IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A. No.642 of 1997 1. P.Munirathinam (Died) 2.M.Ponnamma 3.M.Mani 4.M.Palani 5.M.Thilagavalli (Appellants 2 to 4 were bring on record as L.Rs. of the deceased sole Appellant by order dated 14.07.2010 passed in CMP Nos.2000 to 2002/07) ... Appellants Vs. 1.R.Munisami 2.R.Natarajan 3.Venkatachalam 4.Govindasami 5.Jayaraman 6.Shanmugham 7.Nallathambi ... Respondents Prayer: Appeal filed under Section of 100 of C.P.C. against the Judgment and Decree made in A.S.No.36 of 1994 on the file of the Principal District Judge, Vellore, N.A.A. District dated 18.02.1997 confirming the Judgment and Decree made in O.S.No.86 of 1982 dated 15.04.1993 on the file of the District Munsif, Gudiyattam. For Appellants : Mr.K.A.Ravindran For Respondents : No Appearance for R1 and R2 Mr.R.Margabandhu for R3 to R7 J U D G M E N T
The First Appellant/Plaintiff (Deceased) while alive has projected this Second Appeal as against the Judgment and Decree dated 18.02.1997 in A.S.No.36 of 1994 on the file of the Principal District Judge, Vellore.
2. Subsequent to the death of the First Appellant/Plaintiff (Deceased), his Legal Representatives viz., Appellants 2 to 5 have been arrayed as Appellants in the Second Appeal.
3. The First Appellate Court viz., the Principal District Judge, Vellore in the Judgment in A.S.36 of 1994 dated 18.12.1997 has among other things observed that ‘…absolutely there is no evidence on the side of the Plaintiff to prove that the Defendants 1 and 2 were the absolute owners of the suit property and they had right to convey title to the suit property and has come to the conclusion that by means of Ex.A1 Sale Deed dated 24.05.1980, the Plaintiff does not derive any right to the suit property and therefore, he is not entitled for Declaration and Delivery of possession asked for and consequently, dismissed the suit, thereby confirming the Judgment and Decree passed by the trial Court in the suit.’
4. Earlier, before the trial Court in the suit as many as six issues and one additional issue have been framed for trial. On behalf of the First Appellant/Plaintiff (Deceased), witnesses P.Ws.1 to 3 have been examined and Exs.A1 to A11 have been marked. On the side of the Defendants, Witnesses D.Ws.1 and 2 have been examined and Exs.B1 to B6 have been marked.
5. The trial Court on an appreciation of oral and documentary evidence available on record has come to the conclusion that the First Appellant/Plaintiff (Deceased) has not established as to how the Defendants 1 and 2 have acquired title in the suit properties and dismissed the suit without costs.
6. At the time of admission of the Second Appeal, this Court has framed the following substantial questions of law:
“1. Whether the Courts below were right in dismissing the suit in its entirety more so when the fact that the First Defendant under whom the Plaintiff claims is a purchaser under Ex.A10?
2. Whether the Courts below are right in holding that the Plaintiff has not established the title of his vendors in view Ex.A10 and the claim of Benami and adverse possession as pleaded by the Defendants?”
CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINT:
7. According to the learned counsel for the Appellants, the Courts below have committed an error in dismissing the suit and in fact, both the Courts below ought to have held all the issues in favour of the Appellants.
8. It is the further contention on the side of the Appellants that as per Ex.A10, the First Appellant/Plaintiff’s (Deceased) Vendor has purchased the schedule mentioned properties along with one Dhandapani Goundar from one Muniya Goundar and others and this will show that the First Appellant/Plaintiff’s (Deceased) Vendor viz., the First Defendant has right and title to the suit property.
9. Expatiating his arguments, the Learned counsel for the Appellants submits that the First Appellant/Plaintiff’s (Deceased) Vendor viz., the First Defendant in the suit has dealt with the properties as per Exs.A7 to A9 and both the Courts have not relied upon Exs.A7 to A11 Documents and also not discussed about the said documents in the Judgment and this has resulted in the miscarriage of justice.
10. In short, the contention of the learned counsel for the Appellants is that the Appellants have perfect Title to the suit properties by means of an Adverse possession and in fact, both the Courts below on misconception of fact and Law have come to a wrong conclusion and therefore, prays for allowing the Second Appeal in the interest of justice.
