Madras High Court
V.Easwaran vs K.Santhoshkumar on 7 December, 2023
Author: P.T.Asha
Bench: P.T.Asha
S.A.No.929 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T.ASHA
S.A.No.929 of 2022
and
C.M.P.No.19064 of 2022
1. V.Easwaran
2. Baby
3. Makeshwari
4. Kanakaraj
5. Rajammal @ Rajeswari ... Appellants
-Vs-
1. K.Santhoshkumar
2. K.Rajeshkumar
3. Sundararaj @ Sundaram ... Respondents
Prayer:- This Second Appeal is filed under Section 100 of Code of Civil
Procedure Code,1908, to set aside the judgement and decree dated
04.12.2021 made in A.S.No.18 of 2018 on the file of the Sub Court,f
Pollachi, confirming the judgment and decree dated 22.08.2017 made in
O.S.No.446 of 2011 on the file of the District Munsif Court, Pollachi.
For appellants : Mr.S.Kousik
for Mr.V.Anandamurthy
For respondents 1 and 2 : Mr.K.Murugesh
For respondent 3 : No appearance
Page 1 of 15
https://www.mhc.tn.gov.in/judis
S.A.No.929 of 2022
JUDGMENT
The defendants 1 to 5 are the appellants before this Court and
they have challenged the concurrent judgment and decree passed by
the Courts below.
2. The facts of the case are briefly set out hereinbelow with
the parties referred to in the same ranking as before the Trial Court.
FACTS OF THE CASE:
2.1. The plaintiffs had filed a suit in O.S.No.446 of 2011 on
the file of the District Munsif Court, Pollachi, for a declaration of
their title over the suit property and consequently to recover
possession from the defendants and for injunction restraining the
defendants from alienating or encumbering the suit properties or in
any manner dealing with the suit property.
2.2. It is the case of the plaintiffs that one Kandhasamy
Chettiyar had become the owner of the suit property on the basis of
the sale deed dated 26.11.1969 and on account of the cancellation
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receipt of the mortgage deed dated 19.01.1970.
2.3. It is the case of the plaintiffs that Kandhasamy
Chettiyar is none else than their paternal grandfather. The plaintiffs'
parents had passed away when they were very young and they were
brought up by their paternal grandfather. On 11.11.1999,
Kandhasamy Chettiyar executed a registered will in favour of the
plaintiffs giving life interest to his wife Kumarammal. Kandhasamy
Chettiyar died on 23.12.2003 and his wife passed away on
03.02.2011. The plaintiffs, therefore, became the owners of the suit
property by virtue of the registered will dated 11.11.1999.
2.4. Thereafter, the plaintiffs had called upon the defendants
to vacate and deliver the vacant possession of the property on
20.07.2011. To this, the defendants replied that pursuant to the
orders passed in O.S.No.79 of 2003, the suit property belongs to
them. They would contend that the patta has also been mutated in
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their names, documents have been assessed in their names and all
the taxes were paid in their names.
2.5. Thereafter, the plaintiffs have made enquiries about
O.S.No.79 of 2003 and they came to learn that the suit has been
filed by Kandhasamy Chettiyar against the defendants for recovery
of possession stating that he is the owner of the property and they
had stopped paying the rent properly. Since Kandhasamy Chettiyar
died on 23.12.2003, the suit was dismissed for default. Therefore,
the priniciple of res judicata cannot be pleaded as against them.
Therefore, they have come forward with the present suit since the
defendants are not vacating and claiming the title over the suit
property.
2.6. The written statement filed by the defendants 1,2 and 4
would read as follows:
(i) The defendants would submit that the property in
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question belongs to one Subammal who is the maternal grandmother
of the plaintiffs, Kandhasamy Chettiyar is her son and apart from
him, she had three daughters viz., Mylathal, Valliammal and
Thirumalaiammal.
(ii) The first defendant's mother is Mylathal, except
Mylathal, all the other daughters were married and left their home.
Mylathal lived with Subammal and she was taking care of her
mother. Subammal's husband Rangasamy Chettiyar deserted her and
lived with an other lady viz., Karumi Ammal alias Akkammal.
Kandhasamy Chettiyar chose to live with his father.
