BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/12/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.458 of 1996 and C.M.P.(MD).No.21448 of 2003 Rengan ... Appellant Vs. 1.Veerappan 2.Pichai ... Respondents Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree of the Subordinate Judge, Kulithalai made in A.S.No.15 of 1995 dated 31.08.1995 confirming the judgment and decree of the District Munsif, Kulithalai made in O.S.No.414 of 1988 dated 31.10.1989. !For Appellant ... Mr.T.Srinivasaraghavan ^For Respondents ... Mr.K.Govindarajan for M/s.Sarvabhauman Associates :JUDGMENT
This second appeal is directed against the judgment and decree dated
31.08.1995 made in A.S.No.15 of 1995 by the Subordinate Judge, Kulithalai,
wherein and whereunder the judgment and decree of the trial Court, namely the
Court of the District Munsif, Kulithalai dated 31.10.1989 made in O.S.No.414 of
1988 were confirmed.
2. The sole defendant in the original suit O.S.No.414 of 1988 on the file
of the trial Court is the appellant in the second appeal. The respondents
herein, by name Veerappan and Pitchai had filed the original suit O.S.No.414 of
1988 on the file of the Court of District Munsif, Kulithalai for declaration of
their title in respect of 0.70.0 hectares of land comprised in Survey No.274/8B
and 0.34.0 hectares of land comprised in Survey No.198/3A in Pannapatti Village,
Kulithalai Taluk shown as items 1 and 2 of the suit properties. They had also
prayed for a perpetual injunction against the appellant herein who is their
maternal uncle.
3. According to the plaint averments, the suit properties originally
belonged to the father of the respondents/plaintiffs and after his death, the
respondents/plaintiffs got the same as the legal heirs of their father. They had
also contended that the suit properties were in their possession and enjoyment
and that in any event, they had perfected title by adverse possession.
4. The suit was resisted by the appellant herein/defendant by denying the
plaint averments. Besides denying the plaint averments, the appellant/defendant
had also contended that the suit properties belonged to his father (father of
the appellant/defendant) and after his death, they devolved upon the
appellant/defendant and that it was he who was in possession and enjoyment of
the suit properties as on the date of filing of the suit.
5. The trial Court framed necessary issues and conducted trial in which
P.W.1 was examined and Exs.A.1 to A.20 were marked on the side of the
plaintiffs, whereas D.Ws.1 and 2 were examined and Exs.B.1 and B.2 were marked
on the side of the appellant/defendant. The trial Court, after evaluating the
evidence adduced on either side in the light of the arguments advanced by the
learned counsel appearing for both parties, held that the respondents/plaintiffs
had proved their title and possession and consequently decreed the suit in
respect of both the reliefs by its judgment and decree dated 31.10.1989. On
appeal, the judgemnt and decree of the trial Court were confirmed by the learned
Subordinate Judge, Kulithalai by its judgment and decree dated 31.08.1995 made
in A.S.No.15 of 1995.
6. The Court heard the submissions made by Mr.T.Srinivasaraghavan, learned
counsel appearing for the appellant and also by Mr.K.Govindarajan, for
M/s.Sarvabhauman Associates, learned counsel appearing for the respondents and
perused the materials available on record.
7. The sole defendant in the original suit, who proved to be unsuccessful
before both the Courts below, is the appellant in the second appeal. As against
the concurrent judgments of the Courts below, the appellant has brought forth
this second appeal. The respondents herein as plaintiffs have traced their title
to their father Karuppan Chettiar. According to them, the suit properties
originally belonged to their father Karuppan Chettiar and after his death, they
succeeded to the same. In respect of their claim, they have relied on the
following documents:
(i) Ex.A.1-patta pass book issued in the name of Karuppan Chettiar, the
father of the respondents/plaintiffs;
(ii) Ex.A.14-UDR patta issued in the name of the respondents/plaintiffs in
respect of the first item of suit properties;
(iii) Ex.A.15-UDR patta issued in the name of the first respondent/first
plaintiff in respect of the second item of suit properties; and
(iv) Exs.A.2 to A.13 and A.16 to A.18- kist receipts in the name of the
first respondent/first plaintiff. The first plaintiff figured as P.W.1 and
deposed in conformity with the plaint averments. On the other hand, the
appellant/defendant examined himself and one Lakshmanan as D.Ws.1 and 2 and
marked the certified copy of the sale deed dated 12.05.1950 executed by
Velayutham Chettiar in favour of one Pitchai Chettiar, S/o.Nallappa Chettiar as
Ex.B.1, in an attempt to show that the first item of the suit properties was
purchased by his father.
