IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 3.11.2009 CORAM THE HON’BLE MR.JUSTICE M.JEYAPAUL SECOND APPEAL NO.1270 OF 1995 1. S.Nanjayya Gounder (died) 2. Santhamani 3. Sudhaganan 4. Vijayalakshmi 5. Minor Vivek (Appellants 2 to 5 – brought on record as L.Rs. Of the deceased sole appellant vide order dated 26.12.2002 in C.M.P.Nos.20248 to 20251 of 2001) (5th appellant is represented by his mother and next friend Santhamani vide order dated 26.12.2002 in C.M.P.No.20251 of 2001) .. Appellants/I Defendant vs. 1. S.K.Merugiri 2. S.K.Subbaiyan 3. S.K.Thimmaiyan 4. S.K.Ramachandran .. Respondents/II Plaintiff III to V Defendants For appellants : Mrs.Mythili Suresh for M/s.Sarvabhauman Associates For R1 : Mr.R.T.Duraiswami For R2 : Mrs.P.T.Asha For RR3 and 4 : No appearance. https://hcservices.ecourts.gov.in/hcservices/ Prayer:- Second Appeal against the judgment and decree of the learned Principal District Judge, Coimbatore dated 5.4.1995 made in A.S.No.149 of 1994 preferred against the judgment and decree of the learned III Additional District Munsif, Coimbatore dated 11.4.1994 made in O.S.No.632 of 1987. JUDGMENT The first defendant, who suffered a decree for declaration of title before the courts below prefers the present second appeal. 2. The plaintiff filed the suit for declaration of title and also for recovery of possession. The court below, having rejected the plea for recovery of possession, granted a decree for declaration of title in favour of the plaintiffs. 3. The plaintiffs would contend that the first defendant Nanjaiya Gounder and one Thoddanna Gounder are his brothers. The second defendant is alleged to be the tenant of the suit property under the first defendant and defendants 3 to 5 are the sons of the second defendant. The suit property is a maaniyam inam land. The first plaintiff's father Subbe Gounder executed a Will dated 5.7.1939 allotting share to each of his sons. Under the said Will, the suit property was allotted to the first plaintiff. Though the said Will was cancelled on 28.9.1946, Subbe Gounder insisted that the division of the property must be as per the Will. The brothers of the first defendant and the first plaintiff executed a partition deed dated 16.11.1957 between themselves and allotted the suit property to suit their convenience. The partition deed refers as if the suit property was allotted to the first defendant. The said partition deed has no legal force as against the first plaintiff. The first plaintiff and his brothers were on loggerheads and were inimically disposed of right from the year 1954. In the year 1967, the suit property was given riotwari patta under the Minor Inam Abolition Act in the name of the first plaintiff and the first defendant. In the year 1978, the first plaintiff sold 5 cents of land to one K.N.Vasu. Having thus alleged, the first plaintiff prays for declaration of his share in the property and also for recovery of possession with respect thereto. 4. In the written statement, the first defendant contended that the suit property has no connection with any service inam rendered by his family members. The second defendant is the lessee of the suit property. The first defendant denies the allegation that the father https://hcservices.ecourts.gov.in/hcservices/ of the first defendant insisted that the division of the properties must be as per the Will executed by him. Though all the three brothers agreed for a division of the properties in the presence of panchayatdars, the plaintiff did not join in the execution of the partition deed. The suit property was allotted to the first defendant under the partition deed dated 27.11.1954. The first defendant has become the absolute owner of the suit property. The second defendant, who is a lessee under the first defendant has been in possession of the property for the past 25 years. In the litigation in O.S.No.994 of 1978 on the file of the District Munsif Court, Coimbatore initiated by the second defendant, permanent injunction was granted in his favour as against the first plaintiff. K.N.Vasu, who allegedly purchased 5 cents of land in the suit property, was not impleaded as necessary party to the suit. When the plaintiffs partitioned their family properties, the suit property was not shown as one of the properties in their possession. Therefore, the first defendant has sought for dismissal of the suit. 5. The third defendant has contended in the written statement that his father, the second defendant in the suit, was in possession and enjoyment of the suit property in his capacity as a lessee under the first defendant for the past about 25 years. After his demise, the third defendant is managing the suit property. He also prays for dismissal of the suit. 6. On the side of the plaintiffs, the second plaintiff was examined as PW1 and one T.Ganesan was examined as PW2. As many as 16 documents were marked on the side of the plaintiffs. On the side of the defendants, the first defendant was examined as DW1 and five documents were marked on his side. 7. The courts below, having adverted to the evidence on record, has come to the decision that the plaintiffs have established that the first plaintiff is entitled to declaration of title with respect to 7 cents of land in the suit property. As specific boundaries were not given in the plaint, the prayer for delivery of possession was denied by the courts below. 8. No appeal was preferred by the plaintiffs aggrieved by the rejection of their prayer for delivery of possession. 