IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 26-08-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Second Appeal No.755 of 2008 1.S.Ramalingam 2.R.Radhika 3.R.Radha 4.R.Ramya .. Appellants/Plaintiffs Versus 1. Andal Ammal 2. Kanakaraj .. Respondents/Defendants PRAYER: Appeal against the judgment and decree, dated 21.1.2008, made in A.S.No.31 of 2006, on the file of the Subordinate Court, Panruti, reversing the judgment and decree, dated 28.7.2006, made in O.S.No.31 of 1997, on the file of the District Munsif Court, Panruti. For Appellants : Mr.R.Sunil Kumar For Respondent : Mr.R.Gururaj (R1) No appearance for R2 J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 21.1.2008, made in A.S.No.31 of 2006, on the file of the Subordinate Court, Panruti, reversing the judgment and decree, dated 28.7.2006, made in O.S.No.31 of 1997, on the file of the District Munsif Court, Panruti. 2. The plaintiffs in the suit, in O.S.No.31 of 1997, are the appellants in the present second appeal. The defendants in the said suit are the respondents herein. 3. The plaintiffs had filed the suit, in O.S.No.31 of 1997, praying for a decree, declaring the plaintiffs' right, in respect of the suit property and to direct the defendants to deliver vacant https://hcservices.ecourts.gov.in/hcservices/ possession of the suit property to the plaintiffs, free from obstructions and to direct the determination of future mesne profits, by way of separate proceedings, under Order XX Rule 1 of the Civil Procedure Code, 1908, and for costs. 4. The suit property had, originally, belonged to Thangavel Chettiar, the paternal uncle of the first plaintiff. Plaintiffs 2 to 4 are the minor daughters of the first plaintiff. Thangavel Chettiar had executed a settlement deed, in respect of the suit property, on 19.11.1979, giving life estate to the first plaintiff and thereafter, vesting the property, absolutely, with the male issues, and in their absence, on the female issues. As the first plaintiff had no male issue, the property had vested with the plaintiffs 2 to 4. It had also been stated that, on 12.9.1987, the first plaintiff had borrowed a sum of Rs.7000/-, from the first defendant, under a promissory note. On the same day, the first defendant had wanted to enjoy the suit property, in lieu of the interest payable, under the said promissory note. As such, the first defendant had taken possession of the suit property, and as an evidence of taking possession the said property the first defendant had executed a Vardamanam, dated 12.9.1987, in favour of the first plaintiff. The said document had been written and attested by three persons belonging to Pudupettai and Bandarakottai villages. 5. It had also been stated that the promissory note, dated 12.9.1987, had become time barred and unenforceable. Hence, the first defendant is not entitled to continue in possession of the suit property and therefore, her possession had become unlawful. In such circumstances, plaintiffs 2 to 4 had issued a notice to the first defendant, on 17.2.1996, asking her to surrender possession of the suit property to the said plaintiffs. The first defendant had issued a reply, on 17.4.1996, making a false contention that the suit property had been leased out to her father-in-law, Lakshumana Padayachi, by the original owner, Thangavel Chettiar, on an annual lease of Rs.100/-. After the death of Lakshumana Padayachi, her husband Kanagaraju continued to be a lessee. 6. The plaintiffs had further stated that the first plaintiff had, orally, relinquished his life estate in favour of plaintiffs 2 to 4, in the year, 1995. It has also been stated by the plaintiffs that, neither Lakshumana Padayachi, nor Kanagaraju, was in possession of the suit property, as a cultivating tenant. The claim of the defendants that there was a lease agreement had also been denied by the plaintiffs. In such circumstances, the plaintiffs had filed the suit, in O.S.No.31 of 1997, on the file of the District Munsif Court, Panruti. https://hcservices.ecourts.gov.in/hcservices/ 7. In the written statement filed on behalf of the defendants, the averments and the allegations made on behalf of the plaintiffs had been denied. It had also been stated that the claim of the plaintiffs that there was a settlement deed, dated 19.11.1979, is false. Further, it is false to state that the defendants had taken possession of the suit property, in lieu of the interest for the amount of Rs.7000/- borrowed from the defendant, by way of a promissory note, dated 12.9.1987. The said promissory note is in no way connected with the suit property. On the other hand, the defendant had claimed that her father-in-law, Lakshumana Padayachi, had taken the suit property, on lease, from the original owner, Thangavel Chettiar, about 60 years ago, for the lease amount of Rs.100/- per year. After the death of Lakshumana Padayachi, the first defendant's husband, Kanagaraju, had continued to be in possession of the suit property, as a cultivating tenant, by paying Rs.700/- per year. After the death of Thangavel Chettiar the defendant’s husband is paying the lease amount to the first plaintiff. 