IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.03.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.Nos.620 and 621 of 2008 and M.P.No.1 of 2008 1. Gnanasoundari 2. Gnanaprakasam .. Appellants in both appeals (Defendants 3 and 4) vs. 1. Vairakannan 2. Sivaprakasam 3. Purushothaman 4. Kannabiran 5. Thangarasu .. Respondents in both appeals (Plaintiffs and Defendants 1,2,5,6) Since the respondents 2 to 5 in the Second Appeal are exparte in the lower Appellate Court, they are not necessary parties to this second Appeal and hence they are givenup. These Second Appeals are focussed as against the decree and judgment dated 31.12.2004 made in Cross Appeal No.85 of 2003 and A.S.No.85 of 2003 in A.S. No.85 of 2003 respectively on the file of the first Additional Subordinate Judge, Villupuram reversing the Decrees and judgments dated 31.10.2001 made in O.S.No.174 of 1996 on the file of the Principal District Munsif, Villupuram. For appellants : Mr.M.V.Venkataseshan For Respondent : Mr.S.Srinath for R1 JUDGMENT These Second appeals are focussed by D3 and D4 in the original suit, animadverting upon the judgment and decree dated 31.12.2004 passed in Cross Appeal No.85 of 2003 and A.S.No.85 of 2003 respectively, by the first Additional Subordinate Judge, Villupuram, reversing the judgment and decree of the Principal District Munsif, Villupuram in O.S.No.174 of 1996. The parties https://hcservices.ecourts.gov.in/hcservices/ are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A recapitulation and summation of the relevant facts absolutely necessary and germane for the disposal of these Second Appeals would run thus: (a) The plaintiff filed the suit seeking the following reliefs: "(i) To declare plaintiff's title to the suit property; (ii) To restrain the defendants, their men, servants and agents in any way interfere with the plaintiff's peaceful possession and enjoyment of the suit property by means of an order of permanent injunction; and (iii) For costs." (b) The written statement has been separately filed by D1 and D2. D3 and D4 together, D5 and D6 together filed separate written statements. (c) Whereupon issues were framed by the trial Court. (d) The plaintiff-Vairakannan examined himself as P.W.1 and Exs.A1 to A20 were marked. The first defendant/Sivaprakasam examined himself as D.W.1 along with D.W.2 to D.W.5 and Exs.B1 to B26 were marked. Exs.C1 and C2 were marked as court exhibits. 3. Ultimately the trial Court decreed the suit declaring the title of the plaintiff to the suit property, but rejected the prayer for injunction, as against which D3 and D4 preferred appeal challenging the grant of declaration by the trial Court. Whereas, cross appeal was filed by the plaintiff as against the rejection of his prayer for injunction by the trial Court. The appellate Court dismissed the appeal filed by D3 and D4 and allowed the cross appeal, whereby the plaintiff got both the reliefs as prayed in the suit. 4. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court in the appeal as well as cross appeal, these two Second Appeals were filed more or less on same grounds and also suggesting the following substantial questions of law: "(1) Whether the Courts below are right in granting the decree for mere declaration of title https://hcservices.ecourts.gov.in/hcservices/ without prayer for setting aside the decree in O.S.No.3/90 standing in favour of the Appellants? (2) Whether the Lower Appellate Court was right in granting the decree for injunction in favour of 1st respondent when under Ex.B3 the delivery has been taken by the Appellants through a due process of Court proceedings?" (extracted as such) 5. On hearing both sides, as suggested by the appellants, the following substantial questions of law are framed: "(1) Whether the Courts below were justified in granting reliefs even though there was no prayer for setting aside the decree in O.S.No.3/90 standing in favour of the Appellants? (2) Whether the Lower Appellate Court was right in granting the decree for injunction in favour of 1st respondent despite as per Ex.B3 the delivery was taken by the appellants?" 6. The learned counsel for D3 and D4, who are the appellants herein, would advance his arguments, the pith and marrow of the them would run thus: (a) Notwithstanding the fact that Alamelu was not a party to the agreement to sell entered into between D3 and D5-Kannabiran the husband of Alamelu, the decree passed by the Court in O.S.No.3 of 1990 should have been respected by the first appellate Court and should not have been ignored. As per the decree passed in O.S.No.3 of 1990, the delivery of the suit property was handed over in favour of D3 through Court Amin, and by way of respecting the earlier Court order, the trial Court correctly dismissed the prayer for injunction. However, the first appellate Court ignoring the factum of delivery given under the decree in O.S.No.3 of 1990 decreed the suit for injunction warranting interference in the Second Appeal. (b) D1 and D2 happened to be the lease holders under the usufructuary mortgagee namely Thangarasu- D6 and that factum was ignored by the first appellate Court. The mortgage was discharged only by D3, but that was not recognised by the courts below. As such at any rate, the first appellate Court should not have reversed the finding of the trial Court in rejecting the prayer for permanent injunction as the plaintiff being the purchaser of the suit property from Tamilarasi through her Power Agent should have filed a suit for recovery of possession of the suit property. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the learned counsel for the appellants prayed for setting aside the judgments and decrees of the first appellate Court and for the dismissal of the original suit. 7. