Madras High Court
Andiappan vs Sorimuthu on 30 November, 2021
S.A(MD)No.521 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.521 of 2015
and
M.P.(MD)No.2 of 2015 &
C.M.P(MD)No.3327 of 2016
1.Andiappan
2.Subramanian
3.Gurusamy @ Thayappan ... Appellants/Respondents/
Defendants 2 to 4
Vs.
1.Sorimuthu
2.Sailappan
3.Kumaravel
4.Dhalavai
5.Petchimuthu ... Respondents/Appellants/
Plaintiffs
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 17.03.2014 passed in
A.S.No.45 of 2013, on the file of the Principal District Court, Tirunelveli,
reversing the judgment and decree, dated 19.11.2012 passed in
O.S.No.51 of 2008 on the file of the Sub Court, Ambasmudram.
For Appellants : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
For Respondents : Mr.M.Saravanan
1/13
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S.A(MD)No.521 of 2015
JUDGMENT
This second appeal has been directed against the Judgment and
decree, dated 17.03.2014 passed in A.S.No.45 of 2013, by the Principal
District Court, Tirunelveli and the judgment and decree, dated 19.11.2012
passed in O.S.No.51 of 2008 on the file of the Sub Court, Ambasmudram,
are reversed.
2. The respondents herein as plaintiffs have instituted a suit in
O.S.No.51 of 2008 on the file of the trial Court for recovery of money of a
sum of Rs.2,00,000/- along with interest at the rate of 12% per annum,
wherein, the appellants have been shown as the defendants.
3. In the plaint it is averred that the suit schedule properties belonged
to one deceased Sylappa Pillai by way of sale deed and partition and he
enjoyed the same. From the above said Sylappa Pillai, one Sankaran Pillai
was cultivating the said land as a cultivating tenant with a condition to give
for every Kar, 8 Kotta paddy and for every Pisanam, 8 kotta paddy and the
same was given on or before every October, 2014 and March, 2013 and the
same was not disputed. During the life time of Sylappa Pillai, he filed a suit
in O.S.No.458 of 1987 on the file of the District Munsif Court,
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S.A(MD)No.521 of 2015
Ambasamudram against the said Sankaran Pillai for 1982 Kar to 1987
Pisanam. The said Sylappa Pillai executed a Will on 12.06.1986 and died on
26.02.1988. As per the Will, the plaintiffs, who are the legal heirs of Sylappa
Pillai, are enjoying the same. In the mean time, the plaintiffs filed a suit in
O.S.Nos.422 of 1989, 362 of 1992, 71 of 1992 and 470 of 1993 on the file
of the District Munsif Court, Ambasamudram against the said Sankaran
Pillai and the same are pending.
4. While so, the said Sankaran Pillai, regarding other properties, filed
another suit against the father of the plaintiffs viz., Madasamy in O.S.No.
621 of 1982 stating that as per the settlement deed executed by one
Pappathiammal, the properties belonged to him. Subsequently, Sylappa
Pillai also filed a suit in O.S.No.70 of 1983 against Pappathiammal @
Parvathi, Sankaran Pillai, Sundararaja Pillai and Madasamy Pillai. In the
above said suits, the Will executed by Sylappa Pillai was declared as null
and void. Against which, appeals were filed in A.S.Nos.94, 95, 96 and 97 of
1992 and the same were dismissed on 10.02.1998. Challenging the same, the
plaintiffs filed Second Appeals in S.A.Nos.740 to 743 of 2009 before this
Court. In the mean while, the said Sankaran Pillai died and his legal heirs
were cultivating the same. In the above said Second Appeals, Judgment was
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S.A(MD)No.521 of 2015
pronounced on 19.03.2008 in favour of the appellants and the settlement
executed by Sankaran Pillai and the Will executed by Sylappa Pillai were
accepted. Hence, as per the Will, the plaintiffs are entitled for the suit
schedule properties and from the year 1994 to 2008 Kar, Pisanam period as
pattom 232 kotta paddy has to be given by the defendants to the plaintiffs.
Hence, for the pattom arrears, the plaintiffs have come forward with the
present suit praying to pay a sum of Rs.2,00,000/- with interest at the rate of
12% per annum.
