Madras High Court
M.Thiraviyam vs N.Subhash Chandra Bose on 8 August, 2023
SA(MD)No.205 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 08.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.205 of 2020
and
C.M.P.(MD)No.2822 of 2020
1.M.Thiraviyam
2.M.K.Thiraviyam
3.M.R.Thiraviyam
4.D.Selvi
5.M.S.Archunan ... Appellants/Respondents 1 to 5/
Plaintiffs
Vs.
1.N.Subhash Chandra Bose,
2.S.S.S.Mohanlal
3.Sundhakar ... Respondents 1 to 3/Appellants /
Defendants 1 to 3
4.V.Muthaiah ... 4 Respondent /6th Respondent /
th
4th Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree, dated 18.12.2019, made in
A.S.No.25 of 2016, on the file of the Additional Sub Court, Tenkasi,
reversing the judgment and decree, dated 02.12.2015, made in O.S.No.194
of 2013, on the file of the Additional District Munsif, Tenkasi by allowing
this Second Appeal.
1/18
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For Appellants : Mr.J.Senthil Kumaraiah
For Respondents : Mr.K.Navaneetha Raja for R1 to R3
JUDGMENT
The appellants herein are the plaintiffs and the respondents herein
are the defendants before the trial Court.
2. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
3. The brief facts, leading to the filing of this Second Appeal, are
as follows:
The plaintiffs filed the suit for the relief of declaration and
injunction. The same was decreed on 02.12.2015. Against which, the
defendants preferred the first appeal in A.S.No.25 of 2016. In the first
appeal, the decree of the trial Court was reversed, vide order dated
18.12.2019 and thereby, the suit was dismissed. Against the dismissal of the
suit in the first appeal, the plaintiffs have come with the Second Appeal.
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4. According to the plaintiffs, by virtue of Ex.A1-Patta, an extent
of 1.97 Hectres belongs to one Mayeleri Nadar. The first plaintiff is the
Legal Heir of the said Mayeleri Nadar. While this being so, during the life
time of Mayeleri Nadar, he executed a settlement deed in favour of the first
plaintiff in respect of item No.4 and item No.5 of suit property and also
sale deeds in the name of second and third plaintiffs in respect of item No.1
and item No.3 of suit property. After the demise of the said Mayeleri
Nadar, the first plaintiff being the only son, has executed a sale deed in
favour of the second, fourth and fifth plaintiffs in respect of item Nos.2, 6
and 7 of suit property. Thus, the plaintiffs became the absolute owners of
the property. The plaintiff further submits that since the defendant was
disputing their title, the plaintiffs filed the instant suit for declaration and
injunction.
5. The said suit was contested by the defendants by filing written
statement. In which, they pleaded that the suit property was originally
belonged to the predecessors in title of the defendants, and some other
persons, including the father of the first plaintiff, and that by virtue of Patta
No.22, there was oral partitions during 1990. In the said oral partition, the
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northern portion was allotted to Mayeleri Nadar and another two persons.
They would further submit that the Southern portion was allotted to
Muthuvel Pillai, who is the predecessor in title of the defendant. The said
Muthuvel Pillai has executed the power of attorney deed to one Sudalai
Muthu, on 03.01.1994. The said Sudalaimuthu Nadar has executed a sale
deed in the name of the first defendant's father, namely, Nainar Nadar,
on 25.01.2002. According to the defendant, in the total extent of 4.87
Acres, the southern portion of an extent of 2.44 Acres was allotted to
Muthuvel Pillai.
6. It is the submission of the defendants that the plaintiffs'
predecessors in title are entitled to only 1/3rd of the undivided share of the
northern portion of S.F.No.520. Therefore, they would submit that the suit
for declaration is not maintainable and is liable to be dismissed.
7. Based up on the above pleadings, the trial Court has framed
the following two issues:
1) Whether the plaintiffs are entitled to get the
relief of declaration and permanent injunction, as prayed
for? and
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2) To what other reliefs, the plaintiffs are entitled to?
8. Before the trial Court, on the side of the plaintiffs, the first
plaintiff was examined as P.W.1 and Exs.A1 to A14 were marked. On the
side of the defendants, one witness was examined as D.W.1 and Exs.B1
and B8 were marked.
