IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2011 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Second Appeal Nos.1222 and 1913 of 2004 1.Srinivasan 2.Rajendran ... Appellants in Both S.As vs. 1.Mohana (died) 2.Ms.M.G.Muthu Katheja 3.Tmt.Manjula 4.Tmt.Thilagavathy 5.Bhuvaneswari (RR3 to 5 are brought on record as Lrs of the deceased R.1 vide order dated 14.12.2010 made in C.M.P.Nos.1106 and 1107 of 2010) ... Respondents in S.A.No.1222 of 2004 1.Miss.Mangalam ..Respondent/Respondent/Plaintiff 2.Ms.M.G.Muthu Katheja ..Respondent/Respondent/Defendant 3 ... Respondents in S.A.No.1913 of 2004 Common Prayer:- Appeals filed under Section 100 C.P.C., against the common judgment passed in A.S.No.37 and 38 of 2000 by the Subordinate Judge, Poonamallee on 07.01.2003 confirming the common judgment passed in O.S.Nos.1782 and 1784 of 1997 by the learned District Munsif, Ambattur on 28.04.2000. For Appellants in both Appeals : Mr.T.R.Daveson For R.1 in S.A.No.1913/04: Mr.A.Anbarasan For R.1 in S.A.No.1222/04: Died For R.2 in both S.As : Mr.P.Sintha Mathar https://hcservices.ecourts.gov.in/hcservices/ For RR.3 to 5 in S.A.No.1222/04: Mr.C.Prakasam COMMON JUDGMENT These two appeals arise out of a common judgment in A.S.Nos.37 and 38 of 2000 on the file of the learned Subordinate Judge, Poonamallee and therefore, these two appeals were heard together and they are disposed of by means of this common judgment. 2.(i).S.A.No.1222 of 2004:- The suit in O.S.No.1784 of 1997 on the file of the learned District Munsif, Ambattur was filed by one Mrs.Ammakannammal against three defendants who are the appellants 1 and 2 and the second respondent herein. During the pendency of the suit, the sole plaintiff Mrs.Ammakannammal died, in whose place, Mrs.Mohana, the first respondent herein, was brought on record. It was a suit filed for declaration of title and for consequential relief of permanent injunction to restrain the defendants from in any manner interfering with the peaceful possession and enjoyment of the plaintiff. 2(ii).S.A.No.1913 of 2004:- The suit in O.S.No.1782 of 1997 was filed by the first respondent herein. The appellants herein are the defendants 1 and 2 and the second respondent is the third defendant in the said suit. The said suit was filed for declaration of title and for permanent injunction to restrain the defendants from in any manner interfering with the peaceful possession and enjoyment of the plaintiff. 3.The plaintiff in O.S.No.1782 of 1997 was not a party in O.S.No.1784 of 1997. Similarly, the plaintiff in O.S.No.1784 of 1997 was not a party in O.S.No.1782 of 1997. The defendants in both the suits are one and the same persons. The suit properties are also different. However, all the parties to the suits filed a memo requesting the trial Court to have a joint trial of both cases. Based on the said memo, the trial Court framed issues in both suits. Common evidence was recorded in O.S.No.1782 of 1997. 4.On the side of the plaintiffs as many as seven documents were exhibited and on the side of the defendants as many as eight documents were exhibited. The plaintiff in O.S.No.1782 of 1997 was examined as P.W.1 and the plaintiff in O.S.No.1784 of 1997 was examined as P.W.2. One Mrs.Raniammal was examined as P.W.3. As many as three witnesses were examined on the side of the defendants. 5.Having considered the above, the trial Court decreed both the https://hcservices.ecourts.gov.in/hcservices/ suits as prayed for. As against the decree in O.S.No.1784 of 1992, the defendants 1 and 2 filed an appeal in A.S.No.38 of 2000 on the file of the learned Subordinate Judge, Poonamallee. Similarly, as against the decree in O.S.No.1782 of 1992, the defendants 1 and 2 filed an appeal in A.S.No.37 of 2000 on the file of the learned Subordinate Judge, Poonamallee. Both the appeal suits namely A.S.Nos.37 and 38 of 2000 were heard by the learned Subordinate Judge, Poonamallee and by a common judgment dated 07.01.2003, the First Appellate Court dismissed both the appeals and confirmed the decrees and common judgment passed by the trial Court. As against the judgment and decree in A.S.No.38 of 2000, the defendants 1 and 2 have come up with S.A.NO.1222 of 2004 and as against the judgment and decree in A.S.No.37 of 2000, the defendants 1 and 2 have come up with S.A.NO.1913 of 2004. That is how these two second appeals are before me for disposal. 6.During the pendency of these two appeals, the first respondent in S.A.No.1222 of 2004 (plaintiff in O.S.No.1784 of 1997) died. In her place, the respondents 3 to 5 in S.A.No.1222 of 2004 have been brought on record as her legal representatives. 