Dismissed

Srinivasan v. Og Janarthanan

Madras HC8 Feb 2011SA/1078/2006

Case brief

AI extract

What is this about?

Court dismissed second appeal in partition suit. Held that non-joinder of necessary parties barred relief and alleged admission during cross-examination insufficient for decree. Subsequently quashed alienation of 0.25 acres violating injunction order.

What did the court decide?

Second appeal dismissed; status quo ante restored regarding alienated 0.25 acre; improvements removed; transferees held bound.

Srinivasan Vs Og Janarthanan — Partition | Madras HC (2011)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED:08.02.2011

¶3

Coram:

¶4

THE HONOURABLE MR.JUSTICE G.RAJASURIA

¶5

S.A.No.1078 of 2006 &
M.P.No.1 of 2010
and
Cont.Petition No.1291 of 2010 &
Sub Appln.No.399 of 2010
1. Srinivasan
2. Murugan .. Appellants in
S.A.1078/2006 &
Respondents in C.P.1291/2010
(Appellants/Plaintiffs
vs.
1. O.G.Janarthanan .. 1 st petitioner in C.P.1291/2010
2. O.G.Venkatesan
3. O.G.Jayagopal .. 2 nd petitioner in
C.P.1291/2010
4. O.G.Viswanathan
5. O.G.Varadharajan
6. Rajamani
7. Kumutha
8. Vasanthi
9. Santhi
10.Bhuvaneswari
11.Badri
12.Sunitha
13.Venkatammal
14.Venkatalakshmi .. 1 to 14 Respondents in
S.A.1078/2006/1 to 4
Respondents
Plaintiffs 2 to 6 & 8 to 14
This second appeal is focussed as against the judgment and
decree dated 07.12.2005 in A.S.No.101 of 2004 on the file of the
learned Principal District Judge, Salem confirming the judgment
and decree dated 19.12.2003 made in O.S.No.707 of 1990 on the
file of the Principal Sub Judge, Salem.

¶6

Contempt Petition filed under Section 11 of Contempt of Court Act to punish the respondents for willfully committing contempt of the order dated 16.04.2007 passed by this Court in M.P.No.1 of 2007 in S.A.No.1078 of 2006.

¶7

https://hcservices.ecourts.gov.in/hcservices/

¶8

For Appellants in S.A.No.1078/2006 & : Mr.S.V.Jayaraman,Sr.Counsel

¶9

For Respondents in C.P.No.1291/2010 : for Mr.P.Jagadeesan

¶10

For R1 to R5, R7 to R11, R13 and R14 in S.A.No.1078/06 & :Mrs.Hema Sampath, Sr.Counsel For Petitioners in C.P.No.1291/2010 for Mrs.R.Meenal

¶11

Respondents 6 & 7 - No appearance

¶12

This second appeal is focussed by the original plaintiffs animadverting upon the judgement and decree dated 07.12.2005 passed in A.S.No.101 of 2004 by the learned Principal District Judge, Salem confirming the judgment and decree of the learned Principal Sub Judge, Salem in O.S.No.707 of 1990. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

¶13

Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

¶14

(a) The plaintiffs who are the appellants herein filed the suit seeking the following reliefs:

¶15

(ii) To direct division of the suit properties into 9 equal shares and allot 2 such shares to the petitioners/plaintiffs;

¶16

(iii) to put the petitioners/plaintiffs in separate possession.

¶17

(b) The written statement was filed by D2 resisting the suit. The reply statement also was filed by the plaintiffs.

¶18

(d) The first plaintiff-Srinivasan examined himself as P.W.1 along with P.W.2-Dhadhagounder and Exs.A1 and A2 were marked. On the side of the defendants, D.W.1 was examined and Exs.B1 to B8 were marked.

¶19

(e) Ultimately the trial Court dismissed the suit, as

¶20

https://hcservices.ecourts.gov.in/hcservices/

¶21

against which appeal was filed for nothing but to be dismissed confirming the judgment and decree of the trial Court.

¶22

Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that both the Courts below failed to take into account the factual as well as the legal issues.

¶23

The following substantial questions of law are found suggested in the grounds of appeal:

¶24

"(1) Whether the Lower Courts right in holding that the plaintiffs are not entitled to seek for partition of the suit property since the suit property is not their ancestral properties?

¶25

(2) Whether the Lower Courts right in holding that the suit properties are not ancestral properties?

¶26

(3) Whether the Lower Courts right in holding that the suit for partition without a prayer for setting aside the sale deed Ex.B8 is not maintainable in law?

¶27

(4) Whether the Lower Courts right in dismissing the suit in toto, especially when the first defendant had purchased only 1.00 acre of land out of the total 1.25 Acres of land in the suit property?

¶28

(5) Even assuming without admitting that the sale in favour of first defendant under Ex.B8 is valid, whether or not the plaintiffs entitled to get the remaining, unsold extent of 0.25 acres in the suit property?"

¶29

(extracted as such)

¶30

My learned Predecessor framed the following substantial questions of law:

¶31

"(1) Whether the lower Courts are right in holding that the suit property is not ancestral property of the plaintiffs?

¶32

(2) In view of the specific admission by D.W.1 that the defendants had agreed to have the sale deed executed only to an extent of

¶33

https://hcservices.ecourts.gov.in/hcservices/

¶34

1.00 acre out of 1.25 acres and they have no objection for granting a decree for the balance land of 0.25 acre in favour of the plaintiffs and on the basis of the recitals in the written statement to that effect, whether or not the plaintiffs entitled to get a decree atleast for 0.25 acre of land in the suit property?

