w w w . L a w y e r S e r v i c e s . i n



M/s. Likhami Holdings Ltd, Rep by its Managing Director, Chennai v/s M/s. Beach Estates, Rep by its Partner L. Shanthakumar, Chennai

    Second Appeal No.510 of 2006

    Decided On, 30 March 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAJA

    For the Appellant: Mr. R. Thiagarajan, Advocate For the Respondent: Mr. A.L. Somayaji, SC for Mr. C. Ravichandran, Advocates.



Judgment Text

(Prayer: Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 31.03.2005, passed by the Principal District Judge, Chengalpattu, in A.S. No.49 of 2003, confirming the judgment and decree, dated 31.01.2003, passed in O.S.No.252 of 1995, by the Additional Subordinate Judge, Chengalpattu.)

1. The present second appeal has been brought by the the defendant, as against the concurrent findings of the Courts below.

2. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law;-

"(i) Whether the Courts below are right in decreeing the suit filed by the respondent/plaintiff, when the respondent/plaintiff has alienated the property and in such circumstances, whether they ceased to have any interest in the subject matter of the litigation, the grant of decree for injunction vitiated by reasons of the provisions contained under Section 41(i) of the Specific Relief Act?

(ii) Whether the Courts below are right in entertaining a suit filed by an unregistered partnership firm, despite the statutory bar contained under Section 69(2) of the Partnership Act?

(iii) Whether the Courts below are right in decreeing the suit, despite the fact that proper and necessary parties have not been impleaded as party to the proceedings and in such circumstances, the suit is bad for non-joinder of necessary parties and mis-joinder of causes of action which have been lost sight by the trial Court as well as the Appellate Court?"

3. Brief facts leading to the filing of the second appeal are given as under:-

The plaintiff/respondent herein claimed that he is the absolute owner of the suit property admeasuring 6.95 acres covered in S.No.168/3E/1A/1A/1C/2A at No.109, Pattipulam Village, Chengalpattu Taluk. It is seen from the rough sketch that the plaintiff is owning portions A-G. The plaintiff purchased the portions A and D from one Dhanasekaran through a registered sale deed, dated 07.09.1992 and another portion shown as 'B' was purchased from one Navaneetham wife of Jaganathan and Samandhi wife of Veerabadran, represented by Power of Attorney Agent, under a registered sale deed, dated 07.09.1992, for a sum of Rs.2,40,000/- and the portion shown as 'C' from Muthukrishnan and Pichai, sons of Late Singara Chettiar, under a registered sale deed, dated 09.09.1992, for a sum Rs.7,20,000/-. Yet another portion shown as 'H' from T.Munusami son of Late Dharaman and others, under a registered sale deed, dated 07.09.1992, for a sum of rs.2,60,000/-. Another portion shown as 'F' was purchased from S.Subbarayan under a registered sale deed, dated 09.09.1992, for a sum of Rs.4 lacs and one another portion shown as 'G' from V.Ganesan, son of Late Vadagiri and others under a registered sale deed, dated 07.09.1992, for a sum of Rs.7,20,000/-. After purchasing the above mentioned properties, it was claimed by the plaintiff that they have enclosed the entire area 'A' to 'G' by barbed wire fencing on the northern and southern sides, with compound walls on the east and western sides. Subsequently, they have also constructed quarters for watchman, who has been residing therein. Whileso, the plaintiff had also plotted the land and had sold different plots to 34 purchasers retaining the remaining plots. However, after effecting the sale to 34 purchasers, there has been an arrangement between the plaintiff and the purchasers to safeguard the possession of the property. On that basis, it was claimed that the plaintiff was right in filing the suit against the defendant, as he has faced the interference from defendant on 23.10.1995.

4. The defendant/appellant herein, by filing a written statement, has stated that the plaintiff was not the absolute owner of the property comprised in Survey No.168/3E/1A/1A/1C/2A in No.109, Pattipulam Village, Chengalpattu Taluk. It was also mentioned that the defendant purchased the property situated in No.109, Pattipulam Village, comprised in Survey No.168, measuring an extent of 4 acres and 60 cents by a sale deed, dated 04.11.1986, bearing document No.2/38/86, in the office of the Sub Registrar, Tirupporur, from one V.K.K. Pillai for a valuable consideration. It is further seen that L.S.Chandrika purchased the land comprised in S.No.168/3E/1A/1C, measuring an extent of 86 cents from one K.Rajendran, represented by his Power Agent K.Ramasamy and on the very same day, she had also purchased an extent of 50 cents out of 96 cents comprised in S.No.168/3E/1A from Danudas and others. The said L.S.Chandrika purchased an extent of 77 cents comprised in S.No.168/3B/1A from one Damodaran on 13.08.1990. Similarly, she purchased the lands measuring an extent of 86 cents on 13.08.1990 under a registered sale deed. Thus, the defendant and the said L.S.Chandrika purchased the property situated at No.109, Pattipulam Village.

