Madras High Court
Gopal vs P.Alagar Asari on 27 January, 2023
2023/MHC/572
S.A.No.1082 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.1082 of 1997
1.Gopal
2.Pandiammal ... Appellants/Respondents 1 & 2/
Defendants 2 & 3
Vs
1.P.Alagar Asari
2.A.Palaniswami
3.A.Subramaniam
4.A.Murugesan
5.A.Ganesan
6.A.Veerasami
7.A.Muthuvel ... Respondents 1 to 7/
Appellants/Plaintiffs
8.K.Thangavel
9.Velmurugan alias Murugan
10.Selvaraj
11.Kanthimathi alias Pappathi ... Respondents 8 to 11/
Respondents 3 to 6/Defendants 4 to 7
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S.A.No.1082 of 1997
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 05.02.1997 made in A.S.No.95 of 1996 on
the file of the Principal Sub Court, Dindigul, reversing the judgment and
decree dated 24.01.1995 made in O.S.No.399 of 1987 on the file of the
Additional District Munsif's Court, Dindigul.
For Appellants : Mr.Srinivasan
for Mr.R.Nandakumar
For R3 : Mr.Prabhu Rajadurai
for Mr.N.Damodaran
JUDGMENT
The 2nd and 3rd defendants are the appellants. Respondents 1 to
7/plaintiffs filed a suit for declaration and injunction. The suit was
dismissed by the trial Court. The first appellate Court reversed the findings
of the trial Court and granted decree for declaration and injunction in
respect of 'A' Schedule property. Aggrieved by the same, defendants 2 and 3
are before this Court.
2.1. According to respondents 1 to 7/plaintiffs, the 1 st respondent
Alagar Asari and one Seeni Asari were brothers. Respondents 2 to 7 are the
1st respondent's children. The first item of Schedule 'A' and Schedule 'B' of
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S.A.No.1082 of 1997
the suit properties originally belonged to Seeni Asari and the second item of
'A' and 'B' Schedule properties belonged to the 1st respondent, Alagar Asari,
the said Seeni Asari and their brother Kuppusami Asari. Thus, Seeni Asari
had only 1/3rd share in Item-2 of 'A' and 'B' Schedule properties. It was
contended by respondents 1 to 7 that the said Seeni Asari by sale deed dated
31.08.1961, marked as Ex.A.1, sold his interest in the suit properties in
favour of his brothers viz., the 1st respondent and Kuppusami Asari.
Subsequently, there was a partition between the 1st respondent and
Kuppusami Asari on 10.05.1971 under Ex.A.2, whereunder the suit
properties were allotted to the share of the 1st respondent and his children.
Thus, respondents 1 to 7 traced their title over the suit property. It was
further contended by them that Seeni Asari subsequently claimed that he
had right of reconveyance over the suit properties and filed a suit for
specific performance of alleged reconveyance agreement in O.S.No.1264 of
1971 and the same was dismissed. The appeal filed by Seeni Asari against
the judgment in A.S.No.161 of 1974 was also dismissed. It was further
contended by respondents 1 to 7 that the said Seeni Asari died on
07.08.1986 and the 1st defendant in the suit viz., deceased Valliammal was
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S.A.No.1082 of 1997
his permanently kept mistress. The 2nd appellant/3rd defendant was claimed
to be the sister's daughter of the deceased 1st defendant and the 1st appellant/
2nd defendant was the 2nd appellant's husband. The deceased 1st defendant
and the appellants claiming share in the estate of Seeni Asari tried to
interfere with the possession of respondents 1 to 7 and hence, they were
constrained to file a suit for declaration and injunction.
2.2. The suit was resisted by the deceased Valliammal and the
appellants herein mainly on the ground that earlier, the 1st respondent and
his brother Kuppusami Asari filed a suit for injunction against Seeni Asari
in O.S.No.2173 of 1971 and the same was dismissed. The said decision
would operate as res judicata against the prayer in the present suit. It was
further contended that the 1st respondent and his brother filed a suit against
Seeni Asari in O.S.No.575 of 1974 seeking possession of the suit properties
and the said suit was dismissed for default on 07.02.1979. As plaintiffs in
the said suit, the 1st respondent and his brother had not filed any petition to
restore the same and therefore, the present suit is barred under Order 9 Rule
9 of Code of Civil Procedure.
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S.A.No.1082 of 1997
2.3. It was further contended that the suit property had been in
possession and enjoyment of Seeni Asari for all along during his life time
and after his death, the deceased 1st defendant Valliammal in her capacity as
a legal representative of his estate, enjoyed the suit property. The averment
in the plaint as if the said Valliammal was a permanently kept mistress of
Seeni Asari was denied by the deceased 1st defendant and the appellants. It
was specifically claimed that the deceased 1st defendant Valliammal was the
legally wedded wife of Seeni Asari. By raising a plea of continuous
enjoyment, the deceased 1st defendant and the appellants had also raised a
plea of adverse possession.
