Madras High Court
Swornaretnam (Died) vs Murukesan (Died) on 16 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A.No.1723 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A.No.1723 of 2002
1.Swornaretnam (Died)
2.Sundararose
3.Lilly (died)
4.Gnanadas
5.Suneeram
6.Suganthi
(1st appellant died and the appellants 2 & 4 to 6,
who are already on record, are recorded as
legal heirs of the deceased first appellant)
(3rd appellant died and the appellants 1,2 & 4 to 6,
who are already on record are recorded as
LRs of the deceased 3rd appellant) ... Appellants
.vs.
1.Murukesan (Died)
2.Subbamma
3.Manoharan
4.Kanakabai (Died)
5.Stella
(4th respondent died and the respondent No.2,
Page 1 of 24
https://www.mhc.tn.gov.in/judis
S.A.No.1723 of 2002
who is already on record, is recorded as
LRs of the deceased 4th respondent)
6.Saraswathi
7.Muthulekshmi
(Respondents 6 & 7 are brought on record
as LRs of the deceased first respondent) .....Respondents
1.Ponmani
2.Christopher,
Village Administrative Officer at Thailapuram,
Pitannery Village,
Sattankulam. ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree, dated 21.03.2002 made in A.S.No.
61 of 1998, on the file of the Sub-Court, Kuzhithurai confirming the
judgment and decree, dated 22.12.1997 made in O.S.No.192 of 1984, on the
file of the II Additional District Munsif, Kuzhithurai.
For Appellants : Mr.K.N.Thambi
For R6 & R7 : Mr.M.E.Ilango
For R5 : Mr.V.Shabthakiri Raja
for Mr.T.R.Rajaraman
For R3 : Mrs.S.Ananthi
for Mr.F.X.Eugene
Page 2 of 24
https://www.mhc.tn.gov.in/judis
S.A.No.1723 of 2002
JUDGMENT
The plaintiffs are the appellants and the defendants are the
respondents in the second appeal. The plaintiffs filed a suit in O.S.No.192
of 1984, on the file of the II Additional District Munsif Court, Kuzhithurai
for declaration of title and possession, injunction and for setting aside a
decree and judgment passed in O.S.No.612 of 1973.
2, For the sake of convenience, the appellants and the respondents
shall be referred to as per their ranks in the plaint, as the defendants and
plaintiffs respectively.
3. The case of the plaintiffs is that:-
(i)The properties comprised in survey number 4417 of
Valvachagoshtam Village in Kalkulam Taluk and 2089 of Nattalam Village
of Vilavancode Taluk belonged to the tarawad of defendants 1 to 5 and
others comprising the Thaivazhi of Deivana Lekshmi, who was the mother
https://www.mhc.tn.gov.in/judis
of the first defendant. There was a suit for partition of the above survey
numbers and some other properties in O.S.No.490 of 1961, on the file of the
District Munsif Court, Padmanabhapuram as between the descendants of
Deivana Lekshmi. As per the final decree made in that suit, jointly allotted
33 cents in plot No.4 and 2 cents in Plot No.9 in survey number 4417 and 1
acre 69.375 cents in plot no.3 in survey number 2089. The present
defendants 1 to 5 are defendants 16 to 20 respectively in the said suit in
O.S.No.490 of 1961. As per that decree, the present defendants 1 to 5 got
5/13 share in the above said plots. The said 5/13 share in plots 4 and 9 in
survey No.4417 and plot No.3 in survey number 2089 alone are scheduled
as the suit property in this suit. The remaining portion in the suit plots
which are not subject matter in this suit.
(ii) While so, in the year 1964, the first defendant for her behalf
and on behalf of defendants 2 to 5, who were minors, along with other
sharers entered into a contract for sale in favour of one Jesammal, daughter
of Thankammal Nadachi to sell 12/13 share in plots 4 and 9 in survey
https://www.mhc.tn.gov.in/judis
number 4417 and plot No.3 in survey number 2089 and received Rs.1,000/-
as advance. Since Jesammal was not able to take the sale deed before the
date specified in the contract of sale, the first defendant and others executed
another agreement for sale to the present plaintiffs on 08.05.1965 and
received another amount of Rs.1,000/- towards advance. The said
agreement further provides to pay Rs.1,000/- to Jesammal, who got the first
agreement of sale. Accordingly, the present plaintiffs paid Rs.1,000/- to
Jesammal on 11.04.1972. For the remaining 1/13 share, the present
plaintiffs have taken a sale deed from the 7th defendant in O.S.No.490 of
1961 as per sale deed, dated 04.09.1965.
