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HIGH COURT OF JUDICATURE AT MADRAS
B. RAJENDRAN, J.
Shanmugam & Others
Versus
Child Trust, Rep. by its Trustees & Others
Second Appeal No. 422 of 2012
Decided On : 23-01-2015
City Tenants Protection Act - Limitation Act – Civil Procedure Code - Order XXII - Rule 10 - Possession of property - Claiming partition of suit property – Claim of compensation - suit property was purchased by one husband of second plaintiff by a registered sale deed - Brother of said filed Civil Suit before this Court claiming partition of suit property along with other properties on ground those properties are family properties over which has no exclusive right - Suit was resisted by defendants therein contending that suit property is not a joint family property but it was exclusive property - Suit was decreed against which Original Side Appeal was filed before this Court - During pendency of Original Side Appeal was appointed as advocate receiver to manage properties covered in suit - There were occupants in suit property and therefore advocate receiver filed various suits against occupants of suit property - Advocate receiver filed against 7th defendant in this suit namely deceased - Was filed against first defendant husband of fourth defendant and father of third defendant – Similarly was filed by advocate receiver against was filed against and others - In above said suits occupants claiming themselves to be tenants inducted by one contended that they are entitled to remain in possession of property – Ultimately suits filed by Advocate Receiver was decreed by learned II Assistant Judge City Civil Court Madras and occupants were directed to handover delivery of possession to advocate receiver – Held, When court analyze this proposition of law in present context of case as rightly pointed out by learned senior counsel for first plaintiff first respondent earlier suit filed by advocate receiver is in respect of specific property and present suit is also filed for delivery of possession in respect of property occupied by them and which is clearly identified in plaint plan – Therefore there is a demarcation of property and if at all delivery of property in respect of legal heirs of deceased will have a bearing - When bifurcation of property is possible question of non-imp leading legal heirs of deceased will no way affect suit as has been held in decision of Honorable Supreme Court in State and decision rendered – Therefore arguments advanced by senior counsel for appellants in this context cannot be accepted - In this context reference can be made to Section 96 of CPC which provides for filing an appeal against a decree passed by Court of first instance - Sub-section (4) of Section 96 of CPC provides that an appeal can be entertained by appellate Court only on a question of law - In fact issue as regards non-impalement of legal heirs of deceased 6 and 9 is a mixed question of fact as well as on law - In present case decree passed by trial court and affirmed by appellate Court is executable and it is not a joint decree - Merely because defendants six and nine died and their legal heirs were not brought on record on such technical consideration plaintiffs cannot be ousted from praying relief of declaration and recovery of possession as a whole or it will not nullify decree passed by court - If at all if legal heirs are not imp leaded no claim can be made against that property - In present case plaintiffs have made an endorsement giving up relief as against defendants 6 and 9 and it is valid and legal - In any event non-impalement of legal heirs of deceased sixth and ninth defendant in suit will not be a reason for denying right of plaintiffs over suit property – Accordingly additional substantial question of law is answered against defendants appellants – Appeals is dismissed
B. RAJENDRAN, J.
1. The defendants 2, 3, 11, 12, 14 and 15 in O.S. No. 12738 of 1996 on the file of the learned I Assistant Judge, City Civil Court, Chennai are the appellants in this appeal. The said suit was filed by the Plaintiffs/respondent No.1 and the deceased Annapoorani Ammal praying for a declaration to declare that they are the owners of "B" Schedule property mentioned in the plaint, for a direction to the defendants to deliver vacant possession of the suit property and for costs. The suit was decreed by the trial court and it was affirmed by the first appellate Court. The defendants, having suffered a concurrent decision before the courts below, have filed the present second appeal.
2. For the sake of convenience, the parties in this appeal shall be referred to as plaintiffs and defendants as has been arrayed before the trial court.
3. According to the plaintiffs, the suit property was purchased by one P.N. Krishna Iyer, husband of second plaintiff Annapoorani Ammal, by a registered sale deed dated 27.03.1944. The brother of the said P.N. Krishna Iyer namely Mr. P.N. Easwara Iyer filed Civil Suit No. 367 of 1950 before this Court claiming partition of the suit property along with other properties on the ground those properties are family properties over which P.N. Krishna Iyer has no exclusive right. The suit in C.S. No. 367 of 1950 was resisted by the defendants therein contending that the suit property is not a joint family property but it was the exclusive property of Krishna Iyer. The suit was decreed against which Original Side Appeal was filed before this Court. During the pendency of Original Side Appeal, Mr. K.R. Venkatarama Sharma was appointed as advocate receiver to manage the properties covered in the suit. There were occupants in the suit property and therefore the advocate receiver filed various suits against the occupants of the suit property. The advocate receiver filed O.S. No. 867 of 1962 against the 7th defendant in this suit namely deceased Gokulapathy. O.S. No. 1109 of 1962 was filed against the first defendant Chinna Naicker, husband of the fourth defendant namely Mrs. Kanniah and father of the third defendant namely Kanniah. Similarly, O.S. No. 1410 of 1962 was filed by the advocate receiver against T. Kanna. O.S. No. 1411 of 1962 was filed against Muthu Asari and others. In the above said suits, the occupants claiming themselves to be tenants inducted by one Lakmana Naicker contended that they are entitled to remain in possession of the property. Ultimately, the suits filed by the Advocate Receiver was decreed on 18.09.1963 by the learned II Assistant Judge, City Civil Court, Madras and the occupants were directed to handover delivery of possession to the advocate receiver. As against the decree and judgment passed on 18.09.1963, A.S. Nos. 327 of 1964, 723 of 1967, 724 of 1967 and 259 of 1965 were filed by some of the occupants. All the appeals filed by the occupants were dismissed by this Court in A.S. Nos. 329 of 1964 and 723 and 724 of 1967 by a judgment dated 22.04.1971 confirming the decree and judgment passed by the trial court. In so far as the suit filed against the second plaintiff Annapoorani Ammal, by Easwara Iyer, her brother-in-law, it was appealed before the Honourable Supreme Court in Civil Appeal No. 1278 of 1968 and by judgment dated 05.05.1978, the title of Annapoorani Ammal was upheld by the Honourable Supreme Court. Thereafter, even before the receiver could be discharged, he died in the year 1980.
4. According to the plaintiffs, the first plaintiff was started as a charitable institution with the object of establishing a modern and sophisticated hospital for the children. With this object, the first plaintiff obtained right over portion of the property from the second plaintiff Annapoorani Ammal by means of a registered gift deed dated 28.06.1984 executed by her. According to the plaintiffs, the possession of the suit property remained with the Court receiver who als
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