Soondan vs Sellakkannu Ambalam

M. Duraiswamy, J.—The above Second Appeal arises against the judgment and decree passed in A.S. No. 40 of 1996, on the file of the Principal District Court, Sivagangai, confirming the judgment an decree passed in O.S. No. 25 of 1994, on the file of the Subordinate Court, Devakottai. The defendant is the appellant and the respondent was the plaintiff.

The plaintiff filed the suit in O.S. No. 25 of 1994 to declare that he is entitled to Item Nos. 1 and 2 of the suit properties in entirety and 1/2 share in Items Nos. 3, 4 and 5 of the suit properties and for permanent injunction. The brief case of the plaintiff is as follows:

(i) According to the plaintiff, on 22.07.1959, he purchased the suit properties along with 102 items of properties from one Pala. Muthuvalliappan Chettiar. The item Nos. 1 and 2 of the suit properties are mentioned as Item Nos. 41 and 42 in the sale document dated 22.07.1959. The old paimash numbers for the said properties are 46 and 47 and the new Survey Number is 68/11. The extent of land in paimash No. 46 is 60 cents and the extent of the land in respect of paimash No. 47 is 89 cents. In the sale deed, the extent has been mentioned as 55 cents. At the time of settlement, the patta was issued in favour of the plaintiff in respect of those two lands. Item Nos. 3 and 5 of the suit properties are mentioned as Item Nos. 57 and 58 in the sale deed. The Survey Numbers in respect of those lands are S. No. 72/4 and S. No. 68/1. The old paimash Numbers in respect of those lands are 61, 62 and 63. The property purchased by the plaintiff in respect of paimash No. 61, a patta was issued in his favour. The extent of the land was mentioned as 1.40Acres in the settlement.

(ii) In respect of Item No. 4 of the suit property, the said land was mentioned as Item No. 51 in the sale document and the corresponding paimash number is 55 and the present Survey Number is 72/6 measuring an extent of 72 cents, The patta was wrongly issued in favour of the defendant for the lands belonging to the plaintiff. The plaintiff mortgaged Item Nos. 2 and 5 of the suit properties in the Land Development Bank and he is in enjoyment of the same.

(iii) In the proceedings pending before the Settlement Officer, the defendant''s father and his brothers entered into a compromise in respect of the suit properties and also executed a compromise document on 28.06.1956 and based on the compromise document, the orders were passed by the Settlement Officer. The compromise document was signed by M.S. Subramania Iyer and Chandrasekaran, the Counsel who appeared for the defendant''s father and his brothers in the settlement proceedings. As per the compromise document, the suit properties were allotted in favour of the plaintiff. The defendant was also allotted lands in the compromise document. The plaintiff is in possession and enjoyment of the suit properties over a long period of time. The defendant is not having any right or title over the suit properties.

(iv) Challenging the grant of patta in respect of Survey Numbers 66/5, 68/7, 72/4, 72/6 and 68/1 in favour of the defendant, the plaintiff preferred an appeal before the District Revenue Officer and Revenue Officer had set aside the order passed by the Sub-Collector and remanded the matter to issue patta in terms of the settlement document. The defendant tried to interfere with the possession of the plaintiff and therefore the plaintiff filed a suit in O.S. No. 694 of 1989, on the file of the District Munsif Court, Devakottai and the trial Court had dismissed the suit. Aggrieved over the same, the plaintiff preferred an appeal in A.S. No. 3 of 1993, on the file of the Subordinate Court, Devakottai. Thereafter the plaintiff withdrew the appeal, and obtained liberty to file fresh suit on the same cause of action. Thereafter the present suit has been filed by the plaintiff for declaration and injunction as stated above.

