Madras High Court
Ummal Bajria vs Ummal Hasanath on 18 November, 2024
S.A. No. 1066 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 18.10.2024
Pronounced on : 18.11.2024
CORAM
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
S.A. No.1066 of 2013
and
M.P.No.1 of 2013
1.Ummal Bajria
2.Sirujudeen
3.Bairoji Banu ... Appellants
Versus
1.Ummal Hasanath
2.Sarpunnisa
3.Munaivar Nisa
4.Majinisa
5.Thajinminna
6.Bajarudeen ...Respondents
Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the Judgment and Decree dated 06.07.2013 made in A.S.
No.23 of 2012 on the file of the Principal Subordinate Court, Myladuthurai,
reversing the judgment dated 04.02.2011 made in O.S. No.67 of 2007 on the
file of the District Munsif Court, Sirkali.
For Appellants : Ms. V.V. Sathya
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1/21
S.A. No. 1066 of 2013
For Respondents : Mr. B. Jawahar for R1 to R5
: No Appearance (notice served) for R6
JUDGMENT
The appellants are the defendants 1, 2 & 4 in the original suit in
O.S.No.67 of 2007. The 3rd defendant in the suit is the 6th respondent herein.
The appellants are aggrieved by the Judgment and Decree dated 06.07.2013
made in A.S.No.23 of 2012 on the file of the Principal Subordinate Court,
Myladuthurai, reversing the judgment and decree dated 04.02.2011 made in
O.S.No.67 of 2007 on the file of the District Munsif Court, Sirkali.
2. The respondents 1 to 5 herein are the plaintiffs, who are the
daughters of one Mohammed Saali Rauther. The defendants are the legal
heirs of the said Mohammed Saali Rauther's brother. The first
defendant/Ummal Bajria is the wife of one Assan Mohammed. The
defendants 2 and 3/ Sirujudeen & Bajarudeen, are the sons of the 1st
defendant/Ummal Bajria. The 4th defendant/Bairoji Banu is the daughter of
the first defendant/Ummal Bajria.
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3. For the sake of convenience, the parties are referred as plaintiffs
and defendants as mentioned in the suit.
4.The suit was filed for recovery of possession of the suit property
with a direction to remove the superstructure put up by the defendants.
5.The case of the plaintiffs is that their father late Md. Saali
Rauther originally owned the property in S.No.262C/24 in Manganam Pattu
Village, Sirkazhi Taluk to an extent of 0.64 ½ cents. He obtained this land by
way of family partition on 14.07.1943. The present suit was instituted in
respect of land in S.No.262C/24 to an extent of 10 cents out of 64 ½ cents.
The said Md. Saali Rauther died in the year 1967, leaving behind two wives
and five daughters as his legal heirs. The detailed genealogy is hereunder:-
Mohammed Saali Rauther
Jannath Beevi( 1st wife) Yaksan Beevi (2nd wife)
Ummal Hasanath Sarpunnisa Munaivar Nisa Majinisa Thajinminna
(1 daughter) (4 daughters)
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6.According to the plaintiffs, on 19.09.1997, the said Md. Saali
Rauther had executed a sale deed in favour of the first defendant/Ummal
Bajiriya in respect of land in S.No.262C/24 to an extent of 6 cents and sold
an extent of 48 ½ cents of land in S.No.262C/24 to one Ayisha Beevi, who
is not a party to the suit. After the demise of the said Ayisha Beevi, her son
Abdul Rahman took over the property and the same was bequeathed to his
son Mohammed Iliyaas. Thereafter, the said 48 ½ cents of land was handed
to one Kunju Vagaiyara by way of lease on 02.09.1999.
7.According to the plaintiffs, by virtue of the partition, which took
place on 14.07.1943, the said Md. Saali Rauther had received 64 ½ cents of
land, out of which, he executed sale deeds in respect of land to an extent of
54½ cents (6 + 0.48 ½) to the first defendant and Ayisha Beevi respectively.
The remaining 10 cents of land is the property in dispute in the present suit.
The plaintiffs contended that on 25.03.2001, the defendants and late Asan
Mohammed deliberately trespassed into the suit schedule property and
illegally leveled the property.
