IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13..11..2009 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU S.A.No.347 of 2009, C.R.P.(NPD) Nos.3023 and 3399 of 2007 and M.P.No.1 of 2009 in S.A.No.347 of 2009 and M.P.No.1 of 2007 in C.R.P.(NPD) No.3023 of 2007 S.A.No.347 of 2009 Kamalammal (dead) Annapoornammal (dead) 1. Kalyani 2. K.Ravi ... Appellants/Defendants 4 & 5 Vs 1. Girija 2. Sri Venkateswaraswamy Varu 3. Rajammal ...Respondents/Plaintiffs 1 & 2 and 3rd Defendant Remained exparte in Trial Court given up C.R.P.(NPD) No.3023 of 2007 1. Ravi 2. Kalyani ...Petitioners (Plaintiff 6 & 7) Vs 1. P.Vidyuthavalli Thayar (set exparte in the suit) 2. V. Girija 3. Mrs. M. Gowri (set exparte in the suit) 4. Ms.M. Lakshmi (set exparte in the suit) 5. Kousalya 6. Ajitha ... Respondents (Defendants & Plaintiffs 2 & 5) (Respondents 5 & 6 given up appeal not filed) https://hcservices.ecourts.gov.in/hcservices/ C.R.P.(NPD) No.3399 of 2007 Mrs.V. Girija ... Petitioner (2nd defendant) Vs 1. Kousalya 2. Ajitha 3. Ravi 4. Kalyani 5. P. Vidyuthavalli Thayar 6. Mrs.M. Gowri 7. Miss M. Lakshmi ..Respondents(Plaintiffs 2,5,6 & 7/Defendants 1,3 & 4) Second Appeal No.347 of 2009 is filed under Section 100 of Civil Procedure Code against the Judgement and Decree of VII Addl. Judge, City Civil Court, Chennai in A.S.No.333 of 2007 dated 5.6.2008 confirming the Judgment and Decree of the II Assistant Judge, City Civil Court, Chennai in O.S.No.7470 of 1996 dated 4.1.2007 Civil Revision Petition Nos.3023 and 3399 of 2007 are filed under Section 115 of Civil Procedure Code against the Judgment and Decree dated 4.1.2007 in O.S.No.6687 of 1996 passed by the learned II Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.S. Jayaraman in S.A.No.347/09 Senior Counsel for Petitioners for M/s S. Sujatha Rangarajan in CRP NPD.3023/07 and for Respondents 3 and 4 in CRP NPD.3399/2007 For 1st Respondent in S.A.No.347 of 2009 For respondent 2 in CRP NPD No.3023 of 2007 for Petitioner in CRP NPD No. 3399 of 2007 : Mr.T.P. Sankaran For respondent 2 : Mr.S. Ravindran in S.A.No.347 of 2009 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT 1. The following are the allegations contained in the plaint in O.S.No.6687 of 1996:- 1.(a) The plaintiffs and their predecessors-in-interest viz., Chinnaiah, Ranganathan and Subramania Chowdhury had been exclusive possession and enjoyment of "A" Schedule property for over 40 years which is with an extent of 6 grounds and 520 sq.ft. After the lifetime of predecessors-in-interest, the plaintiffs continued to be in exclusive possession and enjoyment of the above said "A" Schedule property. The first defendant filed a suit in O.S.No.968 of 1958 on the file of IV Assistant Judge, City Civil Court, Madras, for a decree for possession in respect of portion in "A" Schedule property against the above said predecessors-in-interest. The suit was dismissed as against Subramania Choudhury as not pressed. An exparte decree for possession was passed on 18.2.1960. In spite of the decree, the predecessors-in-interest continued to be in possession. 1. (b) The first defendant filed E.P.No.765 of 1977 to execute the decree. By that time, Chinniah died and hence first plaintiff was impleaded as his legal representative. She filed an application under Section 47 of C.P.C. in E.A.No.2799 of 1981 to hold the decree inexecutable, since the same having become barred by time. On 30.4.1982 the said petition was allowed by X Assistant Judge, City Civil Court, Madras and E.P. was dismissed, holding that it was barred by time and hence unexecutable. 1.(c) The first defendant executed the so called settlement deed in 1987 in favour of her daughter, the second defendant. Hence the second defendant engaged rowdy elements, influenced police and attempted to commit criminal trespass to "B" Schedule property in February 1990. The police complaint by the plaintiffs ended in vain, since the second defendant was influential and powerful. On 15.2.1990 also the rowdy elements, engaged by second defendant armed with lethal weapons, broke open the fences put up by plaintiffs, entered into "B" Schedule property and dismantled the huts. The police did not take any action. 1.(d) In view of the trespass, the plaintiffs filed O.S.No.1759 of 1990 for permanent injunction against the defendants with regard to "A" Schedule property and also filed application for interim injunctions. Since the defendants filed caveat, interim order was not passed. In the counter filed for the said petitions, it was admitted that plaintiffs were in possession of the remaining portion of "A" Schedule property. Without due process of law, plaintiffs have been forced to dispossess from the "B" Schedule property from 15.2.1990. Hence, suit has been filed under Section 6 of the Specific Relief Act 1963, for directing the defendants to deliver possession of "B" https://hcservices.ecourts.gov.in/hcservices/ Schedule property. The suit filed within six months from the date of dispossession. 