9. The following substantial question of law was framed for determination at the time of admission of the appeal:- "Whether the suit is barred by limitation?" https://hcservices.ecourts.gov.in/hcservices/ 10. Learned counsel appearing for the appellant/first defendant would submit that even as per the own showing of the plaintiff, the cause of action for the suit has arisen wayback in the year 1967. The suit filed for declaration of title beyond the period of 12 years is hopelessly barred by limitation. It is her further submission that inasmuch as there is a specific finding in the suit filed by the second defendant as against the first plaintiff that it was only the first defendant who had leased out the suit property to the second defendant and the second defendant has been in continuous possession and enjoyment of the suit properties in his capacity as lessee, the suit is hit by the principles of res judicata. Referring to the evidence of PW1, who is none other than the son of the first plaintiff, she would submit that DW1 has categorically admitted that in the notice issued in the year 1957 by the first plaintiff there was no reference that the suit property was in the possession and enjoyment of the first plaintiff. The partition deed, Ex.B1 executed among the family members of the plaintiffs would refer that there was no other property of the family left out. It is her further submission that one Vasu, who allegedly purchased 5 cents of land in the suit property, was not impleaded as a proper and necessary party to the suit. Therefore, the suit itself is not maintainable. 11. Learned counsel appearing for the second plaintiff/first respondent would submit that though riotwari patta was issued jointly in the names of the first plaintiff and the first defendant in the year 1967 under Ex.A8, subsequently a patta under Ex.A1 was issued jointly in the name of the first defendant, first plaintiff and one Pasu. Therefore, the suit, filed for declaration of title from the date of issue of patta, Ex.A1, is well within the period of limitation. It is his further submission that the joint riotwari patta Ex.A8 issued in the name of the first defendant and the first plaintiff with respect to the suit property would go to show that they are the joint owners of the suit property. In the suit filed by the second defendant as against the first plaintiff for bare injunction, the title of the suit property was not determined. Therefore, application of the principles of res judicata does not arise in this case. Though there is no reference in the lawyer's notice issued by the first plaintiff to the defendant, the plaintiffs have independently established that they have got joint ownership to the suit property under the riotwari patta, Ex.A8 issued by the Settlement Tahsildar. Therefore, he would submit that there is no warrant for interference with the well considered judgments of the courts below. https://hcservices.ecourts.gov.in/hcservices/ 12. The first plaintiff has admitted in the plaint itself that there was a partition deed dated 16.11.1957 executed between the first defendant and yet another brother Thoddanna Gounder wherein the suit property was allotted to the share of the first defendant. It is the admitted case of both the parties that the first plaintiff, though he is one of the brothers of the first defendant and the said Thoddanna Gounder, was not one of the parties to the said partition deed. Therefore, the partition allegedly taken place between the first defendant and the said Thoddanna Gounder under the partition deed dated 16.11.1957 allotting the suit property to the share of the first defendant would not bind the plaintiff. 13. On facts, it is found that there was a settlement proceeding initiated by the Settlement Tahsildar wayback in the year 1967. The first defendant has given evidence marked as Ex.A13 to the effect that the suit property was in joint possession and enjoyment of the first plaintiff and the first defendant. Based on the evidence let in before the Settlement Tahsildar, joint patta in the name of the first plaintiff and the first defendant was issued by the Settlement Tahsildar on 20.1.1967 and the same was marked as Ex.A8. 14. It is contended by the learned counsel appearing for the first defendant that the statement given by DW1 before the Settlement Tahsildar cannot be a basis for grant of riotwari patta in the joint names of the first defendant and the first plaintiff. It is found that the Settlement Tahsildar conducted a roving enquiry and based on the statement of the first defendant, he has arrived at a conclusion that the suit property was in the joint possession of the first plaintiff and the first defendant and chose to issue joint patta under Ex.A8 in the name of the first plaintiff and the first defendant. The first defendant cannot disown his statement which culminated in the issuance of joint patta referred to above. If at all, the first plaintiff was not in joint possession of the property, the first defendant would not have come out with such a statement before the Settlement Tahsildar which culminated in the issuance of joint patta. 