R.S. Ramanathan, J.@mdashThe Plaintiff in O.S. No. 229 of 2007 on the file of the Sub Court, Tiruppur is the Appellant. The Plaintiff/Appellant filed a suit for declaration and for injunction. The case of the Plaintiff was that 3.70 acres in S. No. 78 and 4.47 acres in S. No. 79 of Nallur village, belonged to Gurunatha Mudhaliar and his sons Muthusamy Mudhaliar and Manicka Mudhaliar, and Gurunatha Mudhaliar and his son Muthusamy Mudhaliar executed a mortgage deed dated 28.08.1913 in favour of Avinashi Achari and Viyapuri Achari and that mortgage was discharged by Muthusamy Mudhaliar and Manicka Mudhaliar by executing a sale deed dated 19.06.1918 in favour of the mortgagee Viyapuri Achari by selling the southern half share in S. No. 78 and northern half share in S. No. 79 and Muthusamy Mudhaliar and ManickaMudhaliar retained the northern half share in S. No. 78 and Southern half share in S. No. 79 and they were in possession of the property. Manicka Mudhaliar died without any legal heirs and therefore Muthusamy Mudhaliar became the absolute owner of the property. After the death of MuthusamyMudhaliar his son Murugappa Mudhaliar enjoyed the property and after him, his son Nachimuthu @ Natrayan was in enjoyment of the property and Nachimuthu @ Natrayan died intestate leaving behind his son Murugesan and wifeThangamani. From them, the Plaintiff purchased 2.23 �acres in S. No. 79 by a registered sale deed dated 05.11.2003and 1.85 acres in S. No. 78 by a sale deed dated 19.11.2003and since then, he is in possession and enjoyment of the property. His possession and enjoyment was disturbed by the first Defendant, who also filed a suit in O.S. No. 576 of2002 in respect of the same property and therefore the Plaintiff/Appellant filed a suit for partition and injunction.
2. The Defendants contested the suit stating that the Plaintiff has no right, title and interest to the suit property and the third Defendant filed a separate statement stating that Muthusamy Mudhaliar and Manicka Mudhaliar mortgaged the suit properties to one Subramanian Chettiar and his mortgagee Subramani Chettiar filed a suit in O.S. No. 35/1925 for realization of the mortgage amount and in E.P. No. 539 of 1927 the mortgaged property was brought to sale and Subramania Chettiar purchased the properties and was put into possession and he thereafter sold the properties to Pongaiya gounder under sale deed dated24.07.1933 and from the legal heirs of Pongaiya gounder the third Defendant purchased the suit properties by two sale deeds dated 15.05.1985 and 27.05.1985 and contended that the Plaintiff is not in possession of the property and the third Defendant is in possession of the property.
3. The first Defendant Sampathkumar earlier filed a suit in O.S. No. 576 of 2002 in respect of the same properties and therefore both the suits in O.S. No. 576 of2002 and O.S. No. 229 of 2007 were tried together and common judgment was delivered. The Trial Judge dismissed both the suits and found that the third Defendant namely Sasikalain O.S. No. 222 of 2007 is having title over the suit property and she is found in possession of the same and granted injunction in her favour and directed the third Defendant to pay the Court fee for the relief granted. The Trial Court further held that the Plaintiff cannot claim title as his vendor had no title, as the properties were brought to sale in Court auction in O.S. No. 35 of 1925 and as the Plaintiff has no title, he is not entitled to the relief of declaration. The suit filed by Sampathkumar in O.S. No. 576 of 2002 was also dismissed and against the dismissal of both the suits, the appeals were filed in A.S. No. 37 of 2008 and A.S. No. 60 of 2008.
4. The Lower Appellate Court confirmed the decree passed against the Plaintiff holding that the Plaintiff has no title to the suit property and also set aside the finding regarding possession and title of the third Defendant Sasikala in the suit property and set aside the injunction granted in favour of Sasikala in respect of the suit property. Aggrieved by the same, the Plaintiff filed the this appeal and the third Defendant Sasikala also filed cross objection No. 78 of 2011 against the finding of the Lower Appellate Court in setting aside the decree granted in her favour in respect of the suit property.