¶35

(3) Whether the lower Courts are right in holding that the suit for partition without a prayer for setting aside the sale deed Ex.B8 is not maintainable in Law? (extracted as such)

¶36

Heard both sides.

¶37

The learned Senior Counsel for the

¶38

plaintiffs/appellants would put forth and set forth his arguments thus:

¶39

(a) During trial the first defendant as D.W.1 clearly and categorically deposed as under:

¶40

"gp/rh/M/8y; xU Vf;fh; fpiuak; bra;Js;nshk;/ g";rhaj;jpy; ngrpa go eh';fs; xg;g[f;bfhz;L 1 1-4 Vf;fUf;F gjpy; xU Vf;fh; nghJk; vd;W Vw;Wf; bfhz;Ltpl;nlhk;/ kPjp fhy; Vf;fh; epyk; Fwp;j;J eh';fs; ghpfhuk; vJt[k; nfl;ftpy;iy/ kPjp me;j fhy; Vf;fh; epyk; Fwpj;J thjpfSf;F jPh;g;g[ Mtjpy; v';fSf;F Ml;nrgid ,y;iy/@

¶41

Nevertheless the trial Court as well as the appellate Court failed to take note of it and decree the suit atleast to the extent of 25 cents.

¶42

(b) As per Order 12 Rule 6 of CPC when a defendant submits to decree, so to say even partly, at any stage of the case it is for the Court to pass a decree based on such admission. However, the trial Court failed to properly appreciate the same and decree atleast to the limited extent.

¶43

(c) Even though in the memorandum of grounds of appeal filed before the first appellate Court such defects in the judgment and decree of the trial Court were found set out, the appellate Court failed to even consider it.

¶44

Accordingly, the learned Senior Counsel for the

¶45

plaintiffs/appellants would pray for passing a decree atleast to the extent of 25 cents of land, as agreed by D.W.1, in favour of the plaintiffs.

¶46

By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the appellants/plaintiffs, the

¶47

https://hcservices.ecourts.gov.in/hcservices/

¶48

learned Senior Counsel for the contesting respondents/defendants would advance her arguments, which could tersely and briefly be set out thus:

¶49

(a) The scope of the suit itself is for partition of 2/9th share in the suit property without adding the necessary parties. Out of the alleged partible estate, only for 2/9th share the plaintiffs filed the suit. Then in that case, they should have added the sharers of the 7/9th share in the alleged partible estate, namely the suit property, but they had not done so. In such a case, by no stretch of imagination the suit framed could be held to be correct.

¶50

(b) Simply because D.W.1, (D1) a septuagenerian, uttered out certain answers during cross examination, it cannot be tried to be capitalised by the plaintiffs who have not approached the Court with proper suit and by adding proper parties.

¶51

(c) The claim for 25 cents of land based on the alleged admission of D.W.1 cannot enure to the benefit of the plaintiffs as the plaintiffs are not at all entitled to 25 cents of land and their 2/9th alleged share will not even come to that much extent.

¶52

(d) When there is concurrent finding of facts by both the Courts below, the question of granting a decree based on such alleged admission by no stretch of imagination could be countenanced.

¶53

Accordingly, the learned Senior Counsel for the contesting respondents would pray for the dismissal of the Second Appeal.

¶54

The aforesaid substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another.

¶55

In view of the specific submission made by the learned Senior Counsel for the appellants for decreeing the suit atleast to an extent of 25 cents of land as agreed to by D.W.1 or in the alternative for giving liberty to the plaintiffs to file fresh proceedings incorporating appropriate reliefs and citing necessary parties, I am of the view that a few facts in this regard would be sufficient and I need not ponder over all the details relating to this case.

¶56

11.Originally it appears the suit property belonged to three sharers and the plaintiffs' father-Siddhan had 1/3rd share in the suit property and accordingly, narrating a few more facts, the plaintiffs filed the suit seeking partition by adding also the fact that the respondents/defendants herein purchased as per Ex.B8-sale deed, the suit property with improper description and

¶57

https://hcservices.ecourts.gov.in/hcservices/

¶58

specifying excess area.

¶59

Indubitably and indisputably, unarguably and incontrovertibly, an arbitration award emerged between the plaintiffs and the contesting respondents/defendants and in that the following extent of property are found agreed to be sold:

¶60

"Description of property

¶61

Salem District, Salem Sub Registration District, Salem Town, K Division, third ward, line Andipatti village, T.S.No.807 mitta Survey No.211/1 poramboke punjai extent 0.98 assessment Rs.1.53. S.No.211/2 dry, extent 0.20 asst. Rs.0.31. The property lying west of the land of B.S.S.Bommanna Chettiar vagayara, north of the east west itteri, east of the land belonging to Arumugham and others, and south of the odai the land of Arumugham and others; and the house of Chinnuswami, within these boundaries, the land measuring 420 feet east-west, on the north 433 feet east-west on the south; 160 feet northsouth on the east, 124 feet north-south on the west, together with the one well therein and 40 coconut trees, one Eachamaram and all other miscellaneous trees in the said land, (though the property is described to be in Andipatti village, a portion of the same on the north is situate in Annadanapatti village and the area of the land in Annadanapatti village is about 13 cents). The above said property which is subject matter of the agreement now bears the following new T.S.Numbers after taking over the mitta by the Government, viz., Ward H, Block – 25, T.S.13 and Ward H.Block No.27, T.S.No.33/9. The area in T.S.No.13 is 1.09 acres on the eastern side out of 1.27 acres and the area in T.S.No.33/9 is 13 cents immediately north of the above said 1.09 acres and west of the channel."