8. It had been further stated that it is false to say that the first plaintiff had, orally, relinquished his life estate in favour of plaintiffs 2 to 4, in the year, 1995. Plaintiffs 2 to 4 had issued a notice to the defendant and one Rajaram Naidu, through their guardian, Rajeswari, on 17.2.1996. As per the averments in the said notice, Rajaram Naidu had obtained a sale deed, in respect of the suit property and certain other items, on 19.11.1995, through the first plaintiff. If that was true, the claim that the first plaintiff had relinquished his life estate, in favour of the plaintiffs 2 to 4, cannot be true. As such, the plaintiffs 2 to 4 cannot maintain the suit, praying for the relief of declaration of title and for recovery of possession. Further, without setting aside the sale deed, dated 19.11.1995, the plaintiffs had no locus standi to file the suit. Further, Rajaram Naidu and the defendant’s husband, Kanagaraju, are necessary parties to the suit. Hence, the suit is bad, for non-joinder of necessary parties. Since, the suit filed by the plaintiffs is devoid of merits, it is liable to be dismissed. 9. Based on the averments made in the plaint, as well in the written statement, the trial Court had framed the following issues for consideration: "1. Whether the settlement deed filed by the plaintiffs is valid? 2. Whether it is correct to say that there is no cause of action in the suit ? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the relief sought for by the plaintiffs is liable to be granted? 4. What other reliefs the plaintiffs are entitled to?" 10. The additional issues framed by the trial Court, on 3.4.2001, are as follows: "1) Whether it is correct to say that the second defendant is the tenant in the suit property? 2) Whether the suit is bad in law due to non-joinder of necessary parties?" 11. Two witnesses had been examined on behalf of the plaintiffs and Exs.A-1 to A-20 had been marked on their behalf. D.W.1 to D.W.4 had been examined on behalf of the defendants. No documents had been marked on their side. 12. From the evidence of P.W.2, who was a witness to the registered settlement deed, dated 19.11.1979, marked as Ex.A-1, it is seen that on the day when the settlement deed had been executed, the suit property, as well as certain other properties had been put in possession of Ramalingam, the plaintiff in the suit. He had also stated that the settlement deed is a true and valid document. P.W.2 had not been cross examined by the defendants. As such, the trial Court had rejected the claim of the defendants that the settlement deed is invalid in the eye of law. The trial Court had also noted that the petition filed by one Rajaram Naidu, to register him as a tenant, in respect of the suit property, based on the alleged sale deed, dated 19.11.1995, said to be in his favour, had been rejected. Further, it had been noted that the alleged sale deed had not been registered. It had also been found that the first plaintiff was not entitled to execute a sale deed, as he had only a life estate, in respect of the suit property, as per the settlement deed, dated 19.11.1979, marked as Ex.A-1. Therefore, the trial Court had come to the conclusion that there was no necessity to add Rajaram Naidu, as a party to the suit. Therefore, the claim of the defendants that the suit is bad in law, for non-joinder of necessary party, had been rejected by the trial Court. 13. From the notice issued on behalf of the plaintiffs 2 to 4, marked as Ex.A-3, and the reply notice issued on behalf of the first defendant, marked as Ex.A-4, the trial Court had noted that Ramalingam, the first plaintiff had executed a promissory note, in favour of the first defendant, having borrowed a sum of Rs.7,000/-, as loan. The trial Court had noted that the first defendant, having https://hcservices.ecourts.gov.in/hcservices/ accepted the execution of the promissory note, marked as Ex.A-2, in his reply notice, had denied the same, in his sworn statement. Therefore, the claim of the first defendant that the execution of Vardamanam is not true, had not been accepted by the trial Court, due to the contradictory statements made by first defendant, in respect of the promissory note. 