5. It was argued by the learned Counsel for the Appellant that both the Courts without properly appreciating the documents filed by the Appellant, namely, the sale deeds under which the Appellant purchased the property from the legal heirs of Muthusamy Achari andManicka Achari erred in holding that the Plaintiff/Appellant has not proved his case. Learned Counsel for the Appellant further submitted that the learned Trial Judge erred in granting the relief of injunction in favour of the third Respondent Sasikala, in the absence of the counterclaim made by the third Respondent/third Defendant before the Trial Court and the Lower Appellate Court rightly setaside the decree of injunction granted in favour of the third Defendant Sasikala holding that the third Defendant failed to prove her title by producing the partition deed dated 16.07.1976 and in the absence of partition deed, the third Defendant cannot claim title in the suit property. The learned Counsel further submitted that cross objection or cross appeal can be filed only after service of notice of the second appeal on the Respondent and in this case before the second appeal was admitted and notice was ordered, the cross objection was filed and that was also numbered and hence the cross objection filed by the third Defendant is not maintainable in law and that has to be dismissed.
6. The Appellant also raised the following substantial questions of law in the second appeal:
1. When the Plaintiff had produced the title deeds to the suit property and the Defendants could only produce documents pertaining to the other part of the suit Sy. No. ,should not the learned District Judge decree the suit of the Plaintiff, holding that the Plaintiff had proved title to the suit properties?
2. When the learned District Judge has held that the Defendant could not prove possession over the suit property, is the learned District Judge right in rejecting the relief of injunction for the Plaintiff who has proved better title to the suit property?
7. Mr. R. Subramanian, learned Counsel appearing for the Cross Objector submitted under Order 41 Rule 22 of the Code of Civil Procedure, cross objection can be filed within period of thirty days from the date of service of the memorandum of grounds of appeal and in this case on coming to know of the appeal filed by the Appellant, the cross objection was filed and the objection raised by the learned counsel for the Appellant is only a technical one and evening the absence of any cross objection, this Court has got ample power to grant the proper relief as per the provision of Order 41 Rule 33 and therefore the findings of the lower Appellate Court that the third Respondent/third Defendant Sasikala has not proved her title and possession has to beset aside even though the third Defendant did not file acounter claim in O.S. No. 229 of 2007. He further submitted that after the passing of decree in her favour, she paid the Court fee and therefore she is entitled to the relief of injunction and the third Defendant/third Respondent has also proved her title and also proved her possession by producing the tax receipts, namely, Ex.B17 to B28 and also produced sale deed Ex.B.12 and B13 and hence the finding of the Lower Appellate Court in setting aside the finding of the Trial Court regarding the title and possession of the third Defendant has to be set aside.
8. Heard the learned Counsel on either side.
9. The Plaintiff claims title through MuthusamyMudhaliar and Manicka Mudhaliar in respect of Northern side half share in S. No. 78 and Southern side half share in S. No. 79. The case of the Plaintiff/Appellant was that from the legal heirs of the Muthusamy Mudhaliar, the suit properties were purchased by the Plaintiff under two saledeeds, namely, Ex.A22 and 23. Therefore, the Plaintiff/Appellant claims title through Murugesan under Ex.A22 andA23. On the other hand, it was proved by the third Defendant in the Trial Court that the suit properties were mortgaged by Muthusamy Mudhaliar and Manicka Mudhaliarunder Ex.B9 and O.S. No. 352 of 1925 was filed by the mortgagee to enforce the mortgage and in the Court auction, the property was purchased by Kandasamy Chettiar and he executed a sale deed to Pongaiya gounder under Ex.B11. Therefore, it is seen from Ex.B9, Ex.B10 and Ex.B11 that the suit properties were sold in Court auction in pursuant to the mortgage decree granted against Muthusamy andManicka Mudhaliar in O.S. No. 35 of 1925 and the property was purchased by Pongaiya gounder from the Court auction purchaser. Therefore, the vendors of the Plaintiff lost their right even before the sale of the property in favour of the Plaintiff and hence the Plaintiff/Appellant cannot claim any title to the suit property and both the courts rightly considered this aspect and held that the Plaintiff/Appellant will not get any title to the suit property underEx.A22 and A23 as his vendors had no title to the suit property and the suit properties were already sold in Court auction and thereafter Pongaiya gounder purchased the suit property from the Court auction purchaser. Hence, the substantial questions of law are answered against the Appellant and both the courts rightly held that the Appellant has no title to the suit property and he has also not proved his possession. Hence, I do not find any infirmity with the decree passed by the Courts below. Accordingly, the second appeal is dismissed.