¶62

In pursuance of the aforesaid award, Ex.B8-sale deed emerged at the instance of the plaintiffs and others in favour of the respondents/defendants and the description of the property found therein would run thus:

¶63

@1 tJ mapl;lk; nryk; o nryk; rg; o nryk; lt[d; nf/otpc&d; 3tJ thh;L md;djhdg;gl;o jug;g[ iyd; Mz;og;gl;o fpuhkj;jpy; gHao v!; bek;gh; 922f;F uP/rh;nt brl;oy;bkz;Lgo thu;L vr;/ gpshf; 27 o/v!;/bek;gh; 33-9y; , jw;F rk;ke;jg;gl;lJkhd rhFgo tptrha epyk; g{uht[k; ,jw;F mLj;j 2tJ mapl;l brhj;J ?? jdf;fhft[k; jd; :

¶64

https://hcservices.ecourts.gov.in/hcservices/

¶65

ikdh;fSf;fhft[k; vk;/ rpj;jd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk;/ khhpag;gd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk; ma;ak; bgUkhs; mLj;j ,uz;lhtJ mapl;l brhj;J ? nryk; o nryk; rg; o nryk; lt[d; nf/otpc&d; 6tJ thh;L v!;/ Mz;og;gl;o fpuhkj;jpy; gHao v!; bek;gh; 807f;F uP/rh;nt brl;oy;bkz;Lgo thu;L vr;/ gpshf; 25 o/v!;/bek;gh; 13;f;Fk; rk;ke;jg;gl;l tptrha epyj;jpw;F brf;Fge;jp tpguk; ?? Kdprpgy; fpHnky; ,l;nlhp nuhl;Lf;Fk; tlf;F MwKff;ft[z;lh; tifuhtpw;w epyj;jpw;Fk; bjw;F v';fspl kw;w epyj;jpw;Fk; fpHf;F gp/v!;/gp bghk;kz;z brl;oahu; tifuh tpw;w epyj;jpw;Fk; nkw;F ,jd; kj;jpapy; tlg[uk; fpHnkyo 448 mo bjd;g[uk; fpHnkyo 433 mo fpHg[uk; bjd;tlyo 154 mo nky;g[uk; bjd;tlyo 124 mo ,e;j mst [s;s epyk; g{uht[k; ,jpy; cs;s FtiyVj;jy; Ju!;Jfpzh; xd;Wk;. Jiy xd;Wk;. ,Jfspy; cs;s bjd;idku';fs; 40k; <r;rkuk; xd;Wk; kw;Wk; khtil kutiffs; rfpjKk; nky; bjd;tly; ntypfSk; kw;WKs;s rfy Rje;jpu';fSk; ,Jfspy; V bc&oa{y; ?? c';fps; 1 tf;fkpl;lth; x/$p/bt';fl;luhkbrl;oahh; mila[k; fpua brhj;Jf;F brf;Fge;jp tpguk; ?? Kdprpgy ; , l;nlhp nuhl;Lf;Fk; tlf;F MWKff;ft[z;lh; tifuhtpw;w epy';fSf;Fk; bjw;F v';fs; kw;w epyj;Jf;Fk; fpHf;F , d;W ,e;j fpuag;gj;jpug;go c';fspy; 2 yf;fkpl;l x/$p/$dhh;j;jdDf;F fpuak; bra;a[k; gp bc&l;a{y; brhj;Jf;F nkw;F ,jd; kj;jpapy; cs;s rhFgo epyk; tlg[uKk; bjd;g[uKk; fpHnkyo 92 mo nky;g[uk; bjd;tlyo 124 mo fpHg[uk; bjd;tlyo 126 mo ,e;j mst[s;s Rkhh; 0/25 brz;l; tptrharhFgo g[";if epyk; g{uht[k; ,jpy; cs;s bjd;id ?? jdf;fhft[k; jd; ikdh;fSf;fhft[k; vk;/ rpj;jd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk;/ khhpag;gd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk; ma;ak; bgUkhs; ku';fSk; khtil kutiffSk; ,e;j brhj;jpy; cs;s fpzh; xd;wpy; thhp tha;f;fhy; tifapYk; 5y; 1 g';F ghj;jpaKk; ,e;j V bc&oa {Yf;F rk;ke;jg;gl;lJ/ ,e;j V bc&oa{y; fpua brhj;J jw;fhy khh;f;fl; epytug;go fpua kjpg;g[ U:/11600/00 gp. bc&l;a{y; c';fspy; 2 yf;fkpl;l X/$p $dhh;j;jdd; mila[k; fpua brhj;Jf;F brf;Fge;jp tptuk; ;/ Kdprpgy; ,l;nlhp nuhl;Lf;Fk; tlf;F MWKfk; tifawh tpw;w epy';fSf;Fk; bjw;F eh';fs; ,d;W ,e;jf; fpuag;gj;jpuk; go c';fspy; 1 yf;fkpl;l X/$p/ bt';fl;luhk brl;oahUf;F fpuak; bra;a[k; V.bc&l;a{y; brhj;Jf;Fk; fpHf;F ,d;W eh';fs; c';fspy; 3 yf;fkpl;l X.$[p/ bt';fnlrDf;F fpuak; bra;a[k; rp/ bc&l;a{y; brhj;Jf;Fk; nkw;F ,jd; kj;jpapy; cs;s rhFgo epyKk; tlg[wKk; bjd;g [wKk; fpHnkyo 88 mo nky;g[wKk; bjd;tlyo 126 mo fpHg[wk; bjd;tlyo 134 mo ,e;j mst[s;s Rkhh; 0/25 brz;L rhFgo epyk; g{uht[k; ,jpy; cs;s bjd;id ku';fSk; kw;w kh til khtif rfpjKk; ,e;j brhj;jpy; cs;s fpzh; xd;wpy; thhptha;f;fhy;tifapYk; 5y; 1 g';F ghj;jpaKk; ,e;j gp/bc&l;a {Yf;F rk;ke;jg;gl;lJ/ ,e;j gp.bc&l;a{y; fpua brhj;J jw;fhy khh;f;fl; epytug;go fpua kjpg;g[ U:gha; 11.600/00 /////// jdf;fhft [k; jd; ikdh;fSf;fhft[k; vk;/ rpj;jd; jdf;fhft[k; jd;

