Madras High Court
Vijayarani vs Durai @ Palaniyandi on 9 June, 2022
S.A.(MD) No.836 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.06.2022
CORAM
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
S.A.(MD) No.836 of 2010
Vijayarani ... Appellant/Respondent/
Plaintiff
-vs-
1.Durai @ Palaniyandi
2.Muthaiah (Died)
3.Rengasamy
4.Ilango ... Respondents 1 to 4/Appellants/
Defendants
5.Mananjai
6.Saratham
7.Chinnaponnu
8.Anjalai ... Respondents 5 to 8/
LRs of deceased 2nd Respondent
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree in A.S.No.147 of 2008 on the file of Sub Court,
Pudukkottai dated 04.12.2009 reversing the judgment and decree in O.S.No.
194 of 2006 on the file of District Munsif Court, Pudukkottai dated
26.10.2007.
___________
Page 1 of 14
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
For Appellant : Mr.K.Baalasundharam
For R1 & R3 : Mr.A.Arumugam
Respondent-2 : Died
Respondent-4 : Given up
Respondent-5 : Died
For R6 to R8 : No appearance
JUDGMENT
The plaintiff is the appellant herein, and she has laid a suit for declaration
and for bare injunction in O.S.No.194 of 2006 before the Principal District
Munsif Court, Pudukkottai. The suit came to be decreed and the decree was
challenged by the defendants in A.S.No.147 of 2008 before the Sub Court,
Pudukkottai, where the plaintiff suffered a reversal and lost the suit.
2. The case of the plaintiff is as follows:-
● The suit property is described as comprising a site measuring 13.5
ares in Survey No.54/14B of Adhiranviduthi village, plus four
residential buildings, of which two are of thatched roof.
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
● On 08.07.1996, under Ex.A5-sale deed, the plaintiff purchased this
property from her predecessor in title Mayazhagu. Ever since, the
plaintiff claims to be in possession of the property.
Faced with the threat to his title and possession, the plaintiff laid the suit.
3. The 1st defendant is one Durai @ Palaniyandi, son of Chinnathambi. He
had filed the written statement, which is adopted by defendants 2 and 3.
According to the 1st defendant, he had purchased the suit property under
Ex.B1-sale deed, dated 01.08.1983 from Mayazhagu @ Gajamuganathan.
Later, he had orally exchanged the property purchased under Ex.B1 with
defendants 2 and 3, and claims that defendants 2 and 3 are now in
possession and enjoyment of the property. He further alleged that earlier,
the plaintiff along with her mother have jointly laid a suit in O.S.No.122 of
1999 against the 1st defendant herein for bare injunction, as concerning,
inter alia, the suit property. That suit came to be dismissed for default and
an application was taken out by the plaintiff for restoring the suit, but that
later came to be not pressed.
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
4.1 The suit went to trial. During trial, the plaintiff examined herself as P.W.
1 and also examined two other witnesses as P.W.2 and P.W.3. She has
produced as many as 18 documents, which came to be marked as Ex.A1 to
Ex.A18. Of them Ex.A5 is a sale deed in favour of the plaintiff and
reference has already been made to it.
4.2 In addition, the plaintiff has produced Ex.A17 and Ex.A18, which
respectively are the judgment and decree in O.S.No.1061 of 1992. This suit
was laid by the plaintiff's vendor Mayazhagu in favour of certain
Palaniyandi (not the present first defendant) and also the 2nd defendant
herein for declaration of title of the plaintiff in that suit and also for
recovery of possession. That suit was decreed on 29.11.1994 whereinafter
Mayazhagu had sold the property to the plaintiff under Ex.A5.
4.3 For the defendants, the 1st defendant examined himself as D.W.1. The
2nd defendant did not enter the box. The 3rd defendant examined himself as
D.W.2. Besides, they have examined two other independent witnesses viz.,
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
D.W.3 and D.W.4. They have produced Ex.B1 to Ex.B20 of which, Ex.B1
is the sale deed in favour of the 1st defendant.
5. After a meticulous analysis of evidence before it and also after analysing
Ex.A17, judgment in O.S.No.1061 of 1992, the trial court decreed the suit.
On appeal, the first appellate court has reversed the findings of the trial
court. Its line of reasoning is that the plaintiff has not proved that Ex.A5-
sale deed in her favour is genuine, and also has proceeded to hold that there
is no connection between O.S.No.1061 of 1992 and the present suit.
Challenging the same, the plaintiff is before this court. The appeal was
admitted to consider the following substantial questions of law:-
a) Whether payment of house tax is the evidence of
possession or not?
b) Whether previous judgment relating to the same suit
property but between difference parties is relevant with
in the meaning of Section 41 of Indian Evidence Act
1872? and
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
c) Whether stranger to a property is entitled for notice
when patta is transferred with in the meaning of
Revenue Standing Order 31?”
6. Mr.K.Baalasundharam, the learned counsel appearing for the appellant
submitted:
● There is no dispute that Ex.A5 was not genuine, but the 1 st defendant
in the written statement only wanted to project a case that he is the
title holder of the suit property which he claims to have purchased
under Ex.B1. However, the property, which is covered by Ex.B1 is
different from the property dealt with under Ex.A5 in favour of the
plaintiff.