14. It had also been found that no document had been filed to substantiate the claim of the defendant that Lakshumana Padayachi had taken the suit property, on lease, from Thangavel Chettiar, and after the death of Lakshumana Padayachi, his son, who is the second defendant, had been in possession and enjoyment of the suit property, under an agreement of lease. The claim that an amount of Rs.700/- was being paid to the first plaintiff had not been supported by documentary evidence. As such, the claim of the defendants that Lakshumana Padayachi and his son, the second defendant in the suit, had been cultivating the suit property, as a tenant, for a period of nearly 60 years, had not been proved by sufficient evidence. 15. From the evidence of D.W.3 and D.W.4, who had been examined on behalf of the defendants, it has been found that they were not aware of the old and the new survey numbers and the patta numbers relating to the suit property. As such, the claim of the second defendant, that he is a tenant in the suit property had been rejected by the trial Court. From the evidence available on record, the trial Court had found that the second defendant can only be considered as an encroacher in the suit property, after the expiry of promissory note, which had been admitted by the first defendant, in his reply notice, marked as Ex.A-4. In such circumstances, the trial Court had decreed the suit, as prayed for by the plaintiffs. 16. Aggrieved by the judgment and decree of the trial Court, dated 28.7.2006, the defendants in the suit had filed an appeal, in A.S.No.31 of 2006, on the file of the Subordinate Court, Panruti. 17. The First Appellate Court had found that the only point that has to be considered was whether the judgment and decree of the trial Court was liable to be set aside. After hearing the submissions made on behalf of the appellants, as well as the respondents, the First Appellate Court had found that it was an admitted case of the plaintiffs in the suit that the first defendant was in possession of the suit property, in lieu of the interest, for the amount of Rs.7000/-, borrowed by the first plaintiff from the first defendant, on and from 12.9.1987, which is the date of the https://hcservices.ecourts.gov.in/hcservices/ execution of the promissory note. The First Appellate Court had also found that it was an admitted fact that the loan amount had not been discharged by the plaintiffs. It had also noted that the only contention raised by the counsel appearing for the plaintiffs is that the promissory note has become unenforceable by the operation of the law of limitation and the debt covered under the promissory note was time barred. The First Appellate Court had come to the conclusion that the said contention raised on behalf of the plaintiffs was not correct, as the Law of Limitation bars only the institution of the suit and not the defence. 18. The First Appellate Court had come to the conclusion that the first defendant had been put in possession of the suit property, in lieu of the interest for the principal amount of Rs.7000/-, borrowed under the promissory note, executed by the first plaintiff in favour of the first defendant. A Varadamanam had been executed by the first defendant in favour of the first plaintiff, on 12.9.1987, marked as Ex.A-2. While so, the plaintiffs are not entitled to seek recovery of possession of the suit property, from the defendants, without repaying the principal amount of Rs.7000/-. Therefore, the first defendant is entitled to be in possession of the suit property, as long as the principal amount of Rs.7000/- is not repaid to her. 19. The First Appellate Court had also held that, from the recitals of the notice, marked as Ex.A-3, issued to the first defendant and one Rajaram Naidu, on behalf of the plaintiffs 2 to 4, it could be seen that Ramalingam, the father of the plaintiffs 2 to 4 had sold the suit property to the said Rajaram Naidu, on 19.11.1995, for a consideration of Rs.63,000/-. However, no relief had been prayed for by the plaintiff in respect of the said sale deed, dated 19.11.1995. Further, the plaintiffs had not stated about the said sale in their pleadings. As such, the plaintiffs had come before the Court with unclean hands, by suppressing the said fact. They are not entitled to the reliefs prayed for by them in the suit. In such view of the matter, the First Appellate Court had allowed the appeal, setting aside the judgment and decree of the trial Court, by its judgment and decree, dated 21.1.2008. 