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the defendants 3 and 4, the learned counsel for the plaintiff would advance his arguments, which could pithily and precisely be set out thus: (a) The trial Court as well as the first appellate Court appropriately and appositely, correctly and legally scanned the evidence with fine-toothed comb and culled out the truth and ultimately arrived at the conclusion that the alleged sale under the decree in O.S.No.3 of 1990 was having no legs to stand, because indisputably and indubitably, Kannabiran and his wife Alamelu happened to be the owners of the suit property. In such case, Kannabiran alone had no right to enter into the alleged agreement of sale of the entire suit property in favour of Gnanasundari, the first appellant herein. (b) Thangarasu-D6 happened to be the usufructurary mortgagee and even then the said Kannabiran alone had no right to create such usufructuary mortgage concerning the said suit property. Even then cutting across technicalities, the said mortgage was discharged by Kannabiran with the help of Tamilarasi, who was the purchaser of the property from Kannabiran and his wife Alamelu as per Ex.A2- the sale deed dated 17.02.1987. (c) The preponderance of probabilities would govern the adjudication in civil cases and accordingly if viewed, both the courts below appropriately considered all the relevant facts; even though the trial Court granted only the relief of declaration of title and rejected the prayer for injunction, yet the first appellate Court correctly granted injunction relief also and thereby the entire suit stood decreed in favour of the plaintiff warranting no interference in the Second Appeal. Accordingly, the learned counsel for the plaintiff would pray for the dismissal of the Second Appeals. SUBSTANTIAL QUESTION OF LAW NO.1 8. Trite the proposition of law, is that the judgments normally passed by the civil Courts are only judgment in personam and not judgment in rem. Decrees in respect of matrimonial matters and orders passed under the Indian Succession Act could be treated as adjudication in rem. However, the question of https://hcservices.ecourts.gov.in/hcservices/ treating a judgment passed in a dispute between two parties over immovable properties cannot be termed as the one in rem. Wherefore, it is axiomatically clear that the judgment passed in O.S.No.3 of 1990 would have binding effect only on the defendants therein and not on the plaintiff herein who is not a party in that case. Hence it is crystal clear that there is no substance or merit in the contention of the appellants/D3 and D4 herein that the plaintiff herein should have prayed in the present plaint for getting set aside the said decree in O.S.No.3 of 1990. Had the plaintiff herein happened to be one of the defendants in the suit O.S.No.3 of 1990, then the question of the defendants praying for setting aside the previous decree on the ground of fraud etc would have arise. Therefore, in the facts and circumstances of this case, the plaintiff was not enjoined to seek for such a prayer for getting set aside the said judgment and decree in O.S.No.3 of 1990. As such the first substantial question of law is decided to the effect that the suit filed by the plaintiff herein was not bad for want of a prayer for getting set aside the judgment and decree in O.S.No.3 of 1990. SUBSTANTIAL QUESTION OF LAW NO.2 9. No doubt whenever the Court orders delivery of possession and accordingly if delivery is effected, the presumption is that it was genuine. Illustration (e) to Section 114 of the Indian Evidence Act could also be recollected in this regard as under: "(e) That judicial and official acts have been regularly performed" While so, the explanation as under: "As to illustration (e) -A judicial act, the regularity of which is in question, was performed under exceptional circumstances" contemplated under the same Section 114 should also be borne in mind. 10. Ex facie and prima facie it is clear that Kannabiran who had only half right in the suit property ventured to enter into an agreement to sell in favour of D3 herein, for the purpose of transferring the entire suit property and the trial Court which was seized of the matter in O.S.No.3 of 1990 ought to have got itself satisfied as to whether the said Kannabiran had the disposable right over the entire suit property. It is therefore clear that without application of mind, simply for the sake of D3 having asked for a specific performance decree, the trial Court in O.S.No.3 of 1990 passed such ex parte decree which is having no legs to stand. https://hcservices.ecourts.gov.in/hcservices/ 11. In this connection I would like to recollect and call up the following decision of this Court reported in 1996 (2) CTC 611 (Varada Reddiar and another vs. Jayachandran and others); certain excerpts from the said decision would run thus: "8. Even though the defendant was exparte in the suit, there was a duty on the part of the Court below to apply its mind before granting the decree. By virtue of the decree, we find that some right has been given to the plaintiffs in the suit which even they did not ask for. Once a decree is obtained, the respondents 1 and 2 herein (plaintiffs) have exploited the same to their benefit. 9. In this connection, it is better to follow a decision of the Court reported in Annapoornni v. Janaki 1995 (1) LW 141. When the revision petition came up for hearing, Srinivasan,J. treated it as a suo motu revision petition, by exercising powers under Article 227 of the Constitution of India. 