2. In the written statement filed by the first defendant, namely, P.Vidyuthavalli Thayar, the following allegations are found:- 2.(a) No suit summons were served upon the first defendant. Only on information by neighbours, she came to know the suit was filed. The plaintiffs are not related to the defendants in O.S.No.968 of 1958. O.S.No.9135 of 1984 was filed by the plaintiffs in which they raised identical claim that they have perfected their title by adverse possession. The suit was dismissed on 5.2.1985 and the decision has become final. Hence, the present suit is barred by res judicata. 2.(b) The suit in O.S.No.1759 of 1990, filed by the plaintiffs is pending before II Assistant City Civil Judge, Chennai, which was filed on 16.2.1990 and the present suit has been filed before the High Court on 25.7.1990. Hence it is a clear instance of vexatious litigation. The first defendant purchased the property with her Sreedhana funds supplied by her father, the Zamindar of Zammavaram and other estates of the Nellore District, Andhra Pradesh from its erstwhile owner Smt. Rani Lakshmi Var, the Zaindarini of Edapavani, by means of a sale deed in 1941. A shed was put up for storing building materials and other implements. There was a watchman living in the compound, which was fenced and was fixed by a temporary gate. The construction was delayed because of other problems elsewhere in respect of her properties situate in Ongole and at Machilipatnam. Hence she was not present in Madras. On one occasion, she found that the watchman was missing and the hut was occupied by strangers. Hence she filed a suit in O.S.No.968 of 1958. the said persons filed application under City Tenants' Protection Act and even filed a suit in O.S.No.3517 of 1971, challenging the decree obtained against them as being one "without jurisdiction". The suit and the applications were dismissed. 2.(c) The present plaintiffs are not legal representatives to the above said persons. Plaintiffs 1,2 and 4 filed O.S.No.9135 of 1984 and only at that time these names surfaced for the first time which were never heard off. The said suit was dismissed on 5.2.1985. The plaintiffs managed to secure orders for pattas in their favour under defunct rules. The defendant filed appeal before the District Collector and pattas were set aside on 31.8.1990. In the interregnum, these plaintiffs filed O.S.No.9931 of 1983 and also O.S.No.1759 of 1990 based on the same cause of action as that of the earlier suit, except for a change in the name of the third defendant. The above said suits and another injunction application were pending before II Assistant City Civil Judge, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2.(d) Barely within four months after filing of the above said suit, the same plaintiffs have presented the present suit on the file of this Court for the same relief that was denied and refused to them in the series of their legal ventures. The present suit is not only barred by res judicata and also the plaintiffs' claim of adverse possession is also vexatious and is clearly abuse of process of Court. There is no cause of action and the plaintiffs have no locus standi. Hence the suit may be dismissed. 3. The allegations in terse in the additional written statement filed by the first defendant are thus:- In 1958, a watchman engaged by the defendant died and one vagrant by name Subramanya Choudary who come to Madras to eke his livelihood by employing himself in menial roles in the films, was in occupation of her store shed and he got into it with two others by name Chinnayya who was a scavenger in the Madras Corporation and another person Ranganathan who was driver of a refuse collecting lorry of Madras Corporation. After the decree was passed in O.S.No.968 of 1958, as many as 10 execution petitions were filed right from 1960 to 1971 for execution of the decree. It is false and misleading to state that this defendant who is the owner of the suit property dispossessed the plaintiffs. The plaintiffs are mere trespassers. This defendant has filed a comprehensive suit in C.S.No.201 of 1993. The executability of the decree in O.S.No.968 of 1958 is not curtailed by any law. 4. The following contentions are available in the written statement filed by the second defendant:- (Girija) 4.