3. The trial Court, on the basis of the evidences available on record,
came to the conclusion that the deceased 1st defendant Valliammal was the
legally wedded wife of Seeni Asari and the appellants prescribed their right
over the suit property by adverse possession and consequently, dismissed
the suit. Aggrieved by the same, respondents 1 to 7 filed an appeal in
A.S.No.95 of 1996 on the file of the Principal Sub Court, Dindigul. The
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S.A.No.1082 of 1997
learned first appellate Judge reversed the findings of the trial Court that the
deceased 1st defendant Valliammal was the legally wedded wife of Seeni
Asari and held that the factum of marriage between Seeni Asari and
Valliammal had not been proved. The lower appellate Court also based on
the earlier findings rendered in Ex.B.2 judgment to which the 1st respondent
and the said Seeni Asari were parties, held that respondents 1 to 7 proved
their title over the suit property. The first appellate Court also on the basis
of the revenue documents produced by respondents 1 to 7 had given a
finding with respect to their possession over the suit property. Ultimately,
the first appellate Court allowed by the appeal by setting aside the findings
of the trial Court and granted a decree for declaration and injunction in
respect of suit 'A' Schedule property. Aggrieved by the same, the appellants
are before this Court.
4. At the time of admission, this Court formulated the following
substantial questions of law:
“1. Whether the plaintiffs are not barred under Or.
9 Rule 9 C.P.C. from filing the present suit as the earlier
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S.A.No.1082 of 1997
suits for similar reliefs have been dismissed?
2. Whether marriage cannot be presumed between
Valliammal and Seeni because of their long cohabitation
and on the evidence of P.W.1. The strong presumption in
favour of wedlock as contemplated under Sec.114 of the
Evidence Act has not been rebutted? and
3. Whether Ex.B.18 Will which came into existence
4 years prior to the death of the propounder can be
doubted on the basis of some trivial inconsistency in the
evidence of one of the witnesses?”
5.1. The learned counsel for the appellants mainly raised two legal
points in this second appeal and he has not advanced any argument in
respect of the third question of law regarding Will. The learned counsel for
the appellants submitted that earlier, respondents 1 to 7 herein filed a suit
for declaration of title and recovery of possession in respect of the suit
properties in O.S.No.575 of 1974 and the same was dismissed for default
under Order 9 Rule 8. Therefore, the present suit is barred under Order 9
Rule 9 of Code of Civil Procedure.
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5.2. It is the contention of the learned counsel for the appellants that
when the earlier suit was dismissed under Order 9 Rule 8 of Code of Civil
Procedure, respondents 1 to 7 can only file an application for restoration of
that suit and the second suit on the same cause of action is barred. The
learned counsel also assailed the findings of the Courts below on the plea of
the appellants regarding adverse possession, by taking this Court to various
documents filed by the appellants. The learned counsel also submitted that
Seeni Asari and the deceased 1st defendant had lived together as husband
and wife for a long time and long cohabitation as husband and wife would
give a presumption as to marriage. The learned counsel for the appellants
relied on Badri Prasad Vs Deputy Director of Consolidation and others
reported in AIR 1978 SC 1557 in support of his contention.
6.1. Per contra, the learned counsel appearing for the 3rd respondent
submitted that perusal of the decree passed in the earlier suit in O.S.No.575
of 1974 under Ex.B.4 is not clear whether the suit was dismissed under
Order 9 Rule 8 of Code of Civil Procedure. Therefore, the bar under Order
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S.A.No.1082 of 1997
9 Rule 9 would not get attracted. The learned counsel further submitted that
the appellants failed to produce the plaint in O.S.No.575 of 1974 and hence,
the present suit cannot be presumed to be on the same cause of action in
order to attract bar under Order 9 Rule 9.
6.2. The learned counsel further submitted that mere living together
would not be sufficient to presume marriage between the said Seeni Asari
and Valliammal. The appellants failed to plead that there was a marriage
between Seeni Asari and Valliammal and in the absence of plea of valid
marriage, there cannot be any presumption of the same. The learned
counsel relied on Gurbux Singh Vs Bhooralal reported in AIR 1964 SC
1810 for the proposition that production of pleadings in the earlier suit is
necessary for raising a plea of bar under Order 9 Rule 9.
7. Heard the arguments of the learned counsel for the appellants and
the learned counsel for the 3rd respondent. Perused the typed set of papers
and other records.
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8. A bar under Order 9 Rule 9 for filing subsequent suit can be
pressed into service only when the earlier suit was dismissed under Order 9
Rule 8 and the subsequent suit is filed based on the same cause of action. In
Ex.B.3 and Ex.B.4, judgment and decree passed in the earlier suit, it was not
stated specifically that the earlier suit in O.S.No.575 of 1974 was dismissed
under Order 9 Rule 8. Even assuming that the said suit was dismissed under
Order 9 Rule 8, in order to claim bar under Order 9 Rule 9, it should be
established that the subsequent suit was filed on the same cause of action in
which the earlier suit was filed. To prove the said fact, the plaint in the
earlier suit viz., O.S.No.575 of 1974 should have been produced before the
Court. The appellants failed to produce the plaint in O.S.No.575 of 1974.
