BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/11/2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.(MD)No.64 of 2006 and C.M.P.(MD)No.529 of 2006 1.N.Subbiah 2.N.Chellamal 3.N.Periakkal .. Appellants/Respdts./Defdts. Vs. 1.Mookan 2.SivaPerumal 3.Subbamal .. Respondents/Appllts./Pltffs. PRAYER This Second Appeal has been filed under Section 100 of CPC, against the decree and judgment passed in A.S.No.72 of 2005 on the file of the Additional Subordinate Judge, Dindigul dated 14.09.2005 reversing the Decree and Judgment passed in O.S.No.338 of 1991 on the file of the Additional District Munsif, Dindigul, dated, 13.11.1995. !For Appellants ... Mr.K.Balasubramanian, Advocate ^For Respondents... Mr.A.R.Sethupathy,Advocate :JUDGMENT
This appeal has been directed against the decree and judgment in
A.S.No.72 of 2005 on the file of the Additional Subordinate Judge, Dindigul,
which had arisen out of a judgment in O.S.No.338 of 1991 on the file of
Additional District Munsif, Dindigul.
2.The short facts of the plaint sans irrelevant particulars are as
follows:-
The plaint schedule property comprised in S.No.209 measuring 2 acres
80 out of total 6 acres 78 cents, originally belonged to one Karuppakudamban.
While he was alive, he had settled the said property in favour of his daughter
Nallammal and his son-in-law Thavasikudumban on 18.02.1947. Both the settlor
and settle are now no more. Nallammal’s daughter Karupayee had executed a sale
deed dated 20.09.1986 in respect of 2 acres only and in respect of balance of
80 cents, the said Karupayee had executed another sale deed dated 27.07.1988 in
favour of the 3rd plaintiff. So, the plaintiffs 1 to 3 are now in possession
and enjoyment of the entire plaint schedule property as per the sale deed dated
22.09.1986 and 27.07.1988 respectively. In respect of another 1 acre 18 cents
on the east of S.No.209, the said Karuppakudumban had executed another
settlement deed dated 13.02.1947 in favour of Azhagammal, the mother of
plaintiffs 1 and 2. The plaintiffs 1 and 2 are in possession and enjoyment of
the said property, which is comprised in S.No.209/2. The balance of 2 acres 80
cents in S.No.209 was settled in favour of Palaniammal, the other daughter of
Karuppakudumban, who is the mother of the first defendant. The defendant is in
possession and enjoyment of the said 2 acres and 80 cents originally S.No.209
was assigned in favour of Karuppakudumban in respect of the plaint schedule
property. After the plaintiffs obtained the sale deed in respect of the plaint
schedule property, Patta No.546 was assigned. A joint patta No.1612 was also
assigned in favour of the second defendant. The plaintiff was paying the land
tax to the plaint schedule property. S.No.209 has subsequently made sub-divided
as 209/1 and 209/2. 2 acres 80 cents in the southern potion of S.No.209/1
belongs to the plaintiffs and the northern 2 acres 80 cents in S.No.209/2
belongs to the defendants. The southern two acres 80 cents in the plaint
schedule survey number property except the plaintiffs, no one have any right or
title or possession over the same. The defendants are attempted to tress-pass
into the plaint schedule property from 28.02.1991 alleging that the plaintiffs
have no right or title in respect of the plaint schedule property. Hence, the
suit for declaration and for consequential injunction.
3.The second defendant has adopted the written statement filed by
the first defendant, which runs as follows:-
The suit is vexatious one. The plaint has not disclosed how the
plaint schedule property devolved on Karuppakudumban. Apart from Nallammal,
Karuppakudumban had daughter by name Silampayee, Sittupillai and Palaniammal.
The allegation that Karuppakudumban had executed a settlement in favour of his
daughter Nallammal on 13.02.1947 is false. The said settlement was executed in
favour of Nallammal and her husband Thavasikudumban. The said settlement did
not come into force. The alleged daughter of Karupayee of Thavasikudumban and
Nallammal was never in possession and enjoyment of the plaint schedule property.