(iii) In pursuance of the agreement of sale, dated 08.05.1965, the
first defendant being the natural guardian of defendants 2 to 5 on their
behalf and on her own behalf executed a sale deed in respect of the suit
property (viz 5/13 share in the suit plots) in favour of the plaintiff for a total
consideration of Rs.2,600/-. Out of this amount, an amount of Rs.833.37
paise was given credit towards the proportionate amount received under the
https://www.mhc.tn.gov.in/judis
agreement for sale and the balance amount of Rs.1766.63 paise was recited
to be paid on a future date. Out of that amount, the plaintiff paid Rs.1500/-
and obtained a receipt at the time of marriage of the third defendant. After
the payment of Rs.1500/- to the defendants on 20.08.1148 M.E., the present
plaintiff had to pay only Rs.266.63 paise to defendants towards balance of
sale consideration. The sale deed, dated 19.10.1966 executed by the first
defendant is valid and competent. Further, the husband of the first
defendant and first defendant and the father of defendants 2 to 5 viz.,
Arumugam Kumaraswamy as an attestor to that sale deed. In pursuance of
the sale deed, dated 19.10.1966 the present plaintiffs got possession of suit
property and he is paying land tax to the Government. While so, the present
defendants 2 to 5 as plaintiffs filed a suit in O.S.No.612 of 1973 for
partition as well as for cancellation of the sale deed dated 19.10.1966. The
plaintiff was impleaded as second defendant in that suit and he contested
that suit till May 1980. One of the important contentions raised by the
plaintiff as second plaintiff in O.S.No.612 of 1973 was that the jointers of
the Thaivazhi of defendants 1 to 5 was disrupted after the partition decree in
https://www.mhc.tn.gov.in/judis
O.S.No.490 of 1961 and thereafter the members of the Tarawad would only
be tenants in common. It is also contended by the plaintiff that the claim for
setting aside the sale deed is barred by limitation.
(iv) This Court accepted the contention raised by the plaintiff and
held that the claim of the defendants 2 to 4 for setting aside the sale deed is
barred. This Court decreed the suit for setting aside the sale deed in respect
of 1/13 share of the present 5th defendant alone. Against the decree and
judgment passed by this Court on 21.09.1976, the present defendants 2 to 5
have preferred an appeal before the District Court, Nagercoil in A.S.No.635
of 1976. On 16.08.1978 the learned District Judge allowed the appeal and
decreed the suit in toto. Against the decree and judgment passed by the first
appellate Court in A.S.No.635 of 1976, the present plaintiff preferred a
second appeal before this Court in S.A.No.2079 of 1978.
(v) While the matter was pending before this Court, the plaintiffs
and defendants 1 to 5 have entered into compromise in respect of the suit
https://www.mhc.tn.gov.in/judis
property. In pursuance of that compromise, the present second defendant as
Karanavan as well as the Senior member of the sub-Tarawad accepted the
sale deed, dated 19.10.1966 executed by his mother, the present first
defendant, in favour of the plaintiff and executed a registered consent deed
styled as receipt in favour of the present plaintiff under document No.951
dated 5.5.1980 from the present plaintiff as recited in the sale deed. As per
the document dated 05.05.1980, the present defendants have accepted the
validity of the sale deed, dated 19.10.1966 in favour of the plaintiff.
Further, the document dated 05.05.1980 executed by the present second
defendant styled as receipt is binding as on all the defendants since he being
the present Karanavan and senior member of the tarawad. Hence, the
present defendants 1 to 5 cannot and could not resist the claim of the
plaintiff over the entire suit property.
(vi) After the execution of the document dated 5.5.1980, the
present defendants 1 to 5 have promised the present plaintiff that they will
file a petition before this Court to withdraw the suit in O.S.No.612 of 1973.
https://www.mhc.tn.gov.in/judis
In pursuance of that promise and settlement they have sent a registered letter
to their then Advocate Mr.Ananthakrishnan Nair to withdraw the suit.