Therefore, from the judgment and decree passed in the earlier suit, we
cannot presume, in the absence of copy of plaint in the earlier suit, that the
present suit is based on the same cause of action on which the earlier suit
was filed. Therefore, the said contention of the learned counsel for the
appellants is rejected.
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S.A.No.1082 of 1997
9. The learned counsel for the appellants by placing reliance on Badri
Prasad case cited supra, submitted that if a man a and woman lived as
husband and wife for long time, a strong presumption arises in favour of
marriage.
10. In the case on hand, it has been specifically pleaded by
respondents 1 to 7 in their plaint that the deceased 1 st defendant Valliammal
was not a legally wedded wife of Seeni Asari and was only a permanently
kept mistress of Seeni Asari. The appellants in their written statement
though claimed that Valliammal was the legally wedded wife, they have not
made any specific plea regarding the marriage between Seeni Asari and the
deceased 1st defendant Valliammal. The details of factum of marriage like
date and place of marriage etc., were not at all pleaded in the written
statement, nor any attempt was made to prove the marriage also. In this
regard, the learned counsel for the 3rd respondent relied on Surjit Kaur Vs
Garja Singh and others reported in (1994) 1 SCC 407, wherein the Hon'ble
Apex Court observed as follows:
“12. ...... As rightly contended by the respondent, mere
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S.A.No.1082 of 1997
living as husband and wife does not, at any rate, confer the
status of wife and husband. In B.S.Lokhande case AIR 1965
SC 1564, it was laid down that the bare fact of the man and
woman living as husband and wife does not, at any rate,
normally give them the status of husband and wife even
though they may hold themselves out before the society as
husband and wife and the society treats them as such.”
11. In the case on hand, when there is a specific plea in the plaint filed
by respondents 1 to 7 that Valliammal was only a permanently kept mistress,
the appellants should have pleaded details regarding the factum of marriage
viz., date, place, etc., of the marriage. In the absence of specific plea
regarding the factum of marriage with details and convincing evidences, the
appellate Court rendered a factual finding that the deceased 1st defendant
Valliammal was not the legally wedded wife of Seeni Asari. This Court has
not seen any perversity in the approach of the first appellate Court and
therefore, the said finding needs no interference.
12. It is seen from the records especially Ex.B.3, the title of the
1st respondent had been upheld by the Court below in a suit filed against
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S.A.No.1082 of 1997
Seeni Asari. There is a clear finding that Seeni Asari sold his interest in the
suit property to his brothers the 1st respondent and Kuppusami Asari and
thereafter, there was a partition, whereunder the suit property was allotted to
the 1st respondent and his children. Therefore, there is no difficulty in
coming to the conclusion that respondents 1 to 7 proved their right over the
suit property.
13. As far as the question of possession is concerned, based on the
revenue documents produced by respondents 1 to 7, especially Ex.A.6 patta
and Ex.A.7 kist receipts, the first appellate Court had given a factual finding
that respondents 1 to 7 proved their possession over the suit property. When
the possession of respondents 1 to 7/plaintiffs is upheld, there is no case for
considering alleged adverse possession of the appellants.
14. The learned counsel for the appellants, by relying on the findings
in the earlier suit that Seeni Asari was in permissive occupation of the suit
property therein, submitted that the appellants proved their adverse
possession by virtue of long enjoyment. Firstly, when there is a finding in
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the earlier litigation that Seeni Asari was in permissive possession, the
appellants, who are claiming right under him, cannot turn around and claim
adverse possession. Secondly, in the earlier suit, there was a finding that
Seeni Asari was in permissive occupation of Kottam in S.No.170/2. The
present suit is filed in respect of agricultural lands in S.Nos.170/2B and
170/2C. There is no evidence to connect the Kottam found to be in
permissive possession of Seeni Asari and the present suit property. Thirdly,
the first appellate Court, based on the revenue documents produced by
respondents 1 to 7, came to the conclusion that they had proved their lawful
possession over the suit property. Therefore, the contention raised by the
learned counsel for the appellants on the plea of adverse possession is also
rejected.
15.1. In view of the discussions made above, all the questions of law,
formulated at the time of admission, are answered against the appellants and
the second appeal is dismissed.
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S.A.No.1082 of 1997
15.2. In fine,
(i) the Second Appeal is dismissed by confirming the judgment and
decree passed by the first appellate Court; and
(ii) in the facts and circumstances of the case, there will be no order
as to costs.
27.01.2023
NCC : Yes
Index:Yes/No
abr
To
1.The Principal Sub Judge,
Dindigul.
2.The Additional District Munsif,
Dindigul.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1082 of 1997
S.SOUNTHAR, J.
abr
S.A.No.1082 of 1997
27.01.2023
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