IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09. 04.. 2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos. 1328 of 2008 and 1231 of 2005 and M.P.No.1 of 2008 1.The Executive Engineer, Site and Service Division No.3, Tamil Nadu Housing Board, Thirumangalam, Chennai35. 2.The Chairman, Housing Board, Chennai-35. .. Appellants in S.A.No.1328 of 2008 and respondents 2 and 3 in S.A.No.1231 of 2005/ Defendants 1 & 2 Mr.V.A.Joy ...Appellant in S.A.No.1231 of 2005 and 3rd respondent in S.A.No.1328 of 2008/ 4th Defendant vs. 1.M.Lakshmi Ammal .. 1st respondent in both the appeals/Plaintiff 2.Chennai Metropolitan Development Authority, rep.by its Member-Secretary, Chennai-8. ... 4th Respondent in S.A.No.1231 of 2005 2nd respondent in S.A.No.1328 of 2008/ 3rd Defendant https://hcservices.ecourts.gov.in/hcservices/ These second appeals are filed under section 100 of CPC against the judgements and decrees dated 29.6.2005 passed by the Additional Sessions Judge, (II Fast Track Court, Chennai), in A.S.No.157 of 2002 and A.S.No.85 of 2003, confirming the judgement and decree dated 2.4.2002 passed by the VI Assistant Judge, City Civil Court, Chennai, in O.S.No.2163 of 1990. For appellant in S.A.No.1231 of 2005 Mr.S.V.Jayaraman,Sr.counsel for Mr.V.Manohar For Respondents in S.A.No.1231 of 2005 : Mr.V.Adi Narayana Rao R2 and R3 Mr.J.Ravindran for R4 For Appellants in S.A.No.1328 of 2008: Mr.V.Adi Narayana Rao For Respondents in S.A.No.1328 of 2008 Mr.S.V.Jeyaraman, Sr.counsel for Mr.V.Manohar for R3 in SA 1328/08 Mr. J. Ravindran for R2 No appearance for R1 in both SA's COMMON JUDGMENT S.A.No.1328 of 2008 is filed by the defendants 1 and 2 and S.A.No1231 of 2005 is filed by the 4th defendant, animadverting upon the judgement and decrees dated 29.6.2005 passed by the Additional Sessions Judge, (II Fast Track Court, Chennai), in A.S.No.157 of 2002 and A.S.No.85 of 2003, confirming the judgement and decree dated 2.4.2002 passed by the VI Assistant Judge, City Civil Court, Chennai, in O.S.No.2163 of 1990. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Avoiding discursive discussion, I would like to pithily and precisely, tersely and briefly set out the germane facts as under:- (i) O.S.No.2163 of 1990 was filed by Lakshmi Ammal,the first respondent in both the second appeals/plaintiff, seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "a) to declare that the suit property, namely, house, ground and premises at door No.1-A, Abirami Avenue 1st Street, Kodungaiyur, Chennai-51 in Survey No.175/3A (Part) and measuring 2340 sq.ft which is morefully described in the schedule hereunder absolutely belong to the plaintiff. b) to grant permanent injunction restraining the defendants, their men, servants and subordinates or anybody claiming under or through them from in any way interfering with the peaceful possession and enjoyment of the suit property, namely, house, ground and premises at Door No.1-A, Abirami Avenue, 1st Street, Kodungaiyur, Chennai-600 051, is Survey No.175/3A part and measuring 2340 sq.ft morefully described in the schedule hereunder, either by demolition or otherwise except in accordance with the due process of law."(extracted as found in the plaint) (ii) Whereas, the 4th defendant-V.A.Joy filed the separate suit O.S.No.463 of 1992, seeking injunction in respect of the same suit property referred to in O.S.No.2163 of 1990 filed by Lakshmi Ammal. (iii) In as much as both the suits were interrelated and interlinked, interconnected and entwined with each other, it necessitated the lower Court to correctly conduct the joint trial and pronounce the common judgement. (iv) In both the suits, the defendants concerned resisted the suit. During the joint trial, the plaintiff in O.S.No.2163 of 1990, examined herself as P.W.1 apart from examining one Sukumaran and P.W.2 and Hameed Nazar as P.W.3 and marked Exs.A1 to A13. The 4th defendant-V.A.Joy (in O.S.No.2163 of 1990) examined himself as D.W.2 along with one R.Murugesan as D.W.1 and Nagarajan as D.W.3s and no document was marked. Ex.C1 was marked as Court document. (v) Ultimately the trial Court decreed the suit O.S.No.2163 of 1990 filed for declaration and injunction by Lakshmi Ammal and dismissed the suit O.S.No.463 of 1992 filed for injunction by V.A.Joy-the appellant in S.A.No.1231 of 2005. (vi) Being disconcerted and aggrieved by the said common judgement, A.S.No.157 of 2002 was filed by V.A.Joy for nothing but to be dismissed by the first appellate Court, as against which, S.A.No.1231 of 2005 was filed by the same V.A.Joy. https://hcservices.ecourts.gov.in/hcservices/ (vii) The Executive Engineer and the Chairman of Tamil Nadu Housing Board-the defendants 1 and 2 in the said suit O.S.No.2163 of 1990 preferred the first appeal A.S.No.85 of 2003 for nothing but to be dismissed by the first appellate Court and as against which, S.A.No.1328 of 2008 was filed. 