Nallammal had eloped with one Karuppiah of Dindigul and Karuppayee was born to
the said Karuppiah and Nallammal. So, Karuppayee is not the daughter of
Thavasikudumban and Nallammal. Karupayee, when she was 16 years of age, had
illicit intimacy with one Kathan of Kurumbapatti and then lived together as
husband and wife at Dindigul. Thereafter, Karuppayee had developed intimacy with
one Sangan and she had married him and lead a married life with him at Natham.
For the past 27 years Karuppayee is residing at Natham with one Sangan. So,
Karuppayee had no right or title in respect of the plaint schedule property. So
the sale deed alleged to have been executed by Karuppayee in favour of the
plaintiffs are not maintainable. When Karuppayee began to live with Kathan,
Nallammal came and lived with Karupayee’s father. At that time, Thavasi and
Nallammal adopted Nallu/the 1st defendant on 05.11.1965 as their adopted son.
The suit property and other properties of Karuppakudamban was being enjoyed by
Nallu as the grand son through their daughter. Now patta has been assigned in
the name of the second defendant also in respect of the suit property. The
alleged settlement deed in favour of Nallammal and Thavasikudumban was not acted
upon. So, the sale deed executed by Thavasikudumban’s daughter viz., Karuppayee
in favour of the plaintiffs are non-est in law. The defendants have prescribed
title by way of long, continuous and uninterrupted possession of the plaint
schedule property over a statutory period. The patta issued in favour of the
plaintiffs are not valid under law. This defendant is in possession of entire
2.33.0 hectares of land in S.No.209/1. The plaintiffs have no cause of action
to file the suit. Hence, the suit is liable to be dismissed. The learned trial
Judge on the basis of the above pleadings had framed four issues for trial.
4.Before the trial Court P.Ws 1 and 2 were examined. Exs.A1 to 18
were marked and on the side of the defendants D.Ws.1 to D.W.3 were examined and
Exs.B1 to B8 were marked.
5.After scanning the evidence both oral and documentary, the learned
trial Judge has come to a conclusion that the plaintiff has not entitled to any
relief under the plaint, had dismissed the suit. Aggrieved by the finding of
the learned trial Judge, the plaintiffs preferred A.S.No.72 of 2005 before the
learned Additional Subordinate Judge, Dindigul, before whom Exs.A.19 to A.21 and
Exs.B.9 and B.10 were marked in the first Appeal. The learned First Appellate
Judge after giving due consideration to the submissions of the learned counsel
on both sides and also after considering the additional documents produced
before her, had allowed the appeal thereby setting aside the judgment and decree
of the learned trial Judge, which necessitated the defendants to approach this
Court by way of this Second Appeal.
6.The following substantial questions of law are formulated by this
Court:-
“(1) Whether in a suit for declaration and injunction the First
Appellate Court was right in casting the burden of proof on the defendants when
the trial court had found that plaintiffs failed to prove their vendor’s title?
(ii) Whether the recitals in unilateral and inadmissible documents can be
relied on for the purpose of conclusively establishing relationships when the
person connected with the documents was not examined before the trial court and
the trial court has drawn adverse inference?
(iii) Whether the non-examination of the plaintiffs’ vendor is fatal
especially when the defendants have pleaded that the vendor had no title or
possession of the suit property?
(iv) Whether the First Appellate Court’s decision ignoring the specific
admissions in oral evidence by P.W.1 and P.W.2 and statement of D.W.2 is
perverse and unsustainable in Law?
(v) Are not the revenue records viz., patta, chitta, adangal and kist
receipts conclusive proof of possession and enjoyment of the property?
(vi)Whether the First Appellate Court was correct in rejecting the case of
the defendants while there was sufficient evidence to show the long, open and
uninterrupted possession for 40 long years by the defendants by which perfected
title in the suit property by adverse possession?”
7.The substantial questions are recast as follows:-
1. Whether the vendor under Ex.A3 and A4 had valid title in respect of the
properties conveyed under them in favour of the plaintiffs 1 to 3?
2.Whether the defendants have prescribed title to the plaint schedule
property by way of their long, uninterrupted continuous possession for over the
statutory period?
