Dismissed

Andiappan v. Sorimuthu

Madras HC30 Nov 2021SA(MD)/521/2015

Case brief

AI extract

What is this about?

Second appeal filed by tenants against a decree confirming landlords' right to pattom arrears. The High Court held that since litigation determined the validity of the landlords' Will (basis for tenancy relationship) was pending for a decade, the limitation period for claiming pattom arrears started only after the Will was declared valid. Appeal dismissed.

What did the court decide?

Second appeal dismissed; judgment and decree of the First Appellate Court confirming the decree for Rs. 1,71,200/- is confirmed.

Andiappan Vs Sorimuthu — Landlord and Tenant | Madras HC (2021)

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S.A(MD)No.521 of 2015

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.11.2021 CORAM

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THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN S.A(MD)No.521 of 2015 and M.P.(MD)No.2 of 2015 & C.M.P(MD)No.3327 of 2016

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1.Andiappan 2.Subramanian 3.Gurusamy @ Thayappan ... Appellants/Respondents/ Defendants 2 to 4

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Vs.

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1.Sorimuthu

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2.Sailappan

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3.Kumaravel

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4.Dhalavai

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5.Petchimuthu ... Respondents/Appellants/ Plaintiffs

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Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree, dated 17.03.2014 passed in A.S.No.45 of 2013, on the file of the Principal District Court, Tirunelveli, reversing the judgment and decree, dated 19.11.2012 passed in O.S.No.51 of 2008 on the file of the Sub Court, Ambasmudram.

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For Appellants : Mr.V.Meenakshi Sundaram for Mr.D.Nallathambi For Respondents : Mr.M.Saravanan

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JUDGMENT

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This second appeal has been directed against the Judgment and decree, dated 17.03.2014 passed in A.S.No.45 of 2013, by the Principal District Court, Tirunelveli and the judgment and decree, dated 19.11.2012 passed in O.S.No.51 of 2008 on the file of the Sub Court, Ambasmudram, are reversed.

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The respondents herein as plaintiffs have instituted a suit in O.S.No.51 of 2008 on the file of the trial Court for recovery of money of a sum of Rs.2,00,000/- along with interest at the rate of 12% per annum, wherein, the appellants have been shown as the defendants.

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In the plaint it is averred that the suit schedule properties belonged to one deceased Sylappa Pillai by way of sale https://hcservices.ecourts.gov.in/hcservices/

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S.A(MD)No.521 of 2015

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deed and partition and he enjoyed the same. From the above said Sylappa Pillai, one Sankaran Pillai was cultivating the said land as a cultivating tenant with a condition to give for every Kar, 8 Kotta paddy and for every Pisanam, 8 kotta paddy and the same was given on or before every October, 2014 and March, 2013 and the same was not disputed. During the life time of Sylappa Pillai, he filed a suit in O.S.No.458 of 1987 on the file of the District Munsif Court, Ambasamudram against the said Sankaran Pillai for 1982 Kar to 1987 Pisanam. The said Sylappa Pillai executed a Will on 12.06.1986 and died on 26.02.1988. As per the Will, the plaintiffs, who are the legal heirs of Sylappa Pillai, are enjoying the same. In the mean time, the plaintiffs filed a suit in O.S.Nos.422 of 1989, 362 of 1992, 71 of 1992 and 470 of 1993 on the file of the District Munsif Court, Ambasamudram against the said Sankaran Pillai and the same are pending.

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While so, the said Sankaran Pillai, regarding other properties, filed another suit against the father of the plaintiffs viz., Madasamy in O.S.No.621 of 1982 stating that as per the settlement deed executed by one Pappathiammal, the properties belonged to him. Subsequently, Sylappa Pillai also filed a suit in O.S.No.70 of 1983 against Pappathiammal @ Parvathi, Sankaran Pillai, Sundararaja Pillai and Madasamy Pillai. In the above said suits, the Will executed by Sylappa Pillai was declared as null and void. Against which, appeals were filed in A.S.Nos.94, 95, 96 and 97 of 1992 and the same were dismissed on 10.02.1998. Challenging the same, the plaintiffs filed Second Appeals in S.A.Nos.740 to 743 of 2009 before this Court. In the mean while, the said Sankaran Pillai died and his legal heirs were cultivating the same. In the above said Second Appeals, Judgment was pronounced on 19.03.2008 in favour of the appellants and the settlement executed by Sankaran Pillai and the Will executed by Sylappa Pillai were accepted. Hence, as per the Will, the plaintiffs are entitled for the suit schedule properties and from the year 1994 to 2008 Kar, Pisanam period as pattom 232 kotta paddy has to be given by the defendants to the plaintiffs. Hence, for the pattom arrears, the plaintiffs have come forward with the present suit praying to pay a sum of Rs.2,00,000/- with interest at the rate of 12% per annum.

