Madras High Court
Russalian (Died) vs Ramayyan on 21 September, 2021
S.A.(MD)No.888 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.888 of 2007
and
M.P.(MD)No.1 of 2007
1.Russalian (Died)
2.Sathiyanesan
3.Ambrose
4.Rajamony
5.Rugmony
6.Indira
7.Rajan ... Appellants
(Appellants 5 to 7 are brought on record as LRs
of the deceased 1st appellant vide order dated
03.08.2021 made in C.M.P.(MD)No.6055 of
2021 in S.A.(MD)No.888 of 2007 by GRSJ)
Vs.
1.Ramayyan
2.Masillamony
3.Raveendran
4.Rathinammal
5.Sureshkumar ... Respondents
(Respondents 4 and 5 are suo motu brought
on record as LRs of the deceased 1st
respondent vide order dated 03.08.2021
made in S.A.(MD)No.888 of 2007 by GRSJ)
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S.A.(MD)No.888 of 2007
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed in A.S.No.33 of 2004 dated 21.02.2007
on the file of the Sub Court, Kuzhithurai, confirming the judgment and decree
passed in O.S.No.101 of 1999 dated 22.03.2004 on the file of the learned II
Additional District Munsif Court, Kuzhithurai.
For Appellants : Mr.K.Sreekumaran Nair
For Respondents : Mr.V.K.Vijaya Ragavan for R2 to R5
JUDGEMENT
This second appeal arises out of a suit for partition. The defendants in
O.S.No.101 of 1999 on the file of the II Additional District Munsif Court,
Kuzhithurai are the appellants in this second appeal. During pendency of the
appeal, the first appellant as well as the first respondent passed away and their
legal representatives have come on record.
2.The case of the plaintiffs is that they are the co-owners of the suit
property comprised in old Survey No.907/2 in Nallur Village, Kuzhithurai
Municipality measuring an extent of 15 cents along with the defendants.
According to the plaintiffs, they are entitled to half share therein while the
remaining half share belongs to the defendants. The plaintiffs sought partition
of their half share to be allotted on the western side. The defendants filed a
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S.A.(MD)No.888 of 2007
detailed written statement controverting the plaint averments. According to
them, the entire suit property belonged to the defendants' family and that the
plaintiffs have no right or title or interest therein. The defendants would further
contend that the plaintiffs were never in possession of the suit property.
According to them, for almost 50 years, their family was in possession and
occupation of the same. Their father namely, Kolappan Nadar put a house
thereon. Following the demise of their father, in the year 1982, a partition deed
was executed in which the suit property was allotted to the defendants and their
mother. They have divided the suit property into four plots, each plot
measuring 4 cents and 125 square links. On the suit property, buildings have
been put up. According to the defendants, the plaintiffs are not entitled to any
share in the suit property. In response to the same, the plaintiffs filed reply
statement also. Based on the divergent pleadings, the trial Court framed the
necessary issues.
3.The second plaintiff/Masillamony examined himself as P.W.1 and
Exs.A1 to A17 were marked. The first defendant/Russalian examined himself
as D.W.1 and Exs.B1 to B19 were marked. An advocate commissioner was
appointed and his report and plan were marked as Exs.C1 and C2. He was also
examined as Court witness as C.W.1.
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S.A.(MD)No.888 of 2007
4.After a consideration of the evidence on record, by judgment and
decree dated 22.03.2004, the trial Court passed preliminary decree for partition
holding that the plaintiffs are jointly entitled to half share in the suit property
and the allotment of western side was to be decided at the time of passing the
final decree. Aggrieved by the same, the defendants filed A.S.No.33 of 2004
before the Sub Court, Kuzhithurai. The first appellate Court by the impugned
judgment and decree dated 21.02.2007 confirmed the decision of the trial Court
and dismissed the appeal. Challenging the same, this second appeal came to be
filed.
5.The second appeal was admitted on the following substantial question
of law:-
“Whether the judgment and decree of the Courts
below are perverse on account of its misconstruction of the
documents exhibited on the side of the appellants as well as
the respondents more particularly Exs.A6 to A17?”