7.The case of the plaintiffs in O.S.No.1784 of 1997 is as follows:- The suit property belonged to one Varadhapa Reddy namely the husband of the first plaintiff and the father of the second plaintiff. After the death of Varadhappa Reddy, the plaintiffs are in possession and enjoyment of the suit property. The suit property is a vacant land. The second defendant is the son of the first defendant. The first defendant is the son of one Mr.A.Munusamy Reddy. Mr.A.Munusamy Reddy was the stepbrother of one Varadhapa Reddy namely the husband of the first plaintiff. The defendants have got no right whatsoever over the suit property. But the defendants attempted to trespass into the suit property during the year 1990 thereby creating some cloud in the title of the plaintiff. Therefore, the present suit was filed for declaration of title and for permanent injunction. 8.The defendants 1 and 2 filed written statement wherein, it was contended that the suit property has not been properly described. Further, the plaintiff has got no title for the suit property since Mr.Varadhapa Reddy himself had no title for the suit property. According to the defendants, as a matter of fact, the suit property was owned by one Duraisami Reddy who was the uncle of the defendants. Mr.Duraisami Reddy died 30 years ago leaving behind no issues. During his life time, he gave the suit property to the first defendant and the first defendant in turn settled the suit property in favour of the second defendant on 30.07.1983. Thus, the second defendant has been in possession and enjoyment of the suit property from 1983 onwards. He has got absolute title for the same. Therefore, the plaintiff is not entitled for any relief. The suit is barred by limitation and the https://hcservices.ecourts.gov.in/hcservices/ defendants have perfected their title by adverse possession also. 9.The case of the plaintiffs in O.S.No.1782 of 1997 is as follows:- In O.S.No.1782 of 1997, according to the plaintiff, the suit property was owned by one Ekambara Reddy. It is a vacant land. The plaintiff is the daughter of Ekambara Reddy. Thus, she has got absolute title for the suit property and she is also in possession and enjoyment of the same. The first defendant is the father of the second defendant. The first defendant's father was one Munusamy Reddy. Munusamy Reddy was the son of one Aladi Reddy through his first wife. Ekambara Reddy was the son of Aladi Reddy through his second wife. The defendants have no manner of title or whatsoever over the suit property. During second week of June 1990, the defendants attempted to trespass into the suit property claiming title. Therefore, the plaintiff filed the present suit for declaration of title and for permanent injunction. 10.In the written statement filed by the defendants 1 and 2, the description of suit property has been found fault with. Further, Ekambara Reddy himself had no title and he was never in possession of the suit property. Therefore, the plaintiff has got neither title nor possession. According to the defendants, the suit property was owned by Mr.Duraisami Reddy but he had no male issues. He died 30 years ago. Mr.Duraisami Reddy gave the suit property to the first defendant and the first defendant in turn, has settled the same in favour of the second defendant on 30.07.1973, by means of a registered settlement deed. Thus, the second defendant is the absolute owner of the suit property. The suit is barred by limitation and the defendants have perfected their title by adverse possession. 11.Based on the above pleadings, in both the suits, as could be seen from the common judgment of the trial Court, common issues were framed in both the suits. In other words, as many as 10 issues were framed. 12.Having considered the above materials, the trial Court decreed both the suits and the same was confirmed by the First Appellate Court. That is how the defendants 1 and 2 in both the suits are before this Court with these two appeals. 13.While admitting S.A.No.1222 of 2004, this Court framed the following Substantial Question of law:- “1.Whether the judgments and decrees of the Courts below are sustainable in law as the Courts below have not considered the entire evidence applicable to decide the issue in question and not applied the relevant provisions of law applicable https://hcservices.ecourts.gov.in/hcservices/ to the facts of the case?” 14.While admitting S.A.No.1913 of 2004, this Court framed the following Substantial Question of law:- “1.Whether the judgments and decrees of the Courts below are sustainable in law, as the entire evidence which is relevant to decide the issues and the relevant question of law applicable to the facts of the case where not taken into consideration?” 