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In the written statement filed on the side of the defendants, the defendants denied the averment that 8 Kotta for Kar and 8 Kotta for Pisanam as pattom was accepted by Sankaran Pillai. In fact, 6-1/8 kotta was accepted for both Kar and Pisanam. The defendants also denied the averment that the plaintiffs are enjoying the property as per the Will executed by Sylappa Pillai, dated 12.06.1986. The plaintiffs are entitled for arrears of pattom only for three years prior and not from the year 1994 and prayed for dismissal of the suit.

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Before the trial Court, on the side of the plaintiff, the https://hcservices.ecourts.gov.in/hcservices/ first plaintiff examined himself as P.W.1 and Exs.A1 to A9 were

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marked. On the side of the defendants, no one was examined and Exs.D.1 & D.2 were marked.

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On the basis of the rival pleadings on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence, has partly decreed the suit directing the defendants to pay a sum of Rs.28,800/- towards pattom and dismissed the remaining claim of the plaintiffs.

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Aggrieved by the disallowed portion of the trial Court, the plaintiffs as appellants, had filed an Appeal Suit in A.S.No.45 of 2013. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has set aside the Judgment and Decree passed by the trial Court regarding the fact that the plaintiffs are not entitled to the pattom for the period from 1995 Kar, Pisanam to 2005 Pisanam, Kar and stated that the plaintiffs are entitled for arrears of pattom of balance amount of Rs.1,71,200/-.

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Challenging the judgment and decree passed by the first Appellate Court, the present second appeal has been preferred at the instance of the defendants, as appellants.

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At the time of admitting the present second appeal, the following substantial question of law has been framed for consideration:

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"a) Whether the finding of the first Appellate Court that the period between Judgment in A.S.Nos.94 to 97 of 1992 dated 10.02.1998 and the Judgment in S.A.Nos.740 to 743 of 1998 dated 19.03.2008 arising from the suit proceedings in O.S.Nos.89, 821, 622 of 1982 and 270 of 1983 has to be excluded in computing the period of limitation for filing the suit in O.S.No.51 of 2008 on the file of the Sub Court, Ambasamudram as per Sections 14 and 15 of the Limitation Act, 1963 is correct?

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b) When the proceedings in A.S.Nos.94 to 97 of 1992 and S.A.Nos.740 to 743 of 1998 are not founded upon the same cause of action for the filing of the present suit in O.S.No.51 of 2008 whether the benefit of excluding of time spent in the above said proceedings is available to the respondents?

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c) When it is not the case of the respondents that they have prosecuted the previous litigation in A.S.Nos.94 to 97 of 1992 and S.A.Nos.740 to 743 of 1998 in good faith in those Courts having no jurisdiction, whether the first Appellate Court is correct in accepting the case of the respondents that those period https://hcservices.ecourts.gov.in/hcservices/ has to be excluded to calculate period of limitation for

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S.A(MD)No.521 of 2015

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filing an entirely different suit in O.S.No.51 of 2008 on the file of the Sub Court, Ambasamudram?

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d) Whether interference of this Hon'ble Court is warranted since the trial Court and the first Appellate Court have given diverse findings regarding the applicability of the benefit under Sections 14 and 15 to the respondents in computing the period for limitation for filing the suit in O.S.No.51 of 2008 on the file of the Sub-Court, Ambasamudram? "

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The learned counsel appearing for the appellants/defendants contended that the finding of the first Appellate Court that the period between 10.02.1998 to 19.03.2008 has to be excluded in calculating the time for filing the suit in O.S.No.51 of 2008 on the file of the Subordinate Court, Ambasamudram, is erroneous. The first Appellate Court failed to note the cause of action for initiating the previous suit proceedings and the cause of action for filing the present suit in O.S.No.51 of 2008 on the file of the Subordinate Court, Ambasamudram are different. The first Appellate Court has misconstrued the provisions of Sections 14 and 15 of the Limitation Act. The first Appellate Court ought not to have reversed the well considered findings of the trial Court and prayed for allowing the Second Appeal.

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12.The learned counsel appearing for the respondents/plaintiffs would submit that the first Appellate Court, after analysing the documents available on record, has rightly allowed the Appeal in favour of the respondents/plaintiffs and prayed for dismissal of the Second Appeal.

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Heard the learned counsel for the appellants and the learned counsel appearing for the respondents and perused the materials available on record.