¶66

https://hcservices.ecourts.gov.in/hcservices/

¶67

ikdUf;fhft[k;. vk;/ khhpag;gd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk; ma;ak; bgUkhs; 11 /////// rp bc&l;a{y; c';fspy; 3 yf;fkpl;l $p/ bt';fnlrd; mila[k; fpua brhj;J tpguk; ;/ Kdprpgy; ,l;nlhp nuhl;Lf;Fk; tlf;F MWKfk; tifuhtpw;w brhj;Jf;Fk; bjw;F eh';fs; ,d;W ,e;j gj;jpuk; K:yk; c';fspy; 2 yf;fkpl;l x/$p/$dhh;jdDf;F fpuak; bra;a[k; gp bc&l;a{y; brhj;Jf;Fk; fpHf;F eh';fs; ,d;W ,e;j gj;jpug;go c';fspy; 4 yf;fkpl;l X/$[p/ b$anghghYf;F fpuak; bra;a[k; gp/bc&l;a{y; brhj;Jf;Fk; nkw;F ,jd; kj;jpapy; cs;s rhFgo epyk; tlg[wKk; bjd;g[wKk; fpH nkyo 81 mo nky;g[wKk; bjd;tlyo 134 mo fpHg[wk; bjd;tlyo 146 mo ,e;j mst [s;s Rkhh; 0/25 brd;l; rhFgo epyk; g{uht[k; ,jpy; cs;s bjd;id ku';fSk; kw;w khtil kutif rfpjk; ,e;j brhj;jpy; cs;s fpzh; xd;wpy; thhptha;f;fhy; tifapYk; 5y; 1 g';F ghj;jpaKk; ,e;j rp/bc&l;a{Yf;F rk;ke;jg;gl;lJ/ ,e;j rp/ bc&l;a{y; fpua brhj;J jw;fhy khh;f;bfl; epytug;go fpua kjpg;g[ U:gha; 11.600/00/ o/bc&l;a{y; c';fspy; 4 yf;fkpl;l X/$p/ b$anfhghyd; mila[k; fpua brhj;J tpguk ; ;/ Kdprpgy; , l;nlhp nuhl;Lf;Fk; tlf;F MWKfk; tifuhtpw;w epy';fSf;Fk; bjw;F eh';fs; ,d;W ,e;j gj;jpuk; c';fspy; 5 yf;fkpl;l X/$[p/ tp!;tehjDf;F fpuak; bra;a[k; ,/bc&l;a{y; brhj;Jf;Fk; nkw;F eh';fs; ,e;jg; gj;jpug;go c';fspy; 3 yf;fkpl;l X/$[p/ bt';fnlrDf;F fpuak; bra;a[k; rp bc&l;a{y; rhFgo epyj;Jf;Fk; fpHf;F ,jd; kj;jpapy; cs;s rhFgo epyk; nky;g[uk; bjd;tlyo 146 mo fpHg[uk; bjd;tlyo 132 mo bjd;g[uk; fpHnkyo 87 mo tlg[uk; fpHnkyo nky;g[ukpUe;J fpHg[ukhf 31 mo mjpypUe;J bjd;tlyo 23 mo mjpypUe;J fpHg[uk; 58 mo ,e;j mst[s;s Rkhh; 0/25 brz;L cs;s tptrha rhFgo epyk; g{uht[k; ,jpy; cs;s bjd;id ku';fSk; kw;w khtil kutif rfpjKk; ,e;j brhj;jpy; cs;s fpzh; xd;wpy; thhptha;f;fhy; tifapYk; 5y; 1 g';F ghj;jpaKk; ,e;j o/bc&oa{Yf;F rk;ke;jg;gl;lJ ,e;j o bc&l;a{y; fpua brhj;J jw;fhy khh;f;fl; epytug;go fpua kjpg;g[ U:gha; 11.600/00 /////// jdf;fhft[k; jd; ikdh;fSf;fhft[k; vk;/ rpj;jd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk;/ khhpag;gd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk; ma;ak; bgUkhs; //// , bc&l;a{y; c';fspy; 5 yf;fkpl;l x/$p/tp!;tehjd; mila[k; fpua brhj;Jf;F tpguk; ;/ Kdprpgy; ,l;nlhp nuhl;Lf;fk; tlf;F uh$tha;f;fhYf;F bjw;F eh';fs; ,d;W ,e;j gj;jpuk;go c';fspy; 4 tf;fkpl;l x/$p/b$anfhghYf;F fpuak; bra;a[k; o/bc&l;a{y; tptrha epyj;Jf;F fpHf;F gp/v!;/gp bghk;kz;zbrl;oahh; tifuhtpw;F epyj;jpw;Fk; nkw;F ,jd; kj;jpapy; cs;s tptrhaepyk; bjd;g [uk; fpHnkyo 85 mo tlg[uk; fpHnkyo 75 mo nky;g[uk; bjd;tlyo 132 mo fpHg[uk; bjd;tlyo 154 mo ,e;j mst [s;s Rkhh; 0/25 brz;L epyk; g{uht[k; ,jpy; cs;s bjd;id ku';fSk; kw;w khtilkutif rfpjKk; ,e;j brhj;jpy; cs;s fpzh; xd;wpy; thhptha;f;fhy; tifapYk; 5y; 1 g';F ghj;jpaKk; ,e;j ,/ bc&l;a{Yf;F rk;ke;jg;gl;lJ ,e;j ,/ bc&l;a{y; fpua brhj;J jw;fhykhh;f;fl; epytug;go fpua kjpg;g [ U:gha; 11.600/00 i& brhj;Jf;fs; g{uht[k; tptrha rhFgo epyk;

