Second appeal dismissed. The High Court held that plaintiffs could not establish title because the suit property, including passages and vacant spaces, could not be physically identified or located on ground despite Commissioner reports, and co-sharers were not properly impleaded.
Second appeal dismissed with costs; first appellate court's judgment upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.03.2019 PRONOUNCED ON: 16.04.2019
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A.No.2275 of 2003 and C.M.P.No.21450 of 2003 1. Ramathal 2.C.Palanichamy 3.C.Ramasamy ... Appellants/Plaintiffs Vs. V.Subramaniam ... Respondent/Defendant Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree of the II Additional District Judge of Coimbatore dated 27.12.2002 passed in A.S.No.251 of 2001 reversing the judgment and decree of the III Additional District Munsif of Coimbatore dated 07.08.2001 passed in O.S.No.1146 of 1997.
For Appellants : Mr.V.Karthikeyan For M/s.V.Nicholas For Respondent : Mr.V.Manohar for M/s.S.B.Viswanathan J U D G M E N T
Challenge in this second appeal is made to the judgment and decree dated 27.12.2002 passed in A.S.No.251 of 2001 on the file of the II Additional District Court, Coimbatore reversing the judgment and decree dated 07.08.2001 passed in O.S.No.1146 of 1997 on the file of the III Additional District Munsif Court, Coimbatore.
2.The second appeal has been admitted on the following substantial questions of law.
(a) In the face of the covenant in Ex.A1 dated 04.03.1963, which is a sale deed in favour of the husband of the first plaintiff, which gives them a right to use the suit property as a pathway and in the face of the finding rendered by the
appellate court itself that the defendant had not right to obstruct use of such passage, has not the lower appellate court committed an error of law in non-suiting the plaintiff on a non-existing ground?
(b) Though the plaintiff may not be entitled to a larger relief as prayed for, assuming it is so, have not the courts got power to mould the relief and grant a lesser relief which would come within the ambit of the larger relief prayed for?
plaint and further also it is putforth by the defendant that the relief of declaration sought for by the plaintiffs cannot also be granted, inasmuch as, the plaintiffs have laid the suit seeking the declaration of title to the suit property inclusive of the common passage said to be lying therein along with other co-sharers without mentioning as to who are the other co-sharers and also without impleading the other co-sharers as parties and in all, according to the defendant, the plaintiffs' suit is liable to be dismissed.
the common space and the common passage said to be forming part of the vacant site are also lying within the survey numbers of the suit property and within the boundaries, within which the suit property is claimed to be lying. Though the plaintiffs have given the description of the suit property of not less than one page, however from the abovesaid description, we are unable to gather as to where actually the suit property lies, particularly as to where actually the vacant space, common open space, common passage lie and in such view of the matter, furthermore, as rightly put forth by the defendant, the plaintiffs should have come forward with maps or plans depicting the lie of the suit property inclusive of the vacant space, common open space, common passage etc, or else, they should have endeavored to obtain the survey field maps from the Revenue Department to show the lie of the suit property and thereby endeavored to establish their case whether the said property had been actually acquired by them under Ex.A1 sale deed. On the other hand, as rightly determined by the first appellate court, from Ex.A1 sale deed, one is unable to identify the suit property, particularly, the lie of the alleged vacant space, common open space, common passage said to be forming part of the suit property. Further, the plaintiffs have not stated in the plaint clearly as to where/whether the suit property lies to the south or north of the defendant's property and even with reference to the same, there appears to be no consistency in the case projected by the plaintiffs.
detected and accordingly had submitted his report and plan to the Court. Though it is found that both the parties had preferred certain objections to the Commissioner's report and plan, however when the Advocate Commissioner has come forward specifically that the title deeds of the respective parties are not sufficient to identify the lie of the suit property as described in the plaint, even thereafter, the parties particularly, the plaintiffs have not endeavored to take steps to re-issue the commission warrant for the purpose of identifying the suit property with more particulars and documents and on the other hand, the plaintiffs other than preferring the objections to the Commissioner's report and plan, had not taken any further steps to identify the suit property. So as could be seen from the Commissioner's report and plan and his evidence, the suit property as described in the plaint is unable to be located on ground particularly, as to where it lies, within which the boundaries the same is located etc., and in such view of the matter, particularly, when the houses comprised in the properties belonging to the parties are found to be occupied by third parties and in such view of the matter, in the absence of the identity of the suit property as such as described in the plaint, as rightly determined by the first appellate court, the plaintiffs are not entitled to seek and obtain the relief of declaration as prayed for by them with reference to the suit property.
produced any reliable evidence/document as regards the lie of the suit property as such, her evidence would be no use to identify the suit property for granting the reliefs prayed for by the plaintiffs.
to have acquired title, right and interest etc., absolutely there is no pleas putforth in the plaint other than stating that the suit property belongs to the plaintiffs and other cosharers. On the said vague pleas, it does not stand to reason as to how the plaintiffs would be entitled to seek the relief of declaration of title qua the suit property along with the alleged co-sharers. When the right of the alleged co-sharers of the suit property has not been established by the plaintiffs by producing title deeds of the alleged co-sharers or by impleading the co-sharers as parties either as the plaintiffs or the defendants or atleast by examining the co-sharers in support of their case and when the defendants had also thrown a challenge to the abovesaid relief of declaration sought for by the plaintiffs as not maintainable in law, despite the same, the plaintiffs having not endeavored to come forward with a clear case as to the particulars of the co-sharers, their mode of right etc., to the suit property, in such view of the matter, the first appellate court is found to be fully justified in refusing the grant of the relief of declaration sought for by the plaintiffs.
not entitled to seek the relief of declaration of title along with the other co-sharers without naming the other co-sharers and their mode of claim of right to the suit property in detail and in such view of the matter, the first appellate court, has, for the abovesaid various reasons, found not acceptance to the plaintiffs' case. In such view of the matter, the arguments putforth by the plaintiffs that the first appellate court had merely set aside the judgment and decree of the trial court by placing reliance upon the additional evidence projected by the defendant, as such, cannot be countenanced.
Sub Assistant Registrar
mfa
To
2.The III Additional District Munsif,
III Additional District Munsif Court,
Coimbatore.
Copy to
The Section Officer,
VR Section,
High Court,
Chennai.
+1cc to Mr.S.B.Viswanathan, Advocate, S.R.No. 37277
+1cc to Mr.V.Nicholas, Advocate, S.R.No. 37363
S.A.No.2275 of 2003
and
C.M.P.No.21450 of 2003
NMI(CO)
GN(30/07/2019)
2 issues framed by the court
In the face of a sale deed covenant and a finding that the defendant had no right to obstruct, did the lower appellate court commit an error in non-suiting the plaintiff on a non-existing ground?
Do courts have the power to mould relief and grant a lesser relief within the ambit of the larger relief prayed for in a suit for declaration and injunction?
1 provisions across 1 enactments
Ramathal
Palanichamy
C. Ramasamy
V. Subramaniam
T. Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