(a) The present suit has been filed alleging that plaintiffs have been dispossessed from the suit property illegally with deliberate motive to blackmail the defendant. The filing of O.S.No.1759 of 1990 has been deliberately suppressed which even pending now. It is false to state that the predecessors in suit and the plaintiffs have been in the exclusive possession over 40 years in "A" schedule property. In the earlier proceedings, the plaintiffs were found to be trespassers without any right or claim over any portion of "A" Schedule property and liable for eviction. The plaintiff filed O.S.No.3517 of 1971 claiming rights under the City Tenants Protection Act, which was dismissed on 29.3.1975 and subsequently they have filed another suit in O.S.No.9135 of 1984 against the first defendant for permanent injunction and the same was also dismissed on 5.2.1985. The first defendant settled 4 grounds under two registered deeds of settlement dated 10.9.1987 and 1.4.1988 for two grounds each. Hence it is clear that "B" Schedule property admittedly was never in possession of the plaintiffs and therefore no basis at all for the plaintiffs' claim. The husbands of plaintiffs 1 to 3 trespassed into the rear portion of "A" schedule property taking https://hcservices.ecourts.gov.in/hcservices/ advantage of the absence of first defendant. In O.S.No.9135 of 1984 the plaintiffs have admitted that they were in possession only in the rear portion and that the front portion was in possession of the first defendant who settled the same in favour of this defendant and multi-storied building has been put up in that at a huge cost after obtaining sanction from M.M.D.A and Patta. 4.(b) In the process of claiming patta, the plaintiffs attempted to get joint patta which was rightly rejected by the authorities. But without notice to this defendant, the plaintiffs maneuvered to obtain joint patta in their names also in respect of "A" Schedule property along with this defendant. The patta in favour this defendant was confirmed and in favour of the plaintiffs was cancelled by the District Collector of Madras. 4.(c) After obtaining necessary sanction of the building plan, this defendant started construction in the front portion. The plaintiffs with the help of rowdy elements to make unlawful gains prevented this defendant's workers from proceeding with the construction and therefore this defendant resorted to the help of police. Having failed in their attempts to prevent this defendant from putting up constructions, they have no justifiable rights to prevent the police from giving protections to this defendant, they have come forward with the suits after lapse of six months on baseless and false allegations. It is absolutely false to state that they were forcibly dispossessed. It is incorrect to state that on 15.2.1990 this defendant took possession from the plaintiffs of "B" Schedule property. The reference to the plaintiffs' names being in the electoral rolls, Ration Card etc., is meaningless since admittedly they are trespassers and documents will not help their fraudulent claim. There is no cause of action for the suit. Hence the suit may be dismissed with exemplary costs. 5. Additional written statement of second defendant in O.S.No.6687 of 1996 contained the contentions as follows:- None of the persons claiming to be impleaded as legal representatives of the deceased plaintiffs 1,3 and 4 are in any way connected to the suit property and have no right whatsoever to pursue the above fraudulent and baseless suit. The original plaintiffs and their alleged legal representatives do not have any right over the properties. Nothing survives for legal representatives to maintain. Hence the suit may be dismissed. Another Suit in O.S.No.7470 of 1996: 6.(a) O.S.No.7470 of 1996 was filed by Vidyuthavalli Thayar. The allegations in the plaint are similar as pleaded in her written statement and Additional written statement for the suit filed by the plaintiff in O.S.No.6687 of 1996. https://hcservices.ecourts.gov.in/hcservices/ 6.(b) The suit in O.S.No.7470 of 1996 is for a decree directing the defendants 1 to 4 to vacate and handover vacant possession of the land situate in S.No.8580, Block No.114 bearing door No.44-L, in G.N. Chetty Road, T.Nagar, Madras, which is in occupation of the defendants in the manner following: (i) the first defendant being in occupation of an extent of 2765 sq.ft. marked 'red' in colour in suit document No.11; (ii) the 2nd defendant being in occupation of an extent of 3000 Square feet marked 'blue' in colour in suit document No.11; (iii) the 3rd defendant being in occupation of an extent of 2260 square feet marked 'green' in colour in suit document No.11; 6.(c) It is also for permanent injunction restraining defendants 1 to 4 from in any manner alienating the suit property and for damages to the plaintiff for the use and occupation. 6.(d). The plaintiffs in O.S.No.6687 of 1996 filed written statement in O.S.No.7470 of 1996 with identical pleadings as contained in the plaint in O.S.No.6687 of 1996. 