¶68

https://hcservices.ecourts.gov.in/hcservices/

¶69

i& brhj;Jf;fs; bkapd;nuhl;oy; ,Ue;J cs;g[wk; ,l;nlhp nuhl;oy; ,Uf;fpwJ i& fpua brhj;Jf;fs; (5Ie;J bc&l;a{y;) g {uht[k; jw;fhy khh;ffl;epytug;go fpua kjpg;g[ U:gha; 58.000/00 jdf;fhft[k; jd; ikdh;fSf;fhft[k; vk;/ rpj;jd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk;/ khhpag;gd; jdf;fhft[k; jd; ikdUf;fhft[k;. vk; ma;ak; bgUkhs;/////@

¶70

It so happened that during cross examination of D.W.1 some questions were put by the Advocate for the plaintiffs and ultimately he got an answer as extracted supra. According to the learned Senior Counsel for the defendants such alleged admission or concession was given by D.W.1 unwittingly and without understanding the proper purport of the questions put to him as he was a Septuagenerian. According to the learned Senior Counsel for the defendants, Section 92 of the Indian Evidence Act is squarely applicable to the facts and circumstances of this case and Ex.B8 cannot be interpreted in such a manner quite antithetical to the clauses found set out therein.

¶71

A bare perusal of the decree emerged out of the awardEx.B7 as well as the sale deed-Ex.B8 displays and demonstrates that there are slight discrepancies regarding the extent. The learned Senior Counsel for the defendants would submit that Ex.B8 is a registered sale deed and the plaintiffs are eo nomine parties and in such a case they cannot veer round and take a plea quite antithetical to what they committed themselves in black and white, in the form of Ex.B8 and Section 92 of the Indian Evidence Act shall be a bar against them, I would like to agree with the submission made by the learned Senior Counsel for the contesting respondents/defendants for the reason that once there is a registered sale deed then Section 92 of the Indian Evidence Act would enure to the benefit of the vendees and they can insist upon the enforcement of those clauses in stricto sensu.

¶72

However, the learned Senior Counsel for the plaintiffs would try to explain and expound, clarify and highlight that not even for a moment he would try to point out that the clauses in Ex.B8 should be varied and understood differently, but he would press for placing reliance on the deposition of D.W.1 as extracted supra and consequently for passing a decree to that much limited extent.

¶73

At this juncture, necessarily one important fact should be considered. I would like to refer to the judgment of the Hon'ble Apex

¶74

Court reported in (2010) 4 SCC 753 [Karam Kapahi and others v. Lal Chand Public Charitable Trust and another], certain excerpts from it would run thus:

¶75

"37. The principles behind Order 12 Rule 6 are

¶76

https://hcservices.ecourts.gov.in/hcservices/

¶77

to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about "which there is no controversy" [See the dictum of Lord Jessel, the Master of Rolls, in Thorp v. Holdsworth].

¶78

In this connection, it may be noted that order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:

¶79

"6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just."

¶80

In the 54^th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it "ex debito justitiae", a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment.

¶81

If the provision of order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider in as much as the provision of order 12 Rule 1 is limited to admission by 'pleading or otherwise in writing' but in Order 12 Rule 6 the expression 'or otherwise' is much wider in view of the words used therein namely: 'admission of fact...either in the pleading or otherwise, whether orally or in writing'.

¶82

Keeping the width of this provision in mind

¶83

https://hcservices.ecourts.gov.in/hcservices/

¶84

this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan SCC at page 285 (para 8) ]. Admissions in answer to interrogatories are also covered under this Rule [See Mullas's commentary on the Code, 16^th Edition, Volume II, page 2177].

¶85

In the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India, this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment.