The brief case of the defendant is as follows:

According to the defendant, the alleged purchase of the suit properties on 22.07.1959 by the plaintiff is false. Further according to the defendant, the suit properties belonged to his father Karuppan. In the settlement proceedings in the year 1952, the suit properties were allotted to the defendant''s father. Patta was issued in favour of the defendant in respect of the suit properties. Further the defendant has stated that there is no compromise between the parties as stated in the plaint. In Item No. 2 of the suit properties, the plaintiff is claiming a larger extent which he is not entitled. Similarly, he has no right to claim Item Nos. 3, 4 and 5 suit properties. Patta was issued in respect of the suit properties in favour of the defendant. The plaintiff should have filed the suit for partition and for declaration in respect of the property which belongs to him and not in respect of the entire properties. Even assuming that there was a compromise between the parties, it was not acted upon. The defendant''s father has been paying the tax in respect of the lands. Thereafter the defendant has been paying the taxes. Chitta was also issued in favour of the defendant. The plaintiff has no right over the suit properties. The plaintiff is not in possession of the properties. In these circumstances, the defendant prayed for dismissal of the suit.

Before the trial Court, on the side of the plaintiff, two witnesses were examined and 28 documents Exs.A.1 to A.28 were marked and on the side of the defendant, D.W.1 was examined and 23 documents Exs.B.1 to B. 23 were marked. The trial Court, after taking into consideration the case of both parties, decreed the suit.

Aggrieved over the judgment and decree of the trial Court, the defendant preferred an appeal in A.S. No. 40 of 1996, on the file of the Principal District Court, Sivagangai and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the defendant has filed the above Second Appeal.

Heard Mr. V.K. Vijayaraghavan, learned Counsel appearing for the appellant and Mr. S.V. Jayaraman, learned Senior Counsel appearing for the respondent.

At the time of admission of the Second Appeal, the following Substantial Questions of Law arose for consideration:

"1. Whether the compromise and the allotment of suit properties alleged by the plaintiff during the settlement operation is tenable for want of signature of appellant''s father in Exhibit A.1?

Whether the suit filed by the plaintiff was bad for non-joinder of necessary parties and whether the declaration as prayed for by the plaintiff can be granted to him when he has not filed the suit as "Manager"?

Whether the evidence of P.W. 1 is liable to be rejected for not complying with the provisions of Order 18 Rule 3(a) C.P.C. as he was examined out of turn without permission of Court?

The learned Counsel for the appellant also filed a memo raising the following additional substantial question of law, after serving a copy of the same on the Counsel for the respondent:

"Are the decrees granted by Courts below declaring plaintiff''s title tenable. When correlation of plaintiff''s documents Exs. A.2, A.3 and A.4 with suit survey numbers was not made?"

Both the learned Counsel made their arguments with regard to the additional substantial question of law also.

The learned Counsel appearing for the appellant contended that in the absence of proof with regard to the alleged compromise during the settlement proceedings, the Courts below ought not to have decreed the suit. Further the learned Counsel submitted that the evidence of P.W.1 is liable to be rejected for not complying with the provisions of Order 18 Rule 3(a) C.P.C., as he was examined out of turn without permission of the Court. Further the learned Counsel submitted that since the plaintiff failed to correlate the Survey Numbers found in Exs.A.2, A.3 and A.4, the Courts below should not have decreed the suit in his favour.

In support of his contentions, the learned Counsel relied upon the following judgments:

(i) In Dinesh Kumar Vs. Yusuf Ali, wherein the Honourable Supreme Court held that if the High Court comes to the conclusion that the findings of fact recorded by the Courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence.

(ii) In Sebastiao Luis Fernandes (Dead) Through L.Rs. and Others Vs. K.V.P. Shastri (Dead) Through L.Rs. and Others, , wherein the Honourable Apex Court held that when the plaintiff has filed the suit for declaration of title, he has to prove the same with proper title documents and the burden of proof is on the plaintiff to prove his title. In the absence of the same and when there is specific denial of title by defendant, the Courts below ought not to have decreed the suit.