3.The fact also remains that V.A.Joy-the plaintiff in O.S.No.463 of 1992, as against the dismissal of his suit, preferred A.S.No.418 of 2003 before the II Fact Track Court, Chennai, for nothing but to be dismissed and as against which, S.A.No.1242 of 2005 was filed and my learned predecessor, on 6.2.2006 dismissed the second appeal at the admission stage itself adverting to the fact that Joy could not establish his right. In fact, in the said order, this Court took into consideration the fact that the right of Joy was considered in the common judgement of the trial Court and it was considered by the first appellate Court and ultimately, decided the case as against Joy. Hence, the same logic would be applicable for dismissing the second appeal 1231 of 2005 filed by Joy, as against the findings in O.S.No.2163 of 1990. 4. However, the learned counsel for the Housing Board, and the officials concerned, namely, the defendants 1 and 2 in the suit O.S.No.2163 of 1990/appellants in S.A.No.1328 of 2008, would develop his argument that de hors the decision rendered by this Court in S.A.No.1242 of 2005 as against Joy on 6.2.2006, the right of the Housing Board has to be decided in this second appeal, as D1 and D2 happened to be the real owners of the suit property by virtue of the land acquisition proceedings taken by the Government relating to the suit property and other properties and ultimately having handed over the same to D1 and D2, so to say, the Housing Board. 5. The learned Senior counsel for the plaintiff- Lakshmiammal (in O.S.No.2163 of 1990) would raise an objection to the maintainability of the second appeal filed by the Housing Board itself on the ground that the said V.A.Joy-the 4th defendant in O.S.No.2163 of 1990 preferred second appeal (S.A.No.1242 of 2005); this Court dismissed it and such dismissal of it would tantamount to confirming that the plaintiff (in O.S.No.2163 of 1990) as the person who acquired prescriptive title over the suit property and such decision in the second appeal filed by V.A.Joy would operate as res judicata and as such, the present both the appeals are not tenable. 6. Ex facie and prima facie it is obvious and axiomatic that the principle of res judicata, as attempted to be ushered in on the side of the plaintiff-Lakshmiammal is not a sound plea https://hcservices.ecourts.gov.in/hcservices/ and it fails to find favour with this Court for the reason that the said S.A.No.1242 of 2005 filed by V.A.Joy was not decided after admitting the appeal and framing substantial question of law, but at the entertaining stage itself it was dismissed. 7. A bare perusal of the order passed by this Court in the second appeal No.1242 of 2005 would display and evince that it does not in any way refer to the plaintiff/Lakshmiammal's alleged prescriptive title over the suit property or about the land acquisition proceedings as pleaded by the Housing Board. What are all my learned predecessor while disposing of the S.A.No.1242 of 2005 stated was that V.A.Joy had no shard or shred, iota or miniscule extent of evidence to prove that he acquired title over the property and as such, no substantial question of law had arisen for entertaining the second appeal. 