9. Based on the evidence and materials on record, the trial Court
had decreed the suit. The trial Court found that as per Ex.A1-Patta, the
entire extent of 4.87 Acres in S.F.No.520 belonged to Mayeleri Nadar.
Further, the non production of Adangal or Kist receipt by the defendant,
would also be found in favour of the plaintiff. Further, the trial Court has
also dis-believed the oral partition. It is also the finding of the trial Court
that even in Patta No.22-Ex.B1, Mayeleri Nadar name is found place.
Therefore, the trial Court has ultimately decreed the suit.
10. Aggrieved with the said findings of the trial Court, the
defendants preferred an appeal before the First Appellate Court. In which,
the first appellate Court had reversed the finding, on the ground that the
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plaintiffs have not proved their title and interest over the suit property
independently and that the weakness of the defendant case will in no way
improve the plaintiff's case and eventually dismissed the suit by allowing
the First Appeal.
11. Aggrieved with the said finding of the first Appellate Court,
the plaintiff filed this Second Appeal and the same is pending at the stage
of admission.
12. It is pertinent to mention here that when the Second Appeal is
pending, the petitioners / plaintiffs have also filed an application to receive
additional documents, which was allowed by this Court. Through the said
order in C.M.P.(MD)Nos.9021 & 9022 of 2021 the Identity card for small
farmers issued by the Agriculture Development Officer, dated 08.03.1994,
and the Death Certificate of A.Muthuvel Pillai, dated 26.02.1999 were
taken on record and marked as Ex.A15 and A16 respectively, in this second
appeal.
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13. The learned counsel for the appellants would submit that
though Muthuvel pillai has executed a power of attorney deed on
03.01.1994 in favour of Sudalai Muthu Nadar, the sale deeds stands in the
name of Nainar Nadar was executed by the power agent Mr.Sudalaimuthu
Nadar, after the demise of the Principal qua Mr.Muthuvel Pillai. According
to Ex.A16 – death certificate, the said Muthuvel Pillai died on 26.02.1999..
Hence, the plaintiffs contended that the sale deed Ex.P2 is null and void.
14. Therefore, the learned counsel for the appellants would
submit that when the documents stands in the name of the defendant
become null and void, then, naturally the suit has to be decreed in favour of
the plaintiffs. Apart from that the learned counsel for the appellants would
also contend that all the sale deeds which stand in the name of the
plaintiffs, would prove their title. Therefore, the learned counsel for the
appellants prayed to allow this appeal and thereby, prayed to restore the
decree granted by the trial Court.
15. Per contra, the learned counsel for the respondents/defendants
would vehemently submit that when the plaintiffs' case is for the relief of
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declaration and injunction, it is their primordial duty to prove this case
independently by rebuttal evidence and that they have to prove his title
independently by acceptable evidence and that they cannot take the
weakness of the defendants case. He would further submit that, when the
plaintiffs themselves accepted that their father has acquired title only by
way of Ex.A1 - patta, the said assignment is only through Ex.B1-Patta
stands in the name of Muthuvel Pillai.
16. The learned counsel for the respondents / defendants would
further submit that, after the oral partition, the predecessors in title of the
plaintiffs, be only entitled for 1/3 share of the northern portion of S.F.No.
520. However, the plaintiffs instituted a suit to the extent of 4.87 Acres,
which cannot be maintained and hence, prayed to dismiss this Appeal. The
learned counsel for the defendants /respondents has relied upon a judgment
of the Hon'ble Supreme Court reported in 1998-4-SCC-539 (Punjab Urban
Planning & Development Authority V. Shiv Saraswathi Iron & Steel Re-
Rolling Mills), 2005-5-CTC-17 (P.Panneerselvan V. A.Baylis) and 2014-2-
SCC-269 (Union of India V. Vasavi Co-operative Housing Society).
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17. I have given my anxious consideration to the either side
submissions and also perused the materials.