20. Aggrieved by the judgment and decree of the First Appellate Court, dated 21.1.2008, made in A.S.No.31 of 2006, the plaintiffs in the suit, who were the respondents in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law: "1) Whether the plaintiff is not entitled to https://hcservices.ecourts.gov.in/hcservices/ declaration of title and for the consequential relief of recovery of possession in view of the fact that the settlement deed was proved by as required by law by examining one of the witnesses to the document? 2) Whether the learned Subordinate Judge did not err in failing to note that the defendants are not entitled to receive the amount covered by the promissory note in view of their admission/stand that the promissory note is not connected with the suit property and that in any event, it is barred by limitation. 3) Whether the Court below did not fail in dismissing the suit on the ground of non-payment of amount covered by promissory note in a case where there is no issue framed with regard to money, more so when the suit is for declaration of title and recovery of possession?" 21. The learned counsel for the appellants had submitted that the First Appellate Court had erred in reversing the well considered judgment of the trial Court. The First Appellate Court had erred in allowing the appeal on an issue which had not been raised by the parties to the suit. Thus, the First Appellate Court had granted a decree for money, to the defendants, in the suit filed by the plaintiffs for declaration and for recovery of possession. The First Appellate Court had erred in allowing the first appeal on the sole ground that the plaintiffs, who are the appellants in the present second appeal, cannot get a decree of possession, without repaying the sum of Rs.7000/-, to the first defendant, as per the promissory note. It had also erred in failing to note that the attempt of the second defendant to register his name, in P.R.No.3 of 1999, had been dismissed by the Record Officer, on 30.4.2007. It had also failed to note that the proceedings initiated by Rajaram Naidu, against the first appellant, before the District Registrar, to register a sale deed, dated 19.11.1995, in Appeal No.1/1996, had been dismissed, on 13.5.2002. 22. It had also been stated that the First Appellate Court had failed to note that, in view of the Law of Limitation, the promissory note had become unenforceable, as it had become time barred. The First Appellate Court had also erred in allowing the first appeal, filed by the respondents in the present second appeal, as the specific case of the defendants in the suit was that they were cultivating tenants, which they had failed to prove, either by oral or by documentary evidence. Further, the First Appellate Court ought to have rejected the plea of the defendants that, after the death of Thangavel Chettiar, the lease amount was being paid to the first plaintiff, in view of the contention of the defendants that https://hcservices.ecourts.gov.in/hcservices/ the settlement deed, dated 19.11.1979, marked as Ex.A-1, was not true. Further, the First Appellate Court had failed to note that the defendant had not chosen to cross examine P.W.1, who had spoken about the execution of the settlement deed. 23. The learned counsel for the appellants had relied on the following decisions in support of his contentions: 23.1. In Smt.Chander Kali Bail and others V. Jagdish Singh Thakur and another (AIR 1977 SC 2262), the Supreme Court had held that a new question of fact cannot be entertained at an appellate stage. 23.2. In Iswar Dass Jain V. Sohan Lal (2000-1-L.W. 425), it had been held that a usufructuary mortgagee cannot deny the title of his mortgagor. Nor can he set up adverse possession, unless he actually leaves the holding and re-enters, under a different status. Having come into possession of the whole property, as a mortgagee, treating the plaintiff as full owner, it would not be open to the defendant to question the title of the plaintiff, as the title of the usufructuary morgagee is a derivative title. 23.3. In Ponnu Nadar V. Bhagavathi Pillai (1991(1) M.L.J. 55), it had been held that a new plea raised, stating that the defendants were in possession of a certain property, as lessees and not as mortgagees, cannot be raised as a new plea in the second appeal, for the first time, as it is not a pure question of law. 23.4. In Gopal V. Manickavelu (2003(3) M.L.J. 696), it had been held that a plea, which had not been pleaded before the Courts below, cannot be allowed to be raised, for the first time, in the second appeal. 