15.I have heard the learned counsel for the appellants in both the appeals and the learned counsel for the respondents and also perused the records carefully. 16.As I have already stated, a perusal of the trial Court judgment would go to show, that it has been mentioned that common issues were framed in both the suits based on the respective pleadings. This procedure cannot be appreciated in law. In each case, based on the pleadings, there have to be separate issues and the parties at issues will be at liberty to lead evidence in order to either prove or disprove the respective issues. Common trial is permissible in law, but, common issues in two suits where parties are different; suit properties are different and the tracing of title are different cannot be countenanced in law. In order to find out the correctness of the same, when I perused the records of the trial Court, I found that the issues in O.S.No.1782 of 1997 were framed by the learned District Munsif on 24.03.1995 whereas, the issues in O.S.No.1784 of 1992 were framed on 21.09.1999. Therefore, the statement of the learned District Munsif that common issues were framed in these two suits is not correct. A perusal of the issues framed in both the cases would only go to show that the issues are only similar and not common. But the trial Court has treated the issues as common issues though the plaintiffs are different and the suit properties are also different and has appreciated the entire evidence together. This procedure, in my considered opinion, is illegal. On this ground alone, the common decree and judgment passed by the trial Court in both the suits which were confirmed by the First Appellate Court require to be interfered with. 17.The trial Court should have dealt with each issue involved in each suit separately and the trial Court ought not to have dealt with the issues involved in one suit as against the parties in the other suit and vice versa. 18.A further perusal of the judgment of the trial Court would go to show that even the issues relating to adverse possession were dealt with commonly by the trial Court. Similarly, though tracing of title by the plaintiff in each suit is different, the trial Court has made a https://hcservices.ecourts.gov.in/hcservices/ complete mess of everything and has dealt with the same as though both the suits were merged together. 19.Apart from that, the plaintiff in O.S.No.1784 of 1997 claims title as though the suit property belonged to her father Mr.Varadhapa Reddy. It is not pleaded in the plaint as to how Varadhapa Reddy acquired title. Similarly, the plaintiff in O.S.NO.1782 of 1997 has claimed that the suit property was owned by her father Mr.Ekambara Reddy. It is not pleaded as to how Ekambara Reddy acquired title for the said property. But the trial Court as well as the appellate Court have not at all considered these aspects. 20.Similarly, the defendants 1 and 2 have claimed title in O.S.No.1784 of 1997. According to them, the suit property was owned by one Duraisamy Reddy who is the first defendant’s uncle. Duraisamy Reddy gave his property to the first defendant and the first defendant in turn executed a settlement deed in faovur of the second defendant on 30.07.1983. Thus, the defendants 1 and 2 have not pleaded as to how Duraisamy Reddy had title and as to how Duraisamy Reddy transferred title in favour of the first defendant. 21.Similarly, in O.S.No.1782 of 1997, the defendants 1 and 2 claimed that the suit property was owned by Duraisamy Reddy and Duraisamy Reddy gave his property to the first defendant 30 years ago. Hereagain, it is not pleaded as to how Duraisamy Reddy had title and by what means he transferred title to the first defendant. 22.Thus, the pleading on both suits are not sufficient to resolve the issues involved in both the suits. The Courts below have miserably failed to consider all these aspects. Further, the Courts below have made a wrongful approach in decreeing the suits by holding that the defendants have not proved their case. In my considered opinion, the said approach is totally erroneous in law. In these two suits, being suits for declaration of title, the burden to prove title is heavily upon the respective plaintiffs. But the plaintiffs have failed to do so. 23.In view of the above defects which I have narrated, in my considered opinion, the common judgment passed in both the suits and the decrees passed in favour of the respective plaintiffs cannot be sustained at all. They need interference at the hands of this Court and both the suits require to be remanded back to the trial Court for fresh disposal. 