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On a perusal of the materials available on record, it is seen that the respondents/plaintiffs have filed a suit for pattom arrears of Rs.2,00,000/- along with interest at the rate of 12% per annum from the year 1994 to 2008 Kar, Pisanam period. It is the case of the appellants/defendants that the plaintiffs are entitled for arrears of pattom only for three years prior and not from the year 1994. The trial Court found that the defendants are cultivating tenants under the plaintiffs in respect of the suit lands and the defendants are liable to pay arrears of pattom only for the period of three years prior to the filing of the suit at the rate of Rs.600/- per Kottai and granted decree of realization of amount of Rs.28,800/-. Aggrieved over the dismissal of the suit in respect of other pattom for the period from 1995 Kar, Pisanam till 2005 Kar, Pisanam, the plaintiffs preferred the first Appeal.

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https://hcservices.ecourts.gov.in/hcservices/ 15. Ex.A.1 is the appeal judgment of A.S.Nos.94 to 97 of 1992

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S.A(MD)No.521 of 2015

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on the file of the Subordinate Court, Ambasamudram in respect of various suits filed between the plaintiffs, defendants 2 to 4 and the father of the defendants 2 to 4 and the husband of the first defendant viz., Sankaran Pillai and in that appeals, Ex.A.5-Will was relied on by the plaintiffs and the Judgment and Decree of the Second Appeals in S.A.Nos.740 to 743 of 1998, dated 19.03.2008 was marked as Ex.A.8. The plaintiffs are claiming right over the suit properties on the basis of Ex.A.5-Will executed by Sylappa Pillai in favour of the plaintiffs. The trial Court held that the plaintiffs are entitled to the pattom only for the period from 3 years prior to the filing of the suit and other period was barred by limitation, hence, the landlord and cultivating tenant relationship between the plaintiffs and defendants is not disputed.

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On a perusal of Ex.A.5, it is clear that the testator of the Will bequeathed not only the schedule properties mentioned in the Will, but also entire movable and immovable properties by way of Ex.A.5-Will in favour of the plaintiffs. As the Will was decided as not valid in Ex.A.1, as per the Judgment and Decree in A.S.Nos.94 to 97 of 1992, dated 10.02.1998, the plaintiffs were prevented from claiming arrears of pattom from the defendants till Ex.A5-Will was decided as valid as per the Judgment of this Court in Ex.A.8 in S.A.Nos.740 to 743 of 1998, dated 19.03.2008. Though the previous suits are in respect of other properties and not for the present suit properties, the present suit properties are covered under the same Will unless and until the Will was decreed or decided as valid one, the plaintiffs were debarred from claiming arrears of pattom from 3 years prior to 10.02.1998 till 2005 and the plaintiffs are entitled to claim arrears of pattom from the defendants. Hence, the claims are not barred by limitation under Sections 14 and 15 of the Limitation Act, 1963. The first Appellate Court has rightly held that the plaintiffs are entitled for arrears of pattom from the year 1998 Kar, Pisanam to 2005 Kar, Pisanam and held that the plaintiffs are entitled to the balance amount of Rs.1,71,200/- as claimed by them and the substantial questions of law are answered as against the appellants/defendants and in favour of the respondents/plaintiffs.

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The learned counsel appearing for the appellants/defendants submitted that as per the interim order passed by this Court on 09.09.2015, already the appellants/defendants have deposited a sum of Rs.71,200/- and seeks time for depositing the remaining amount of Rs.1,00,000/- in three installments.

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The appellants/defendants are directed to deposit the first instalment at Rs.35,000/- in the month of January 2022, the second instalment at Rs.35,000/- in the month of February, 2022 and the third instalment at Rs.30,000/- in the month of March, 2022.

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In fine, this Second Appeal is dismissed and the judgment https://hcservices.ecourts.gov.in/hcservices/ and decree, dated 17.03.2014 passed in A.S.No.45 of 2013, on the

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S.A(MD)No.521 of 2015

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file of the Principal District Court, Tirunelveli, is confirmed. No costs. Consequently, connected Miscellaneous Petitions are closed.

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Sd/Assistant Registrar (CS II) // True Copy // / /2021 Sub Assistant Registrar(CS) ps

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Note :

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In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

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To 1.The Principal District Court, Tirunelveli. 2.The Sub Court, Ambasmudram. Copy to The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai. +1 CC to M/s.D.NALLATHAMBI, Advocate (SR-36802[F] dated 01/12/2021) S.A(MD)No.521 of 2015 30.11.2021 PS(CO) SB(15.12.2021) 6P 6C

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

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Andiappan v. Sorimuthu

Case brief

What is this about?

What did the court decide?

Andiappan v. Sorimuthu

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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