Madras High Court
S.Abdul Munab ... Review vs Saradammal on 4 July, 2022
1 Rev.Appln.No.140 /2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
Rev.Appln.No. 140 of 2014
and
CMP.No. 6404 of 2017
S.Abdul Munab ... Review Petitioner/Appellant
Vs
1. Saradammal
2. Selvarani
3. Thilagavathy
4. Priya
5. Saritha
6. Nandhini (Minor)
7. Gayathri (Minor)
Minors 6 and 7 rep. by
Selvarani ... Respondents/Respondents
PRAYER: Review Application filed under Order 47 Rule 1 read with 114
of CPC, against the Judgment and Decree passed in S.A.No. 1359 of 2007
dated 18.02.2014 by Her Lordship Justice Tmt. Pushpa Satyanarayana.
***
https://www.mhc.tn.gov.in/judis
2 Rev.Appln.No.140 /2014
For Petitioner : Mr. P. Mani
For RR 2 to 7 : Mr. S.Siva Shanmugam
for Mr. K.Gangadaran
ORDER
This review has been filed by the appellant in S.A.No. 1359 of 2007
calling upon the Court to once again re-examine the reasons given while
dismissing the Second Appeal by Judgment dated 18.02.2014.
2. The review applicant/appellant was the plaintiff in O.S.No. 7675 of
1995 on the file of the District Munsif cum Judicial Magistrate No.1
Wallajapet. The said suit was filed seeking declaration of title and for a
direction against the defendants therein, who are the respondents herein to
put the plaintiff in possession of the suit property after demolishing the
additional hut put up by the defendants and for a direction to pay the costs
of the suit.
3. The schedule of the property was house in Wallajapet Municipal
Town in Bujanna Rao Street together with vacant site in Municpal Door
Nos. 58, 59, Town Survey No.1291 in Wallapet, Vellore District. The
plaintiff claimed that he had purchased the said property by a registered
sale deed dated 04.01.1985 and that after purchase, the husband of the first
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defendant / father of the second defendant, one Renu Achari was put in
possession of the said property. Thereafter, the said Renu Achari suddenly
died leaving behind the defendants. When the plaintiff sought possession,
the defendants contested such claim, necessitating institution of the suit for
declaration of tile and to be put up in possession.
4. A written statement had been filed in the said suit wherein it had
been stated that the suit property originally belonged to one Sundarajalu
Naidu and that thereafter he had executed a registered Will dated
04.05.1940 in favour of his son Ragavalu Naidu, granting life interest to
Ragavalu Naidu and ultimately bequeathing it to his three sons, Kasavel
Naidu, Sudarsana Babu and Giri Babu. They had sold the property to the
plaintiff. The defendants contended that they had been in possession for
more than 30 years by constructing house and paying necessary property
tax and that Ragavalu Naidu was never in possession of the property and
therefore, claimed title by adverse possession.
5. The parties went to trial. The trial Court held that the vendors of
the plaintiff did not have title to sell the property. It was observed that the
vendors claimed title under a Will but the Will was not produced. The
vendors further claimed that a declaration of title was granted in an earlier
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suit but the Judgment alone in that particular suit was produced and it was
therefore not possible to identify whether the Judgment related to the suit
property. The trial Court raised a reasonable doubt whether there could be
a nexus between the said Judgment granting declaration and the property.
Holding that the title had not been proved to the satisfaction of the Court,
the suit was dismissed.
6. Thereafter, a First Appeal had been filed in A.S.No. 35 of 2001
which came up before the consideration before the Sub Court at Ranipet
and by Judgment dated 30.06.2003, the Judgment and Decree of the Trial
Court was confirmed, and the dismissal of the suit was upheld. This has
necessitated the plaintiff to file the Second Appeal before this Court.
7. The Second Appeal had been admitted on the following substantial
question of law:-
“Whether the title passes under Ex.A-1
executed by vested reminders with the consent
and approval of the Life Estate?”
8. It must also be mentioned that pending the Second Appeal, the
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appellant had filed C.M.P.No. 3403 of 2007 seeking to produce as
additional documents, the registration copy of the Will dated 04.05.1940,
the written statement in O.S.No. 54 of 1976 and the decree copy in
O.S.No.54 of 1976 dated 31.01.1981.
9. This application in C.M.P.No. 3403 of 2007 had come up for
consideration before a learned Single Judge of this Court, who after
extensively dealing with the law on the point, had dismissed the said
application by order dated 10.03.2008. The learned Judge had travelled
into the zone of non production of the said documents though they were in
possession of the appellant during the course of trial and held that no
reasonable cause had been stated for not producing the said documents and
had therefore, dismissed the said petition. As on date, the said order stands
and has not be questioned before the higher forum.
10. This particular fact had been noted by the learned Single Judge,
who examined the Second Appeal and who proceeded to dismiss the
Second Appeal by Judgment dated 18.02.2014, Review of which Judgment
is now sought in the present Review Application.