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8.The plaintiffs further contended that the defendants 1 to 4 in
O.S.No.67 of 2007 and the said Asan Mohammed filed a suit in O.S.No.76
of 2001 before the District Munsif Court at Sirkazhi as against the plaintiffs
4 and 5 namely, Majinisha and Thajilminna. The said suit in O.S.No.76 of
2001 was filed for permanent injunction to restrain the defendants therein
from disturbing the plaintiff's peaceful possession and enjoyment of the
properties in various survey numbers including S.No.262C/24. The
plaintiffs further contended that they had filed the present suit only in respect
of 10 cents of land in S.No.262C/24. However, the defendants had claimed
an extent of 57 kuzhi in O.S.No.76 of 2001 which was pending at the time of
filing the present suit by the plaintiffs/respondents herein.
9.The plaintiffs viz., Ummal Hasanath, Sarpunnisa, Munaivar Nisa,
Majinisa and Thajinminna contended that the defendants viz., Ummal Bajria,
Sirujudeen, Bajarudeen and Bairoji Banu have no right in respect of the suit
property and the defendants had encroached the suit property. Therefore, the
plaintiffs had filed the present suit for recovery of possession and removal of
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superstructure put up by the defendants in the suit property.
10.The Trial Court vide judgment and decree dated 18.04.2007
granted permanent injunction in respect of other survey numbers and rejected
the suit in respect of S.No.262C/24 by observing that the defendants herein
had purchased only 6 cents in the said survey number. The defendants in
O.S.No.76 of 2001 filed A.S.No.59 of 2008 before the Principal Subordinate
Court, Mayiladuthurai against the judgment and decree in O.S.No.76 of
2001. The First Appellate Court modified the judgment by granting
permanent injunction only to an extent of 6 cents in S.No.262C/24 and partly
allowed the appeal in favour of the defendants.
11.The defendants filed their written statement in the suit contending
that the plaintiffs had not established that they were in possession of the
property obtained in family partition that had taken place on 14.07.1943.
There is no clarity with regard to the sale made by the said Mohammed Saali
Rauther at various point of time. The plaintiffs had not explained the details
of execution of sale deed by Mohammed Saali Rauther in respect of 48 ½
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cents and 6 cents of land. There is no clear description with regard to the
extent and boundaries of the properties conveyed by the said Mohammed
Saali Rauther. In the absence of any document and other particulars
produced by the plaintiffs, it has to be concluded that the plaintiffs had not
established their right over the suit schedule property in the manner known
to law. The defendants further contended that the plaintiffs have not clearly
mentioned what was the extent of land leased out in favour of one Kunju
Vagaiyara. Therefore, it has to be construed that the plaintiffs' claim is
imaginary and bereft of details.
12.The institution of suit in O.S.No.67 of 2007 by the
plaintiffs/respondents cannot be entertained as the suit in O.S.No.76 of 2001
was decided partially in favour of the defendants/appellants. Therefore, the
defendants prayed for dismissal of suit on the ground of resjudicata.
13.The Trial Court upon perusal of the plaint and written statement
filed by the plaintiffs and the defendants, framed the following issues:-
(1) Whether the plaintiffs are entitled to the relief of recovery of
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possession as prayed for?
(2) Whether the plaintiffs are entitled to the following relief as
prayed for?
(3) Whether the plaintiffs are entitled to any other relief?
14.Before the Trial Court, the 4th plaintiff/Majinisha alone was
examined as P.W.1 and 5 documents were marked as Exs.A1 to A5. On the
side of the defendants, the second defendant/Sirujudeen alone was examined
as D.W.1 and 6 documents were marked as Exs.B1 to B6.
15.To substantiate their case, the plaintiffs presented the following
documents:
Ex.A1 is the certified copy of decree in O.S.No.76 of 2001 passed by
the Trial Court, dated 18.04.2007; Ex.A2 is the certified copy of the
judgment in O.S.No.76 of 2001; Ex.A3 is the carbon copy of the plaint in
O.S.No.76 of 2001; Ex.A4 is the carbon copy of the written statement filed
by the 1st and 2nd defendants/Ummal Bajria and Sirujudeen; Ex.A5 is the sale
deed dated 19.09.1977 executed by the said Mohammed Saali Rauther in
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favour of the 1st defendant/Ummal Bajria Beevi.