11. Per contra, it is the contention of the Learned counsel for the Respondents 1 to 7 that both the Courts below have come to a right conclusion after scrutinising the available materials on record to the effect that the First Appellant/Plaintiff (Deceased) has not established the fact that as to how the Defendants 1 and 2 have got the properties and therefore, the dismissal of the suit by both the Courts below are valid and proper and this Court at this distance of time need not interfere with the same.
12.It is useful to refer to the plaint averments of the First Appellant/Plaintiff (Deceased). As a matter of fact, the First Appellant/Plaintiff (Deceased) (during his life time) has filed a suit praying for the relief of Declaration and his right, title and interest in the suit property and has also prayed for the Delivery of possession, reserving his rights for mesne profits enquiry.
13. In the Plaint, the First Appellant/Plaintiff (Deceased) has among other things averred that the Defendants 1 and 2 have got the plaint schedule property by means of Partition in family and possession and enjoyment of the same to the knowledge of other Defendants and since the First Appellant/Plaintiff (Deceased) happens to be the adjacent land owner has negotiated for the sale of the suit property and the Defendants 1 and 2 have sold the suit schedule property for a sum of Rs.5,000/- to him as per the Sale Deed dated 24.05.1980 thereto.
14. The stand of the First Appellant/Plaintiff (Deceased) is also to the effect that there has been a dispute in respect of the other lands of him when the Defendants have attempted to form a channel in S.No.103/6 and hence, due to misunderstanding, the Defendants who are close relatives have joined together and trespassed into the suit land on 25.12.1980 and has taken forcible possession of the property. Therefore, the First Appellant/Plaintiff (Deceased) has filed the suit for Declaration and possession and also for mesne profits.
15. Before the trial Court, the Defendants 1 and 2 have remained Exparte. The third Defendant in his Written Statement has among other things mentioned that himself and the Second Defendant and one Jayachandran are the sons of the First Defendant and that Jayachandran about 9 years ago died intestate leaving behind his Mother Maragadammal, his Wife Poongavanammal and his Daughter Priyammal. In fact, the First Defendant and the Fourth Defendant are the brothers and the Defendants 5 to 9 and one Narasihman are the sons of the Fourth Defendant. The Tenth Defendant is the son of the Fifth Defendant. The Sixth Defendant died on 30.01.1985, leaving behind his Mother, Wife and one Son and 5 Daughters as his Legal heirs. But it appears that before the trial Court, no steps have been taken by the First Appellant/Plaintiff (Deceased) to bring the L.Rs. of the Deceased Sixth Respondent.
16. The stand taken by the Third Defendant is that the suit properties are ancestral joint family properties of all the Defendants and indeed, there is no partition between them by metes and bounds and also, there is no partition between the Defendants 1, 2 and 3 and the aforesaid Jayachandran by metes and bounds. Further, it is the contention of the Third Defendant that the First Appellant/Plaintiff (Deceased) has purchased the suit properties only from the Defendants 1 and 2 and he has not executed a Sale Deed in favour of the First Appellant/Plaintiff (Deceased) and he does not know about the Sale Deed dated 24.05.1980.
17. The legal contention projected by the third Defendant is that the undivided share of Jayachandran after his death, as per Hindu Law devolves upon his Mother Maragadammal, his Wife Poongavanammal and his Daughter Prema Ammal and they have not joined along with the Defendants 1 and 2 while selling the suit properties and in the absence of the same, the First Appellant/Plaintiff (Deceased) cannot get a valid title of the entire suit properties as per the Sale Deed dated 24.05.1980 and at best, the First Appellant/Plaintiff (Deceased) can only claim title to a fractional portion of the share and therefore, the suit filed by him for Declaration and his title is not valid in the eye of law.
18. Continuing further, the third Defendant has also taken a defence that the First Appellant/Plaintiff (Deceased) ought to have filed a suit for partition and that has not been resorted by the First Appellant/Plaintiff (Deceased), then the present suit filed by him for the relief of Declaration and possession in respect of the suit property is unsustainable both in Law and on facts.