Beleving the representation made by the present defendants 1 to 5 the
present plaintiff has not taken any further active steps in S.A.No.2079 of
1978. The present plaintiff bonafidly believed that defendants 2 to 5 herein,
who are the plaintiffs in O.S.No.612 of 1973 will withdraw that suit as
promised. The plaintiff avers that he had no knowledge about the conduct
of the second appeal after 5.5.1980. The present plaintiff came to know
about the dismissal of the second appeal only on 15.12.1985. The decree
and judgments passed in O.S.No.612 of 1973 are not valid and binding on
the present plaintiff. Further, the decree and judgment passed by this Court
in S.A.No.2079 of 1978 is vitiated by fraud, collusion and
misrepresentation. This Court has lost right of the document dated 5.5.1980
and mistakenly passed a decree on 21.06.1983. Hence, the decrees and
judgments passed in O.S.No.612 of 1973 are liable to be set aside in this
suit. Now on the basis of the impugned decree passed by this Court,
defendants 1 to 5 are attempting to disturb the peaceful possession of the
https://www.mhc.tn.gov.in/judis
plaintiff over the plaint schedule property. They are also attempting to
execute the impugned decree passed in O.S.No.612 of 1973. They made
one of such unsuccessful attempt on 15.12.1983. As stated supra, the
defendants 1 to 5 have no right what so ever in the suit property. As per the
sale deed, dated 19.10.1966 and also as per the consent deed which is styled
as receipt dated 5.5.1980, they have parted with their entire rights in the suit
property in favour of the present plaintiff. The present defendants are
bound by the recitals contained in the documents, dated 19.10.1966 and
5.5.1980. In these circumstances, the plaintiff's title and possession in
respect of the plaint schedule property has to be declared in this suit. The
plaintiff is also entitled to get an injunction restraining the defendants from
executing the impugned decree passed in O.S.No.612 of 1973.
(vii) As stated above, the decrees and judgments passed in
O.S.No.612 of 1973 are obtained by fraudulent means and
misrepresentation of facts. Hence, the decrees and judgments passed in
O.S.No.612 of 1973 are liable to be set aside in this suit. The plaintiff has
https://www.mhc.tn.gov.in/judis
demanded the defendants to settle the matter amicably out of Court on
several occassions and last of such demand was made on 20.12.1983. The
defendants did not comply with that demand. Hence, the plaintiffs have
filed the present suit.
4. (i) The defendants filed a written statement and stated that the
suit is not maintainable and is liable to be dismissed. The sale deed dated
19.10.1966 is invalid and incompetent. The present defendants 2 to 5 filed
O.S.No.612/1973 before this Court for setting aside the sale deed and for
partition. To that suit, the present plaintiff is a party. The suit has been
decreed with respect of 1/13 share in favour of 5th defendant. Against that
decree defendants 2 to 5 filed an appeal in A.S.No.635/1976 before the
District Court, Nagercoil and the District Court allowed the appeal in toto
and the sale deed was set aside. Against the decree of the first appellate
Court, the present plaintiff filed second appeal before this Court in S.A.No.
2074 of 1978. While the second appeal was pending before this Court, the
present plaintiff made an attempt to admit in evidence a false and fabricated
https://www.mhc.tn.gov.in/judis
document in 13366 of 1982. The present defendants 2 to 5, who were
respondents in second appeal filed counter to the C.M.P. The defendants 1
to 5 did not enter into compromise of plaintiff. These defendants 2 to 5 did
not execute any receipt under document 951, dated 05.05.1980. It is a false
and concocted document. The recitals of those documents are false. These
defendants 2 to 5 never accepted the validity of the sale deed dated
19.10.1966. The receipt dated 5.5.1980 is a false one and it would not bind
the suit property and the defendants 2 to 5. It is a simply creation of
plaintiff. It has no legal effect over the plaint schedule property. The
defendants 2 to 5 never agreed or promised to withdraw the appeal of the
suit in O.S.No.612 of 1973. These defendants did not send any letter to
their lawyer to withdraw the suit as alleged. These are manipulation done
by plaintiff.
(ii) There is no scope for the plaintiff to remain quite since the
defendants did not make any representation to plaintiff as alleged. Actually
the appellant argued the case before the appellate Court. After hearing both
https://www.mhc.tn.gov.in/judis
sides this Court was pleased to dismiss the second appeal as well as the
C.M.P.No.13366/82. The second appeal and the C.M.P., were rightly
dismissed by this Court. The plaintiff was represented by his lawyer in the
second appeal and in the same, plaintiff got knowledge of the dismissal of
the second appeal as soon as they were dismissed by this Court. The decree
in O.S.No.612/1973 and the appellate Court decree are valid and competent.
There is no fraud or collusion in dismissing the appeal in S.A.No.2079 of
1978. This Court considered the entire case and the C.M.P., coreectly
dismissed both the second appeal and C.M.P., The decree in O.S.No.
612/1973 and the appellate Court decree in that are not liable to be set aside.
These defendants are fully competent to execute the decree in O.S.No.