15. On a careful reading of the certified copy of the judgment Ex.A7 in O.S.No.994 of 1978 it is found that in the suit laid by the second defendant as against the plaintiff on the ground that the second defendant was let in possession by the first defendant, the possession of the second defendant was protected by the court by issuance of permanent injunction as sought for by the second defendant as against the first plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 16. It is found that the aforesaid suit was filed not by a co- sharer but by a lessee under the co-sharer alleging interference with his possession in his capacity as lessee and obtained a decree for permanent injunction. The said suit was filed basically for the relief of permanent injunction. The issue as to the title to the property was not germane to the said suit filed for permanent injunction. No such issue also was raised and answered by the Trial Court in the said suit. Of course, there is a passing reference in the said suit that it was only the first defendant, who leased out the suit property to the second defendant, who has been in possession and enjoyment of the suit property. The present suit is not one for permanent injunction based on the plea of possession. On the strength of the joint riotwari patta issued in the year 1967 and the subsequent patta issued in the year 1986 under Ex.A1, the suit has been basically filed for declaration of title. Therefore, the observation made in the aforesaid suit with respect to leasing of the property will not have much bearing on the present suit for declaration of title. Any observation made therein will not operate as res judicata for the present suit filed for declaration of title. 17. Though the plaintiffs have filed kist receipts, Exs.P10 to P12, it is found that the kist receipts, Exs.A11 and A12 relate to the period subsequent to filing of the suit. Ex.A10 does not relate to the suit property. Occupancy may be with the second defendant in his capacity as lessee. But, recognizing the joint possession, a joint patta was issued under Ex.A1 in the year 1986 in the name of the first plaintiff, the first defendant and one Pasu. Therefore, it is not as if the plaintiffs filed the suit beyond the period of limitation inasmuch as they got joint patta in the year 1986, one year prior to the filing of the suit. Therefore, the suit is not barred by limitation. 18. It is true that PW2, in his evidence, would admit that in the year 1957, his father issued a legal notice wherein the suit property was not shown as one of the properties under their possession. The fact remains that joint possession of the property was admitted by the first defendant in the settlement proceedings and as a result of which joint riotwari patta was issued under Ex.A8 in the name of the first plaintiff and the first defendant. Therefore, the failure to refer to the suit property as one of the properties in the possession of the plaintiffs' family in the notice issued in the year 1957 does not have any bearing. Under Ex.B1 partition deed, the https://hcservices.ecourts.gov.in/hcservices/ family members of the plaintiffs partitioned their properties. It has been specifically averred therein that no other property was left out of the scope of the partition in the family. It is found that the riotwari joint patta issued in the year 1967 would go to show that the first plaintiff and the first defendant was in joint possession of the property and as a result of which, they have been issued with joint patta. The joint possession was also admitted by the first defendant in the said proceedings as found from Ex.A13 marked before the Trial Court. The first plaintiff also got joint patta one year earlier to the suit under Ex.A8. Therefore, the non reference of the suit property in the partition deed, Ex.B1 executed among the family members of the plaintiffs would not deprive the right of the first plaintiff in the suit property as otherwise accrued to him. 19. It is pointed out by the learned counsel appearing for the first defendant that the plaintiffs cannot get a decree for declaration of title with respect to the half share of the suit property inasmuch as the first plaintiff had already alienated 5 cents of land in favour of one K.N.Vasu alias K.N.Pasu. It is submitted that the suit itself is not maintainable as proper and necessary party viz., K.N.Pasu was not impleaded as a party to the suit. 20. The plaintiffs have not burked any fact as to the execution of the sale deed with respect to 5 cents of the suit property in favour of the said K.N.Pasu. When the alienation of part of the suit property was admitted, the plaintiffs cannot have a decree with respect thereto. But, at any rate, when the plaintiffs have categorically admitted that the first plaintiff had already alienated 5 cents of land in the suit property and as a consequence the plaintiffs cannot get a decree for the entire half share in the suit property, the non impleadment of the said K.N.Pasu will not affect the scope of the suit. 21. It is found that the plaintiffs have established that the first plaintiff had got half share in the suit property. He has admittedly alienated 5 cents out of 7 cents he was entitled to, in favour of K.N.Pasu. Therefore, he can at best get a decree for declaration with respect to the remaining 2 cents out of 14 cents of the suit property. https://hcservices.ecourts.gov.in/hcservices/ 22. In view of the above, holding that the second plaintiff is entitled to a decree for declaration of title in respect of only 2 cents out of 14 cents in the suit property, the suit is decreed only with respect thereto. The judgment of the courts below is modified to that extent. With the aforesaid modification in the judgment of the courts below, the appeal stands dismissed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssk. To 1. Principal District Judge, Coimbatore. 2. III Additional District Munsif, Coimbatore. 3. The Section Officer, V.R.Section, High Court, Madras. + 1 cc to M/s.Sarvabhauman Associates, SR 58425 + 1 cc to Mr.R.T.Duraisamy, Adovate, SR 58459 S.A.No.1270 of 1995 KA (CO) RH (22.12.09) https://hcservices.ecourts.gov.in/hcservices/