5. Under these backgrounds, when the matter was taken up before the trial Court, the trial Court, after examining the evidence of PW1 to PW3 and by taking note of Exs.A1 to A7 produced by the plaintiff and the deposition adduced by the DW1 along with Exs.B1 to B51, coupled with the report of the Advocate Commissioner, marked as Exs.C1 to C5, framed the issues as extracted below ---

i. Whether the plaintiff is entitled to permanent injunction?

ii. Whether the plaintiffs are in possession of the suit property?

iii. Whether the suit is bad for non-joinder of necessary party?

iv. To what relief?

And finally came to the conclusion that the plaintiff is entitled to have the relief as sought for in the plaint. Aggrieved by the judgment and decree passed by the learned trial Court, when an appeal was preferred before the learned first appellate Court in A.S.No.49 of 2003, the learned first appellate Court, after re-appreciating and re-assessing the evidences on record and the report submitted by the Advocate Commissioner and also patta issued to the plaintiff and the defendant, came to the conclusion that the sale deeds Exs.B34, 35, 46 to 49 for purchasing lands in survey numbers therein do not tally with the survey No.168/3A/1A. Therefore, the learned first appellate Court, having addressed all the issues raised by the appellant, has given its own finding that the survey numbers, with which the plaintiff has laid his claim before the trial Court, having not tallied with survey no. of the defendant/appellant herein, affirmed the judgment and decree passed by the trial Court. One another significant aspect taken note of by the learned first appellate Court is also required to be mentioned herein, that when the parties have let in their evidence before the trial Court, the defendant/appellant herein has also admitted that the survey no of the plaintiff/respondent herein is different from the survey no. of the defendant/appellant herein. Therefore, on the basis of the admission of the defendant which finally brought answer to the controversy, the impugned judgment came to be passed. Aggrieved by the same, the present second appeal has been filed by the plaintiff.

6. Mr.R.Thiagarajan, learned counsel appearing for the appellant, while addressing on the substantial questions of law, submitted that the suit filed by the plaintiff/respondent herein is not maintainable, since it has not been filed by a registered partnership firm. It is further submitted that when the plaintiff/respondent herein had laid his claim as a partnership firm, the plaintiff was not a registered partnership firm, hence, by virtue of Section 69(2) of the Partnership Act, the trial Court ought to have dismissed the suit, as the plaint filed by the plaintiff had not complied with the ingredients mentioned under Section 69(2) of the Partnership Act. While taking to Section 69(1)(2), it was further submitted that no suit to enforce a right arising from a contract or conferred by this Court shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. Therefore, it was submitted that when these aspects have not been properly addressed by the Courts below, by further contending that serious material irregularity has been committed by the Courts below, to remove such irregularity, he pleaded with this Court to interfere with impugned judgment and decree passed by the Courts below.

7. In support of his submission, he has also relied upon Section 41 (i) of the Specific Relief Act and again assailed the grant of injunction contending that when the plaintiff has not come to the Court with clean hand, the relief sought for by the plaintiff/respondent herein ought to have been refused. Finally, it was also pressed into service yet another contention that the Courts below are not right in decreeing the suit, despite the fact that proper and necessary parties have not been impleaed as party to the proceedings and in such circumstances, the suit is bad for non-joinder of necessary parties. On these basis, he prayed for allowing the second appeal.

8. In reply, Mr.A.L.Somayaji, learned Senior counsel appearing for the respondent submitted that when there has been a categorical admission by the defendant/appellant herein, while standing in the witness box by admitting that survey number mentioned in the plaint, namely, S.No.168/3E/1A/1A/1C/2A for an extent of 6.95 acres of the plaintiff is different from the survey number of the defendant, it will be too late for the defendant to say that the trial Court and the first appellate Court have committed serious mistake in granting the injunction, as prayed for by the plaintiff/respondent herein in respect of survey No.168/3E/1A/1A/1C/2A. When the plaintiff/respondent herein filed a suit for permanent injunction in respect of suit property covered in Survey No.168/3E/1A/1A/1C/2A having an extent of 6.95 acres, the defendant/appellant herein clearly deposed before the trial Court that the plaint scheduled property is different from the defendant's property and in view of such admission, when the learned trial Court has specifically scanned through the evidence, more particularly various sale deeds of the plaintiff in comparison to the sale deeds of the defendant and decreed the suit, no one can have any grievance, in respect of the relief of injunction granted by the Courts below. Para 26 of the trial Court judgment says that the land purchased by the defendant is 4.60 acres comprised in Survey No.168/3E/1A/1A/1A. When this has been clearly admitted by the defendant by again admitting that the plaintiff is also in possession of the land comprised in S.No.168/3E/1A/1A/1C/2A, there can never be any grievance on the side of the defendant, particularly when the injunction granted in favour of the plaintiff is nothing to meddle with the lands of the defendant in his survey number mentioned above. This submission finds full force for the reason that the order of injunction cannot operate against the lands of the defendant -- Survey Nos.168/3E/1A/1A/1C(86 cents), 168/3E/1A(77 cents), 168/3E/1A (96 cents) and 168/3E/1A/1A/1C (86 cents).