¶86

In that case it was contended on behalf of the appellant, Uttam Singh Duggal, that:

¶87

(a) Admissions under Order 12 Rule 6 should only be those which are made in the pleadings.

¶88

(b) The admissions would in any case have to be read along with the first proviso to Order 8 Rule 5 (1) of the Code and the Court may call upon the party relying on such admission to prove its case independently.

¶89

(c) The expression 'either in pleadings or otherwise' should be interpreted ejusdem generis. [See para 11, pages 126-127. of the report]

¶90

Almost similar contentions have been raised on behalf of the Club. In Uttam Singh those contentions were rejected and this Court opined no effort should be made to narrow down the ambit of Order 12 Rule 6.

¶91

In Uttam Singh this Court made a distinction between a suit just between the parties and a suit relating to Specific Relief Act where a declaration of status is given which not only binds the parties but also binds generations. The Court held such a declaration may be given merely on admission (SCC para 16 at page 128 of the report). But in a situation like the present one where the controversy is between the parties on an admission of non-payment of rent, judgment can be rendered on admission by Court.

¶92

https://hcservices.ecourts.gov.in/hcservices/

¶93

Order 12 Rule 6 of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of Madhya Pradesh High Court in the case of Shikharchand v. Mst. Bari Bai G.P. Singh , J. (as His Lordship then was) in a concurring judgment explained the aforesaid rule, if we may say so, very authoritatively at page 79 of the report. His Lordship held: (AIR para 19)

¶94

"...I will only add a few words of my own. Rule 6 of Order 12 of the Code of civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now Rule 3 of Order 27, and is almost identically worded (see Annual Practice 1965 edition Part I. p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen (1914) Ch 904. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of covenant against sub-letting. Lessee's solicitors wrote to the plaintiff's solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under Rule 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that rule. Sargant, J. rejected the argument that the rule is confined to admissions made in pleadings or under Rules 1 to 4 in the same order (same as ours) and said:

¶95

'The rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed.'

¶96

Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargent, J. The words "either on the pleadings or otherwise" in Rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial. (Emphasis added)

¶97

https://hcservices.ecourts.gov.in/hcservices/

¶98

This Court expresses its approval of the aforesaid interpretation of Order 12 Rule 6 by G.P. Singh, J. (as His Lordship then was). Mulla in his commentary on the Code has also relied on ratio in Shikharchand for explaining these provisions.

¶99

Therefore, in the instant case even though statement made by the Club in its petition under Section 114 of the Transfer of Property Act does not come within the definition of the word 'pleading' under Order 6 Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word 'pleading' has been suffixed by the expression 'or otherwise'. Therefore, a wider interpretation of the word 'pleading' is warranted in understanding the implication of this rule. Thus the stand of the Club in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing judgment on admission under Order 12 Rule 6 in view of clear words 'pleading or otherwise' used therein especially when that petition was in the suit filed by the Trust.

¶100

However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word "may" has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment."

¶101

No doubt, Order 12 Rule 6 of CPC would contemplate that if there is any admission on the part of the defendant, then at any stage of the proceedings, the Court has got the power to pass a decree to the extent possible; however such admission should be a supine submission. However, in the facts and circumstances of this case, I do not incline to give my final verdict on the point as to whether D.W.1 made such a supine submission so as to enable the plaintiffs to acquire the land. What I would like to point out is that in this suit the plaintiffs would not be able to get any remedy for the reason that the scope of the suit itself is entirely different and both the Courts below adverting to the factual circumstances gave findings that the plaintiffs were not justified in seeking partition of their alleged 2/9th share. Over and above that the necessary parties also relating to the remaining alleged 7/9th share were not added. Unless all the relevant parties are arrayed in a particular suit for partition, the question of sharing a particular property would not arise.

¶102

https://hcservices.ecourts.gov.in/hcservices/

¶103

As such it is pellucidly and palpably clear that the suit is bad for non joinder of necessary parties.

¶104

So far this matter is concerned, it is glaringly and plainly clear that already based on the award the decree as in Ex.B7 emerged and thereafter, Ex.B8 resulted. However, there might be certain discrepancies in the extent, but in this suit there was no prayer for rectification of that Ex.B8 etc.. and there is no prayer also for setting aside that sale deed and in such a case, based on the alleged admission during cross examination of D.W.1, this Court in Second Appeal would not be justified in simply passing a decree in favour of the plaintiffs that they are entitled to take 25 cents of land as such.

¶105

It is the contention of the contesting respondents/defendants that absolutely there is nothing to indicate and demonstrate that an extent of 25 cents was left out from Ex.B8. The learned Senior Counsel for the contesting respondents also would stress upon the fact that within the boundaries specified in the decree -Ex.B7 as well as in the sale deed-Ex.B8, there is no space measuring an extent of 25 cents was left out for enabling the plaintiffs to take it and according to her, there is no extent of 25 cents of land available at all within the aforesaid boundaries. Be that as it may, as pointed above, I am only considered about the findings of both the Courts below and to see whether there is any perversity or illegality in their ultimate judgments.

¶106

Regarding non consideration of the deposition of D.W.1 which is extracted above, I am of the view that both the Courts below cannot be found fault with in view of the reasons found set out supra by me.

