaramoorthy Chettiar

who got the same under a partition deed dated 25.03.1953 and after his

demise, the legal heirs executed a registered sale deed dated 24.01.1984 in

favour of the first appellant's wife, one Ramalekshmi and the appellants

being the legal heirs of said Ramaleskhmi inherited the same since the

daughters of Ramalekshmi relinquished their right in favour of the

appellants. In the earlier suit filed by Ramaleskhmi in O.S.No.700 of 1992

against the respondents herein, the plaintiff therein had mentioned only 5

cents as schedule of property and never filed the suit for demarcation of

boundary within the said 5 cents and for putting up temporary wall, a

written agreement was made between 1st defendant and Ramalekshmi on https://www.mhc.tn.gov.in/judis

27.10.1984. Further, the Advocate Commissioner has mentioned 5 cents is

situated on southern side of 4 cents, over which, the respondents who were

the defendants in the above suit, had never raised any objections. The

appellants further claimed that the earlier suit in O.S.No.700 of 1992 was

filed only for seeking declaration and injunction, but the present suit is for

demarcation of boundary and fixation of appellant's southern boundary and

hence, the subject property in the suit O.S.No.700 of 1992 has nothing to do

with the present suit filed by the appellants.

15.On perusal of the entire documentary evidence available on

record, this Court finds that Late Easwaramoorthy Chettiar had land in

T.S.No.D3-7/4 measuring 7.9 cents situated on northern side and the same

was acquired by the State Government for the purpose of formation of road

under the provisions of the Land Acquisition Act and the compensation was

also deposited and lying in Sub Court in LAOP No.17 of 1981 and

therefore, after acquiring the property belonging to Easwaramorrthy,

virtually he has no right in the suit property and no title flows to his legal

heirs who could sell the same to Ramalekshmi by virtue of sale deed dated

24.01.1984 under Ex.B1 as claimed by the appellants. As such, Ex.B1

cannot be relied upon and thereby, it can be safely held that the said

Ramalekshmi was not having title to any property to claim right in her

favour and she never got any right over the suit property. In fact, a perusal https://www.mhc.tn.gov.in/judis

of Ex.B1 registered sale deed, dated 18.12.1969 it would reveal that

originally, one Nadarajan Chettiar was possessing 15 ½ cents including the

plaint schedule property and building and the legal heirs of said Nadarajan

Chettiar had executed Ex.B1 in favour of one Kumarasamy Chettiar who

purchased the same and he in turn, by way of gift deed dated 05.05.1971

which is marked as Ex.B2 in favour of his daughter Chellammal, 1 st

respondent in respect of western side 2 ½ cents and the building bearing No.

10/2-3 and 10/2-6 and the remaining 2 ½ cents were inherited by

respondents 1 to 7 after demise of Kumaraswamy Chettiar and thereby, the

respondents 1 to 7 became absolute owners of the said 5 cents and out of the

same, 4 cents which is described as suit schedule property stands. It is

pertinent to note that Exs.B1 and B2 documents are much earlier to Ex.A1

alleged sale sale deed dated 24.01.1984 under which, the appellants cannot

claim any right or title over the suit property since the vendor of

Ramaleskshmi, Easwarmoorthy Chettiar was not having right over any

property and no land was in his possession after acquisition made by the

State Government.

16.The property originally belonged to one Ramadhas who got the

same through partition deed, measuring to an extent of 5 ½ cents in Old

S.No.1382/426 and 2 ½ cents in S.No.1382/427. On western portion of the

property, buildings bearing N.M.C.Nos.10/2-2 and 10/2-6 are situated https://www.mhc.tn.gov.in/judis

which were also owned by Ramadhas, who sold the suit property including

poramboke land by enjoyment right to one Murugeswari on 4.4.1985. It is

not in dispute that the 1st appellant was a tenant under Ramadhas, who was

running a photo studio in the said building. Further, it is to be noted that by

virtue of Ex.A1 though Ramalekshmi got the municipality assessment in her

name by managing the municipal authorities for the building in N.M.C.No.

10/2-2 and 10/2-6, later it came to be cancelled by the municipal authorities

at the instance of Murugeswari. In fact, Murugeswari filed eviction

proceedings against the 1st appellant and during pendency of RCOP

proceedings, the 8th respondent herein had purchased the suit property from

Murugeswari under Ex.B98 dated 18.3.1989. Despite these facts, the

appellants taking advantage of the Advocate Commissioner report not

mentioning the boundaries properly, without having any right or title over

the suit property claimed their title. The appellants filed the suit to defeat

the right and title of the 8th respondent and further the sale deed Ex.A1 dated

24.01.1984 was not proved by the appellants. In the suit in O.S.No.700 of

1992 filed by Ramaleskhmi for declaration of title and injunction, the 8 th

respondent also contested the same and filed a detailed written statement,

claiming 7 ¾ cents of property including the suit property situated in Old

S.No.1382/426 and 427 which came to be dismissed vide judgment and

decree dated 18.4.2007 Ex.B63. It is not in dispute that the subject property

in the said suit O.S.No.700 of 1992 and the parties are one and the same and https://www.mhc.tn.gov.in/judis

as against the dismissal of the suit, the appellants have not preferred any

appeal. As rightly contended by the learned counsel for the

respondents/defendants, the suit filed by the appellants is also hit by the

doctrine of res judicata.

17.Taking into all the above facts and circumstances coupled with

documentary evidence, both the Courts below have rendered concurrent

findings to the effect that the plaintiffs/appellants herein have not made out

a case and accordingly, dismissed the suit and appeal respectively, wherein,

this Court does not find any illegality or infirmity in order to interfere with

the same. Accordingly, this Court answered all the substantial questions of

law in favour of the respondents and as against the appellants herein.

18.In the result, the present Second Appeal fails and the same is

dismissed. No costs. Consequently, connected miscellaneous petition is

closed.

23.11.2021

dn

To

1.The Principal District Court, Kanyakumar District, at Nagercoil

2.The First Additional Sub Court, Nagercoil https://www.mhc.tn.gov.in/judis

V.BHAVANI SUBBAROYAN ,J.

dn

Second Appeal(MD) No.726 of 2021 and CM.P.(MD)No.9647 of 2021

23.11.2021

https://www.mhc.tn.gov.in/judis