● Secondly, the first defendant claims that he had exchanged the
property he had purchased with defendants 2 and 3, which implies
that he could have exchanged only that property which is covered
under Ex.B1, as he could not deal with the suit property covered
under Ex.A5. With no dispute as to the title of Ex.A5, the first
appellate court was in egregious error in raising an issue on the
genuineness of Ex.A-5, which is not even an issue in the suit. For
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
the same reason, there is absolutely no need to issue notice to any of
the defendants for mutating the patta of the suit property in favour of
the plaintiff, as all the defendants, even going by the written
statement of the 1st defendant, are strangers to the suit property.
● Thirdly, the plaintiff has produced tax receipts for the building in
S.No.156/B and S.No.30 whereas, all the tax receipts produced by the
defendants pertain to S.No.156/D and S.No.31. Again there is
nothing that matches the plaintiff's receipts with the defendants'
receipts. Inasmuch as, the property is an enclosed property with sites,
tax receipts are the most probable evidence to prove possession of the
property.
● Fourthly, O.S.No.1061 of 1992 was laid by Mayazhagu, the present
plaintiff's vendor, against the 2nd defendant and a certain Palaniyandi
for declaration of title and recovery of possession. The subject matter
of the suit included the property in Sy.No.54/14B, the present suit
property. That suit is admittedly decreed. That judgment binds the
2nd defendant as regards the suit property.
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
7. Heard Mr.A.Arumugam, the learned counsel for respondents 1 and 3.
The learned counsel submitted that the suit is for declaration of title and for
prohibitory injunction, and nowhere the plaintiff has pleaded (a) that the
plaintiff's vendor has taken possession of the property pursuant to the decree
in O.S.No.1061 of 1992; and (b) that she has not pleaded res judicata and
indeed, there was not even a whisper about O.S.No.1061 of 1992 in the
plaint.
8. To start with, this Court has to record its utter disappointment over what
it considers as an atrocious judgment delivered by the first appellate Judge.
The plaintiff claims that she has purchased the property in S.No.54/14B
under Ex.A5. The counter point taken by the 1st defendant in the written
statement is that he has purchased the property from the very same vendor
of the plaintiff under Ex.B1, dated 01.08.1983. What is carefully concealed
in the written statement is that the property dealt with under Ext.B1 is a
different property and this is comprised in S.No.54/3A1. As rightly argued
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
by the learned counsel for the appellant, even according to the 1st defendant,
he had exchanged only that property which is comprised in Ex.B1. In other
words the property in S.No.54/3A1 is stated to have been exchanged with
some other property whose details the first defendant conveniently
suppressed. There is no positive assertion anywhere in the written
statement, nor is there evidence to support that defendants 2 and 3 have
come into possession of the suit property pursuant to the alleged oral
exchange which the 1st defendant has alleged in the written statement. At
any rate, even if there was any such exchange, that property, as already
indicated, could not be the suit property, but only the property in S.No.
54/3A1.
9. A careful reading of the pleadings and the evidence indicate that nowhere
there was a dispute that Mayazhagu did not own the suit property for the
Court to suspect the genuineness of Ex.A5-sale deed in favour of the
plaintiff. It is an invention out of nothing by the first appellate Judge. The
next act of what this Court may want to consider as the deliberate act of
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
negligence on the part of the first appellate Judge is that he has held that
while mutating the revenue record in favour of the plaintiff as pertaining to
the suit property, no notice was given to the defendants. Unless somebody
is in delirium, there is absolutely no need for the revenue authorities to issue
notice to those who are not even remotely concerned with the property.
10.1 The next aspect is should the Court take into cognizance the judgment
in O.S.No.1061 of 1992 which was successfully laid by the plaintiff's
vendor. It is true neither side have pleaded about this case and for invoking
the doctrine of res judicata, there must be a specific pleading to that effect.
But the burden to plea is on the second defendant, who is a party to both the
previous suit and the present suit, and as an aspect of fact only he is privy
to it since the plaintiff was not a party to the suit. Even though the Court
has raised the substantial questions of law, Ex.A17 judgment could not be
accommodated under Section 41 of the Indian Evidence Act, but under
Section 11 thereof. Sec.41 deals with judgment in rem whereas, Ex.A17 is
a judgment in personam.
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
10.2. Turning to the objections raised by the counsel for respondents 1 and 3
is concerned, only the 1st defendant has filed the written statement whereas
defendants 2 and 3, though have their independent right to defend the suit,
have not chosen to file any independent statement. As to the question
whether the plaintiff's vendor has taken delivery of the suit property
pursuant to the decree in O.S.No.1061 of 1992 is concerned, the only
common party to the present suit and that suit is the 2nd defendant and he has
not entered the box to speak about it. Here, this Court does not find any
explanation or satisfactory arguments from the respondents as to how they
want to consider two different sets of buildings pertaining to which both
sides have filed separate tax receipts, as one.
11. The substantial questions of law are answered thus and in favour of the
plaintiff. From whichever angle this appeal is approached, the only possible
conclusion that this Court can arrive at is that the suit must be decreed.
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
12. In conclusion, the appeal is allowed, the judgement and decree of the
first appellate court in A.S.147 of 2008 is set aside, and the judgement and
the decree of the trial court in O.S.194 of 2006 is restored. No costs.
09.06.2022
Internet:Yes
Index:Yes/No
abr
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
To
1.The Sub Court, Pudukkottai.
2.The Principal District Munsif Court,
Pudukkottai.
___________
https://www.mhc.tn.gov.in/judis
S.A.(MD) No.836 of 2010
N.SESHASAYEE, J.
abr
S.A.(MD) No.836 of 2010
09.06.2022
___________
https://www.mhc.tn.gov.in/judis