¶107

In respect of the submission made by the learned Senior Counsel for the plaintiffs that liberty might be given to them to file a separate suit in a proper manner to work out their remedy relating to the said 25 cents of land, I would like to point out that if at all law permits, it is for them to do so and at that time it is also open for the respondents/defendants to contest the matter and it is for the forum concerned to decide it. Hence in this view of matter, the substantial questions of law are answered as against the appellants and in favour of the respondents. Accordingly, the Second Appeal is dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.

¶108

During the pendency of the Second Appeal, the respondents/defendants herein filed M.P.No.1 of 2007 in S.A.No.1078 of 2006 and in that my learned Predecessor passed the following order, the operative portion of it is extracted

¶109

https://hcservices.ecourts.gov.in/hcservices/

¶110

hereunder:

¶111

"4. The petitioners herein mainly rest their case on the sale Deed dated 1976. There was also an award in O.S.No.714 of 1974, that was filed by the brother of the first petitioner herein, against 17 persons. The 11^th defendant is the father of the appellants/respondents. There was an arbitration and the award was passed and the property i.e. the subject matter of this petition was delivered to the plaintiffs in O.S.No.714 of 1974, who is none other than the first defendant in the suit, from which, the second appeal arises. There is a clear statement in this that possession has been handed over to them. Evidence has also been enclosed in the typed set and there is nothing in the evidence of the appellants/respondents to show that they were in possession of the suit property. Even in the plaint, there is no categoric statement that they are in possession and in paragraph 9 of the plaint, they merely say that it is no longer possible for the plaintiffs to remain in joint possession of the suit property.

¶112

Before the trial Court six issues were raised. Issue No.5 was with regard to Court fees. The trial Court found that the plaintiffs were not in joint possession and therefore, payment of Court fee under Section 37(2) is not correct and they ought to have paid under Section 37(1), and found this issue against the plaintiffs i.e. the respondents herein.

¶113

The appellate Court confirmed the judgment and decree of the trial Court. The second appeal was admitted on 26.10.2006. On 12.1.2007 this petition for injunction has been filed, claiming that the petitioners are in possession of about 59,000 sq.ft. as shown in Ex.B8, which is the sale Deed executed by the father of the respondents herein; and that on 25.11.2006, the respondents suddenly came to the suit property and demolished the Southern compound wall and removed the shrubs and that they gave a complaint in Annadanapatti Police Station, which was registered in Crime No.183 of 2006 and that the respondents quickly put up a shed and the fence.

¶114

https://hcservices.ecourts.gov.in/hcservices/

¶115

The respondents/appellants have filed their counter and they stated that they have been in possession of the property, measuring 0.25 acres of land 'through out the proceedings', situated on the Western side of the suit property. According to them, a portion of the compound wall situated in the Southern side of the property along with the Municipal Itteri road and a portion of the compound wall on the Western side of the suit property was collapsed and that they have put up a barbed wire fence on the Southern and Eastern side, in order to safeguard their portion, and that when the "respondents 1 and 2 were trying to reconstruct the damaged compound wall and put up fence in order to safeguard their property", the petitioners threatened them with dire consequences.

¶116

So, the respondents also went and gave a complaint before the Annadanapatti Police Station, which has the Crime No.186 of 2006, which shows that almost at the same time both the parties have given police complaints.

¶117

The learned counsel for the respondents submitted that there can be no injunction against a co-owner and that even if the respondents are not in possession, they can still ask for partition, and that it has always been the stand of the respondents that they are in possession at least of the 0.25 cents, with respect to which, the petitioners themselves make no claim.

¶118

The injunction sought for in this petition is with regard to the entire 1.25 acres. The learned counsel for the respondents submits that the respondents have no intention to claim possession over the one acre. It is only the 0.25 cents, which according to them, is all along in their possession, that they do not want any injunction to be granted.

¶119

This submission of the learned counsel for the respondents is recorded and therefore, pending the second appeal, the respondents will not venture into the remaining one acre, which even according to them is with the petitioners. As regards the disputed 0.25 cents, in view of the fact that neither the pleadings nor the

¶120

https://hcservices.ecourts.gov.in/hcservices/

¶121

evidence show that the respondents are in possession, and the finding of the trial Court, which was confirmed, is also to the effect that there is no joint possession, this 0.25 cents shall remain as it is. If there is a shed inside, the respondents will not occupy, it will remain empty. If the Western and Southern side compound wall has come down and had been demolished, then they will remain in the same collapsed state that they are today. If the Northern and Eastern side have been totally or partially fenced then the totally or partially put up fence will remain in the same state, as of today. There will not be any exercise of possession of this 0.25 cents either by the respondents or the petitioners until the second appeal is disposed of. The right to the 0.25 cents will be decided at the time of final disposal. If the respondents attempt to do anything in violation of what is stated in this order, it will be viewed as contempt.

¶122

This petition is disposed of as above.

¶123

The learned Senior counsel appearing for the respondents in the appeal submits that the respondents in the appeal are senior citizen and therefore, the appeal may be heard at an early date. Hence, post the second appeal on 6th of June 2007."

¶124

Subsequently, Contempt Petition No.1291 of 2010 was filed as against the respondents/appellants, viz., Srinivasan and Murugan on the main ground that in violation of the order passed by this Court on 16.04.2007 both of them sold an extent of 25 cents of land in the suit property on 01.11.2007 in favour of one Marappan. Subsequently, the said Marappan sold the same 25 cents of land in favour of one Balachandar @ Karthi on 07.06.2010, that on 02.09.2010 when some men started digging holes in the suit property, this contempt petition has come to be filed by the petitioners/respondents herein.

