Madras High Court
Valliammal (Died) vs Ponnusamy on 8 April, 2022
1 S.A.(MD)No.924 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.924 of 2010
Valliammal (Died) ... Appellant / Respondent /
Defendant
2. K.Jeyalakshmi
3. K.Muthukutty
4. K.Mariappan
5. Sivasakthi
(Appellants 2 to 5 were suo motu impleaded
vide Order dated 23.02.2022)
... Appellants 2 to 5
Vs.
1. Ponnusamy
2. Shanmugaraja ... Respondents / Appellants /
Plaintiffs
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree dated
22.06.2010 made in A.S.No.10 of 2010 on the file of the
learned Additional Subordinate Judge, Tirunelveli, reversing
the Judgment and Decree of the trial Court dated 06.07.2009
made in O.S.No.467 of 2007 on the file of the learned
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1/10
2 S.A.(MD)No.924 OF 2010
Principal District Munsif, Tirunelveli and to allow the second
appeal.
For Appellants : Mr.D.Srinivasaragavan,
for Mr.S.P.Maharajan.
For Respondents : Mr.H.Arumugam
***
JUDGMENT
Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondents.
2. The defendant in O.S.No.467 of 2007 on the file of
the Principal District Munsif Court, Tirunelveli, filed this
second appeal.
3. During the pendency of the second appeal, the
defendant passed away. Her legal heirs have come on record.
The suit was filed for the relief of recovery of possession. The
suit property is comprised in Survey No.49/2,
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Sindhupoonthurai East Street, Tirunelveli Taluk bears door
No.14-G.A.6. The defendant filed written statement
controverting the plaint averments. Based on the divergent
pleadings, the trial Court framed necessary issues. The first
plaintiff Ponnusamy examined himself as P.W.1 and marked
Ex.A.1 to Ex.A.12. On the side of the defendant, three
witnesses were examined and Ex.B.1 to Ex.B.13 were marked.
After considering the evidence on record, the trial Court by
judgment and decree dated 06.07.2009 dismissed the suit.
Challenging the same, the plaintiffs filed A.S.No.10 of 2010
before the Additional Sub Court, Tirunelveli. By the impugned
judgment and decree dated 22.06.2010, the first appellate
Court reversed the decision of the trial Court and allowed the
appeal and decreed the suit as prayed for. Challenging the
same, this second appeal came to be filed.
4. The second appeal was admitted on 09.12.2010 on
the following substantial questions of law:-
“ (1) Whether the lower appellate Court
has committed an error in holding that the
judgments under Ex.A.2 and A4 are judgments in
rem binding on the appellant / defendant also?
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2. Whether the lower appellate Court has
committed an error in law in holding that the
present suit is not hit by the principle of res
judicata in the light of the judgment in O.S. No.198
of 2002, which was confirmed by the lower
appellate Court in A.S.No.184 of 2004?
3. Whether the lower appellate Court has
committed an error in disagreeing with the finding
of the trial Court that the permissive possession of
the defendant pleaded by the plaintiffs was not
established and reversing the said finding of the
trial Court? ”
5. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants and set aside the
impugned judgment and decree and restore the decision of the
trial Court.
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6. Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree do not call for any interference.
7. I carefully considered the rival contentions and
went through the evidence on record.
8. I am satisfied that the suit property is covered
under Ex.A.1. Of course under Ex.A.1, 5 cents of land were
conveyed to the purchaser. The suit property is of much
smaller extent. But a careful perusal of the suit schedule and
the four boundaries mentioned in Ex.A.1 would indicate that
the suit property is very much covered under Ex.A.1.
9. Now the primary question that falls for
consideration is whether the first appellate Court was justified
in decreeing the suit based on Ex.A.2 and Ex.A.4 to which the
defendant was not a party. Of course Ex.A.2 and Ex.A.4
judgments cannot be considered as judgments in rem but they
are certainly admissible in evidence under Section 13 of the
Indian Evidence Act. The Hon'ble Supreme Court in the
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decision reported in 1998 (3) SCC 331 (Tirumala Tirupati
Devasthanams V. K.M.Krishnaiah) had held that a
judgment not inter partes is admissible in evidence under
Section 13 of the Evidence Act as evidence of an assertion of a
right to property in dispute. Therefore, they may not be
considered as judgments in rem. The first substantial question
of law is answered accordingly.
10. The next question that falls for consideration is
whether the defendant has shown better title compared to that
of the plaintiffs. Even according to the defendant, her
father-in-law Lakshmana Nadar was in possession of the suit
property and that following his demise, she is in possession
and occupation of the suit property. The defendant had
marked only Ex.B.1 and Ex.B.2 the judgment and decree in
A.S.No.184 of 2004 on the file of the II Additional Sub Court,
Tirunelveli. It was only an injunction suit. Under Ex.B.1 and
Ex.B.2, the decree of permanent injunction had been granted
in favour of the defendant taking note of her possession over
the suit property. That is why, the present suit was filed for
recovery of possession. A person in settled possession can be
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dispossessed only by due process of law. Ex.B.1 and Ex.B.2
cannot come in the way of a suit for recovery of possession.
The suit on hand is not hit by res judicata. The second
substantial question of law is answered against the appellants.
11. I went through the evidence adduced by the
defendant. The defendant does not have any title document in
her favour. ' B ' memos have been marked as Ex.B.11. It
appears that the suit property was classified as nandhavanam
poramboke. Therefore, the plaintiffs herein along with their
mother filed O.S.No.97 of 1987 before the Principal District
Munsif, Tirunelveli in respect of the suit property against the
Tamil Nadu Government. They obtained declaration in their
favour. This effectively undermines the entire defence put
forth by the defendant herein.
12. The specific case of the plaintiffs is that their
father had permitted the defendant's father-in-law to be in
occupation of the suit property; it was only a permissive
possession. Once the permission is revoked, then the
defendant has to surrender possession. In this case, the
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plaintiffs issued notice dated 08.08.2007 calling upon the
defendant to hand over possession. Though she received the
notice as evidenced by acknowledgment Ex.A.11, she did not
give any reply. Only a caveat was filed.
13. The learned counsel appearing for the appellants
argued that without seeking the relief of declaration, the
plaintiffs could not have maintained a simple suit for recovery
of possession. Such a stand was in fact taken in the written
statement. I do not find any merit in the said contention. Only
if the defendant can place sufficient materials so as to cast
cloud on the plaintiffs' title, the plaintiffs would be obliged to
include the prayer for declaration also. In this case, the
defendant has not placed any material to prove her claim of
title over the suit property. On the other hand, the plaintiffs
trace their title to Ex.A.1. Ex.A.2 to Ex.A.4 are decrees which
show that the plaintiffs had asserted and proved they have
title over the suit property. Looked at from any angle, the
plaintiffs have convincingly established their title over the suit
property. There is zero evidence on the side of the defendant.
The first appellate Court rightly approached the issue and
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decreed the suit as prayed for. The third substantial question
of law is also answered against the appellants.
14. This second appeal is dismissed. No costs.
08.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
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 Additional Subordinate Judge,
Tirunelveli.
2. The Principal District Munsif,
Tirunelveli.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.924 of 2010
08.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