11. In the Judgment, the learned Single Judge had once again
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observed that the appellant had produced Ex.A-16 dated 31.01.1999, the
copy of the Judgment in O.S.No. 54 of 1976 and again observed that there
was no material to show that the said Judgment related to the suit property
and therefore found fault with the appellant for not having produced the
decree copy and further found that though the decree copy was sought to
be produced as an additional document, the connected Civil Miscellaneous
Petition was dismissed and the appellant had not taken the same up the
said order in further appeal and therefore, observed that the finding of the
trial Court and the First Appellate Court that there was no nexus between
the Judgment and the said property was correct and refused to interfere
since it was a finding on fact.
12. The learned Judge also found fault with the appellant on the
ground that the Will said to have been executed by the father of Ragavalu
Naidu had also not been produced and further observed that in the absence
of the Will, the property would have devolved on to Ragavalu Naidu and
after his life time or rather only after his life time would it have devolved on
his children / vendors of the appellant.
13. It was also observed that Ragavalu Naidu had been examined as
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PW-2 and had stated that he had attested the deed Ex.A-1 but the learned
Single Judge held that such attestation would not come to the rescue of the
appellant in the absence of the copy of the decree in O.S.No. 54 of 1976
wherein the schedule of the property would be given and in the absence of
the Will being produced. The Second Appeal was therefore dismissed. It
was held that there was no point of law to be considered.
14. Thereafter, the present Review Application had been filed.
15. Heard arguments advanced by Mr.P.Mani, learned counsel on
behalf of the review applicant and Mr.S.Siva Shanmugam for Mr.
K.Gangadaran, learned counsel on behalf of the respondents.
16. One intervening fact which had occurred and which probably the
learned counsels for reasons best known had not brought to the notice of
the learned Judge at the time when the Second Appeal had been argued,
was that Ragavalu Naidu had actually died on 21.06.2006 nearly about 8
years prior to the date of Judgment of the Second Appeal. If that had been
brought to the notice of the learned Single Judge, then, the observation of
the learned Single Judge that the property would devolve on to the
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children/vendors of the appellant only if he dies, would not have been made
and there would have been no necessity to make such observation since
Ragavalu Naidu actually died and a discussion on applicability of Section
48 of the Transfer of Property Act, could have been initiated.
17. Even otherwise I am not comfortable with the fact that though the
Judgment copy of a particular suit had been produced as document and
marked as an Exhibit during the course of trial, namely, Ex.A-16, if any
Court seeks to examine any other document relating to the said suit and in
this case, the copy of the decree, then under Rule 74 of the Civil Rules of
Practice, to clarify any doubt particularly with respect to an allied
document like a decree, the Court could have called upon the records from
the said Court and examined them.
18. For these reasons particularly because Ragavalu Naid had died in
the year 2006 and therefore, the observation that on this death, his children
would get a markable title to the property and also because merely non
production of the decree should not have been a granted to non suit the
appellant, I would allow the Review application and permit the appellant to
advance arguments in the Second Appeal.
19. There is yet one more factor which prevails upon me to revisit the
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Judgment in the Second Appeal is the subsequent event which had taken
place, namely, that the respondents have sold the property to an another
individual and as a matter of fact C.M.P.No. 6404 of 2017 has now been
filed in the Review Petition to implead the subsequent purchaser.
20. The plaintiff had been non suited and it had been stated that his
suit for declaration of title is dismissed at the same time in the written
statement, the defendants, who are the respondents herein had also raised a
contention that they have prescribed title by adverse possession. That
contention had also been negatived. This leads to a piquant situation over
the particular property since no individual can claim title and that
anamolous situation should not be permitted to stand by any Court of law
when litigant approaches a Court of law seeking declaration of title, the
Court should ensure that a clear declaration is granted or negatived.
21. If by a Court decree, title were to hand in balance, it would only
encourage third parties to enter into possession or deal with the property to
the disadvantage of the actual owners.
C.V.KARTHIKEYAN, J.
https://www.mhc.tn.gov.in/judis
vsg
22. For all these reasons, I would permit the Judgment in S.A.No.
1359 of 2007 dated 18.02.2014 to be reviewed and therefore, the petition is
allowed.
23. Post the Second Appeal for hearing on 21.07.2022.
24. The learned counsel for the appellant may file a memo to indicate
that C.M.P.No. 6404 of 2017 was filed to implead S.Venu/ subsequent
purchaser to be considered as a petition filed in S.A.No.1359 of 2007 and
not in Rev. Application No. 140 of 2014 as shown in the cause title. Memo
to be filed on 21.07.2022.
04.07.2022
Index:Yes/No
Web:Yes/No
vsg
Speaking order : Yes / No
Rev.Appln.No. 140 of 2014
and
CMP.No. 6404 of 2017
https://www.mhc.tn.gov.in/judis
