IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :13.06.2011 Coram The Honourable Mr.Justice G.RAJASURIA S.A.No.158 of 2006 1. Nallathambi Padayachi 2. Pachai Ammal 3. Punniyamoorthy .. Appellants/Plaintiffs vs 1. Karunanidhi 2. Sakkubai Ammal 3. Arumugam .. Respondents/Defendants 3, 1 & 2 This second appeal is filed under Sec.100 of C.P.C. against the judgment and decree dated 23.09.2005 passed by the learned Principal Subordinate Judge, Cuddalore in A.S.No.64 of 2004 reversing the judgment and decree dated 22.03.2004 passed by the learned Principal District Munsif, Cuddalore in O.S.No.61 of 2002. For Appellants : Mrs. Chitra Sampath For Respondents : Mr.R.Subramaniam for R1 Mr.P.Mani for RR2 and 3 JUDGMENT This second appeal is focussed by the plaintiffs, inveighing the judgement and decree dated 23.09.2005 passed by the learned Principal Subordinate Judge, Cuddalore in A.S.No.64 of 2004 reversing the judgment and decree dated 22.03.2004 passed by the learned Principal District Munsif, Cuddalore in O.S.No.61 of 2002. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: https://hcservices.ecourts.gov.in/hcservices/ a. The plaintiffs/appellants herein filed the original suit seeking the following reliefs: - to declare the possessory title of plaintiffs 1 to 3 in respect of suit A,B and C schedule property respectively. - to pass a decree for permanent injunction restraining the defendants, their agents, servants or men from the manner of interfering with the plaintiff's peaceful possession and enjoyment of suit properties and for costs. (extracted as such) b. Written statement was filed resisting the suit by the respective defendants. c. Whereupon the trial court framed the relevant issues. During trial, on the side of the plaintiff, the first plaintiff examined himself as PW1 along with P.Ws.2 and 3 and marked Exs.A1 to A29. On the defendants' side, the first defendant examined herself as DW1 along with DW2 and marked Exs.B1 to B14 and court documents Exs.C1 to C4 were also marked. d. Ultimately, the trial court decreed the suit in whole, except to an extent of 1 ½ acres in "A" Schedule property in favour of the plaintiffs. e. Challenging and impugning the said judgment and decree of the trial court, the third defendant preferred appeal; whereupon the first appellate court set aside the judgment and decree of the trial court and dismissed the original suit in entirety and also dismissed the cross appeal filed by the plaintiffs. f. Being aggrieved by and dissatisfied with the the judgment and decree of the first appellate court, the plaintiffs have preferred this second appeal on various grounds and also suggesting several substantial questions of law. 4. My learned predecessor, at the time of admitting the second appeal framed the following substantial questions of law: 1. Whether in a suit for establishing possessory title of the plaintiffs of the poramboke property held by them against third party, the Government is a necessary party, and that too, when the plaintiffs could hold their possession against the whole world except the true owner viz., the Government? 2. Whether the dismissal of the claim of the plaintiffs 2 and 3 in a suit of the year 1992 against third parties, bars the plaintiffs 2 and 3 from establishing their claim against https://hcservices.ecourts.gov.in/hcservices/ the defendants on a fresh cause of action to prove their possession at the time of institution of the suit in 2002? 3. Whether the payment of penal levies evidenced by B Memos was not sufficient proof of possession by the plaintiffs? 5. Heard the learned counsel for the appellants/plaintiffs and the learned counsel appearing for the respondents/defendants. 6. The pith and marrow, the gist and kernel of the arguments as put forth by the learned counsel for the appellants/plaintiffs would run thus: a. The first appellate court, wrongly assumed as though the suit was bad for non-joinder of necessary party, viz., the Government. b. The present suit is only for declaration of the plaintiffs' possessory right over the suit property as against the defendants, who attempted to interfere with the peaceful possession and enjoyment of the plaintiffs and in such a case, the Government is not a necessary party and that too in view of the fact that from the Government, the plaintiffs did not face any trouble. c. The trial court, after analysing the oral and documentary evidence arrived at a just decision; however, the first appellate court without any rhyme or reason simply held as though without any evidence the trial court decreed the suit and consequently set aside the well considered judgment and decree of the trial court in toto. d. Simply because in the previous litigation instituted as against some third parties by the plaintiffs 2 and 3, the relief in respect of B and C scheduled properties were not granted that it does not mean that the present suit was hit by res judicata in respect of those items of properties. The trial court took into account the penalties paid by the plaintiffs in respect of the areas under their occupation and granted the relief, which warranted no interference at the first appellate stage. But still, the first appellate court, for no good reasons interfered with the findings of the trial court and set aside the same, warranting interference in second appeal. 