16.The following testimonies were adduced by the defendants:
Ex.B1 is the certified copy of decreetal order in I.A. No.192 of 2006
in O.S.No.76 of 2001 dated 01.12.2006; Ex.B2 is the certified copy of fair
order passed in I.A.No.192 of 2006, dated 01.09.2006; Ex.B3 is the Patta,
which was issued by the Tahsildar, Sirkazhi standing in the name of one
Mohammed Moosa and 5 others; Ex.B4 is the certified copy of decree passed
in A.S.No.59 of 2008 by the Principal Subordinate Court, Mayiladuthurai;
Ex.B5 is the certified copy of the judgment in A.S.No.59 of 2008; Ex.B6 is
the copy of the settlement deed executed by Ayisha Beevi in favour of one
Nabusa Beevi dated 23.01.1978.
17.Before the Trial Court, the defendants in O.S.No.76 of 2001, the
plaintiffs herein had filed an interlocutory application in I.A.No.192 of 2006
under Order XXVI Rule 9 of CPC and Section 151 of CPC seeking for
appointment of Surveyor to measure the suit property. By order dated
01.09.2006, the said I.A.No.192 of 2006 was dismissed by stating that the
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petition was filed at the belated stage. The Trial Court while considering
Ex.B3 Patta, dated 03.10.2009, issued by the Tahsildar, Sirkazhi observed
that the said patta does not stand in the names of the persons mentioned in
the plaint in respect of property sold to Ayisha Beevi. Therefore, the
plaintiffs had not filed any documents to disprove the contentions of the
defendant that the averments of the plaintiffs are imaginary. The Trial Court
has come to the conclusion that the plaintiffs had not furnished any oral and
documentary evidence to establish their right over the suit schedule property
and the defendants had proved that the averments of the plaintiffs are false.
18.The Trial Court had taken into consideration the judgment in
O.S.No.76 of 2001 in which the Court observed that the defendants herein
had purchased only an extent of 6 cents in S.No.262C/24. After evaluating
the evidence presented by the plaintiffs in the present suit, the Trial Court
concluded that the plaintiffs had not proved that the said Md. Saali Rauther
obtained the property to an extent of 64 ½ cents in S.No.262C/24. The Trial
Court observed that the plaintiffs had not marked the partition deed dated
14.07.1943. In the absence of any original document or copy of the
document to establish that the suit property was obtained by the plaintiffs’
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father by way of family partition, the Trial Court disbelieved the evidence
adduced on behalf of the plaintiffs to establish their right over the suit
schedule property. The Trial Court observed that the plaintiffs had failed to
prove that the defendants had encroached the suit property. On the aforesaid
reasons, the Trial Court dismissed the suit.
19.Aggrieved by the same, the plaintiffs preferred the appeal in
A.S.No.23 of 2012 before the Principal Sub-Court, Mayiladuthurai. The
plaintiffs filed I.A.No.21 of 2021 in A.S.No.23 of 2012 to mark the partition
deed dated 14.07.1943 as additional document.
20.The First Appellate Court allowed the application and marked the
partition deed dated 14.07.1943 as Ex.A6 for the reason that the Trial Court
dismissed the suit by pointing out that the plaintiffs had failed to establish
that the plaintiffs' father obtained 64 ½ cents in S.No.262C/24 by filing the
partition deed dated 14.07.1943. While examining the correctness of the
judgment passed by the Trial Court, the First Appellate Court observed that
Ex.A6 makes it clear that the plaintiffs’ father has obtained the property in
S.No.262C/24 to an extent of 64 ½ cents in the family partition dated
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14.07.1943.
21.The First Appellate Court noted that even though the suit in
O.S.No.76 of 2001 was filed for injunction, the Trial Court made the
following observation:
“As for as the item 3 of the suit
property is concerned when it has been failed to
establish by the plaintiffs that they are absolute owners
of the suit property and it is admitted that the
defendants are the daughters of the vendor of the suit
property and legal heirs of the vendor. It would not be
appropriate to grant injunction as against true owner”
The First Appellate Court observed that even though the
defendants/appellants claimed an extent of 18 5/6 cents in O.S.No.76 of
2001, permanent injunction was granted only to an extent of 6 cents by the
First Appellate Court in A.S.No.59 of 2008 as the defendants/appellants had
purchased only 6 cents in S.No.262C/24 from the plaintiffs' father.
