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2018 Supreme(Mad) 2738
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Ramdoss - Appellant
Versus
Subbayyan - Respondent
S. A.Nos.488 & 489 of 2001
Decided on : 05-01-2018
Advocate Appeared:
For the Appellant : Mr.K.Srinivasan Senior Counsel for Mr.P.Veeraraghavan
For the Respondents: Mr.A.Muthukumar
Headnote:
Indian Succession Act - Sections 68 and 63 - Indian Evidence Act, 1872 - Section 68 - Forcible Possession of Suit Property - Case of appellant in brief is that suit property and on her death suit property was inherited and appellant is brothers son and appellant is having two other brothers inducted tenant in suit property and also directed to attorn tenancy to appellant and his brothers and pay rent to them and said arrangement tenant was paying rent to appellant - While so respondent issued a notice claiming that he is owner of suit property under a Will alleged to have been executed by enclosing xerox copy of alleged Will - However had never executed any such Will and truth validity execution and attestation of said Will has been denied and respondent is not adopted son and no adoption took place at any point of time and respondent had not rendered any service and it is false to state that had bequeathed property in favour of respondent who is son of respondent and Will never came into existence - It is only plaintiff who has been in possession and enjoyment of suit property through tenant and a suitable reply has been sent to respondent and after exchange of notices respondent demanded to vacate premises and hand over possession and also made attempts to take forcible possession of suit property which respondent is not entitled to do so - Held, Therefore it is seen that contention of appellants counsel that failure of respondents in seeking relief of declaration in their suit would be fatal to their case as such cannot be accepted - That apart as rightly put forth by respondents counsel so far as plea now put forth by appellants counsel that suit laid by respondents should fail on account of non-inclusion of prayer of declaration has not been raised by appellant in written statement as such nor raised by him during course of first appeal - Only during course of second appeal present contention has been raised and accordingly it is argued by respondents counsel had it been raised by appellant at trial stage respondents would have suitably amended plaint and in any event he also contended that parties have well understood their respective cases and accordingly proceeded with matter as if lis instituted by them respectively is only a title suit and accordingly adduced evidence on that premise and therefore prayed at this stage of matter lis of either parties should not be thrown out on technical reason and contended that non-inclusion of prayer of declaration by respective parties had not in any manner prejudiced defense of other parties and prayed for suitable orders by this Court - Appeals are dismissed.
1. Challenge in these second appeals are made against the common Judgment and decrees dated 27.09.2000 made in A.S.Nos.13 of 2000 & 12 of 2000 respectively on the file of the Additional Subordinate Court, Myladuthurai reversing the common judgment and decrees dated 30.11.1999 made in O.S.Nos.355 of 1995 & 375 of 1995 respectively on the file of the District Munsif Court, Sirkali.
2. O.S.No.355 of 1995 is laid by the appellant and one Arputharaj against the respondent in S.A.No.488 of 2001 for the relief of injunction.
3. O.S.No.375 of 1995 is laid by the respondent in S.A.No.489 of 2001 against the appellant and on A.Ganesan for the reliefs of recovery of possession and future profits.
4. The case of the appellant, in brief, is that the suit property originally belonged to Padmavathi W/o. Venugopala Naidu and on her death, the suit property was inherited by Venugopala Naidu and the appellant is the brother's son of Venugopala Naidu and the appellant is having two other brothers viz., Mohan and Kannan and Venugopala Naidu inducted Arputharaj as a tenant in the suit property and also directed Arputharaj to attorn the tenancy to the appellant and his brothers and pay the rent to them and under the above said arrangement, the tenant Arputharaj was paying the rent to the appellant. While so, the respondent Subbaiyan issued a notice to Arputharaj claiming that he is the owner of the suit property under a Will alleged to have been executed by Venugopala Naidu on 19.11.1987 enclosing the xerox copy of the alleged Will. However, Venugopala Naidu had never executed any such Will and the truth, validity, execution and the attestation of the said Will has been denied and the respondent Subbaiyan is not the adopted son of Venugopala Naidu and no adoption took place at any point of time and the respondent Subbaiyan had not rendered any service to Venugopala Naidu and it is false to state that Venugopala Naidu had bequeathed the property in favour of the respondent Jagannathan, who is the son of the respondent Subbaiyan and the Will never came into existence. It is only the plaintiff, who has been in possession and enjoyment of the suit property through Arputharaj, the tenant and a suitable reply has been sent to the respondent Subbaiyan and after the exchange of notices, the respondent Subbaiyan demanded Arputharaj to vacate the premises and hand over the possession and also made attempts to take forcible possession of the suit property which the respondent Subbaiyan is not entitled to do so. The appellant and his brothers succeeded to the suit property and accordingly, on behalf of his brothers, the appellant had instituted the suit and inasmuch as the respondent Subbaiyan illegally attempted to dispose the tenant Arputharaj and thereby interfere with the possession of the appellant in respect of the suit property, the appellant had been necessitated to lay the suit for permanent injunction.
5. The case of the respondents in common is that the suit laid by the appellant and Arputharaj is not maintainable either in law or on facts. The respondent Subbaiyan was born in Malaysia and the deceased Venugopal Naidu was employed in Malaysian Railway and the parents of the respondent Subbaiayan were the neighbours to the deceased Venugopal Naidu and during the second world war, the respondent Subbaiyan's parents became the victims of the Japanese bomb-shell leaving him as an orphan and accordingly, the deceased Venugopal Naidu, who was residing in the neighbouring house, took Subbaiayan to his residence and brought him to India and brought him up completely and Subbaiyan was educated by Venugopal Naidu by admitting him in the School at Sirkali and also performed his marriage with his brother-in-law's daughter viz., Geetha and on 19.11.1997 Venugopal Naidu in a sound state of mind and body had executed his last Will, which is duly attested and registered and under the said Will, the suit property was bequeathed to the minor son of Subbaiyan vi