7. In a bid to torpedo and pulverise the arguments as put forth on the side of the appellants/plaintiffs, the learned counsel for D3/R1 would put forth and set forth her arguments, which could tersely and briefly be set out thus: a. Even though the plaintiffs did not face allegedly any trouble from the Government, yet the former prays for declaration of possessory title relating to the Government land and in such a case, by no stretch of imagination, it could be contended that Government https://hcservices.ecourts.gov.in/hcservices/ is not a necessary party to the proceedings. As such, the first appellate court was legally correct in holding that the suit was bad for want of the necessary party, viz.,the Government. b. In the previous litigation, the plaintiffs met with their waterloo in getting any favourable orders in favour of B and C schedule properties; wherefore they are not justified in laying claim over the same properties by citing some other defendants. c. The onus of proof is on the plaintiffs to prove the case convincingly. In this case, the evidence of PW1 is vague as vagueness could be and his evidence is quite antithetical to the pleadings. As per the plaint, the total extent of the A, B and C suit scheduled properties would come to 9 acres, whereas while deposing before the court, the first plaintiff as PW1 would portray that the plaintiffs are in possession of only 7 acres. As such, there was no rhyme or reason in the contention of the plaintiffs and the first appellate court properly took note of all those material defects and ultimately dismissed the original suit by setting aside the judgment and decree of the trial court, warranting no interference in second appeal. 8. The whole kit and caboodle of facts and figures that emerges from the records placed before me, would connote and denote that there are three items of suit properties, viz., A, B and C. The plaintiffs 1 to 3 would claim that they are in possession of those respective three schedules of properties; thereof the first item is measuring an extent of 4 acres and the remaining two items are measuring 2 ½ acres each. The trial court, virtually based on the admission of PW1 held that the respondent No.1 (D3) was admittedly in possession of an extent of an acre and a half to the west of his patta land and consequently, the trial court held that in the A schedule property, the first plaintiff is in possession of 2 ½ acres of land on the western portion. However explicitly and apparently, palpably and clearly such versions are not found set out in the judgment, which cannot be looked askance at, because, one has to interpret the judgments in a reasonable way. If there is no reason or no ratiocination at all in arriving at a conclusion by the lower court then the High Court can look askance at it. But, on the other hand, if from the records, the reasons behind the courts findings are discernible, then such judgment should not be set aside holus bolus. Efforts should be made to uphold reasonable decisions rendered by the lower courts rather than raising accusative finger as against them by picking holes therein. 9. However, the first appellate court without adhering to the aforesaid principle, unreasonably found fault with the trial court's discerning judgment and upset the same. https://hcservices.ecourts.gov.in/hcservices/ 10. A poring over and perusal of the Advocate Commissioner's report and also the relevant records would reveal and display that the A scheduled property is situated to the West of D3's patta property. In such a case, I could see no force in the contention of the learned counsel for the plaintiffs that the trial court was not justified in holding that an extent of 1 ½ acres of land in the A scheduled property is under the possession of D3. Even in the plaint, while describing the A schedule property, it is found specified that D3 is owning a patta land to the East of A schedule property and while deposing before court PW1 admitted that adjacent to such D3's patta land, D3 is in occupation of an extent of 1 ½ acres in the poramboke land. When such is the position, harmonious construction and understanding would compel the court to discern that in the A schedule property D3 is in occupation of an extent of 1 ½ acres of land on the eastern portion and in the remaining 2 ½ acres, the plaintiffs are in possession. 11. In view of the ratiocination adhered to by this court in understanding the judgment of the trial court, the contention on the side of the plaintiffs that there are no clinching documents filed on the D3's side, fails to carry conviction with this court. 