10. That was a case where a daughter-in-law filed a suit against the mother-in-law, claiming to be a legal heir of her husband. She claimed that she is the absolute owner of the property, though the mother also had an equal share as an heir to her son. The mother did not contest the matter and ultimately a decree was passed in favour of the plaintiff. Execution proceedings were taken. It was at that time, a question came up for consideration whether the decree is legally valid. The learned Judge said thus:- When this Court finds that a decree suffers from an error of law apparent on the face of the record owing to non-application of mind of the Court to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to succeed to the estate of the deceased Hindu. There is no earthly reason for depriving the mother of the deceased of her legitimate share in the estate which in this case happens to be a moiety. https://hcservices.ecourts.gov.in/hcservices/ This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of the Court. It is only for that reason, I am exercising my powers under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India. The case on hand is also similar. A decree which is beyond the scope of the suit has been granted, thereby depriving certain temples of their properties. A wrongful gain has been obtained by the plaintiffs, respondents 1 and 2 herein. The decree passed by the Court below has resulted in miscarriage of justice. Therefore, this is a fit case where I have to exercise my powers under Article 227 of the Constitution of India. Accordingly by exercising my powers under Section 115, C.P.C. and Article 227 of the Constitution, I modify the decree passed by the Court below as follows: The decree of the Court below will be read as if injunction was there restraining the defendant (third respondent herein) for conducting auction on 24.7.1991 or any other date till 30.6.1992 and the defendant was entitled to auction or lease out the properties after the said period." It is therefore clear that such decrees could be ignored even by a party to the proceedings. Here it is all the more worse, because the plaintiff herein was not the defendant in O.S.No.3 of 1990 and hence, the plaintiff was justified in ignoring the said judgment and decree passed therein and also the alleged delivery effected thereunder. It was projected on the side of D3 and D4 that consequent upon the delivery effected by the Court on 23.12.1991, D3 started cultivating the suit property. 12. The learned counsel for D3 and D4 also relied upon Ex.B13 – the order passed by the RDO concerned who simply adhered to the delivery receipt and the ex parte judgment earlier passed by the Court in O.S.No.3 of 1990. In my opinion, the order as contained in Ex.B13 is having no probative force of its own as this Court which is seized of the matter should consider the merit of the judgment and decree passed in O.S.No.3 of 1990 and ultimately both the Courts below correctly arrived at the conclusion that the said judgment and decree passed in O.S.No.3 of 1990 are having no binding effect on the plaintiff and that the first appellate Court correctly held that the said delivery was only a https://hcservices.ecourts.gov.in/hcservices/ paper delivery and it cannot be relied on to hold that consequent upon such dubious delivery, D3 and D4 took possession of the suit property and cultivated the same. It is the case of the plaintiff that consequent upon the discharge of mortgage by Thangarasu on 21.05.1987, Tamilarasi who already purchased the suit property as per Ex.A2 dated 17.02.1987 from Kannabiran and Alamelu took possession of the suit property and through her Power Agent she sold the property in favour of the plaintiff as per Ex.A12 dated 05.12.1989, and from then onwards the plaintiff has been in possession and enjoyment of the same 13. The learned counsel for D3 and D4 would argue that the original of the discharge receipt – Ex.A3 signed by Thangarasu is in the possession of D3 and D4 and in such a case, it should be presumed that it was D3 who discharged the mortgage and entered into possession. 14. Whereas, the learned counsel for the plaintiff would submit that it was Tamilarasi who paid the amount and that was why Tamilarasi's husband signed in the receipt as a witness and that took place after Ex.A2-the sale deed dated 17.02.1987 in favour of Tamilarasi. Since Kannabiran every now and then, here a little and there a litted manner acted, whereby he supported the case of the plaintiff and also supported the case of his wife Alamelu, he did something in handing over that original discharge receipt to D3. As such, the first appellate Court au fait with law and au courant with facts correctly understood as to what actually happened in this case and arrived at the conclusion warranting no interference in the Second Appeal. 15. The learned counsel for D3 and D4 inviting the attention of this Court to Ex.A13 – Adangal extract would develop his argument that only two days anterior to the filing of the suit, such Adangal was secured or procured by the plaintiff, for which the learned counsel for the plaintiff would appropriately and appositely expound and clarify that the particular Adangal refers to the fasli year 1987, even though the certified copy was obtained two days earlier to the filing of the suit. As such I could see no perversity or illegality in the judgment of the first appellate Court. 16. Accordingly, the substantial question of law No.2 is also decided in favour of the plaintiff and as against the defendants to the effect that the first appellate Court was right in granting the decree for injunction in favour of 1st respondent/plaintiff treating that under Ex.B3 only paper delivery was taken by the appellants. https://hcservices.ecourts.gov.in/hcservices/ In the result, both the Second Appeals are dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. To 1. The first Additional Subordinate Judge, Villupuram. 2. The Principal District Munsif, Villupuram. 3. The Section Officer VR Section High Court, Madrs 1 cc to Mr.M.V. Venkataseshan, Advocate, r. 18296 1 cc to Mr.S. Srinath, Advocate, Sr. 18673 S.A.Nos.620 and 621 of 2008 NG (CO) kk 29/3 https://hcservices.ecourts.gov.in/hcservices/