8. The pre-existing right of the Housing Board, as defendants in O.S.No.2163 of 1990, to file second appeal as against the judgement of the first appellate Court in A.S.No.85 of 2003, still subsists. By no stretch of imagination, it could be stated that simply because Joy's second appeal, namely, 1242 of 2005 was dismissed, the Housing Board's right to prefer second appeal also got obliterate by virtue of the principle of res judicata. Incontrovertibly and indubitably, the case of Housing Board is different from V.A.Joy's case. 9. In this factual matrix, my mind is reminiscent of the following maxim: 'Ubi jus ibi remedium' - which means where there is a right there is a remedy the above said maxim would squarely be applicable in favour of the Housing Board, as their right to prefer second appeal cannot be throttled by the plaintiff-Lakshmiamml by raising some plea. Simply because the said Joy failed to get his second appeal admitted, the Housing Board's right to get second appeal admitted relating to their separate case de hors V.A.Joy's case cannot be denied. As such, no more elaboration in this regard is required. 10. In S.A.No.1328 2008, after hearing for some time the arguments on both sides, this Court felt that with the consent of both sides, this matter could be disposed of finally by framing the following substantial questions of law: "(a) Whether the trial Court was justified in not framing any issue based on the plea of land acquisition proceedings as raised by defendants 1 and 2? https://hcservices.ecourts.gov.in/hcservices/ and (b) Whether the finding of both the Courts below that in view of the plaintiff having acquired prescriptive title, even anterior to the land acquisition proceedings, she is entitled to injunction, is correct?" 11. The learned counsel for the the appellants/defendants 1 and 2 in S.A.No.1328 of 2008 would develop his argument to the effect that the suit property was acquired by the Government and it was handed over to the Housing Board and to that effect, the facts were placed before the trial Court, but both the Courts below, without properly appreciating the facts simply decreed the suit as though Lakshmi Ammal/plaintiff in O.S.No.2163 of 1990 acquired prescriptive title over the suit property. 12. A bare poring over and perusal of the typed set of papers, including the judgements of both the Courts below, would indicate and evince that no issues have been framed by the trial Court relating to land acquisition proceedings. 13. It is a common or garden principle of law that the acquisition of land under the land acquisition proceedings would obliterate the prescriptive title, if any, of Lakshmi Ammal and furthermore, it would cause an interdiction in the accrual of any prescriptive title. It is also a trite proposition that on seeing the Notification for acquisition, the real owner of the suit property, whose name has been left out in the Notification, has to file objection, if any, to the Notification. It is also a settled proposition of law that land acquisition proceedings cannot be challenged in a suit. The owner of the land is having only the right to file a suit for compensation from the person who wrongly obtained compensation from the Government concerned, if already compensation has been disbursed to a wrong person other than the real owner. 14. The learned counsel for the appellants in S.A.No.1328 of 2008/D1 and D2 would invite the attention of this Court to paragraph 18 of the judgement of the trial Court and develop his argument to the effect that the trial Court was appraised of the land acquisition proceedings and the Court also adverted to the fact that D.W.3 deposed before the Court that as per Award No.2/1979 dated 15.6.1979, the property bearing Survey No.175/3A2 measuring 22 cents in Kodungaiyur Village, including the suit property, was acquired by the Government under the Land Acquisition Act. The fact remains that no specific issue was framed by the trial Court touching upon the plea of land acquisition, as put forth by the D1 and D2 in paragraph 9 of their written statement. https://hcservices.ecourts.gov.in/hcservices/ 15. A bare perusal of paragraph 9 of the written statement of D1 and D2 would reveal that they took a specific plea that the land in Survey No.175/3A2 measuring 0.22 acres in Kodungaiyur Village was acquired from one Janarthanan by TNHB Acquisition Act, after paying due compensation to the ex-owner and the relevant award number was 2/79. As such, despite the clear plea taken by the D1 and D2, the trial Court has not framed any issue and the first appellate Court also failed to consider the said fact, but it blindly confirmed the findings of the lower Court. An excerpt from the trial Court judgement is extracted hereunder for ready reference: "jhth brhj;jpy; RthjPdj;jpy; ,Ue;J te;j 1960=ypUe;J 12 Mz;Lfs; fHpj;J jhd; jkpH;ehL