(iii) Mylathal has been living in the property for several
years ie., nearly 40 years ago. Neither Kandhasamy Chettiyar nor
his legal heirs lived in the property. It is the contention of the
defendants that Mylathal and her daughter were in possession of the
suit property.
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2.7. Further, it is the contention of the defendants that
Kandhasamy Chettiyar had filed a suit in O.S.No.79 of 2003
wherein he had claimed that the defendants herein were tenants
under him and they had stopped paying rent and therefore, he had
terminated the lease and filed the suit for recovery of possession of
the property. In that suit, the defendants asserted their title and
denied the title to Kandhasamy Chettiyar.
2.8. The defendants would submit that the cause of action in
the earlier suit is the very same cause of action for which this suit is
filed. They would submit that the plaintiffs' contention that they
came to know about the earlier proceedings only on 20.07.2011 is
an utter lie. The title of the property is only with the defendants not
with the plaintiffs and therefore, they sought for the dismissal of the
suit.
TRIAL COURT:
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3. The Trial Court had framed the following issues:
“1/ jhth brhj;J thjpfSf;F ghj;jpag;gl;lJ
vd nfhUk; tpsk;g[if gupfhuk; fpilf;fj;
jFjpa[ilatuh>
2/ jhth brhj;ij gpujpthjpfs;. thjpfs; trk;
xg;gilf;f ntz;Lbkd nfhUk; gupfhuk; fpilf;fj;
jFjpa[ilatuh>
3/ jhth brhj;ijg; bghWj;J gpujpthjpfSf;F
vjpuhf thjpfs; nfhupa[ss ; epue;ju cWj;Jf;fl;lis
gupfhuk; fpilf;fj; jFjpa[ilatuh>
4/ mtrpaj;jug;gpdu;fis ,t;tHf;fpy;
nru;f;fg;glhj fhuzj;jpdhy; ,t;tHf;F js;Sgo
bra;ag;glf;Toajh>
5/ tHf;F bryt[j;bjhifia thjpfSf;F
brYj;j gpujpthjpfs; flikg;gl;ltuh>
6/ thjpfSf;F fpilf;fToa ,ju gupfhuk;
vd;d>”
4. The first plaintiff had examined himself as P.W.1 and
one Krishnamoorthy as P.W.2 and marked Exs.A1 to A11. On the
side of the defendants, the first defendant had examined himself as
D.W.1 and one Kanakasabapathy as D.W.2 and marked Exs.B1 to
B23.
5. The learned District Munsif held that the defendants had
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not proved their case, but, the plaintiffs have proved their title to the
property and further, the defendants have not proved as to how they
got into the property and hence, they are not entitled to the title to
the property.
6. The defendants had pleaded nonjoinder of necessary
parties as the other legal heirs of Kandasamy Chettiyar were not
impleaded as parties. The learned Judge held that the suit is not bad
for nonjoinder. The learned District Munsif had not considered the
plea of ouster raised by the defendants.
LOWER APPELLATE COURT:
7. Challenging the said judgment and decree, the
defendants had filed an appeal in A.S.No.18 of 2018 on the file of
the Subordinate Court, Pollachi. The learned Sub Judge had framed
the following point for consideration:
“ 1/ 26/11/1969 njjpa fpiua Mtzk; rl;l
jd;ikaw;wJ vd;gJ cz;ikah> mjdog;gilapy; Vw;gl;l
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capyr; hrdk; rl;l jd;ikaw;wJ vd;gJ cz;ikah>
2/ 40 Mz;L fhykhf nky;KiwaPl;lhsu;fs;
tHf;fpilr; brhj;jpd; RthjPdj;jpy; ,Ue;J tUfpwhu;fs; vd;w
r';fjp cz;ikah>
3/ mt;thW RthjPdj;jpy; ,Ue;J tUthjhnyna
tHf;fpilr; brhj;jpy; mtu;fSf;F kl;Lk; ghj;jpak;
Vw;gl;Ls;sJ vd;gJ cz;ikah>
4/ tprhuiz ePjpkd;w m/t/vz;/446-2011 vd;w
tHf;fpy; vjpu;kDjhuu;fshd thjpfs; nfhupa[ss; tpsk;g[if
kw;Wk; RthjPd gupfhu';fs; mtu;fSf;F fpilf;fj;jf;fjh>
5/ tprhuiz ePjpkd;w m/t/vz;/446-2011 ehs;
22/08/2017y; tH';fpa jPu;gg; [ kw;Wk; jPug; ;ghizapy; uj;J bra;a
ntz;oa mtrpak; cs;sjh>
6/ ntW gupfhuk; vJt[k; tH';f ntz;Lkh>”
8. The main argument which has been advanced by the
defendants before the lower Appellate Court is that they have
perfected title by ouster. Even in the earlier proceedings, they had
taken a stand that they are the owners of the property and had
denied the title of the plaintiff. However, the learned Judge had
proceeded to dismiss the appeal and confirmed the judgment and
decree passed by the Trial Court.