5. In the written statement filed on the side of the defendants, the
defendants denied the averment that 8 Kotta for Kar and 8 Kotta for Pisanam
as pattom was accepted by Sankaran Pillai. In fact, 6-1/8 kotta was accepted
for both Kar and Pisanam. The defendants also denied the averment that the
plaintiffs are enjoying the property as per the Will executed by Sylappa
Pillai, dated 12.06.1986. The plaintiffs are entitled for arrears of pattom only
for three years prior and not from the year 1994 and prayed for dismissal of
the suit.
6. Before the trial Court, on the side of the plaintiff, the first plaintiff
examined himself as P.W.1 and Exs.A1 to A9 were marked. On the side of
the defendants, no one was examined and Exs.D.1 & D.2 were marked.
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S.A(MD)No.521 of 2015
7. On the basis of the rival pleadings on either side, the trial Court has
framed necessary issues and after evaluating both the oral and documentary
evidence, has partly decreed the suit directing the defendants to pay a sum of
Rs.28,800/- towards pattom and dismissed the remaining claim of the
plaintiffs.
8. Aggrieved by the disallowed portion of the trial Court, the plaintiffs
as appellants, had filed an Appeal Suit in A.S.No.45 of 2013. The first
appellate Court, after hearing both sides and upon reappraising the evidence
available on record, has set aside the Judgment and Decree passed by the
trial Court regarding the fact that the plaintiffs are not entitled to the pattom
for the period from 1995 Kar, Pisanam to 2005 Pisanam, Kar and stated that
the plaintiffs are entitled for arrears of pattom of balance amount of
Rs.1,71,200/-.
9. Challenging the judgment and decree passed by the first Appellate
Court, the present second appeal has been preferred at the instance of the
defendants, as appellants.
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S.A(MD)No.521 of 2015
10. At the time of admitting the present second appeal, the following
substantial question of law has been framed for consideration:
"a) Whether the finding of the first Appellate Court
that the period between Judgment in A.S.Nos.94 to 97 of
1992 dated 10.02.1998 and the Judgment in S.A.Nos.740
to 743 of 1998 dated 19.03.2008 arising from the suit
proceedings in O.S.Nos.89, 821, 622 of 1982 and 270 of
1983 has to be excluded in computing the period of
limitation for filing the suit in O.S.No.51 of 2008 on the
file of the Sub Court, Ambasamudram as per Sections 14
and 15 of the Limitation Act, 1963 is correct?
b) When the proceedings in A.S.Nos.94 to 97 of 1992
and S.A.Nos.740 to 743 of 1998 are not founded upon the
same cause of action for the filing of the present suit in
O.S.No.51 of 2008 whether the benefit of excluding of time
spent in the above said proceedings is available to the
respondents?
c) When it is not the case of the respondents that they
have prosecuted the previous litigation in A.S.Nos.94 to 97
of 1992 and S.A.Nos.740 to 743 of 1998 in good faith in
those Courts having no jurisdiction, whether the first
Appellate Court is correct in accepting the case of the
respondents that those period has to be excluded to
calculate period of limitation for filing an entirely different
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S.A(MD)No.521 of 2015
suit in O.S.No.51 of 2008 on the file of the Sub Court,
Ambasamudram?
d) Whether interference of this Hon'ble Court is
warranted since the trial Court and the first Appellate
Court have given diverse findings regarding the
applicability of the benefit under Sections 14 and 15 to the
respondents in computing the period for limitation for
filing the suit in O.S.No.51 of 2008 on the file of the Sub-
Court, Ambasamudram?"
11. The learned counsel appearing for the appellants/defendants
contended that the finding of the first Appellate Court that the period
between 10.02.1998 to 19.03.2008 has to be excluded in calculating the time
for filing the suit in O.S.No.51 of 2008 on the file of the Subordinate Court,
Ambasamudram, is erroneous. The first Appellate Court failed to note the
cause of action for initiating the previous suit proceedings and the cause of
action for filing the present suit in O.S.No.51 of 2008 on the file of the
Subordinate Court, Ambasamudram are different. The first Appellate Court
has misconstrued the provisions of Sections 14 and 15 of the Limitation Act.
The first Appellate Court ought not to have reversed the well considered
findings of the trial Court and prayed for allowing the Second Appeal.
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S.A(MD)No.521 of 2015
12. The learned counsel appearing for the respondents/plaintiffs
would submit that the first Appellate Court, after analysing the documents
available on record, has rightly allowed the Appeal in favour of the
respondents/plaintiffs and prayed for dismissal of the Second Appeal.
13. Heard the learned counsel for the appellants and the learned
counsel appearing for the respondents and perused the materials available on
record.