tPl;L trjp thupak; nkw;go brhj;ij ifafg;gLj;jpas;sJ vd;gJ ed;F bjhpatUfpwJ/ thjp jhd; RthjPdj;jpy; vLj;Jf;bfhz;l njjpapypUe;J 12 Mz;LfSf;F nkyhf jhth brhj;jpy; RthjPdj;jpy; ,Ue;J te;Js;sjhy; jhth brhj;jpd; nghpy; thjpf;F vjph;epiy cilik ghj;jpak; Vw;g;gl;Ls;sJ vd;gJ bjjpatUfpd;wJ/ vdnt vjph;epiy cilik ghj;jpak; K:yk; jhth brhj;J thjpf;F ghj;jpag;gl;lJ vd Kot[ bra;ag;gLfpwJ/@ 16. A plain reading of the same would leave no doubt in the mind of this Court that the lower Court, without au fait with law and au courant with facts simply misdirected itself and the view taken by the trial Court was tangent. The trial Court was laboring under the misapprehension as though once the plaintiff was alleged to be in possession for over 12 years before the land acquisition proceedings, the very acquisition proceeding would become in effective.I am at a loss to understand as to how such a totally untenable view could be taken by the trial Court and confirmed by the first appellate Court. Put simply, both the Courts below were unable to see the wood for tree. 17. To the risk of repetition, without being tautologous, I would like to point out that even for argument sake it is taken that the plaintiff had acquired prescriptive title even before the land acquisition proceedings and the plaintiff's name was not found in the acquisition proceedings, nonetheless the acquisition proceedings would prevail over all owners whether their names are found specified in the Notification for land acquisition or not. As such, the land acquisition proceedings are juridical acts in rem. Hence, the judgements of both the Courts below having no legs to stand. https://hcservices.ecourts.gov.in/hcservices/ 18. The learned counsel for the plaintiff would submit that the necessary documents relating to the acquisition proceedings have not been marked before the lower Court and he would also state that such land acquisition proceedings were withdrawn. But absolutely, there is no shred or shard, pint-sized or miniscule extent of evidence that such land acquisition proceeding was withdrawn. 19. Be that as it may, inasmuch as both the Courts below failed to see that necessary issue relating to the plea of land acquisition proceedings, as put forth, was not framed, I would like to set aside the judgement and decree of the first appellate Court. 20. Accordingly, the substantial question of law No.(1) is decided to the effect that the trial Court was not justified in deciding the case without framing any issue relating to the plea regarding land acquisition proceedings. 21. The substantial question of law No.(2) is decided to the effect that both the Courts below are not justified in giving a find that because the plaintiff acquired alleged prescriptive title, before the land acquisition proceedings, she was entitled for injunction. 22. Accordingly, the judgement and decree dated dated 29.6.2005 passed by the Additional Sessions Judge, (II Fast Track Court, Chennai), in A.S.No.85 of 2003, is set aside and the matter is remitted back to the first appellate Court for entertaining evidence relating to the following additional issues framed by this Court: "(i) Whether the land in Survey No.175/3A2 measuring 0.22 acres in Kodungaiyur Village (including the suit property) was acquired by the Government under the Land Acquisition proceedings concerned? And (ii) If so, whether the plaintiff's prayer for permanent injunction is tenable? 23. Since the matter is of the year 2003, within a period of three months, the first appellate Court, after recording evidence of both sides and after giving opportunity of being heard, dispose it of finally by a reasoned judgement. Both the parties shall appear before the first appellate Court on 29.4.2009. https://hcservices.ecourts.gov.in/hcservices/ 24. For the reasons already adverted to above, S.A.No.1231 of 2005 filed by V.A. Joy-the 4th defendant in O.S.No.2163 of 1990 is dismissed. Msk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Additional Sessions Judge, (II Fast Track Court, Chennai) 2. The VI Assistant Judge, City Civil Court, Chennai Copy to:- The Section Officer VR Section, High Court, Madras 104. • 1 cc to Mr. Adinarayana Rao, Advocate SR 13982 judgement in S.A.Nos.1328 of 2008 and 1231 of 2005 RSM(CO) SR/17.4.2009 https://hcservices.ecourts.gov.in/hcservices/