24.But the learned counsel for the second respondent, Mr.P.Sintha Mathar, would submit that the common decree passed in both the suits have been obtained by the respective plaintiffs by playing fraud upon the Court and therefore, they do not require any indulgence from this Court by way of remand of the suits. He would further submit that https://hcservices.ecourts.gov.in/hcservices/ Ms.Muthu Katheja, the third defendant in both the suits before the trial Court gave Vakalat to the learned counsel engaged by the defendants 1 and 2 believing that her case would be argued properly. But there was no written statement at all filed by the third defendant. The learned counsel who held Vakalat for her did not instruct her to file written statement and instead, the defendants 1 and 2 have virtually played fraud upon her. He would further submit that out of the total extent of 52 cents, the second respondent has purchased only 3.2 cents which also she sold away in the year 1996 itself. But unnecessarily she has been dragged to the Court as a party to the suits. The learned counsel would further submit that the other parties to whom the properties have been sold have not been added as parties. For all these reasons, the learned counsel would pray for dismissal of both the suits with compensatory costs. 25.I have considered the said submission of the learned counsel for the second respondent. 26.As we have seen, as against the decrees and common judgment passed in both the suits, the second respondent Ms.Muthu Katheja did not prefer any appeal at all to the First Appellate Court. Only the defendants 1 and 2 in both the suits had preferred appeals. As against the decrees and the common Judgment passed by the First Appellate Court confirming the decrees passed by the trial Court also, the second respondent has not preferred any appeals before this Court. Having failed to do so, in my considered opinion, it is not open for the second respondent to raise the above objections across the Bar at this stage. 27.Though it is stated by the learned counsel for the second respondent that the second respondent gave Vakalat to the learned counsel engaged by the defendants 1 and 2 and the said counsel did not prosecute the case on her behalf properly before the trial Court, absolutely, there is no material available on record for the same. Further, though it is stated that the major part of the suit properties have been sold away to various persons and they have not been added as parties in the suits, there is no material available on record about the same also. Had the second respondent herein been vigilant to file written statement in both the suits, she would have been in a better position to place the facts before the Courts. Apart from that, according to the learned counsel, the second respondent has sold away 3.2 cents of the suit property. Thus, according to the second respondent, she has got no interest in the suit property. When that be so, it is up to her either to defend the suits or to abandon the same. In this case, though she was served with summons and though she appeared through a learned counsel, she did not chose to file any written statement. Therefore, in my considered opinion, the arguments advanced by the learned counsel for the second respondent for dismissal of the suits and that too with compensatory cost cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/ 28.In the result, both the appeals are allowed, the decrees and common judgment passed by the trial Court and confirmed by the First Appellate Court are set aside and both the suits are remitted back to the learned District Munsif for fresh disposal in accordance with law. While doing so, the parties will be at liberty to file additional pleadings or to amend the pleadings and also to let in additional evidence, if any. The trial Court shall deal with the issues in each suit as against the respective parties at issues. The second respondent herein will also be at liberty to file written statement and to lead evidence, if any. However, considering the nature of the case, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jbm To 1.The Subordinate Judge, Poonamallee. 2.The District Munsif, Ambattur. Copy to: The Section Officer, VR Section, High Court,Madras. +1cc to M/s. T.R.Daveson, Advocate Sr 61619 +1cc to Mr.C.Prakasam, Advocate Sr 61730 +2ccs to Mr.P.Sinthamathar, Advocate Sr 61633 & 61634 +4ccs to M/s. V.Raghavachari, Advocate Sr 54387,54385,61910,54998 MG(CO) km/10.11. Second Appeal Nos.1222 and 1913 of 2004 https://hcservices.ecourts.gov.in/hcservices/