7. The learned II Assistant Judge, City Civil Court, Chennai, tried both the suits jointly and rendered a common judgment. Decree for declaration and possession has been passed excepting the area with an extent of 30' x 12' besides directing to ascertain the mesne profits by separate proceedings under Order 20 Rule 12. The suit with regard to 30' x 12' was dismissed. Ex.A.19 rough sketch was directed to be annexed to the decree. O.S.No.6687 of 1996 was decreed only with respect to "B" schedule property measuring 30' x 12' for possession and the suit was dismissed as regards the remaining portion of the entire property covered by the suit. 8. These appellants preferred A.S.No.333 of 2007 on the file of the Principal Judge, City Civil Court, Chennai, which was heard by the learned VII Additional Judge and the appeal was dismissed on 5.6.2008 confirming the common judgment and decree passed by the trial Court. The said appellate Court judgment has been carried before this Court in the present second Appeal. 9.(i) These appellants have also preferred revision in C.R.P. (NPD) No.3023 of 2007 before this Court under Section 115 of C.P.C challenging various observations, findings and conclusion recorded by the trial Judge in O.S.No.6687 of 1996. 9(ii) The first respondent Girija has preferred C.R.P.(NPD) No.3399 of 2007 before this Court under Section 115 of C.P.C. against https://hcservices.ecourts.gov.in/hcservices/ an observation in the judgment of the trial Court with regard to question of handing over the possession of the property measuring 30' x 12' by stating that such handing over to the respondents 1, 3 and 4 does not arise since it does not form part and parcel of the "B" Schedule property in O.S.No.6687 of 1996 and the respondents 1, 3 and 4 are already in possession of the "B" Schedule property described in O.S.No.968 of 1958. Grounds in C.R.P.(NPD)No.3023 of 2007: 10. The following are the grounds in brief raised in C.R.P.(NPD) No.3023 of 2007, which are worth mentioning for better understanding and appreciation of merits of the matter:- 10.(i) The trial judge has failed to consider that the suit in O.S.No.6687 of 1996 is filed under Section 6 of the Specific Relief Act and the petitioner had possessory title and they have been dispossessed without lawful authority under due process of law and the suit was dismissed under misapprehension of scope of the suit provision. 10.(ii) The finding against these petitioners as to the doctrine of res judicata is not tenable. 10.(iii) Inspite of opposition for common trial, both the suits were jointly tried which leads to miscarriage of justice. 10.(iv) The suit in O.S.No.6687 of 1996 has to be tried summarily. The settled legal position is that even the person who is having good title could not dispossesses the person who are having earlier even symbolic possession. In case of dispossession, the petitioners have to succeed that they were in possession, that the dispossession is not in accordance with law and the same took place within six months prior to the suit. 10.(v) O.S.No.968 of 1958 was filed by Vidyuthavalli Thayar with regard to "B" Schedule property of an extent of 30' x 20'with 360 sq.ft. , out of total extent of six grounds and 480 sq.ft, obtained an exparte decree only for the said property independently, omitting other larger portion of the property without getting leave of the Court for making the claim subsequently. Out of two settlement deeds, one dated 1.4.1988 was cancelled by the settler herself by deed of cancellation dated 24.2.1989 and the reason that the second respondent got the same by adopting undue influence or pressure and coercion while the settler's husband was in sick bed in the hospital which would not therefore confer valid title on the settlee as it is a sham and nominal document. Hence the second defendant lost her interest and possession in the said property pursuant to the decretal order in E.A.No.2800 of 1981 in E.P.No.765 of 1977 in O.s.No.968 of 1958 dated 30.4.1982. https://hcservices.ecourts.gov.in/hcservices/ 10.(vi) No question of title either by plaintiff or the defendant can be raised or gone into under Section 9 of the Specific Relief Act. As per the settled principles of Supreme Court, Section 6 provides for summary removal of any one who dispossess another whether peaceful or otherwise than by due course of law. 10.(vii) The trial judge has miserably failed to follow the legal position laid under Article 64 of the Limitation Act and he has also failed to see that if a person who is in continuous possession continues as such for more than 12 years, he acquires title commonly known as possessory title. 10.(viii) The question of adverse possession has not been properly appreciated by the trial judge. This Court in O.S.A.No.195 of 1990 recorded the statement given by the learned Senior Counsel for the second respondent stating that "any construction or alienation will be subject to the result of the suit." The O.S.A. was dismissed on 30.11.1990. But the second respondent completed the construction of the building in violation of undertaking given before the Division Bench. She conveyed 1/10th undivided share of the land in sale deed dated 21.5.1990 in favour of third parties and to ratify her action of selling, she filed C.S.No.764 of 1991 on the file of the High Court, Madras. 