19. In the Written Statement of the Fifth Defendant adopted by the Defendants 4, 6 to 10, it is inter alia mentioned that the Defendants 1 and 2 have no manner of right and they have not been in possession of the suit properties and that the Sale Deed is not supported by valuable consideration. Also, the Defendants 4 to 10 have stated that the suit properties have been enjoyed by them and also by the Defendants 1 to 3 for over a statutory period of 12 years and also from the year 1952 onwards and therefore, the Defendants have acquired adverse possession in respect of the suit schedule properties.
20. It is to be noted that in Ex.A1 Sale Deed dated 24.05.1980 in favour of the Appellant/Plaintiff (Deceased) executed by the Deceased First Defendant and the Second Defendant, there is no reference as to how the Defendants 1 and 2 have acquired right in the suit property which they have sold to the First Appellant/Plaintiff (Deceased). Also, on the side of the First Appellant/Plaintiff (Deceased), Ex.A10 Sale Deed dated 17.09.1952 has been projected to show that the Defendants 1 to 4 have purchased the suit property from one Thindan alias Muniyan. A scrutiny of Ex.A10 Certified copy of the Sale Deed dated 17.09.1952 by this Court reveals that in the said Deed, there is no reference to the first item of the suit property viz., Survey No.150/9B-0-15 acres. Only the second item of the suit property viz., S.No.150/10B,0.25 cents alone is found. The S.No.150/9B/0.15 cents is ancestral property of the Fourth Defendant (Deceased). In this connection, it is not out of place for this Court to make a significant mention that when the Respondents/Defendants have taken a categorical plea in the Written Statement that the suit properties belonged to the joint family property viz., the first item of the suit property S.No.150/9 which has been allotted to the Fourth Defendant then it is not made clear as to how a joint family property can be sold by the means of a Sale Deed by the concerned person/Persons in favour of the First Appellant/Plaintiff (Deceased). The first and foremost when the First Appellant/Plaintiff (Deceased) claims declaratory relief in respect of the suit properties, it is for him to establish before this Court as to how the Defendants 1 and 2 have acquired right over the suit properties and in what manner they have arrayed the same to in favour of the First Appellant/Plaintiff (Deceased). Even if it is to be taken that the partition has taken place in the family of the Defendants and as such, the suit properties have been allotted to the share of the First Defendant and later, the Defendants 1, 2, 3 and Jayachandran have partitioned the same and in that partition, the suit properties have been allotted to the Second Defendant even this aspect has to be established by the First Appellant/Plaintiff (Deceased) or the Appellants/L.Rs. Of the First Appellant/Plaintiff (Deceased). To prove this fact, there is no evidence in the present case, as opined by this Court.
21. In the present case on behalf of the First Appellant/Plaintiff (Deceased), Exs.A2 to A4 Kist Receipts, Ex.A5 Chitta Copy dated 14.10.1985 have been filed before the trial Court. It is true that Ex.A5 Chitta stands in the name of the Second Defendant but in respect of the suit items 1 and 2. But in respect of the other properties, no document has been projected to prove that the properties stood in the name of the Deceased First Defendant and the Second Defendant. Though Ex.A5 Chitta stands in the name of the Second Defendant, it has been issued by the Deputy Thasildar, Gudiyattam on 14.10.1983 whereas the present suit has been filed earlier on the file of the District Munsif Court, Tiruppur as O.S.No.6/1981 and later, it has been transferred to the District Munsif Court, Gudiyattam.
22. Even Ex.A6/ Settlement Register which stands in the name of Manager of Sathiram Temple in respect of the properties bearing S.No.150/10B, 9B, the Deceased Defendants 1 and 2’s name have not been made mention of.
23. When the Respondents/Defendants have taken a plea of adverse possession and though they have projected Exs.B1 to B6, these documents are of little significance because of the simple fact that these documents have been projected after filing of the suit.
24. Though on the side of the First Appellant/Plaintiff (Deceased) before the trial Court, Exs.A7 to A9 Sale Deeds dated 05.10.81, 19.12.1977, 11.07.1980 have been projected, even in these documents, there is no indication either expressly or impliedly that the suit properties have come to the portion or share of the Defendants 1 and 2. At this juncture, it is useful to refer to the evidence of P.W3 wherein he has stated that the Defendants 1 and 2 have delivered possession of the properties to the Plaintiff on the date of sale and the Defendants 1 and 2 have enjoyed the suit properties for six months time and later, when the Defendants have come to separate a channel belonging to that of the First Appellant/Plaintiff (Deceased) which has been perfected by the Plaintiff and at that time, because of enmity, the Defendants 1 and 2 have trespassed into the suit properties and started creating trouble and in fact, Ganapathy and Ramasamy have purchased the property 40 years before and they have partitioned the property among themselves and in the partition, the sold out property has gone to the share of Ramasamy and till his life time, Ramasamy has been enjoying the property and thereafter his sons have partitioned the properties and Munusamy got the property of Munirethinam and that the suit properties belong only to the First Appellant/Plaintiff (Deceased).