¶125

The respondents in the contempt petition filed counters inter alia to the effect that there was no embargo or mandate of this Court prohibiting them from alienating the suit property, but they were only restrained from interfering with the suit property and as such they never had any intention to violate the order of this Court. Further they expressed their unconditional apology.

¶126

The learned Senior Counsel for the petitioners in the

¶127

https://hcservices.ecourts.gov.in/hcservices/

¶128

contempt petition would submit that this is a case in which the respondents/contemnors flouted the order of this Court having no respect for the Court order and two sales emerged subsequent to the passing of the order by this Court and a wall also was constructed and electricity connection was obtained and such acts have to be visited with condign punishment as otherwise, the respect for law would get undermined.

¶129

By way of reply, the learned Senior Counsel for the respondents/contemnors would submit that since D.W.1 candidly and categorically without mincing words deposed that the plaintiffs could get a decree for 25 cents of land, the plaintiffs who are the respondents in this contempt petition were made to understand as though they could sell away the property and that only they should not physically interfere with the suit property. According to him, with that intention alone they alienated it and if for any reason this Court finds that their alienation is unwarranted, their unconditional apology might be accepted.

¶130

However, the learned Senior Counsel for the petitioners drawing the attention of this Court to the counter affidavit filed by the contemnors would submit that there was no repentance or contrition on the part of the contemnors as the wordings used in the counter affidavit are to the effect as though they were justified in selling the property and they sold it for meeting medical expenses which are totally not germane for deciding this contempt petition.

¶131

I would like to interpret the order passed by my learned Predecessor which is extracted supra. My learned Predecessor unambiguously and unequivocally, pellucidly and palpably has ordered that the 25 cents shall remain as it is, which connotes and denotes, exemplifies and demonstrates, projects and portrays that there shall not be any alienation also. A mere perusal of the entire order of my learned Predecessor would convey the idea that my learned Predecessor wanted that the property should remain as such and in such a case, the respondents/contemnors would not be justified in stating that they were only prevented from physically interfering with that property and that only the transferees might have meddled with it. Such an interpretation is grossly untenable and the conduct of the contemnors and the transferees are reprehensible. The transferees were expected to make enquiries before purchase as in this case it is glaringly clear that the suit property is a litigation infested property which no man in that locality could plead ignorance.

¶132

At this juncture I recollect the maxim: Quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud: When something is prohibited, all implied things

¶133

https://hcservices.ecourts.gov.in/hcservices/

¶134

are also prohibited.

¶135

I also recollect the following one other maxim:

¶136

Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud: When something is ordered, all things which are necessary for the performance are also ordered.

¶137

Here absolutely there is no iota or shred, shard or miniscule, jot or pint of evidence to show that the Court intended that pendente lite sales could be effected when the parties are fighting at arms length before the High Court at the Second Appeal stage. Hence the explanation furnished by the contemnors relating to alienation is far from satisfactory and they should not have indulged in such alienation at all and certainly those sales are also hit by lis pendens as they emerged pendente lite and that too in violation of the Court order. Over and above that, I would like to point out that in matters of this nature, if anything had happened in violation of the Court order, it is the bounden duty of the Court to see that the clock is set back or status quo ante is restored. Hence, I would like to mandate that status quo ante should necessarily be restored and that whatever improvement or changes effected in the suit property should be removed by the plaintiffs and the transferees immediately and if there is electricity connection that also should detached at their instance, failing which this order could be executed like any other order of this Court as against the plaintiffs and the aforesaid transferees.

¶138

Regarding lack of contrition on the part of the contemnors, since the learned Senior Counsel for the contemnors submits that they have been mislead by D.W.1's admission etc., I am of the view that the findings given by this Court as against the plaintiffs and the transferees and the remarks passed by this Court would be sufficient and the plaintiffs and the transferees could better show their contrition by undoing what they have done in violation of the Court order and set the clock back and restore the status quo ante with immediate effect. In view of the order passed in the contempt petition, the impleading petition adding the transferees is dismissed and the transferees

¶139

https://hcservices.ecourts.gov.in/hcservices/

¶140

are bound by this order. Accordingly, the contempt petition is closed. Consequently, connected Sub Application is also closed.

¶141

Sd/
Asst Registrar
/True Copy/
Sub Asst Registrar
Gms
To
1. The Principal District Judge, Salem.
2. The Principal Sub Judge, Salem.
3. The Section Officer, V.R. Section, High court, Madras-104.
+1 CC to Mr.P.Jagadeesan Sr.No.9551
+1 CC to Mr. R.Subramanian SR.No.9497
(Co-BS)
ths : 06.05.2011
S.A.No.1078 of 2006
08.02.2011

¶142

https://hcservices.ecourts.gov.in/hcservices/

Srinivasan v. Og Janarthanan

Case brief

What is this about?

What did the court decide?

Srinivasan v. Og Janarthanan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arjunan Vs D.Kethu Munusamy @ Munuswamy

C.G.Jayaraman Vs C.Gangadharan

G.Rengarajan @ Ravi Vs K.N.S.Gopal

S. Sarangapani Vs M Arivukodi

Mrs Chinnammal Vs Mrs Mallika

Mrs Anusuya Vs Mrs Shanthi Sivasami