9. It is also significant to mention the admission of the defendant/appellant herein explicitly made before the Courts below bringing the controversy to an end by stating that the plaintiff's survey No.168/3E/1A/1A/1C/2A, having an extent of 6.95 acres is different from the defendant's survey number. In this context, it is useful to refer a well settled legal position enunciated by the Apex Court inNagindas Ramdas v. Dalpatram Iccharam (AIR 1974 SC 471), wherein it is held thus:-

"Admissions, if true and clear, are by far best proof of the case admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties."

The above ruling clearly goes to prove that the issue raised in the present appeal can be answered with the help of the admission made by the defendant/appellant herein.

10. In respect of the second submission made by the learned counsel for the appellant on the issue of maintainability of suit under Section 69(2) of the Partnership Act, he argued that the plaintiff's suit is not barred by Section 69(2) on the ground that the plaintiff's firm was an unregistered firm, since the remedy sought for was for a common law remedy and he has also relied upon a judgment of the Apex Court in the case of Haldiram Bhujiawala and another v. Anand Kumar Deepak Kumar and another ((2000) 3 SCC 250) ,wherein para 9 thereof answers the substantial question of law against the appellant.

11. The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even If only a Common Law right is being enforced came up directly for consideration in this Court in M/s. Raptokas Brett Co. Ltd. v. Ganesh Property . In that case, Majmudar J speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held the right to evict a tenant upon expiry of the lease was not a right 'arising from a contract' but was a common law right or a statutory tight under the Transfer of Property Act. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit was held not barred. It appears to us that in that case the reference to the lease in the plaint was obviously treated as a historical fact. That case is therefore directly in point. Following the said judgment, it must be held in the present case too that a suit is not barred by Section 69(2) if a statutory right or a common law right is being enforced.

12.In view of the above ruling, since the plaintiff/respondent herein has filed a suit for permanent injunction against the defendant restraining them from interfering with the peaceful possession and enjoyment of the suit properties, the right to injunct a trespasser is not a right arising from a contract. But, the same is a common law right under CPC. Therefore, the suit was rightly held to be maintainable by the Courts below. Further, since the above ruling is directly on the point, the substantial question of law raised by the appellant is answered against the appellant.

13. Furthermore, the plaintiff/respondent's possession and title of the suit property were already confirmed against some third parties in earlier O.S.Nos.392 of 1993 and 415 of 1992 on the file of the learned District Munsif Court at Chengalpattu, which are marked as Exs.A26 and A27 respectively. A perusal of both Exs.A26 and A27 clearly tally with the plaint schedule property and its extent. Hence, I hereby confirm that the suit is rightly maintainable.

14. In respect of non-joinder of parties, as the plaintiff is also owning substantial portion of land, he has not only filed the suit as a partner, but also as owner of the land, hence, it is not open to the defendant/appellant herein to find fault with non-joinder of all the purchasers, to whom the plaintiff, had sold the property. To meet the argument of the learned counsel for the appellant, when he relied upon Order I Rule 9 of the Civil Procedure Code to press his argument on the point of misjoinder and non-joinder of party for dismissal of the suit, though the Order I Rule 9 mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as the rights and interest

Please Login To View The Full Judgment!

of the parties actually before it, it has to be seen that when the plaintiff has sold 34 plots out of 43 plots to various purchasers, some of the purchasers also have specifically requested the plaintiff/respondent herein to take care of the suit property and in this connection, evidences were also adduced to support the said claim before the Courts below, hence, the learned trial Court also by accepting the affidavit and various letters, namely, Exs.A20 to A23 – received from the plot owners for securing and maintenance of plots purchased by them authorising the plaintiff to look after their plots on their behalf, rightly agreed with the case of the plaintiff. Therefore, on this basis, the plaintiff has rightly filed the suit only for bare injunction, not only as authorised person on the basis of Exs.A20 to A23, but also as a owner of his own land for the reason that his lands are also under threat and interference by the defendant's side. In that view of the matter, I do not find any infirmity or error in law to interfere with the concurrent findings of the Courts below. Therefore, finding no merit, I am inclined to dismiss the second appeal. Further, it is needless to mention that, as the defendant has also fairly made an admission admitting the veracity of the case of the plaintiff that the survey No.168/3E/1A/1A/1C/2A for an extent of 6.95 acres is different from the defendant's survey Nos.168/3E/1A/1A/1A, 168/3E/1A/1A/1C, 168/3E/1A, 168/3E/1A, 168/3E/1A/1A/1C, the parties are advised to maintain their limit, as per the decree passed in O.S.No.252 of 1995, dated 31.01.2003, as confirmed in the impugned judgment herein. 15. In the result, the second appeal is dismissed. Consequently, the judgment and decree passed by the Courts below are confirmed. No Costs.
O R