25. Per contra, the Defendants on their side have examined D.W1 and has clearly stated that to his knowledge that the suit property has been enjoyed by the Fourth Respondent and after him, D.W1 is in enjoyment of the same and at any point of time, Defendants 1 to 3 have not enjoyed the suit properties.
26. Suffice it for this Court to point out that inasmuch as the First Appellant/Plaintiff (Deceased) has not proved to the satisfaction of this Court in a cogent, coherent and in a convincing manner as to how the Defendants 1 and 2 have acquired right and title over the suit properties and in what manner, they have sold the same to him then the only inevitable conclusion to be arrived at by this Court is that as per Ex.A1 Sale Deed dated 24.05.1980 the First Appellant/Plaintiff (Deceased) has not got any right over the suit properties.
27. Though the Defendants have taken a plea of Adverse possession and they have been in enjoyment of the suit property from the year 1952, etc., P.W.3 has in fact not made mention of the exact date on which the Defendants have trespassed into the suit properties and create problems. Consequently, it cannot be taken for granted or accepted that the Defendants have trespassed into the suit property on 25.12.1980 and have been in possession of the same. Further, it is not established by the Deceased Plaintiff that the Defendants have obstructed Plaintiff’s enjoyment of the suit properties by removing him and that they have been enjoying the properties. Also, the Defendants though they plead Adverse Possession in respect of suit properties to show the Fourth Defendant’s Possession have not filed any documentary evidence.
28. At this stage, the Learned counsel for the Appellants/Plaintiffs submits that the third Defendant in his Written Statement in paragraph No.4 has clearly spelt out that at best, the First Appellant/Plaintiff (Deceased) can claim title to the fraction of share in the suit properties and therefore, the present Appellants being the L.Rs. Of the First Appellant/Plaintiff (Deceased) may be given the liberty to file a suit for partition and this aspect of the matter may be considered by this Court.
29. It is true that the Third Defendant in his Written Statement has stated that at best, the First Appellant/Plaintiff (Deceased) can claim title to the fractional share. But this does not anyway mean that this Court can grant liberty to the Appellants to file a suit for partition, as a matter of routine. When a specific plea has been taken on behalf of the Respondents/Defendants that the First Appellant/Plaintiff (Deceased) has not derived valid title to the entire suit properties by means of Sale Deed dated 24.05.1980 then there is no impediment for the present Appellants as L.Rs. Of the First Appellant/Plaintiff (Deceased) to institute a suit for partition in the manner known to law if they are so advised and to that extent, no liberty from this Court is very much required, in the considered opinion of this Court.
30. Be that as it may, on an overall assessment of facts and circumstances of the case in an attendant fashion and also in a cumulative manner and also this Court considering the available oral and documentary evidence on record comes to an inevitable conclusion that the First Appellant/Plaintiff (Deceased) has not established in a convincing manner as to how the Defendants 1 and 2 have acquired the right and title in respect of the suit properties and therefore, he has failed to establish his right and interest over the suit properties and consequently, he is not entitled to get the declaratory relief, etc., and in short, both the Courts below have considered the entire gamut of the matter in a realistic and in a proper manner and that the dismissal of the suit is legally correct and further, the Deceased Plaintiff and subsequently the Appellants have
M.VENUGOPAL,J.
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not established the title of his or their vendors. In that view of the matter, the two substantial questions of law framed by this Court are answered against the Appellants and resultantly, the Second Appeal fails.
31. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. It is made clear that the dismissal of the Second Appeal will not preclude the Appellants to file a suit for
partition against the concerned, if they are so advised in the manner known to law and in accordance with law.
14.07.2010
Index :Yes/No
Internet:Yes/No
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To
1.The Principal District Judge, Vellore.
2.The District Munsif, Gudiyattam.
S.A.No.642 of 1997
08.07.2010