22.The First Appellate Court in A.S.No.59 of 2008 observed that the
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Trial Court in O.S.No.76 of 2001 has already decided that the
defendants/appellants are entitled only to an extent of 6 cents in the said
survey number. Therefore, the defendants are barred by res judicata from
claiming an extent of 18 5/6 cents in O.S.No.67 of 2007 and the same was
not considered by the Trial Court.
23.The First Appellate Court noted that the land belonged to Ayisha
Beevi is shown as west boundary in Ex.A5 which is the sale deed executed
by the plaintiffs' father in favour of the first defendant. Therefore, the First
Appellate Court observed that the plaintiffs' father had executed sale in
S.No.262C/24 in favour of Ayisha Beevi much prior to the execution of
Ex.A5. The First Appellate Court concluded that as the said Ayisha Beevi
had executed a settlement deed marked as Ex.B6 to an extent of 48 ½ cents,
the plaintiffs' father had sold 48 ½ cents in S.No.262C/24 in favour of
Ayisha Beevi. The defendants had purchased 6 cents in S.No.262C/24 and
24.The First Appellate Court observed that as the plaintiffs had
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already established their right in respect of 10 cents in S.No.262C/24 before
the Trial Court in O.S.No.76 of 2001, the plaintiffs are entitled to the relief
of recovery of possession as prayed for.
25.On these grounds, the First Appellate Court set aside the
judgment and decree in O.S.No.67 of 2007 and allowed the appeal.
Challenging the same, the appellants/defendants had filed the present Second
Appeal.
26.On 04.10.2013, the Second Appeal was admitted by this Court on
the following substantial question of law:
“Whether the lower appellate Court is
right in decreeing the suit when earlier proceedings in
O.S.No.76 of 2001 and A.S.No.59 of 2008 (Ex.A1 and
Ex.B.5) operate as res judicata for filing a subsequent
suit?”
27.The primary contention of the appellants/defendants is that the
dispute over the subject matter of the suit was already covered in the suit in
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O.S.No.76 of 2001 instituted by the appellants along with the 6th respondent
herein for permanent injunction to restrain the defendants therein, who are
the 4th and 5th respondents herein from disturbing their peaceful possession
and enjoyment of the suit properties. Though the Trial Court granted
permanent injunction in so far as other suit properties are concerned, no
permanent injunction was granted in favour of the defendants in respect of
property in S.No.262C/24. Hence, the suit in O.S.No.76 of 2001 was partly
allowed. As against the same, an Appeal in A.S.No.59 of 2008 was filed by
the defendants/appellants and the First Appellate Court granted permanent
injunction in respect of land in S.No.262C/24.
28.Learned counsel for the appellant would contend that the First
Appellate Court though discussed the judgment passed in O.S.No.76 of
2001, had failed to take note of the fact that the dispute relating to the suit
schedule property was already decided in O.S.No.76 of 2001. Therefore, the
First Appellate Court miserably failed to consider that the present suit in
O.S.No.67 of 2007 is barred by res judicata.
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29.Learned counsel for the appellant would contend that the issues in
O.S.No.76 of 2001 was framed in the year 2001, however, the respondents
had filed the suit in O.S.No.67 of 2007 only in the year 2007. Therefore, the
suit is barred by limitation.
30.Per contra, learned counsel for the respondents 1 to 5 would
contend that the plaintiffs' father inherited the properties in S.No.262C/24 to
a larger extent of 64 ½ cents, out of the said 64 ½ cents, 48 ½ cents of land
was sold to Ayisha Beevi and 6 cents of land was sold in favour of the first
defendant by the plaintiffs' father. Therefore, the plaintiffs have inherited the
remaining 10 cents of land in S.No.262C/24 and the defendants/appellants do
not have any right over the said 10 cents of land which is the suit property
and prayed for dismissal of the Second Appeal.