24. Per contra, the learned counsel for the respondents had submitted that the respondents were cultivating tenants, in respect of the suit property and therefore, the reliefs sought for by the appellants in the present second appeal, who were the plaintiffs in the suit, in O.S.No.31 of 1997, cannot be sustained. Ex.A-2 relied on by the appellants cannot be said to be true or valid. The claim of the appellants that the first respondent had taken possession of the suit property, in lieu of the interest for the amount borrowed by the first plaintiff, based on the promissory note, dated 12.9.1987, is false. The promissory note is in no way connected with the suit property. 25. Originally, the suit had been filed only against the first respondent and only thereafter, the second respondent had been added as a party to the suit. From the notice, marked as Ex.A-3, it could https://hcservices.ecourts.gov.in/hcservices/ be seen that the first appellant, Ramalingam, had sold the suit property to one Rajaram Naidu, on 19.11.1995, for a sale consideration of Rs.63,000/-. The said fact had not been stated in the pleadings of the appellants. Nor had they taken appropriate steps to set aside the said sale. The suit filed against Rajaram Naidu had not been disclosed. As such, it is clear that the appellants had not come before the trial Court, with clean hands. The learned counsel had also stated that the only course that was open to the appellants is to file a suit for redemption of the suit property. Further, no suit had been filed for declaring the title of the appellants. As such, the suit filed by the appellants, in O.S.No.31 of 1997, on the file of the District Munsif Court, Panruti, is bad in law. 26. The learned counsel had relied on the decision, reported in Arumughachary Nadar V. Deivanaiammal (1998(1) L.W. 507), wherein it had been held as follows: "The fact that the petitioner is in possession of the property is admitted.The case of the landlord is that his possession is that of a tenant. But the revision petitioner wants to disprove the same by relying on the document and to conclude that his possession is that of a mortgagee. Admittedly, the document is not registered. It is a mortgage deed for Rs.40,000/-, which is compulsorily registrable under Section 17 of the Indian Registration Act. The document which is compulsorily registerable cannot be admitted in evidence for any purpose under Section 40 of the Stamp Act. But there is a Proviso to that Section which enables to look into the document for any collateral purpose. "I do not think the Rent Controller has acted illegally, so as to warrant an interference under Article 227 of the Constitution. As the possession of the premises by the petitioner (tenant) is admitted there is no necessity to prove possession. By virtue of this document, what the tenant wants is, to prove the character of his possession, whether his possession is that of a tenant or that of a mortgagee. If he wants to prove his possession as a mortgagee. If he wants to prove his possession as a mortgagee, then that cannot be treated as a collateral purpose, coming under the Proviso to Section 49 of the Indian Registration Act." 27. He had also submitted that the promissory note executed by the first appellant cannot be said to be time barred, as per Sections 9 and 19 of the Limitation Act, 1872. He had also submitted that the finding of the First Appellate Court that the appellants https://hcservices.ecourts.gov.in/hcservices/ could not have filed the suit, in O.S.No.31 of 1997, without repaying the amount of Rs.7000/-, said to have been borrowed from the first respondent, under the promissory note, dated 12.9.1987, is erroneous, as no relief can be granted beyond the reliefs sought for in the suit. The learned counsel had relied on the following decisions in support of his contention "1) Trojan and Co. V. Nagappa Chettiar (AIR 1953 SC 235) 2) Sita Ram V. Radha Bai (AIR 1968 SC 534)" 28. He had also submitted that, after impleading the second defendant in the suit, the plaintiffs therein had not chosen to amend the plaint and the prayer. The First Appellate Court had rightly set aside the judgment and decree of the trial Court holding that the appellants had not come before the Court of law, with clean hands, as they had suppressed certain material facts. He had also submitted that no amount can be accepted by the respondents, based on the observations made by the First Appellate Court. He had further submitted that no substantial question of law arises for the consideration of this Court in the present second appeal. 29. In reply, the learned counsel appearing on behalf of the appellants had submitted that no objection can be raised on behalf of the respondents, in respect of Ex.A-2, at this stage, as it had been marked before the trial Court, without any objection. There was no suppression of fact in the plaint filed by the