14. On a perusal of the materials available on record, it is seen that the
respondents/plaintiffs have filed a suit for pattom arrears of Rs.2,00,000/-
along with interest at the rate of 12% per annum from the year 1994 to 2008
Kar, Pisanam period. It is the case of the appellants/defendants that the
plaintiffs are entitled for arrears of pattom only for three years prior and not
from the year 1994. The trial Court found that the defendants are cultivating
tenants under the plaintiffs in respect of the suit lands and the defendants are
liable to pay arrears of pattom only for the period of three years prior to the
filing of the suit at the rate of Rs.600/- per Kottai and granted decree of
realization of amount of Rs.28,800/-. Aggrieved over the dismissal of the
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S.A(MD)No.521 of 2015
suit in respect of other pattom for the period from 1995 Kar, Pisanam till
2005 Kar, Pisanam, the plaintiffs preferred the first Appeal.
15. Ex.A.1 is the appeal judgment of A.S.Nos.94 to 97 of 1992 on the
file of the Subordinate Court, Ambasamudram in respect of various suits
filed between the plaintiffs, defendants 2 to 4 and the father of the
defendants 2 to 4 and the husband of the first defendant viz., Sankaran Pillai
and in that appeals, Ex.A.5-Will was relied on by the plaintiffs and the
Judgment and Decree of the Second Appeals in S.A.Nos.740 to 743 of 1998,
dated 19.03.2008 was marked as Ex.A.8. The plaintiffs are claiming right
over the suit properties on the basis of Ex.A.5-Will executed by Sylappa
Pillai in favour of the plaintiffs. The trial Court held that the plaintiffs are
entitled to the pattom only for the period from 3 years prior to the filing of
the suit and other period was barred by limitation, hence, the landlord and
cultivating tenant relationship between the plaintiffs and defendants is not
disputed.
16. On a perusal of Ex.A.5, it is clear that the testator of the Will
bequeathed not only the schedule properties mentioned in the Will, but also
entire movable and immovable properties by way of Ex.A.5-Will in favour
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S.A(MD)No.521 of 2015
of the plaintiffs. As the Will was decided as not valid in Ex.A.1, as per the
Judgment and Decree in A.S.Nos.94 to 97 of 1992, dated 10.02.1998, the
plaintiffs were prevented from claiming arrears of pattom from the
defendants till Ex.A5-Will was decided as valid as per the Judgment of this
Court in Ex.A.8 in S.A.Nos.740 to 743 of 1998, dated 19.03.2008. Though
the previous suits are in respect of other properties and not for the present
suit properties, the present suit properties are covered under the same Will
unless and until the Will was decreed or decided as valid one, the plaintiffs
were debarred from claiming arrears of pattom from 3 years prior to
10.02.1998 till 2005 and the plaintiffs are entitled to claim arrears of pattom
from the defendants. Hence, the claims are not barred by limitation under
Sections 14 and 15 of the Limitation Act, 1963. The first Appellate Court
has rightly held that the plaintiffs are entitled for arrears of pattom from the
year 1998 Kar, Pisanam to 2005 Kar, Pisanam and held that the plaintiffs are
entitled to the balance amount of Rs.1,71,200/- as claimed by them and the
substantial questions of law are answered as against the
appellants/defendants and in favour of the respondents/plaintiffs.
17. The learned counsel appearing for the appellants/defendants
submitted that as per the interim order passed by this Court on 09.09.2015,
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S.A(MD)No.521 of 2015
already the appellants/defendants have deposited a sum of Rs.71,200/- and
seeks time for depositing the remaining amount of Rs.1,00,000/- in three
installments.
18. The appellants/defendants are directed to deposit the first
instalment at Rs.35,000/- in the month of January 2022, the second
instalment at Rs.35,000/- in the month of February, 2022 and the third
instalment at Rs.30,000/- in the month of March, 2022.
19. In fine, this Second Appeal is dismissed and the judgment and
decree, dated 17.03.2014 passed in A.S.No.45 of 2013, on the file of the
Principal District Court, Tirunelveli, is confirmed. No costs. Consequently,
connected Miscellaneous Petitions are closed.
30.11.2021
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.521 of 2015
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but, ensuring
that the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
To
1.The Principal District Court,
Tirunelveli.
2.The Sub Court,
Ambasmudram.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.521 of 2015
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.521 of 2015
30.11.2021
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