Madras High Court
P.Ranganathan vs Prabha on 4 January, 2024
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.20 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.20 of 2021
and
C.M.P.No.2581 of 2021
T.V.Rajabooshnam (Deceased)
1. P.Ranganathan ... Appellant
Vs.
Prabha ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C. to set aside
the judgment and decree dated 20.12.2019 in A.S.No.28 of 2019 passed by
the learned Subordinate Judge, Vaniyambadi, confirming the judgment and
decree dated 14.03.2012 in O.S.No.73 of 2005, passed by the learned
District Munsif, Vaniyambadi.
For appellant : Mr.A.R.Suresh
for Mr.J.Muthukumaran
For respondent : Mr.P.A.Sudesh Kumar
JUDGMENT
The above suit is a glaring example of how procedure has taken
a back seat. The reason for the above lament is on account of the fact
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that after the death of the original plaintiff, the present appellant has
taken out an application under Order XXII Rule 3 of C.P.C. in
I.A.No.683 of 2009 in O.S.No.73 of 2005. The prayer in the said
application is not to bring the appellant herein as a party to the
proceedings, but, to represent the deceased T.V.Rajabooshnam as his
legal heir. The prayer in application would read as follows:
“For the reasons morefully stated in the accompanying
affidavit it is prayed that this Hon'ble Court may be pleased to
permit the petitioner – legal heir to continue with the suit as
contemplated in law and to thus render justice.”
2. The said application has been allowed and the cause title
has been amended as follows:
“T.V.Rajabooshanam (died)
represented by legal heir R.Ranganathan”
Therefore, the appellant has not been brought on record as a
party to the proceedings. This glaring omission has been overlooked
by the District Munsif Court, Vaniyambadi. Thereafter, in the appeal,
the appellant has been arrayed as the appellant/plaintiff.
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3. Coming to the merits of the case, the facts which have
given rise to the above second appeal are set out hereinbelow.
FACTS OF THE CASE:
3.1. The deceased T.V.Rajabooshnam had filed a suit in
O.S.No.73 of 2005 on the file of the Principal District Munsif Court,
Vaniyambadi originally for a declaration and for a permanent
injunction restraining the defendant from interfering with the
plaintiff's peaceful possession and enjoyment of the suit schedule
property and thereafter, the same had been amended to include the
relief of recovery of possession and mandatory injunction to remove
the thatched hut put up on the encroached portion and to deliver
vacant possession.
3.2. The plaintiff would submit that the property in question
originally belonged to one Rajamannar under a partition deed dated
05.02.1930. The said Rajamannar is the father of the original plaintiff,
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T.V.Rajabooshnam. On 19.08.1954, the said T.V.Rajabooshnam had
executed a settlement deed and delivered possession of the suit
property and other properties in favour of the plaintiff and his mother.
The plaintiff's mother died in or about 1980 leaving behind the
plaintiff as her only legal heir, as a result of which, the plaintiff had
been in possession and enjoyment of the suit property.
3.3. The plaintiff would further submit that the defendant, who
is residing adjacent to the suit property, was causing trouble to the
plaintiff's peaceful possession and enjoyment of the suit property. The
defendant attempted to dump materials in the suit property on
26.01.2005 and the same was objected by the plaintiff. The plaintiff
caused to issue a legal notice dated 31.01.2005 to the defendant, but,
despite receiving the same, the defendant had not issued a reply.
Therefore, the plaintiff has come forward with the suit originally
seeking permanent injunction.
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3.4. Thereafter, post the filing of the written statement by the
defendant, the plaintiff had amended the plaint seeking declaration of
the title as the defendant had challenged the same and had further,
encroached into an extent of 13 to 15 x 20 to 25 feet in the suit
schedule property and put up a thatched hut. The relief of declaration
and mandatory injunction and recovery of possession was therefore,
included in the suit.
3.5. The defendant had filed a written statement denying the
contention of the plaintiff. The defendant would also submit that the
plaintiff was not the only child of the said Rajamannar and his wife
Jagadammal, but, he had sister who has not been impleaded and who
is a necessary party to the proceedings.