18. The short point to be decided in the Second Appeal is whether
the plaintiffs have independently established their title over the suit
property. According to the plaintiffs, originally the suit property stands in
the name of Mayeleri Nadar under UDR patta, which was marked as
Ex.A1. As per Ex.A1- patta, in S.F.No.520, an extent of 1.97 Hectare stand
in the name of Mayeleri Nadar. It is the submission of the plaintiffs that by
virtue of Ex.A1 - patta, the said Mayeleri Nadar's right and title was
devolved upon the plaintiffs by way of a sale deeds and settlement
deeds – Ex.A2 to Ex.A7. Contrarily, the defendants have also setting up
title to the suit property through Ex.B1- Patta, which stands in the name of
one Muthuvel Pillai and 14 other persons. In which, the plaintiffs
predecessors in title, qua Mayeleri Nadar name is also one of the person.
19. At this juncture, the learned counsel for the respondents
would invite the attention of this Court in respect of the admission of the
plaintiffs during cross-examination. The relevant admission reads as
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follows:
“vdf;F 40 tUlq;fSf;F Kd;gpUe;Nj tof;F nrhj;J
gw;wp njhpAk;. tof;F nrhj;J fpof;F Nehf;fp rha;thf ,Uf;Fk;
vd;why; rhpjhd;. tof;F nrhj;Jf;fs; tpsq;fhL vd;why; rhpjhd;.
tof;F nrhj;jpy; kuq;fs; fpilahJ. tof;F nrhj;jpy; Nrhsk;>
fhzk; gaph; nra;ag;gLk;. ..... tof;F nrhj;ij 2 tUlq;fSf;F
Kd;G fpiuak; thq;fpNdd;. tof;F nrhj;J gl;lh ahh;
ngahpy; ,Ue;jJ vd;gij fpiuak; thq;Fk; NghJ ghh;j;Njd;.
tof;F nrhj;jpd; gl;lhtpy;> vd; jhj;jh ngaUk;> gpd;dh; kapNywp
ehlhh; ngaUk;> eapdhh; ehlhh; 1-k; gpujpthjpapd; jfg;gdhh;
ngaUk; ,Ue;jJ vd;why; rhpjhd;.”
20. Therefore, it is an admitted case of the plaintiffs that ever
prior to the transfer of properties to the plaintiffs, the suit properties stand
in the names of predecessors' in title of defendant, Mayileri Nadar and the
father of the first defendant, namely, Nainar Nadar. Therefore, the learned
counsel for the defendants would submit before this Court, when the
plaintiffs themselves accept joint ownership of one Muthuvel Pillai,
Mayeleri Nadar and Nainar Nadar, and when the plaintiffs themselves
admit in paragraph No.3 of the plaint, that the property derived upon the
plaintiffs predecessors in title, only by virtue of Patta, stands in the name of
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Mayeleri Nadar, the very suit for declaration cannot be maintained. While
reversing the trial Court decree, even the first Appellate Court relied upon
the admission of P.W.1 to non-suit the plaintiffs.
21. It is pertinent to mention here that as per Ex.A1 and Ex.B1-
patta, an extent of 4.87 Acres is found a place in respect of S.F.No.520.
But, Ex.B1-Patta, stands in the name of various persons, including the
defendants predecessor in title and the plaintiffs predecessor in title. It is
the case of the defendants that in respect of the suit property, there were
some oral partition and in which, the defendant's predecessor in title were
allotted southern portion. But, absolutely, there is no evidence available
before this Court, to prove such oral partition. However, from the
admissions of the plaintiffs, what emerges is that the suit property belongs
to both the plaintiffs' predecessors and the defendants predecessors. When
the plaintiffs themselves accepted joint ownership, to put it differently
admits the existence of right to the defendants in the suit property, the very
case of the plaintiffs as if the suit property exclusively belongs to them,
cannot be countenanced.
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22. At this juncture, the learned counsel for the plaintiffs would
invite the attention of this Court about the sale deeds of the defendants,
viz., Ex.B2, B4 and B5 which are dated 25.01.2002, 16.01.2009 and
17.09.2009 respectively. He would contend that these sale deeds were
executed through the power agent of Muthuvelpillai, who is none other
than Sudalimuthu Nadar, but, after the demise of the principal Muthuvel
Pillai. Here, admittedly Muthuvelpillai died on 26.02.1999, as evidence
through Ex.A16. Therefore, the learned counsel for plaintiff would
strenuously contend that these sale deeds are not valid and binding.