(iii) In Easwari Vs. Parvathi, wherein the Honourable Supreme Court held that the High Court can interfere in the Second Appeal when findings of Courts below are not supported by evidence and when there is perversity in decision due to misappropriation of evidence. Further the Honourable Apex Court held that when there is no absolute ban on High Court in Second Appeal to interfere with findings of facts.

(iv) In Ambikapathi Ammal and Others Vs. Kandaswamy Koil , wherein the Honourable Supreme Court held as follows:

"11. Insofar as the question raised by the defendants with regard to the suit land being included in an estate under the 1908 Act is concerned, we find that the High Court had not given any specific finding in this regard but has proceeded to answer the question from an entirely different standpoint, namely, that the rent receipts issued were printed both for Thiruporur Village and Thandalam Village and that Thandalam Village was Inam estate which was taken over under the 1948 Act. On the above basis, the High Court had concluded that the abolition of the estate under the 1948 Act was not proved by the defendants."

(v) In Ravi and Another Vs. Ramar reported in (2007)6 MLJ 1119 wherein the Division Bench of this Court held that a Court could permit a party to examine himself as a witness at a later stage, though no such permission sought for at very threshold. However what is important is recording of reasons which are germane to the matter.

Countering the submissions made by the learned Counsel for the appellant, Mr. S.V. Jayaraman, learned Senior Counsel appearing for the respondent submitted that the plaintiff had clearly proved the compromise entered into between the parties before the Settlement Officer and the same was also recorded by the Officer in his order, therefore, the Courts below are right in decreeing the suit in his favour. Further the learned Senior Counsel submitted that when there is no ambiguity with regard to the identification of the suit properties, there is no necessity for co-relating the Survey Numbers. Further the learned Counsel submitted that the plaintiff had established his case by oral and documentary evidences and based on the same, the Courts below had rightly decreed the suit.

On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, it could be seen that the plaintiff contended that under Ex.A.1- compromise document dated 28.06.1956, he and the defendant settled the disputes before the Settlement Officer and the suit properties were allotted to him. The defendant contended that the compromise was not recorded by the Settlement Officer and that it was not acted upon and it was not signed by the defendant''s father, therefore, Ex.A.1 compromise document, cannot relied upon by the plaintiff.

It is not in dispute that the compromise document was signed by the Advocates, who were appearing for their clients. That being the case, the defendant cannot take a stand that the document was not signed either by him or by his father, therefore it is not binding on them. The compromise document was filed in the year 1956. The suit was filed in the year 1994. All these years, the defendant has not raised any dispute with regard to the execution of Ex.A.1-compromise document. That apart, the Advocates who are appearing for the parties are entitled to sign the compromise memo and report the compromise before the Settlement Officer.

Further Ex.A.8 objections filed by the defendant''s father also support the case of the plaintiff, since Ex.A.8 objection was filed by the defendant''s father based on Ex.A.1 compromise document. The plaintiff claimed absolute right in respect of Item Nos. 1 and 5 of the suit properties and 1/2 share in item Nos. 2, 3 and 4 of the suit properties. The statement made by the Village Karnam also supports the case of the plaintiff. The defendant''s father had also given a statement on the same lines as given by the Village Karnam. Ex.B.1 is the rough patta issued in favour of the defendant. Except Ex.B.1 rough patta, no other document was produced by the defendant to prove his right over the properties. Based on Ex.B.1 rough patta, the defendant is claiming right over the suit property. In Ex.A.1 settlement proceedings, the Settlement Officer has recorded the compromise entered into between the parties. In the compromise, the defendant''s father was allotted 11 items of properties. However, while issuing Ex.B.1 rough patta, the suit properties were also included in the rough patta. Taking advantage of the same, the defendant is claiming right over the suit properties.

Earlier the plaintiff filed the suit in O.S. No. 694 of 1989, on the file of the District Munsif Court, Devakottai for permanent injunction, which was dismissed by the trial Court and the plaintiff preferred an appeal in A.S. No. 3 of 1993, on the file of the Subordinate Court, Devakottai and during the pendency of the first appeal, the plaintiff withdrew the first appeal with liberty to file a fresh suit on the same cause of action. Based on the liberty given by the Subordinate Court, Devakottai, the present suit has been filed for declaration and injunction.