9. Aggrieved by the same, the defendants are before this
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court.
10. Heard the learned counsel on either side.
DISCUSSION:
11. The main argument of the appellants is that though they
had taken a plea of ouster, the Courts below have not considered the
issues from their correct perspective and have also not returned any
finding on this issue. He would submit that a mere perusal of the
issues framed by the Trial Court viz., the District Munsif Court,
Pollachi, would show that the Trial Court has not even framed any
issue regarding ouster.
12. The lower Appellate Court has framed two points for
consideration not in the lines of ouster but by raising the issue as to
“Whether the defendants had proved that they had been in
possession of the property for over 40 years”.
13. The lower Appellate Court had come to the conclusion
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that the defendants had not filed any document to show their
possession for over 40 years. Therefore, the learned Judge has
ultimately, held against the defendants.
14. The Courts below have failed to consider the fact that
the defendants have raised a plea by contending that though
Kandasamy Chettiyar had title over the suit property, it is only they
who have been in possession of the property throughout and by
asserting their independent right over the same. This was not
questioned by Kandasamy Chettiyar till 2003 and in 2003, just
before filing of the suit in O.S.No 79 of 2003, a legal notice has
been issued by Kandasamy Chettiyar stating that he had leased out
the property to them in the year 1970. Since he required the
premises, he had requested the defendants to vacate the premises.
However, the defendants had not handed over the possession of the
property to him.
15. Even at that stage, the defendants had set up
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independent title to the property and denied the title of Kandhasamy
Chettiar. The defendants have also substantiated their case by
producing the revenue records in their name and Ex.B2 joint patta to
show their possession of the property. This has not been challenged
by the plaintiffs. The plaintiffs have not sought to cancel the entries
in the revenue records and documents assessed in their names, more
particularly, when they are claiming exclusive title over the
property. Kandasamy Chettiyar who filed the suit as early as in the
year 2003, has not proceeded/processed it, till his death in the year
2007. Therefore, the defendants had made out the plea for ouster.
16. The lower Appellate Court had held that the defendants
had not filed any document to show their possession of the property.
A mere perusal of EX.B10 – notice, issued by Kandasamy Chettiyar
and the suit O.S.No.79 of 2003 would clearly show that the
defendants have been in possession of the property since 1970.
Therefore, it is clear that till the filing of the suit in the year 2011,
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the plaintiffs were not in possession of the property.
17. Considering the fact that both the Courts below have not
addressed this issue, I am inclined to allow this second appeal and
remit it back to the lower Appellate Court to consider point nos. 2
and 3 which has been raised by the lower Appellate Court and the
issue which is now framed by this Court as to
“Whether the defendants have perfected title by ouster?”
18. While considering these issues, if the parties desire to let
in any further evidence, the Lower Appellate Judge shall permit
them to let in evidence and evidence shall be taken by the lower
Appellate Court itself and the matter need not be remitted to the
Trial Court. The said exercise shall be completed within a period of
three months from the date of receipt of a copy of this order. The
Registry is directed to send back the records forthwith.
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Accordingly, this second appeal is allowed and the matter is
remitted back to the file of the Subordinate Court, Pollachi.
Consequently, connected C.M.P. stands closed. No costs.
07.12.2023
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
ssa
To
1.The Subordinate Judge, Pollachi.
2.The District Munsif, Pollachi.
3.The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
P.T.ASHA, J.,
ssa
07.12.2023
https://www.mhc.tn.gov.in/judis
