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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
Kamalammal (dead) & Others
Versus
Girija & Others
S.A.No.347 of 2009, C.R.P.(NPD) Nos.3023 & 3399 of 2007 & M.P.No.1 of 2009 in S.A.No.347 of 2009 & M.P.No.1 of 2007 in C.R.P.(NPD) No.3023 of 2007
DECIDED ON : 13-11-2009
The court held that the cancellation of the gift settlement deed by means of a cancellation deed is not valid. The court also held that the claim of the appellants is hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure (CPC). Further, the court held that the claim of the appellants is barred by the principles of res judicata. The court also held that the appellants have not prescribed title to the suit property by adverse possession. The court further held that the appellants are not entitled to get the benefits under Section 6 of the Specific Relief Act. The court also held that the concurrent findings of the courts below are not fitting in any of the exceptions formulated by the Supreme Court.
Fact of the Case:
The appellants filed a suit under Section 6 of the Specific Relief Act, seeking to recover possession of a property from the respondents. The appellants claimed that they were in possession of the property and that they were dispossessed by the respondents without their consent. The respondents denied the appellants' claim and contended that they were the rightful owners of the property. The trial court and the appellate court dismissed the appellants' suit. The appellants then filed a second appeal and a civil revision petition in the High Court.
Finding of the Court:
The High Court held that the appellants' claim was hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure (CPC). The court also held that the appellants' claim was barred by the principles of res judicata. Further, the court held that the appellants had not prescribed title to the suit property by adverse possession. The court also held that the appellants were not entitled to get the benefits under Section 6 of the Specific Relief Act. The court further held that the concurrent findings of the courts below were not fitting in any of the exceptions formulated by the Supreme Court.
Issues: 1. Whether the cancellation of the gift settlement deed by means of a cancellation deed is valid? 2. Whether the claim of the appellants is hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure (CPC)? 3. Whether the claim of the appellants is barred by the principles of res judicata? 4. Whether the appellants have prescribed title to the suit property by adverse possession? 5. Whether the appellants are entitled to get the benefits under Section 6 of the Specific Relief Act?
Ratio Decidendi: 1. The court held that the cancellation of the gift settlement deed by means of a cancellation deed is not valid, as the settlor herself could not cancel it and it had to be taken before a legal forum for that purpose. 2. The court held that the claim of the appellants is hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure (CPC), as the appellants had omitted to sue in respect of, or intentionally relinquished, a portion of their claim. 3. The court held that the claim of the appellants is barred by the principles of res judicata, as the earlier suit was decreed exparte and there was no adjudication of rights. 4. The court held that the appellants have not prescribed title to the suit property by adverse possession, as they had not established that they had been in possession of the property for over a statutory period of 12 years without any objection from the true owners. 5. The court held that the appellants are not entitled to get the benefits under Section 6 of the Specific Relief Act, as they had not shown that they were in exclusive possession of the property anterior to the date of alleged dispossession.
Final Decision: The court dismissed the appellants' second appeal and civil revision petition. The court also held that the concurrent findings of the courts below are not fitting in any of the exceptions formulated by the Supreme Court.
1. Thefollowing are the allegations contained in the plaint in O.S.No.6687 of 1996:-
1.(a) The plaintiffs and their predecessors-in-interest viz., Chinnaiah, Ranganathan and Subramania Chowdhury had been exclusive possession and enjoyment of "A" Schedule property for over 40 years which is with an extent of 6 grounds and 520 sq.ft. After the lifetime of predecessors-in-interest, the plaintiffs continued to be in exclusive possession and enjoyment of the above said "A" Schedule property. The first defendant filed a suit in O.S.No.968 of 1958 on the file of IV Assistant Judge, City Civil Court, Madras, for a decree for possession in respect of portion in "A" Schedule property against the above said predecessors-in-interest. The suit was dismissed as against Subramania Choudhury as not pressed. An exparte decree for possession was passed on 12. 1960. In spite of the decree, the predecessors-in-interest continued to be in possession.
1. (b) The first defendant filed E.P.No.765 of 1977 to execute the decree. By that time, Chinniah died and hence first plaintiff was impleaded as his legal representative. She filed an application under Section 47 of C.P.C. in E.A.No.2799 of 1981 to hold the decree inexecutable, since the same having become barred by time. On 30.4.1982 the said petition was allowed by X Assistant Judge, City Civil Court, Madras and E.P. was dismissed, holding that it was barred by time and hence unexecutable.
1.(c) The first defendant executed the so called settlement deed in 1987 in favour of her daughter, the second defendant. Hence the second defendant engaged rowdy elements, influenced police and attempted to commit criminal trespass to "B" Schedule property in February 1990. The police complaint by the plaintiffs ended in vain, since the second defendant was influential and powerful. On 12. 1990 also the rowdy elements, engaged by second defendant armed with lethal weapons, broke open the fences put up by plaintiffs, entered into "B" Schedule property and dismantled the huts. The police did not take any action.
1.(d) In view of the trespass, the plaintiffs filed O.S.No.1759 of 1990 for permanent injunction against the defendants with regard to "A" Schedule property and also filed application for interim injunctions. Since the defendants filed caveat, interim order was not passed. In the counter filed for the said petitions, it was admitted that plaintiffs were in possession of the remaining portion of "A" Schedule property. Without due process of law, plaintiffs have been forced to dispossess from the "B" Schedule property from 12. 1990. Hence, suit has been filed under Section 6 of the Specific Relief Act 1963, for directing the defendants to deliver possession of "B" Schedule property. The suit filed within six months from the date of dispossession.
2. In the written statement filed by the first defendant, namely, P.Vidyuthavalli Thayar, the following allegations are found:-
2.(a) No suit summons were served upon the first defendant. Only on information by neighbours, she came to know the suit was filed. The plaintiffs are not related to the defendants in O.S.No.968 of 1958. O.S.No.9135 of 1984 was filed by the plaintiffs in which they raised identical claim that they have perfected their title by adverse possession. The suit was dismissed on 2. 1985 and the decision has become final. Hence, the present suit is barred by res judicata.
2.(b) The suit in O.S.No.1759 of 1990, filed by the plaintiffs is pending before II Assistant City Civil Judge, Chennai, which was filed on 12. 1990 and the present suit has been filed before the High Court on 27. 1990. Hence it is a clear instance of vexatious litigation. The first defendant purchased the property with her Sreedhana funds supplied by her father, the Zamindar of Zammavaram and other estates of the Nellore District, Andhra Pradesh from its erstwhile owner Smt. Rani Lakshmi Var, the Zaindarini of Edapavani, by means of a sale deed in 1941. A shed was put
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