12. I recollect and call-up the following maxims: (i) Affirmantis est probare – He who affirms must prove. (ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies. As such, the onus probandi is on the plaintiffs to prove the case. 13. Obviously and axiomatically, the plaintiffs failed to prove that they are in possession of the entire extent of 4 acres in the A schedule property. In such a case, they cannot call upon D3 to prove that he is in possession of 1 ½ acres of land in the A schedule property and that too on the eastern portion and the plaintiffs should be happy to be get themselves satisfied about their possession over 2 ½ acres on the western portion of A schedule property and they cannot try to claim right over the entire 4 acres and that too in view of PW1's own admission referred to supra. 14. Not to put too fine a point on it, at this juncture, I would like to highlight that the principles of res judicata cannot be ushered in by the defendants in citing previous judgment and decree in O.S.No.625/1992 (Exs.A15 and A16) in view of the fact that the defendants herein were not the parties there. The judgment emerged in the previous proceeding was only a judgment in personam and not in rem and in such a case, the principle of res judicata as found https://hcservices.ecourts.gov.in/hcservices/ embodied in Section 11 of CPC, cannot be pressed into service here. The lower court taking into consideration Ex.A15 and Ex.A16, the judgment and decree in O.S.No.625 of 1992 held that even though in the previous litigation the court held that the plaintiffs were not entitled to any declaratory relief yet there was a finding to the effect that the plaintiffs were in possession of the B and C schedule properties. The same defendants are not the parties herein. 15. As such, I could see no irregularity or impropriety on the part of the trial court in placing reliance on Exs.A15 and A16 in arriving at the conclusion as against the defendants that the plaintiffs have proved that they have been in possession of the B and C schedule properties for a pretty long time and granting the reliefs. 16. Without being tautologous, I would like to point out that this is only a judgment in personam and not a judgment in rem. Here the defendants in no way could claim right over the B and C schedule properties; if at all, any one is interested, it is the Government. But the Government is not objecting to plaintiffs' possession and their claim and in such a case, the trial court was justified in granting the relief in respect of B and C schedule properties also. 17. The contention on the side of the defendants that the suit was bad for want of non-joinder of the necessary party, viz., the Government, in my opinion, is neither here nor there in view of my discussion supra. The plaintiffs being the dominus litus is having a right to choose as to who should be arrayed as defendants and who should not and it is not for the defendants herein to dictate terms. 18. The declaratory relief sought for by the plaintiffs in the suit is only to get declared their possessory title over the suit properties and it will in no way bind the Government. In any eventuality, if the Government is having objection, it is always open to it to ignore such declaration and initiate necessary proceedings as against the plaintiffs. When such is the legal position, I could see no force in the contention of D3/R1 that the suit is bad for want of non-joinder of necessary party, viz., the Government. 19. No doubt, in the judgment of the trial court there is no clarity as to which portion is under the occupation of D3 in the A schedule property and which portion is under the occupation of the plaintiffs in it. 20. My discussion supra would unambiguously and unequivocally, highlight realities and thereby disambiguate the ambiguity in the judgment of the trial court. 21. In the result, https://hcservices.ecourts.gov.in/hcservices/ (i) The substantial question of law No.1 is decided to the effect that the Government is not a necessary party to this suit, which is one for establishing possessory title of the plaintiffs over the poramboke property as against the defendants who are nothing to do with the Government. (ii) The substantial question of law No.2 is decided to the effect that the dismissal of the claim of the plaintiffs 2 and 3 in the previous suit of the year 1992 as against third parties, does not bar the plaintiffs 2 and 3 from establishing their claim as against the defendants herein in the present suit. (iii) The substantial question of law No.3 is decided to the effect that the payment of penal levies evidenced by B memos is sufficient to prove possession by the plaintiffs along with the other evidence both oral and documentary. 22. Accordingly, this second appeal is allowed and the judgment and decree of the first appellate court is set aside and the judgment and decree of the trial court is restored with the above clarification. However, in these circumstances, there shall be no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vj2 To 1. The Principal Subordinate Judge, Cuddalore. 2. The Principal District Munsif, Cuddalore. + 1 cc to Mr.R. Subramanian, SR. 33811 + 1 cc to Mrs. Chitra Sampath, Sr.33768 + 1 cc to Mr.P. Mani, Advocate Sr.33819 S.A.No.158 of 2006 NG(CO) EU 8.8.11 https://hcservices.ecourts.gov.in/hcservices/