BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/10/2006 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN Second Appeal No.145 of 2006 and C.M.P.No.1072 of 2006 S.Rajendran ... Appellant Vs. S.Ramachandran (died) 1. Ramasamy Gounder 2. R.Saraswathi 3. R.Sethuraman 4. R.Perumalsami 5. R.Murugesan 6. E.Umarani ... Respondents (R2 to R6 are impleaded as LR's of S.Ramachandran vide C.M.P.No.8343 of 2005, dated 16.12.2005 Second Appeal is filed against the Judgment and Decree, dated 19.10.2004 and made in A.S.No.55 of 2003 on the file of the Principal District Judge, Srivilliputhur, reversing the Judgment and Decree, dated 11.04.2003 made in O.S.No.452 of 2000 on the file of the District Munsif, Srivilliputhur. !For Appellant ... Mr. A.R.M.Ramesh ^For Respondents ... Mr.V.Jeyaraj for M/s. A.Sivaji :JUDGMENT
This Second Appeal is directed against the Judgment and Decree, dated
19.10.2004, made in A.S.No.55/2003 on the file of the Principal District Judge,
Srivilliputhur, reversing the Judgment and Decree, dated 11.04.2003 passed in
O.S.No.452/2000 on the file of the Principal District Munsif, Srivilliputhur.
2. The brief facts of the case are as follows :
(a) The appellant herein is the defendant in the suit. The suit
pertaining to the Second Appeal was filed for declaration of title and
consequential permanent injunction against the appellant / defendant in respect
of the suit well. As per the plaint schedule, the suit property is an irrigation
well in S.No.1092/1, measuring about 1 . cents in the total extent of 1 acre 21
cents, along with the motor pumpsets and irrigation infrastructure in Vathirappu
Village, Veerasamudrapuram hamlet, Virudunagar District.
(b) The first respondent herein is the second plaintiff and the
respondents 2 and 6 are the legal representatives of the deceased first
plaintiff. According to the plaintiffs, the suit property and the land in
S.No.1092/1 to an extent of 1 acre 21 cents were originally belonged to one
Palaniandi Pillai. He had three sons by name Ramaiya Pillai, Venkatachala Pillai
and Krishna Pillai. Krishna Pillai died issueless. Hence, after the demise of
Palaniandi Pillai, his sons Ramaiya Pillai and Venkatachala Pillai partitioned
the property, by way of a registered partition deed in the year 1938. As per the
partition, Venkatachala Pillai got 63 cents and half right in the suit well and
Ramaiya Pillai got 58 cents and half right in the suit well and both enjoyed the
suit well jointly. The said Ramaiya Pillai had three sons, namely 1. Madasamy
Pillai, 2. Perumal Pillai and 3. Sundaram Pillai. They enjoyed the property
without any partition.
(c) The deceased first plaintiff Ramachandran purchased the said 58
cents and right of half share in the suit well, under Exs.A1 to A3. Similarly,
the first plaintiff purchased the remaining 63 cents of land in S.No.1092/1 from
the legal heirs of Venkatachalam Pillai on 28.06.1966 under Ex.A.4. Thus the
first plaintiff purchased the entire land of 1 acre 21 cents with absolute right
in the suit well. On 27.07.2000, under Ex.A.12, the first plaintiff sold 59
cents of land, out of the said 1 acre 21 cents and th right in the well to the
second plaintiff, and as such on the date of filing of the suit, the first
plaintiff was entitled to “th right and the second plaintiff was entitled to th
right in the suit well.
3. According to the plaintiffs, the appellant / defendant had no right in
the suit well, as he had attempted to interfere with the enjoyment of the well
by installing oil engine in the suit well, so as to irrigate his lands on the
North, on 20.10.2000, the plaintiffs filed the suit for declaration of title and
also for consequential injunction restraining the appellant / defendant from
installing oil engine for pumping water from the suit well in order to irrigate
his lands on the North.