8. Admittedly, the plaintiffs’ father Karuppan Chettiar and the above said
Velayutham Chettiar, the vendor under Ex.B.1, were brothers. It is the
consistent case of the respondents/plaintiffs that the ancestral family
properties were divided between Karuppan Chettiar and Velayutham Chettiar and
the suit properties were allotted to Karuppan Chettiar in the said partition.
The appellant/defendant also contends that there was a partition between
Karuppan Chettiar and his brother Velayutham Chettiar. But according to him, the
first item of suit properties fell to the share of Velayutham Chettiar. The
Courts below, after verifying the description of property found in Ex.B.1, came
to the conclusion that the said deed did not relate to the first item of suit
properties. The reasons are:-
(1) boundaries do not tally; and
(ii) the property has been described to be one purchased by Velayutham
Chettiar in 1945.
Of course, the parent deed was not purchased and the same was commented
upon by the trial Court. In spite of the same, the appellant/defendant did not
choose to take steps to seek the permission of the lower appellate Court to
produce the same as additional evidence. On the other hand, the
appellant/defendant has come forward with such an application in the second
appeal belatedly and the same has been numbered as C.M.P.No.21448 of 2003. This
Court is of the opinion that the same cannot be allowed for the following
reasons:
(1) the petition has been filed belatedly; and
(2) the production of the same will not in any way improve the case of the
appellant/defendant.
9. The Courts below have concurrently held that Ex.B.1 does not relate to
the first item of suit properties. Hence the production of the parent deed of
Ex.B.1 will not in any way either improve the case of the appellant/defendant or
be helpful to the appellant/defendant in any manner. The above said concurrent
findings of the Courts below are based on proper reasons and the same cannot be
termed perverse. The production of the parent deed will not make such a finding
either defective or infirm much less perverse. Therefore, this Court is of the
considered view that C.M.P.No.21448 of 2003 deserves to be dismissed.
10. The only question that was framed at the time of admission of the
second appeal runs as follows:
“Whether the Courts below erred in holding that the appellant has not
produced any document of title when the appellant has produced Ex.B.1-the sale
deed in favour of the appellant’s father?”
11. It has not been proved to the satisfaction of the Court on behalf of
the appellant that the second appeal involves any other substantial question of
law except the one framed at the time of admission. After considering the
submissions made by the learned counsel appearing on either side, this Court is
of the considered view that the above said substantial question of law framed at
the time of admission has got to be answered against the appellant/defendant. As
pointed out supra, the concurrent findings of the Courts below that Ex.B.1 does
not relate to the first item of suit properties cannot be interfered with in the
second appeal, as the same has not been proved to be perverse. Further more,
though the appellant/defendant has chosen to deny the title and possession of
the plaintiffs in respect of both the items of suit properties in his reply
notice marked as Ex.A.20 and in his written statement, surprisingly during trial
he has admitted the title and possession of the plaintiffs in respect of the
second item of suit properties and confined his contest to the first item of
suit properties alone. The evidence of D.W.2 has also been held to be
unbelievable by both the Courts below assigning valid and cogent reasons. The
Courts below have come to the conclusion that Ex.B.1 does not relate to the
first item of suit properties. As a necessary corollary, the Courts below have
also held that there is no other document to prove the title of the
appellant/defendant, except Ex.B.2-letter sent by the Special Tahsildar to the
appellant/defendant, advising that he could approach the Tahsildar, Kulithalai
for necessary relief in connection with his application dated 06.08.1985 for
grant of patta which is not enough to prove the alleged title to the first item
of suit properties. The said findings of the Courts below cannot be assailed.
12. For all the reasons stated above, this Court comes to the conclusion
that there is no merit in the second appeal and the same deserves to be
dismissed.
13. Accordingly, the Second Appeal is dismissed. However, there shall be
no order as to payment of costs. Consequently, connected M.P.No.21448 of 2003 is
also dismissed.
SML
To
1.The Subordinate Judge,
Kulithalai.
2.The District Munsif,
Kulithalai.