8.Substantial Question of Law No.1:-
Even though there is a pleading in the written statement of the
defendants that Karuppayee is not the daughter of Nallammal and Thavasikudumban,
who derived his title in respect of the plaint schedule property under Ex.A1
settlement deed dated 13.02.1947. Under Ex.A1, Karuppakudumban had settled 2
acres 80 cents out of 6 acres 78 cents in S.No.209, which is the subject matter
of this suit along with the other properties in other survey numbers, in favour
of his daughter Nallammal and his son-in-law Thavasikudumban. Both P.W.1 and
P.W.2, who is well aware about the family of the vendor of the plaintiffs have
deposed that the vendor of the plaintiffs and before her, her mother Nallammal
were in possession and enjoyment of the plaint schedule property from the date
of Ex.A1. P.W.2, in the cross-examination has deposed that Karuppayee is the
daughter of Nallammal and Thavasikudumban, the settlor under Ex.A1. Against
this evidence D.W.2 was examined on the side of the defendant to show that
Karuppayee, the vendor under Ex.A3 and Ex.A4 is not the daughter of Nallammal
and Thavasikudumban. D.W.2 would depose that Nallammal and Thavasikudumban had
adopted the first defendant as their son, who had performed last rites for
Karuppakudumban. If Karuppayee, the vendor under Exs.A3 and A4 had no right or
title in respect of the plaint schedule survey number property, there is no
necessity for the 1st defendant to join her also under Ex.A18 mortgage deed and
Ex.A19 sale deed, which were executed by the first defendant. Ex.A.18 was
executed by the first defendant on behalf of his minor son Subbiah (who is D-2)
and also Karuppayee on behalf of her minor children Peria Pandiammal,
Chellapandian and Chinnapandiammal in respect of two acres of land in S.No.209
out of 6 acres 78 cents. Ex.A.19 is the sale deed executed in favour of one
Palaniammal by Karuppayee and also by the first defendant in respect of 72 cents
in S.No.362/5. Ex.A18 was executed in the year 1983 and Exs.A19 is of the year
1987. The suit was filed in the year 1991. So, the contention of the defendant
that Karuppayee is alien and she is not the daughter of Thavasikudumban and
Nallammal and that she has no right or title in respect of the plaint schedule
property falls to the ground, as rightly held by the learned First Appellate
Judge. The property conveyed under Ex.A1 in favour of Nallammal,
Thavasikudumban, the parents of Karuppayee had been conveyed under Ex.A3 in
favour of the first and second plaintiffs (2 acre) and under Ex.A4 (remaining 80
cents) to 3rd plaintiff. So, the substantial questions of Law No.1 is answered
accordingly.
9.Substantial Question of Law No.2:-
Once the defendant claims that he has prescribed adverse possession
in respect of the plaint schedule property that will amount to an admission as
to the fact that the said Karuppayee was the owner of the plaint schedule
property. To show that the defendants have prescribed title by way of adverse
possession, they have produced Exs.B3 and B9 tax receipts. But in B7 tax
receipts, there is no survey number is mentioned. Under Ex.B7 series tax
receipts only patta Nos.229 and 546 are mentioned. Ex.A7 is relating to the
year 1973, 1974, 1976. After some years there is no tax receipts produced by
D1. The tax receipts produced by D2 is relating to patta No.546 for the year
1988, 1989 and 1991 whereas, Exs.A18 and A19 documents have been executed in
the year 1983 and 1987. Under such circumstances, as rightly held by the
learned First Appellate Judge, there is absolutely no material to derive us to
arrive at a conclusion that the defendants have prescribed title to the plaint
schedule property by way of adverse possession. According to P.W.1, since the
defendants have made an attempt to interfere with the possession of the
plaintiffs in respect of the plaint schedule property, they have come forward
with the suit on the basis of Exs.A3 and A4, sale deeds. The plaintiffs also
admit that the defendants are in possession and enjoyment of another 2 acres and
80 cents south of the plaint schedule property. The defendants have failed to
prove that they have prescribed title by way of adverse possession to the plaint
schedule property. Substantial Question of Law No.2 is answered accordingly.
10.In fine, the appeal fails and the same is hereby dismissed
confirming the judgment and decree of the learned first appellate Judge in
A.S.No.72 of 2005 on the file of Court of Additional Subordinate Judge,
Dindigul. No costs. Consequently, connected miscellaneous petition is closed.
Mpk
To,
1. The Additional Subordinate,
Dindigul
2. The Additional District Munsif
Dindigul.