4. The case of the appellant / defendant is that the first plaintiff, his
maternal uncle, who had purchased only an extent of 1 acre 21 cents in
S.No.1092/1 along with 2/3rd share in the suit well. According to him, on the
North of the suit property, 61 cents of land in S.No.1092/4, was originally
belonged to one Sundara Mahalingam Asari and Venkatesa Iyer, each were entitled
to 30 . cents of land. Under Ex.B.15, dated 20.07.1942, the said Sundara
Mahalingam Achari executed a sale deed in favour of one Muthiah Konar and
Subbiah Konar. The registered copy of the same has been marked as Ex.A.13. As
per Ex.B.14, sale deed, dated 04.09.1944, one Muthammal was entitled to the said
land and the remaining 30. cents belong to Venkatesa Iyer, who executed the sale
deed in favour of Pommiah Gounder on 14.09.1983. As per the original of Ex.A.16,
dated 14.09.1953, the defendants father Sankara Narayanan purchased 30 . cents
through the said Muthammal on 04.08.1968 under Ex.B.10. Similarly, Appellant’s
mother, Ramu Ammal purchased 30 . cents from Pommiah Gounder under the sale
deed, Ex.B.3, dated 09.08.1956. The copy of the same has been marked as Ex.A.17.
As per the aforesaid documents, the defendant’s father and mother had purchased
the entire 61 cents in S.No.1092/4 with 1/3 rd irrigation right in the suit
well. The appellant / defendant by his written statement has sought declaration
of title in respect of his 1/3rd right in the suit well and consequential
injunction against the plaintiffs, not to interfere with his right of irrigating
his lands by using oil engine pumpset from the suit well, for which he paid
necessary court fee, under Court Fees Act.
5. In support of his contention, the first plaintiff has examined himself
as P.W.1, apart from examing P.W.2. On the side of the plaintiffs, Exs.A1 to A15
were marked. The defendant was examined as D.W.1, apart from marking Exs.B.1 to
B.17 on his side. The trial court after considering the oral and documentary
evidence and arguments advanced by both sides, declared that the plaintiffs are
entitled to only a 2/3rd share in the suit well and granted consequential
injunction against the defendant in respect of plaintiffs said irrigating right.
Similarly, the trial court has declared that the appellant / defendant was
entitled to 1/3rd right in the suit well and also granted consequential
injunction restraining the plaintiffs from interfering with the defendants right
of irrigating his land, by way of using oil engine and pumpsets. Aggrieved by
the Judgment and Decree, the plaintiffs preferred the first appeal and the first
appellate court has reversed the findings of the trial court and decreed the
suit as prayed for in favour of the plaintiffs and dismiss the counter claim of
the appellant / defendant, Aggrieved by which this Second Appeal has been
preferred by the defendant.
6. This Second Appeal has been admitted on the following Substantial
Questions of Law :
“1. Is not the admission of the first plaintiff as could be derived from
the mortgage bond dated 12.03.1979 marked as Ex.B.1, the best form of evidence
and entitled to greater weight than the interested testimony of the party ?
2. Are not the plaintiffs estopped from pleading contrary to the recitals
of Ex.B1 and that of Exs.A1 and A3?
3. Are not sub division and patta proceedings (vide Exs.B5 to B9) evidence
of defendants joint possession and enjoyment of the suit well ?”
7. It has been admitted by both sides that the first plaintiff was the
maternal uncle of the appellant / defendant. According to the plaintiffs, they
were the absolute owners of the suit well and that the defendant has no right in
the suit well to install any oil engine for pumping water to irrigate his lands.
Where as the appellant / defendant has stated that the plaintiffs were entitled
to only 2/3rd share in the suit well and that the appellant / defendant has got
1/3 rd right in the well and was also irrigating his lands in S.No.1092/4 from
the suit well. According to the appellant herein, he was entitled to 1/3rd
share in the well, by way of purchase by his parents under the aforesaid sale
deeds.