3.6. The defendant would submit that over 35 years, the
defendant and her husband were being in continuous possession of the
suit schedule property and residing in the same. It is the case of the
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defendant that they have been in possession which is uninterrupted
continuous, open and hostile to the knowledge of the plaintiff and his
ancestors. Therefore, the defendant had put across a case of adverse
possession. The defendant sought for the dismissal of the suit.
3.5. Pending the suit, the original plaintiff had died and as
stated supra, the appellant herein had got his name included as
respresenting the deceased original plaintiff as his heir.
TRIAL COURT:
4. The Trial Court, had observed that the appellant herein,
who had claimed that the deceased had executed a will bequeathing
the property on him, has not produced or proved the will. The learned
Judge also held that the plaintiff had failed to prove the title to the suit
property, particularly, when the description of the property differs in
each of the documents filed on the side of the plaintiff i.e., Exs.A1 to
A5.
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5. Ultimately, the learned Judge, after analysing the records,
had dismissed the suit.
LOWER APPELLATE COURT:
6. Aggrieved by the same, this appellant had filed an appeal
in A.S.No.28 of 2019 on the file of the Subordinate Court,
Vaniyambadi. The learned Subordinate Judge, had observed that the
appellant had not produced any paper to show how he claimed a right
over the property through deceased plaintiff, highlighting the fact that
the appellant had not produced the alleged will said to have been
executed on 16.02.2009 by the deceased T.V.Rajabooshnam in his
favour. Therefore, the Lower Appellate Court held that the appellant
has no locus standi to file the appeal.
7. The Lower Appellate Court has observed that the deceased
T.V.Rajabooshnam has the right, title and interest over the suit
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schedule property and not the appellant. T.V.Rajabooshnam having
died intestate, the property would devolve on his legal heir who is his
sister viz., Suseela. Ultimately, on the ground that the appellant had
no locus standi to challenge the judgment and decree of the Trial
Court, the appeal has been dismissed. It is against this judgment and
decree, this second appeal has been filed.
8. Heard the learned counsel appearing on both sides and
perused the materials available on record.
DISCUSSION:
9. As observed earlier, the appellant has not produced any
shred of evidence to show how he has the right, title or interest in the
suit schedule property belonging to the deceased T.V.Rajabooshnam.
The appellant has not been properly impleaded in the suit. Further, the
appellant has not chosen to implead the sister of the deceased
T.V.Rajabooshnam viz., Suseela who is the only legal heir of the said
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T.V.Rajabooshnam.
10. The appellant has taken out an petition in C.M.P.No.2581
of 2021 for receiving the additional document which is the will dated
16.02.2009. The affidavit filed in support of this petition is silent as to
why such petition has not been taken before the Trial Court or before
the Lower Appellate Court, particularly, when the Trial Court had
dismissed the suit stating that the appellant has failed to prove his
interest in the suit property. Therefore, when the documents that are
now sought to be filed were available with the appellant even when
the suit was pending, no valid reason has been given by the plaintiff
for its non-production before the Courts below. This petition is only an
attempt to fill up the lacuna. Therefore, this petition has to necessarily
fail and accordingly, this petition in C.M.P.No.2581 of 2021 is
dismissed.
11. Considering the fact that the appellant claims a right to the
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property only under the will and the same not having been produced
and proved in the manner known to law, the findings and judgment of
the Courts below require no reconsideration.
In the result, this second appeal stands dismissed since the
appellant has not made out any substantial questions of law and has
not stated as to how the judgment and decree of the Courts below are
wrong. No costs.
04.01.2024
Index: Yes/No
Speaking order/non-speaking order
ssa
To
1. The Subordinate Judge, Vaniyambadi.
2.The District Munsif, Vaniyambadi.
3.The Section Officer, V.R.Section, High Court, Madras.
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P.T.ASHA, J.,
ssa
and
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04.01.2024
https://www.mhc.tn.gov.in/judis