10. As regard the cross objection filed by the third Defendant, as rightly contended by Mr. R. Subramanian, the learned Counsel for the cross objector that even in the absence of cross objection, this Court can pass a judgment on the basis of available records invoking provision of Order 41 Rule 33. Though as per the order 41 Rule 22, the cross objection can be filed within thirty days from the date of service of memorandum of grounds of appeal, as rightly submitted by the learned Counsel for the cross objector Mr. R. Subramaniam, it is only a technical flaw and having regard to the provision of Order 41 Rule 33, this Court has got power to deal with the cross objection, evenin the absence of cross objection filed by the third Defendant.
11. It is submitted by the learned Counsel for the third Respondent Mr. R. Subramaniam that the lower Appellate Court set aside the finding regarding the title and possession of the third Defendant, only on the ground that the earlier partition deed dated 16.7.1960 was not produced and in the absence of production of partition deed, it cannot be stated that the third Defendant''s vendor had any right in the suit property. He submitted that the partition between the brothers of Venkatacha Chettiar was marked Ex.A17 and in the said partition, the suit property was allotted to the Venkatacha Chettiar and he sold the suit properties under Ex.B12 and B13. His further submittedEx.B17 and B29, the tax receipts also proved the possession of the third Defendant in the suit property even prior to the filing of the suit and the Lower Appellate Court erred in holding that Ex.B17 to B28 came into the existence after filing of the suit. He further submitted even as per theEx.A7, the name of the third Defendant was found in the chitta and that proved her possession in the suit property and having regard to Ex.B17 to B28 the possession of the third Defendant in respect of the suit property cannot be disputed and therefore the Lower Appellate Court erred in holding that the third Defendant has no right or title to the suit properties. He further submitted that the Trial Court has granted relief of injunction and having regard to the possession as evidenced by Ex.B17 to B28, the Trial Court finding ought to have been confirmed and the Lower Appellant Court, instead, set aside the finding of the Trial Court in respect of the possession of the suit property.
12. The learned Counsel for the Appellant in the second appeal reiterated the same contention raised in support of the appeal in the cross objection as well.
13. As rightly submitted by the learned Counsel for the Appellant in the second appeal, the trial Court need not have passed a decree in favour of the third Defendant, in the absence of any counter claim filed by the third Defendant in the written statement. The Trial Court having held that the Plaintiff will not get any title under Ex.A22and Ex.A23 should not have gone to the extent of giving the finding. Though the third Defendant is found to be in possession of property under Ex.B12 and Ex.B13, the case of the Plaintiff ought to have been rejected holding that the Plaintiff vendors did not have any title to the suit property as their rights were already lost in the properties, which were brought to sale in O.S. No. 35 of1925. Nevertheless having given a finding in favour of third Defendant and granted a decree, the third Defendant has also paid the Court fee and that finding was set aside by the first Appellate Court. According to me, the Lower Appellate Court erred in holding that the third Defendant failed to prove her possession under Ex.B17 and B28 from the year 1987 to 1988; 1996 to 2001 and 2006 to 2007.O.S. No. 526 of 2002 was filed in the year 2002 and before the disputes started between the parties, the third Defendant was found to be in possession of the property as evidenced by Ex.B19 to B28. It is found from Ex.A7, Ex.B19to Ex.B28 that the third Defendant is in possession of the suit property from the year 1970 on wards. Therefore, evenin the absence of any title to the suit property, the fact that the possession of the third Defendant in the suit property cannot be disputed having regard to the Ex.B19 to B28 and therefore the Lower Appellate Court is not correction setting aside the decree granted in favour of the third Defendant by the Trial Court. As I have held, the third Defendant has not proved her title to the suit property by adducing evidence and the third Defendant has not filed a suit for declaration, it is always open to her to claim title in the subsequent proceedings as the third Defendant has proved her possession in respect of the suit property. The trial Court has rightly granted the decree and the appellate Court erred in setting aside the finding and also a decree in favour of the third Defendant. Hence, the cross objection is allowed holding that the third Defendant has proved her possession in respect of the suit property and finding of the trial court granting a decree in hereabout is restored.
14. Hence, the cross objection is allowed. Consequently, connected Miscellaneous Petition is closed.
