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Karuppusamy vs Muniappa Kudumban on 24 November, 1997

Madras High Court
Karuppusamy vs Muniappa Kudumban on 24 November, 1997
Equivalent citations: 1997 (3) CTC 522
Author: S A Wahab
Bench: S A Wahab


ORDER

S.M. Abdul Wahab, J.

1. The plaintiff is the appellant in the second appeal.

2. The suit is for declaration and injunction. The case of the plaintiff is that the land originally belonged to one Kariveeran Chettiyar. He had two daughters by name Veerammal and Kalyani and a son by name Veerappa Chettiar. In an oral partition the suit property was allotted to the daughters. On 16.6.1944 they sold the suit property to their brother Veerappa Chettiar. The Patta Number of the property is No. 10 and Survey Number is 61, measuring 65 and 1/2 cents. Again on 29.10.46 Veerappa Chettiar sold the property to his sisters Veerammal and Kalyani. On 3.55.1948 they in turn sold the property to plaintiff. On 15.7.48 the plaintiff has redeemed the property.

3. As per Act 30 of 1963 the entire village which has an inam was taken over by Government. The new Survey Number was given as 63/8 for 65 cents. The New Patta Number is 140 and it has been given to the plaintiff. Further under the up-dating scheme the New Survey Number is 63/81 for the Survey Number is 66/1. Thus the plaintiff and his predecessors have been in possession from 1948 to 1982, While so the defendant interfered with the plaintiffs possession on 23.7.83 On 24.7.83 he trespassed and ploughed the land. Hence the suit.

4. The defence was that the property originally belonged to Chinna Velambur Chettiyar. After him his sons Shanmugam Chettiyar and Kumaran Chettiyar inherited the same. After Shanmugam Chettiar his wife Vellichi Ammal / @ Muthammal and the wives of the other brother Veerammal and Kalyani Ammal partitioned the suit property into two halves. Vellichi Ammal got half while the other two got the other half. On 19.9.88 Under a settlement Vellichi/ @ Muthammal settled the half i.e. 32 1/2 cents in favour of Mallammal and Alagirisamy. Again on 30.11.44 Mallammal and Alagirisamy sold the half share to Poochiammal i.e. plaintiff’s mother. The property purchased by the plaintiffs mother is item 2 of the suit property. After Poochiammal the plaintiff enjoyed the half of the suit property. The defendant has denied the other allegations in the plaint. According to the defendant the plaintiff is entitled to only half share in the suit property.

5. The trial court after considering the evidence found that the plaintiff is not entitled to the entire suit property, and he was entitled to the other half of it. Therefore it declared his title to that extent and also injunction in his favour.

6. On appeal the Appellate Court confirmed the finding of the trial court hence dismissed the appeal. The learned Counsel for the appellant raised two contentions. One is that under the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act 30 of 1963 the entire village became vested with the Government and after the Ryotwari patta was granted to the defendant under the settlement proceedings he alone is the owner of the entire extent. Secondly he contended that the lower courts have not considered the documents produced by the plaintiff, i.e. Exhibits A1 to A3 and A10 to A17 and A19 which go the root of the case and therefore this Court should interfere. As far as the first contention is concerned it is the substance of the substantial question of law framed by this court at the time of admission.

7. In support of the first contention the learned counsel for the appellant relied upon (i) Vanathan Muthuraja, S. v. Ramalingam alias Krishnamurthy Gurukkal, and (ii) R. Manicka Naicker v. M. Elumalai and Ors.,

The first case does not helpful to the appellant. This is evident from the observation of the Apex Court at the end of the said judgment in the following terms:

“The Act provides for the jurisdiction on the Tribunals in matters relating thereto and hierarchy of appeals/ revisions arc provided thereunder. Thereby, by necessary implication, the jurisdiction of the civil court to take cognizance of the suits of civil nature covered under the land reform laws stand excluded giving not only the finality to the decisions of the Tribunal but also ensuring disposal of the matters by the Tribunal and making the Ryotwari patta granted to the tiller of the soil conclusive.”

We are not concerned here with the dispute as regards to the patta granted to the appellant under the Act. Here we are concerned with the title of the individuals to the property in dispute. Such a matter which are not under the exclusive jurisdiction of the Tribunals created under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 30 of 1963 have to be decided by the Civil Court only. This is the law laid down by the Apex Court in R. Manicka Naicker v. M. Elumalai and Ors., . The Apex Court has considered the scope and the jurisdiction of the Tribunals and the Civil Court in the judgment. In paragraph 16 they have held as follows:

“Therefore, there is no question of ouster of the jurisdiction of the Civil Court in respect of matters falling within its jurisdiction and which are outside the purview of the said Act. Section 46 also provides for finality only in respect of the decisions of the Tribunal in respect of matters which are required to be determined by it for the purposes of the said Act. The jurisdiction of the Civil Court, therefore, to determine title to the lands in question or to determine whether the lessor has a right to evict the lessee from the lands in question is not ousted in any manner by the said Act.”

Therefore the first contention of the counsel for the appellant does not hold good.