612/1973 and the appellate decree connected therewith. The suit of the
plaintiff is barred by resjudicata by reason of the decrees and judgments in
O.S.No.612/1973, A.S.No.635/1976, S.A.No.2079 of 1978 and the
C.M.P.No.13366/1982. The suit property belongs to defendants 1 to 5. The
defendants 2 to 4 have sold them to a stranger. The plaintiff has no right or
title over the suit property. The suit is vexatious and it is simply an abuse of
https://www.mhc.tn.gov.in/judis
process of law. The plaintiff is not entitled to any of the reliefs prayed for in
the suit. The plaintiff has no cause of action to file this suit.
5. After completing the pleadings and framing of issues, on the
side of the plaintiffs, three witnesses were examined as P.W.1 to P.W.3 and
marked 12 documents as Ex.P1 to Ex.P12. On the side of the defendants,
one witness was examined as D.W.1 and marked 7 documents as Ex.D1 to
Ex.D7.
6. On considering the above said oral and documentary evidence,
the trial Court dismissed the suit. Aggrieved over the said judgment and
decree, the plaintiffs preferred an appeal in A.S.No.61 of 1998, on the file of
the Sub-Court, Kuzhithurai. On hearing the arguments, considering the
entire materials and re-appreciated the oral and documentary evidence, the
appellate Court dismissed the appeal by confirming the judgment and decree
of the trial Court.
https://www.mhc.tn.gov.in/judis
7. Aggreived by the said concurrent judgments and decrees, the
plaintiffs filed the present appeal.
8. At the time of admitting the present second appeal, this Court
framed the following substantial questions of law for consideration:
"a) Whether the Courts below are correct in
holding that the case of the respondents is not barred by
estoppel?
b) Whether the Courts below are correct in
dismissing the suit of the appellants, since Exs.A9 and A10
had already been accepted and marked as exhibits in the
case, hence were and are binding on the respondents?
9. The learned counsel for the appellants would submit that the
judgments and decrees of the Courts below are against law and
unsustainable. The Courts below have failed to appreciate all the materials
in this case in a proper perspective manner. The Courts below have failed to
see that Ex.A9 in the case unequivocally shows that the defendants have no
https://www.mhc.tn.gov.in/judis
right in the suit property and hence, the plaintiffs are entitled to a decree as
prayed for in the suit. The Courts below ought to have held that Ex.A9 is
not liable to be set aside, for reason of fraud and collusion. The Courts
below ought to have seen that the plaintiffs could not examine the second
defendant in the suit, who is an executant of Ex.A9 to prove the same, since
he cannot reasonably be expected to speak in support of the case of the
plaintiffs and hence, the non-examination of the second defendant on the
side of the plaintiffs cannot be held against the plaintiff. The Courts below
ought to have held that S.A.No.2079 of 1978 was dismissed by this Court
since the defendants did not act as per the promise. Since the plaintiffs' case
is not barred by res-judicata on account of Ex.A11 or any other proceedings,
the Court below ought to have decreed the suit of the plaintiffs. The Courts
below ought to have held that Ex.B1 to B7 are bad for reason of fraud and
collusion. The Courts below ought to have proved that Ex.A9 has been
properly proved. The trial Court is wrong in holding that the appellants
ought to have examined on their aside Mr.Ananthakrishnan Nair, Advocate
and holding his non-examination as against them. The courts below ought
https://www.mhc.tn.gov.in/judis
to have held that the appellants are absolutely entitled to and are in absolute
possession and enjoyment of the suit property. The Courts below ought to
have held that the appellants have produced sufficient materials in the case
to prove their possession and enjoyment of the suit property. The Courts
below ought to have held that Ex.B1 to B7 are legally unsustainable, for
their registration in Kerala State. The Courts below ought to have held that
since Ex.A9 and A10 had already been received and marked as exhibits in
evidence, the same were full-fledged evidence and binding on the
defendants. The Courts below ought to have held that the case of the
defendants is barred by the principle of estoppel and prayed for allowing
this appeal.
10. The learned counsel for the respondents would submit that the
sale deed, dated 19.10.1966 is invalid and incompetent. The present
defendants 2 to 5 filed O.S.No.612/1973 before this Court for setting aside
the sale deed and for partition. To that suit, the present plaintiff is a party.
The suit has been decreed with respect of 1/13 share in favour of 5th
https://www.mhc.tn.gov.in/judis
defendant. Against that decree defendants 2 to 5 filed an appeal in A.S.No.
635/1976 before the District Court, Nagercoil and the District Court
allowed the appeal in toto and the sale deed was set aside. Against the
decree of the first appellate Court, the present plaintiff filed second appeal
before this Court in S.A.No.2074 of 1978. These defendants 2 to 5 never
accepted the validity of the sale deed dated 19.10.1966. It has no legal
effect over the plaint schedule property. The defendants 2 to 5 never agreed
or promised to withdraw the appeal of the suit in O.S.No.612 of 1973.