10.(ix) It is wrongly concluded that once the settlement is made without any revocation clause, the same cannot be cancelled. INITIATION AND TRANSMISSION OF THE SUITS 11. At the outset, the present Original Suits were filed before this Court in C.S.Nos.646 of 1990 and 201 of 1993. Both of them were later transferred to the City Civil Court on the ground of pecuniary jurisdiction and were re-numbered as O.S.No.6687 of 1996 and O.S.No.7470 of 1996 respectively. 12. After trial of both the suits jointly, the trial Judge, namely, II Assistant Judge, City Civil Court, Chennai, passed a common judgment on 4.1.2007 granting decree for possession in O.S.No.6687 of 1996 with respect to 30' x 12' in the entire property covered by "B" schedule in O.S.No.968 of 1958 which is also "B" Schedule in O.S.No.668 of 1996 and decreeing the suit in O.S.No.7470 of 1996 against 3 to 5 defendants as regards suit "C" Schedule property excepting 30' x 12', declaring the rights of the plaintiffs and directing delivery of possession. It has also been directed that separate proceedings shall be taken to ascertain mesne profits under Order 20 Rule 12 C.P.C. The suit in O.S.No.7470 of 1996 has been dismissed as regards 20' x 12' which is "B" schedule in O.S.No.968 of 1958. It has also been directed that Ex.A-49 rough sketch shall be annexed to the decree. Two months time was granted for delivery of https://hcservices.ecourts.gov.in/hcservices/ possession. 13. The common judgment was carried in appeal before the VII Additional Judge, City Civil Court Chennai in A.S.No.333 of 2007 as regards O.S.No.7470 of 1996 by these appellants. 14. Pending the appeal, the second respondent Devasthanam was impleaded as a party. On 5.6.2008 the said appeal was dismissed confirming the judgment and decree passed by the trial Court. Hence the aggrieved appellants are before this Court with the second appeal. 15. When S.A.No.347 of 2009 was taken up for admission, by consent of both the counsel, the second appeal itself was taken up for final disposal. The connected two Civil Revision Petitions were also heard along with second appeal. The following substantial questions of law were formulated by this Court in the second appeal upon which the arguments of both the counsel were made: 1.Whether the cancellation of gift settlement dated 1.4.1988 (Ex.A-3) by means of a deed dated 24.2.89 (Ex.B-7) by Vidyuthavalli Thayar is legally valid? 2.Whether the claim of respondents is hit by provision, Order 2 Rule 2 of C.P.C.? 3.Whether the claim of the appellants is barred by principles of res judicata? 4.Whether the appellants have prescribed title to the suit property by adverse possession? In CRP.(NPD) No.3023 of 2007: (i)Whether the appellants are entitled to get benefits under Sec.6 of Specific Relief Act? AS TO THE CANCELLATION OF SETTLEMENT DEED (Question No.1): 16.(i) This case has a chequered history. In order to have a thorough glimpse of the matter, the topography of the entire property covered by the suits and the facts of the case have to be borne in mind. "A" schedule is the property in entirety sprawling to an extent of six grounds and 480 sq.fts in G.N. Chetty Road, Chennai. "B" schedule is 4 grounds and "C" schedule is 2 grounds measuring 100' x 48' which lies in the middle of two other portions of "A" schedule. 2 grounds abutting G.N. Chetty Road on the south and the adjacent property on further south "C" schedule land, have been covered by settlement deeds dated 10.09.1987 and 1.4.1988 executed by P.Vidyuthavalli Thayar in favour of her daughter, first respondent. It is not debatable that the entire property originally belonged to P.Vidyuthavalli Thayar by means of Ex.A-1 Sale Deed dated 8.12.1941. https://hcservices.ecourts.gov.in/hcservices/ 16.(ii) In Ex.A-4 settlement deed, it is stated that the property was mortgaged to Indian Bank, Madras for a sum of Rs.45,000/- and the settlee viz., first respondent had to settle the mortgage loan by negotiations or any other process known to law, discharge the same and free the property from encumbrances. Hence, subsequently the first respondent paid all the outstandings of loan to the bank as evident from the letter of advocate for the Indian Bank dated 27.2.1989 in which he has stated that steps have been taken to get return of title deeds from the Court and cheque for Rs.4,251.60 was issued in the name of Mrs.V. Girija being the balance amount payable to her after adjustment of the decree amount. By fulfilling the condition contained in the settlement Ex.A-4 settlement deed has been given effect to besides the mutation of name of first respondent in the revenue as well as property tax assessment in Madras Corporation as evident from Ex.A-6. Ex.A-7 and Ex.A-8 are receipts for payment of urban land tax and the proceedings of the Assistant Commissioner