8. As regards the second contention that the courts below have not considered the documents produced by the appellants is concerned in my view this contention also is not correct. The courts have considered Exhibits A 1 to A 3. As regards Exhibits A 1 to A 3 the lower Appellate Court has stated that even though Veerammal and Kalyani Ammal conveyed the entire property, they had only the half share in the property because under Ex.B1 on 30.11.44 half of the suit property has been conveyed to Poochiyammal and she was enjoying the same during her life time and after her the respondent is enjoying it. The courts below have found that originally property belonged to Chinna Velambur Chettiar and after him his sons Shanmuga Chettiar and Kumarasa Chettiar inherited the entire property. After the death of Kumarasa Chettiar his wives Veerammal and Kalyani Ammal inherited half share and they have conveyed only half share. They also found that after the death of Shanmugam Chettiar his half share fell to the share of his wife Vellichiyammal @ Muthammal. Vellichiyammal had conveyed her half share to MAllammal and Alagirisamy by gifting the property, Mallammal and Alagirisamy conveyed the property to Poochiyammal.

9. Both the courts have found that Exhibits A-1 to A-3 could have conveyed only half share and the said half share obtained by the plaintiff was enjoyed by him and the share purchased and enjoyed by the plaintiff is the eastern half of the suit property. They have also found that the western half which was gifted by Vellichiyammal and conveyed to Mallammal and Alagirisamy and was finally sold to defendant under Ex. B-2. They have also found that the case of the plaintiff that the property originally belonged to Kariveeran Chettiar and after his death the entire suit property fell to the share of Veerammal and Kalyani Ammal as his daughters and thereafter they conveyed it to their brother Veerappa Chettiar under Ex. A-1 is unacceptable. When there is a brother Veerappa Chettiar the sisters could not alone inherit the property of Kariveeran Chettiar under Ex. A-1.

10. They have discussed the circumstances and also the evidence of D.W-2 the daughter of Mallammal who got the half share of the suit property after Vellichiyammal @ Muthammal under Ex. B1 gift deed.

11. Here we must also notice the contention of the counsel for the appellant. The learned counsel contended that Vellichiyammal @ Muthammal gifted under Ex. B1 half share to Mallammal and Alagirisamy. After the death of Shanmugam Chettiar she would not have inherited the half share of Shanmugam Chettiar absolutely in 1933 because as per the law then prevailing the wife was only entitled for maintenance and life in trust. The same argument can be advanced when we come to Ex. A-1 Veerammal and Kalyani Ammal as the daughters of Kariveeran Chettiar has chosen to sell the entire property to Veerappa Chettiar their brother. From their father they would not have inherited the suit property absolutely. But they have conveyed the entire property to Veerappa Chettiar under Ex. A1 in 1944. If A-1 is valid then Ex. B-1 also could be assumed to be valid.

12. The lower appellate court has found that though Vellichiyammal @ Muthammal and Veerammal and Kalyani Ammal were entitled to half share from their respective husbands they have treated their inheritance as absolute property and they have dealt with them also in the same manner. This is not only supported by Ex. B-1 and B-2 but also by Ex. A-1 to some extent. The oral evidence of D W 2 supports this case. When we come to the other documents produced by the plaintiff/appellant Ex. A-4 is not relevant. It is only a mortgage deed. A-5 is an extract from Service Register. Ex A-6, A-7 , A-10 to A-15 are kist receipts. Ex. A-l8 is relating to settlement proceeding. Exs A-20 to A-23 are relating to payment of kist. As we have seen the settlement proceeding and the grant of patta in favour of the plaintiff cannot be taken to mean that his title has been confirmed on him ignoring the claims of the defendant. The judgment referred to above namely R. Manicka Naicker v. M. Elumalai and Ors., is categoric on this aspect. That apart when the defendant came to know about the patta issued to the plaintiff under Ex.B4 objection has been sent to the Tahsildar. Ex. B-5 is the acknowledgment from the Tahsildar. It is dated 21.10.83. U D R Patta, some other documents (Ex. A-8) and kist receipts are after the suit.

13. The courts below have considered the Commissioner’s report and the sketch. The Commissioner has found that the suit property is being enjoyed separately by the plaintiff and the defendant. The defendant is enjoying the western portion while the plaintiff is enjoying eastern portion. The commissioner has also found that the possession and enjoyment by the defendant and the plaintiff of the respective portions has been for several years. Regarding the condition of the suit property the Commissioner has found as follows:

In paragraph 3 of the Commissioner’s report it is stated as follows:

“The suit property is having an total area of 65 1/2 cents. There is a Survey Stone at the south Western corner of Survey No. 63/8. There is also another Survey Stone at the South Eastern side, just at the middle of the suit property. There is also another Survey Stone at the South Eastern end of the suit property. All the above Survey Stones were admitted by both the parties.”

In the sketch Ex. C-2 the Commissioner has shown the survey stone in the middle and another survey stone on the western end. He has also indicated that the western property is completely having Thorney fence on all four sides. From this it is clear that the suit property has been in enjoyment separately after being divided into two halfs. The defendant has not challenged the claim of the plaintiff with reference to eastern half. On the other hand the plaintiff claims the western half also. His original documents Exs. A-1 to A-3 are of the year 1944, 1946 and 1948. But the defendant’s exhibits B-1 and B-2 are of the year 1933 and 1944. From the evidence and documents it is clear that the suit property belonged to chinnavelambur Chettiar and after him his sons Shanmugam Chettiar and Kumaran Chettiar inherited it. Their wives took the shares from the their husbands had half and half. They got their respective half shares and dealt with the half shares separately. Though the second branch i.e. wife of Kumaran Chettiar purported to have dealt with the entire suit property the title for the entire property is not proved by an acceptable evidence. In short as the case of the defendant is preferable and believable to the case of the plaintiff. Therefore in my view both the courts have rightly and concurrently found that the plaintiff was entitled to only half share i.e. eastern portion of the suit property. Hence the Second Appeal has to be dismissed. Accordingly the second appeal is dismissed. No costs.

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