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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SUNDAR, J.
Natarajan - Appellant
Versus
K.Lakshmi Ananth - Respondent
S.A.No.247 of 2001
Decided on : 18-04-2018
Civil Procedure Code, 1908 - Sections 96 and 100 - Specific Relief Act, 1963 - Section 31 - Property Acquired - In senior suit there are two schedules to plaint i-e first schedule and second schedule - It is submitted by learned counsel for appellant that item in first schedule of senior suit constitute suit properties - In other words four items in first schedule of senior suit is plaint schedule properties in junior suit out of which this second appeal arises is his say - I perused two and found that with regard to item No-2 of suit properties in junior suit and item No-6 of Schedule 1 of plaint in senior suit there is variation in description of said two items - However learned counsel for both sides assert that same is an inadvertent secretarial error and both sides confirm that item No-6 in Schedule 1 also forms part of suit properties - Therefore I proceed on this basis - Junior suit was launched by son against four defendants arraying his father as fourth defendant - Defendants 1 2 and 3 are alienees - In other words defendants 1 2 and 3 are vendees of suit properties having purchased same - Prayer in junior suit is for declaration that plaintiff / son has possessory right in suit properties and for injunction restraining defendants from interfering with his possession - Besides this limb of prayer there is another limb of prayer regarding costs and usual residuary limb asking for such further or other orders - Held, I have carefully considered rival submissions - I have no difficulty in accepting submission on behalf of respondents that question of joint family nucleus much less question of onus shifting on fourth respondent does not arise in a mere possessory suit - Even plaintiff / Appellant did not have burden of proof in this regard in junior suit - Only when there is some burden of proof on plaintiff and when plaintiff in course of discharging such burden brings into existence a document or some obtaining position further question of onus shifting to adversary would arise - I have also extracted issues in trial court and particularly recast issue - A perusal of trial court order would clearly reveal that entire issues in Trial court were only on possession and rightly so - First appellate court for all practical purpose has rightly confirmed approach and verdict of trial court as suit is for mere possessory right qua suit properties - In a suit for mere possessory right if scope is expanded to extent of whether property was joint family property and as to whether property was purchased from income generated from nucleus of joint family property it would run contrary to basic principle of civil law litigation - Plaintiff should stand or fall by his pleadings - Even with regard to issue of onus shifting plaintiff should be able to show that onus shifts by perambulating within four corners of pleadings in plaint - Appeal is dismissed.
1. This case is a classic but unfortunate exception to the age old adage 'Blood is thicker than water'. 'Classic' because it may be difficult to find a better or closer exception. 'Unfortunate' because the adversaries at lis for nearly two decades are father and son. To be noted, father and son are at loggerheads not on a principle or philosophy, but for properties, that too tangible properties, i.e., immovable properties.
2. This being a second appeal under Section 100 of Civil Procedure Code, 1908 ('CPC' for brevity), which turns on substantial question/s of law, it would suffice to give a thumbnail sketch of facts necessary for understanding and appreciating this judgment. Therefore, I give short facts of this case under the caption 'Facts in a nutshell' infra.
3. Facts in a nutshell :
3(a) Immovable properties, which are subject matter of the suit out of which this second appeal arises, are punja agricultural lands which are comprised in four different survey numbers in Keelapavur village, Tenkasi Taluk, Nellai Kattabomman District. Four survey numbers and extents are as follows :
| Sl. No. | Survey No. | Extent |
| 1 | 113/1 | 2 Acres 62 cents |
| 2 | 113/4 | 21 cents and a well |
| 3 | 131/1 | 2 Acres 82 cents |
| 4 | 131/5 | 6 cents |
3(b) To be noted, all survey numbers are in the aforesaid Keelapavur village, Tenkasi Taluk, Nellai Kattabomman District. Further to be noted, all the four survey numbers add up 5 acres and 71 cents of land. The aforesaid punja agricultural lands comprised in four different survey numbers are hereinafter referred to as 'suit properties' for the sake of brevity, convenience and clarity.
3(c) One Sivasubramania Nadar who is fourth respondent in this second appeal filed a suit in O.S.No.117 of 1993 dated 9.2.1993 on the file of the District Musif Court, Tenkasi against none other than his son Natarajan, who is the sole appellant in this second appeal before me. I am informed that while appellant Natarajan is son, all the other children of Sivasubramania Nadar are daughters.
3(d) To be noted, aforesaid O.S.No.117 of 1993 filed by the father against his son on the file of District Munsif Court, Tenkasi filed on 9.2.1993 is not the suit out of which this second appeal arises. This second appeal arises out of another subsequent suit being O.S.No.350 of 1993 (filed by son against his father). Both suits are on the file of the same court, i.e., District Munsif Court, Tenkasi. Therefore, for the sake of convenience and clarity, the earlier suit being O.S.No.117 of 1993 filed by father against son is referred to as 'senior suit' and the subsequent suit, i.e., O.S.No.350 of 1993 filed by son against father (filed on 28.6.1993, out of which this second appeal arises), shall hereinafter be referred to as 'junior suit'.
3(e) Senior suit was laid by father arraying his son as sole defendant with prayers for declaration that the suit schedule mentioned properties therein belong to plaintiff therein and for consequential injunction. In the senior suit, there are two schedules to the plaint, i.e., first schedule and second schedule. It is submitted by learned counsel for appellant that item Nos. 5, 6, 10 and 11 in the first schedule of the senior suit constitute suit properties. In other words, four items, i.e., item Nos.5, 6, 10 and 11 in the first schedule of the senior suit is the plaint schedule properties in the junior suit, out of which this second appeal arises is his say. I perused the two and found that with regard to item No.2 of suit properties in the junior suit (O.S.No.350 of 1993) and item No.6 of Schedule 1 of plaint in senior suit (O.S.No.117 of 1993 - Ex.A.1), there is variation in the description of the said two items. However, learned counsel for both sides assert that the same is an inadvertent secretarial error and both sides co
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