6.The learned counsel for the appellants submitted that the Courts below
had failed to note that the suit was not maintainable. He would point out that
many of the revenue documents marked by the plaintiffs do not even bear any
date. In any event, mere entries in revenue documents cannot create any title.
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S.A.(MD)No.888 of 2007
He would also point out that the Courts below have granted decree in favour of
the plaintiffs by taking note of the judgment and decree made in O.S.No.630 of
1110 (Malayam era) on the file of the District Munsif Court, Kuzhithurai vide
Exs.A12 and A13. He would point out that neither in the plaint nor in the reply
statement, there is no reference to this judgment and decree. When the entire
case of plaintiffs is founded on this decree and when the Courts below have
chosen to heavily rely on the same, the plaintiffs were obliged to have made a
reference to the same in the plaint averments. In any event, they should have
included them in the list of documents. The learned counsel referred to Order 7
Rule 14 of Civil Procedure Code in this regard. The learned counsel submitted
that the present suit was clearly not maintainable in view of Sections 11, 47 and
97 of Civil Procedure Code. Even according to the plaintiffs, the suit property
was the subject matter of a previous partition suit between their predecessors in
title. When a preliminary decree was passed way back on 09.01.1945, a second
suit for partition was clearly not maintainable. In this regard, the learned
counsel for the appellants placed reliance on the decisions reported in AIR
1997 SC 2719 (Balwant Singh Vs. Daulat Singh), 2005 (4) CTC 9
(M.E.A.Mohamed Ali and Others Vs. The District Revenue Officer, Ramnad
Collectorate, Ramanathapuram and Others), and 1996 (2) CTC 199
(Arulmigh Viswewaraswami Vs. R.V.E.Venkatachala Gounder). He called
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S.A.(MD)No.888 of 2007
upon this Court to answer the substantial question of law in favour of the
appellants and set aside the impugned judgments and decree and allow this
second appeal and dismiss the suit.
7.Per contra, the learned counsel for the respondents submitted that the
judgment and decree of the Courts below are well founded and reasoned and
that the impugned judgments and decrees do not warrant any interference.
8.I carefully considered the rival contentions and went through the
evidence on record. It is true that neither in the plaint nor in the reply
statement, the plaintiffs have made any reference to the judgment and decree
made in O.S.No.630 of 1110 (M.E) on the file of the District Munsif Court,
Kuzhithurai dated 09.01.1945. It is also true that Exs.A12 to A14 were not
included in the list of documents or produced along with the plaint. The
primary question that arises for my consideration is whether on this ground, I
have to interfere with the impugned judgments and decrees. As rightly pointed
out by the learned counsel appearing for the respondents, when these
documents were marked by the plaintiffs through P.W.1, no objection was taken
by the defendants. In fact, their genuineness was not even questioned. The fact
remains that as on date, the judgment and decree made in O.S.No.630 of 1110
(M.E) is before me.
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S.A.(MD)No.888 of 2007
9.The learned counsel appearing for the respondents draws my attention
to the decision reported in (1962) 1 M.L.J. 193 (Thirumalai Iyengar Vs Subba
Raja), in which it has been held that the duty of the Court is to give effect to
the inference to be drawn from the evidence on record and it is not prevented
from recording a finding which may not be consistent with the pleadings either
party in a suit. This decision was followed by the Hon'ble Division Bench in
the decision reported in 1993-2-L.W. 387 (T.L.Sadagopan and Others Vs.