These defendants did not send any letter to their lawyer to withdraw the suit
as alleged. These are manipulation done by plaintiff. The second appeal
and the C.M.P., were rightly dismissed by this Court. The decree in
O.S.No.612/1973 and the appellate Court decree are valid and competent.
There is no fraud or collusion in dismissing the appeal in S.A.No.2079 of
1978. This Court considered the entire case and the C.M.P., coreectly
dismissed both the second appeal and C.M.P. These defendants are fully
competent to execute the decree in O.S.No.612/1973 and the appellate
decree connected therewith. The suit of the plaintiff is barred by res-
https://www.mhc.tn.gov.in/judis
judicata. The plaintiff has no right or title over the suit property. The suit is
vexatious and it is simply an abuse of process of law. The plaintiff is not
entitled to any of the reliefs prayed for in the suit. The plaintiff has no
cause of action to file this suit.
11. It is seen from the records that the respondents appear to have
executed a sale deed in favour of the plaintiffs on 19.10.1966. Thereafter,
questioning the sale deed, the respondent have filed O.S.No.612 of 1973 for
declaration that the sale deed is not valid. That suit was decreed
concurrently and reached the finality also. Thereafter, the defendants
therein, who are the petitioners herein, have filed the suit in O.S.No.192 of
1984 for declaration of the title and for possession. After setting aside the
decree passed in O.S.No.612 of 1973, both the Courts below have not
accepted the case of the plaintiffs. Despite the previous proceedings, the
plaintiffs alone are in possession and enjoyment of the suit property and
according to him, they had the benefit of injunction only before the trial
Court. After the trial, the suit was dismissed. After filing the second appeal
https://www.mhc.tn.gov.in/judis
also, no interim order has been passed. Therefore, after disposal of the case
by the trial Court, it is the evidence that the so called possession of the
plaintiffs is not protected.
12. While admitting the second appeal, this Court is of the view
that this is a prolonged litigation between the parties over the same property,
it is very difficult to dislodge the findings of the Courts below and grant
injunction in favour of the plaintiffs, who are found to be not in possession
of the property, and that is why the suit was dismissed, which was
confirmed by the appellate Court. Therefore, this Court dismissed the
interim injunction application as the plaintiffs are not in possession of the
suit schedule property.
13. With regard to the first substantial question of law, this Court
is of the view that a dispute arose between the same two parties regarding
the same suit schedule property which was appealed and decided upto the
High Court on 21.09.1976 in O.S.No.612 of 1973 and the said judgment
https://www.mhc.tn.gov.in/judis
and decree were marked as Ex.P5 and Ex.P6. and the first appellate Court
judgement and decree in A.S.No.635 of 1976 were marked as Ex.P7 and
Ex.P8. Against the said judgment and decree, the plaintiffs have filed the
second appeal in S.A.No.2079 of 1978 and the said judgment and decree
were marked as Ex.P11 and Ex.P12. The said second appeal was dismissed
for non-prosecution and the lower Court decree and judgment are sustained
accordingly, this amounts to resjudicata. The plaintiff has been estopped
based on the sale deed, which is held as not valid. Hence, the first question
of law is answered in favour of the respondents and as against the
appellants.
14. With regard to the second question of law, this Court is of the
view that the claim made by the plaintiff that the second appeal in S.A.No.
2708 was disposed uncontested is false and only after hearing the parties it
was decided and not as stated by the plaintiff that the respondents have
manipulated and behind their back obtained an order. The said contention is
not accepted by this Court. It was alleged that there was an agreement made
https://www.mhc.tn.gov.in/judis
between the plaintiff's father and the respondents prior to the second appeal
are found to be untrue and the same is unreliable as it is found that they
have not proved the claim as genuine. When the said documents are
considered earlier the claim made now in this suit is not accepted and
rejected. Ex.A9 is the receipt and the Ex.A10 is the translated copy of the
Ex.A9. Hence, the second question of law is answered in favour of the
respondents and as against the appellants.
15. In view of the answer given to the two substantial questions of
law in favour of the respondents, the second appeal deserves to be dismissed
and accordingly, the second appeal stands dismissed. No costs.
Index : Yes / No
Speaking Order : Yes / No 16.10.2024
am
https://www.mhc.tn.gov.in/judis
To
1.The Sub-Court,
Kuzhithurai.
2.The II Additional District Munsif,
Kuzhithurai.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
V.BHAVANI SUBBAROYAN, J.
am
16.10.2024
https://www.mhc.tn.gov.in/judis