23. At this juncture, it is useful to refer the judgment relied by the
defendants. The learned counsel for the defendants / respondents has
relied upon a judgment of the Hon'ble Supreme Court reported in 1998-4-
SCC-539 (Punjab Urban Planning & Development Authority V. Shiv
Saraswathi Iron & Steel Re-Rolling Mills) and the relevant portion of the
judgment is extracted as follows:
“It must be remembered that Ex. P1 is only an offer
made by the appellant/plaintiff, which was preceded by
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certain correspondence emanating from the respondent and
it can reasonably be presumed that subsequent to Exh. P1
there must have been some response from the respondent to
the offer of the appellant. All those documents were not
placed before the Court to appreciate correctly and
completely the transactions between the parties. Further, as
rightly pointed out by the Trial Court and the First Appellate
Court that Gurdial Singh PW1 was examined only to prove
Exh. P1 and he was not in a position to explain the
intricacies thereon, in particular, the relevant Condition No.
2, which relates to supply and return of material. The
language used, namely, 'weight to weight', was not at all
explained by P.W.1. The whole evidence of PW1 has also not
been placed before us. We are of the view that the Lower
Appellate Court was quite justified in observing that the
appellant-Board, for reasons best known to it, had not placed
all materials and no effort has been made to explain what
according business terminology was meant by supply of the
esteem weight to weight. We cannot take exception to the
conclusion taken as above by the Lower Appellate Court.
The plaintiff/appellant must succeed or fail on his own case
and cannot take advantage of weakness in the
defendant/respondent's case to get a decree.”
(Emphasis supplied by this Court)
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24. The learned counsel for the defendants / respondents has also
relied upon a judgment of this Court reported in 2005-5-CTC-17
(P.Panneerselvan V. A.Baylis) and the relevant portion of the judgment
extracted as follows:
13. We do not think such a contention can be
countenanced, more particularly, in a suit for specific
performance of a contract. Apart from the general principle
of law that the plaintiff must succeed on the strength of his
own case and not on the basis of the weakness in the case of
the defendant, in a suit for specific performance of contract,
the plaintiff is obviously required to prove that there is a
definite contract which is capable of being specifically
enforced.
(Emphasis supplied by this Court)
25. The learned counsel for the defendants / respondents has
relied upon another judgment of the Hon'ble Supreme Court reported in
2014-2-SCC-269 (Union of India V. Vasavi Co-operative Housing
Society) and the relevant portion of the judgment is extracted as follows:
“19. The legal position, therefore, is clear that
the plaintiff in a suit for declaration of title and possession
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could succeed only on the strength of its own title and that
could be done only by adducing sufficient evidence to
discharge the onus on it, irrespective of the question
whether the defendants have proved their case or not. We
are of the view that even if the title set up by the defendants
is found against, in the absence of establishment of
plaintiff’s own title, plaintiff must be non-suited.”
(Emphasis supplied by this Court)
26. While ratiocinating the above judgment, it is very much
apparent that when the plaintiffs come forward with a case, it is the duty of
the plaintiffs to prove his case on his own, and they can't take advantage of
the weakness of the defendants case. More particularly, here, the plaintiffs
and the defendants have projected two pattas –Ex.A1and Ex.B1, as the
basis of their title. Whereas, the plaintiffs themselves admit that the suit
property belongs not only to their predecessor in title Mayeleri Nadar, but,
also to Nainar Nadar and Muthuvelpillai. In view of the same, this Court
is not in a position to accept the case of either side and their basis of title
through Ex.A1 or Ex.B1 patta. In that context, no right would flow to the
plaintiffs through the sale deeds and settlement deeds, namely, Ex.A2 to
A7, from Ex.A1- Patta. Hence, the plaintiffs are not entitled to have any
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relief from this Court. This Court is of the firm view that the order passed
by the First Appellate Court is a well reasoned order, and the appellant did
not elicit any material to interfere with the said order.
27. Hence, the instant Second Appeal is dismissed as no
substantial question of law arises. There shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
08.08.2023
NCC : Yes/No
Index :Yes/No
Ls
To
1.The Additional Sub Court,
Tenkasi.
2. The Additional District Munsif,
Tenkasi.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.KUMARAPPAN.,J.
Ls
Judgment made in
S.A.(MD)No.205 of 2020
08.08.2023
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