T.N.K.Ramanujam and Others) at paragraph No.30. Therefore, the necessary
inferences that logically flow from the judgment and decree in O.S.No.630 of
1110 (M.E) will have to be given effect to. There cannot be any dispute that
the fifth defendant therein was the father of the first and second plaintiffs
herein. The sixth defendant is the paternal grandfather of the third plaintiff in
the present case. The said suit was instituted by Cheriyan Nadar, who is none
other than the grandfather of the defendants herein and the father of Kolappan
Nadar. There is again no dispute that the present suit property that is comprised
in old Survey No.907/2 was included as part of item No.1 in the suit schedule
in O.S.No.630 of 1110 (M.E). The family of the plaintiffs herein was allotted
1/3rd share in O.S.No.630 of 1110 (M.E) as far as the present suit property is
concerned. The defendants' family was also allotted 1/3rd share. Though the
parties to O.S.No.630 of 1110 (M.E) could be divided into three families and
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S.A.(MD)No.888 of 2007
each family was allotted 1/3rd share, the stand taken in reply statement is that
under Odukkur settlement, the suit property was divided into two and the
plaintiffs herein got half share, while the defendants got the remaining half
share. Though the Odukkur settlement was not marked by the plaintiffs, the
host of revenue records filed by them particularly Ex.A6 and other exhibits
would indicate that the names of both the families namely, that of plaintiffs and
defendants are reflected in respect of the suit property. The proposition that the
entries in revenue record will not create or extinguish title is beyond cavil. But
when coupled with other evidence adduced on either side, they would
definitely make a difference. As per Exs.A12 to A14, it has been shown that
the plaintiffs' family was given a share in the suit property comprised in old
Survey No.907/2. The revenue documents that are subsequent in point of time,
though their specific dates may not be clear, too reflect the names of the
plaintiffs in respect of the suit property. Therefore, the Courts below rightly
came to the conclusion that on a cumulative reading of the entire evidence
adduced on the said of the plaintiffs, they have convincingly demonstrated that
they are entitled to half share in the suit property.
10.Exs.A15 and A16 are another relevant piece of evidence adduced by
the plaintiffs. It can be seen therefrom that the said documents are the sale
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S.A.(MD)No.888 of 2007
deed executed by one Chellathai in favour of the father of the third plaintiff.
The subject matter of the said sale deed clearly pertains to the suit property.
Under the said document, the vendor had sold little over a cent of land in
favour of the father of the third plaintiff. The document is dated 01.11.1962.
The suit was instituted in the year 1999. The said Chellathai is none other than
the 103rd defendant in O.S.No.630 of 1110 (M.E). From this, I can safely
conclude that the plaintiffs have clearly established that they do have share in
the suit property. Ex.A15 could not have been fabricated or engineered for the
purpose of instituting the present suit. A document that was executed some 37
years prior to the filing of the suit would obviously invoke the confidence of
the Court.
11.Of course, I have to deal with the contentions of the learned counsel
for the appellants that an adverse view of the plaintiffs will have to be taken in
view of their omission to include all these documents along with the plaint.
12.Order 7 Rule 14 of Civil Procedure Code mandates that when a
plaintiff relies upon a document in his possession or power in support of his
claim, he shall enter the said document in the list of documents and produce it
when the plaint is presented. If it is not in his possession or power, he should
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S.A.(MD)No.888 of 2007
say as to where it is. But there is no bar for the plaintiff to produce the same
later. Of course, it cannot be done without the leave of the Court. The Court
can grant leave either expressly or impliedly. By permitting the plaintiff to
mark the document, the Court below had impliedly granted leave as
contemplated under Order 7 Rule 14 of Civil Procedure Code.
13.Of course, yet another contention was advanced by the learned
counsel for the appellants as regards the very maintainability of the present suit.
The grandfather of the defendants filed a partition suit way back in the year
1945. A preliminary decree was also passed. The present suit property was
also included therein. The plaintiffs had also been allotted 1/3 rd share.
Therefore, the only course open to the plaintiffs was to have filed only a
petition for passing final decree in terms of the judgment and decree made in
O.S.No.630 of 1110 (M.E).
14.I sustain the said contention but I would hold that the present suit
itself can be considered as partaking the character of a final decree petition. In
fact, the Courts below appear to have proceeded on the same basis. That is
why, they have indicated that western side of the suit property can be allotted in
favour of the plaintiffs. Normally, equities are to be considered only at the time
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S.A.(MD)No.888 of 2007
of passing final decree. Since, I am considering the present suit proceedings as
partaking the character of final decree proceeding, I convert the said
observation into a direction. The substantial question of law is answered
against the appellants and the second appeal is dismissed. Both the plaintiffs
and the defendants are entitled to access the road in front of the northern side.
No costs. Consequently, connected miscellaneous petition is closed.
21.09.2021
Index : Yes / No
Internet : Yes/ No
ias
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 Sub Court, Kuzhithurai.
2.The II Additional District Munsif Court,
Kuzhithurai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.888 of 2007
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.888 of 2007
21.09.2021
https://www.mhc.tn.gov.in/judis