The Courts below disbelieved the evidence of D.W.1 for the reason that he suppressed so many things in his evidence and in fact he has stated that he did not know how many brothers his father has got and also deposed that he has not seen them at all. Further he has stated that he does not know Rakappan, his father''s brother''s son. Since the defendant had suppressed the truth and has not spoken the truth, the Courts below have rightly disbelieved the evidence of D.W.1. Based on the compromise entered into between the parties, the plaintiff applied for patta under Ex.A.7 application and also obtained patta in respect of all the properties except the suit properties. Under Ex.A.8, the statement made by the defendant''s father, he claimed right in respect of 11 items of the properties. Even in Ex.A.1 compromise it has been stated that the defendant''s father was given those 11 items of properties. Therefore, it is clear that the defendant''s father is entitled only to those 11 items of properties and not the suit properties.

As per the compromise document, the suit properties originally belonged to Chinnan Chettiar and subsequently, Muthuvalliappa Chettiar purchased the properties under Ex.A.3 sale document. The plaintiff purchased the property from Muthuvalliappa Chettiar. Merely because Ex.A.1-compromise document dated 28.06.1956 was not mentioned in Exs.A.2, A.3 and A.4 sale deeds, it shall not invalidate the compromise entered under Ex.A.1. Subsequent to the purchase of the suit properties, the plaintiff mortgaged the properties in S. No. 66/5 68/1 under Ex.A.5 document dated 26.11.1982 in favour of the Thirupathur Cooperative Society Land Development Bank for purchasing a tractor. Therefore it is clear that even in the year 1982 itself, the plaintiff had mortgaged some of the suit properties, construing the properties as his properties.

In the settlement proceedings before the Settlement Officer, the parties had taken time for reporting settlement. Thereafter a compromise was entered into between the parties and specific properties were allotted to the parties. The suit properties were allotted in favour of the plaintiff. The defendant''s father was allotted 11 items of properties. Pursuant to the compromise, the plaintiff also acted upon compromise by mortgaging the properties. The defendant''s father also filed Ex.A.8 statement, in respect of 11 items of properties allotted in the compromise. Taking into consideration the oral and documentary evidences let in by the parties, the trial Court has rightly come to the conclusion that the plaintiff is entitled to the suit properties.

With regard to the contention raised by the appellant that P.W.1 was examined even prior to the examination of the plaintiff without obtaining the permission of the trial Court is concerned, it is a procedural lapse and it is not fatal to the case of the plaintiff. Merely because P.W.1 was examined even prior to the examination of the plaintiff, the case of the plaintiff cannot be thrown out when the plaintiff was able to establish his case by oral and documentary evidences.

With regard to the additional substantial question of law raised by the appellant is concerned, it could be seen that absolutely there is no ambiguity with regard to the identification of the suit properties. Further based on Ex.A.8 - statement made by the defendant''s father, he claimed right in respect of 11 items of properties which were allotted to him in Ex.A.1 compromise. That being the case, Ex.A.8-statement itself proves that compromise was acted upon by the parties without any confusion or doubt. Hence, there is no necessity for co-relating the suit survey numbers. Therefore, the additional substantial question of law is decided against the appellant.

With regard to non-joinder of the necessary parties viz., the brothers of the plaintiff is concerned, the plaintiff had contended that he is managing the properties as Kartha of the joint family. Since the plaintiff is the Kartha of the joint family, there is no necessity for impleading his brothers in the present suit. The Courts below have rightly found that the suit is not bad for non-joinder of necessary parties. Taking into consideration all these aspects, the Courts below have rightly decreed the suit.

Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned Counsel appearing for the appellant, since the facts and circumstances of the case differs from the case on hand, the judgments are not applicable to the present case.

In these circumstances, I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly the same is dismissed. However there shall be no order as to costs.