31.Heard the learned counsel for the appellants/defendants and the
learned counsel for the respondents 1 to 5/plaintiffs and perused the
materials available on record.
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32.Admittedly, the plaintiffs claim that their father was given with
64 ½ cents of land in S.No.262C/24 in family partition. Out of the said 64 ½
cents, an extent of 54 ½ cents was already sold by the plaintiffs' father and
the plaintiffs are claiming recovery of possession as against the defendants
only to an extent of remaining 10 cents in S.No.262C/24.
33.The claim of the defendant is that vide Ex.A5, the first defendant
purchased 18 5/6 cents in S.No.262C/24, however, the Trial Court in
O.S.No.76 of 2001 held that the defendants had purchased only 6 cents in
S.No.262C/24 and permanent injunction was granted only to an extent of 6
cents in A.S.No.59 of 2008 in favour of the defendants.
34.The Trial Court has rightly examined the suit schedule properties
in O.S. No.76 of 2001 which comprises of 5 items in which the present suit
schedule property is also included. The defendants filed O.S.No.76 of 2001
for permanent injunction in respect of 18 5/6 cents of land in S.No.262C/24
in which 10 cents of land, which is the subject matter of the present suit is
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inclusive. Therefore, the Trial Court has considered the judgment and decree
passed in O.S.No.76 of 2001 and negatived the claim made by the plaintiffs.
The First Appellate Court under misconception of the facts and law applied
the principle of res judicata to reverse the judgment of the trial court. The
First Appellate Court had miserably failed to see that the Judgment and
decree in O.S.No.76 of 2001 will prevail over the present suit in O.S.No.67
of 2007.
35.Though the partition deed marked as Ex.A6 shows that the
plaintiffs' father obtained 64 ½ cents in S.No.262C/24, the plaintiffs had
failed to prove that the suit schedule property (remaining 10 cents of land in
S.No.262C/24) was in possession and enjoyment of the plaintiffs and that the
said 10 cents was not sold in favour of anyone. The plaintiffs have not filed
any revenue records standing in their name to prove the ownership and
enjoyment of the said 10 cents of land.
36.The plaintiffs cannot claim the relief of recovery of possession
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only on the basis of the observation made in O.S.No.76 of 2001 that “it
would not be appropriate to grant injunction as against true owner”. The
plaintiffs have failed to prove before the Courts below that the said
observation of the Trial Court in O.S.No.76 of 2001 is related to 10 cents of
land which is the subject matter of O.S.No.67 of 2007.
37.The First Appellate Court failed to note that the claim of 18 5/6
cents by the defendants was rejected in O.S.No.76 of 2001 for the reason that
the defendants had proved their ownership only to an extent of 6 cents in
S.No.262C/24. However that cannot be a ground for the plaintiffs to claim
10 cents of land in S.No.262C/24 without producing any oral and
documentary evidence to establish their ownership and possession prior to
25.03.2001 which is the date on which the defendants encroached the suit
property as per the claim of the plaintiffs.
38.Undoubtedly, the suit in O.S.No.67 of 2007 is hit by Res judicata
as the dispute in respect of the suit schedule property was already decided in
O.S.No.76 of 2001 by the District Munsif Court, Sirkazhi. In view of the
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same, the substantial question of law is decided in favour of the
appellants/defendants.
39.Accordingly, the Second Appeal is allowed and consequently, the
judgment and decree passed in A.S. No. 23 of 2012 dated 06.07.2013 on the
file of the Principal Sub-Court, Mayiladuthurai is set aside and judgment and
decree in O.S.No. 67 of 2007 passed by the District Munsif Court, Sirkazhi
dated 04.02.2011 is hereby confirmed. No costs. Consequently, the
connected miscellaneous petition is also closed.
18.11.2024
Index :Yes/No
Speaking/Non-Speaking Order
Neutral Case Citation : Yes/No
To:
1. The Principal Subordinate Court, Myladuthurai.
2. The District Munsif Court, Sirkali.
3. The Section Officer, V.R. Section, High Court of Madras.
klt
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N.SENTHILKUMAR, J.
klt
Pre-Delivery Judgment in
and
18.11.2024
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