8. The learned counsel appearing for the appellant / defendant contented
that Ex.B1 is the certified copy of the mortgage deed executed by the first
plaintiff in favour of Srivilliputhur Cooperative Land Development Bank,
wherein, the first plaintiff categorically admitted that he had only 2/3rd right
in the suit well. The said document was marked on the admission, while P.W.1 was
cross examined for the appellant / defendant.
9. As per the findings of the court below, the first plaintiff, who was
examined as P.W.1 had admitted in his cross examination that Ex.B1 is the
certified copy of the mortgage deed executed by him in favour of the
Srivilliputhur Land Primary Development Bank. As per Ex.B1, the first plaintiff
had mortgaged his land in S.No.1092/2, 1 acre 21 cents with 2/3rd share in the
suit well with 3 HP electric motor and pumpset along with his other properties.
Had the first plaintiff got exclusive right in the suit well, he could not have
mentioned specifically 2/3rd share in the suit well in the mortgage deed, dated
12.03.1979. Subsequent to Ex.B1, the first plaintiff sold 59 cents in
S.No.1092/1 and also 1/4th right in the suit well under Ex.A12, dated 27.07.2000
to the second plaintiff. As contented by the learned counsel for the appellant,
the trial court has given a finding that the first plaintiff who mortgaged all
his properties under Ex.B1, has admitted that he had only 2/3 share in the suit
well as per Ex.B1, since he had only 2/3rd share in the suit well. It is seen
that the first appellate court has not given any clear finding in its Judgment
to reverse the finding of the trial court with regard to the clear admission
made by the first plaintiff in Ex.B1, that he had only 2/3rd share in the suit
well. Had the first plaintiff entitled to absolute right to entire well, while
executing the mortgage deed, there could be no need for him to state that he had
only 2/3 share in the well, though he mortgaged his entire property in the
survey number along with other properties.
10. It is not in dispute that the land in S.No.1092/4, 61 cents belongs to
the appellant / defendant, out of which 30 . cents of land was purchased by his
father Sankara Narayanan, under Ex.B10 and the certified copy has been marked as
Ex.A15. Similarly, the remaining 30 . cents of land in S.No.1092/4 was purchased
by Ramu Ammal, the mother of the appellant / defendant, under Ex.B3 and the
certified copy has been marked as Ex.A17, its parental document is Ex.A16. As
per the findings of the trial court on the aforesaid documents, irrigation
channel has been stated as “mjd; ghrd tha;f;fhy; ghj;jpaKk;”. Ex.A14 is the
certified copy of the parental document, dated 04.09.1944, wherein there is a
clear averment that the land in S.No.1092/4 comprising 61 cents, out of which
30 . cents land with irrigation channel and also 1/3rd right in the well was
conveyed by Muthammal, the vendor of the appellant’s father Sankara Narayanan.
In its parental document, dated 20.07.1942, the original of Ex.A13, it has been
stated that Muthiah Konar and Subbiah Konar had purchased 30 . cents land, out
61 cents in S.No.1092/4 with irrigation channel and 1/3rd right in the well.
The first plaintiff as P.W.1 has deposed that there was a well in S.No.1092/4
and the same was closed 50 years back, which was disbelieved by the trial court.
In order to substantiate the contention that the well referred to
in the aforesaid document was some other well, no evidence was produced by the
first plaintiff.
11. As per Section 101 of the Indian Evidence Act, 1872, the person who
asserts the existence of certain facts must prove that those facts were in
existence, which can not be shifted on the other side.
12. According to the defendant, there was no well in S.No.1092/4, except
the suit well in S.No.1092/1. P.W.2, the Draftsman of land survey, attached to
Tahsildar Office of Srivilliputhur has deposed in his evidence with the help of
revenue records, that there was no well in S.No.1092/4, as stated by the first
plaintiff, except the well in S.No.1092/1. Ex.B4, sketch prepared with
measurements and signed by the Tahsildar, Srivilliputhur would clearly show that
there was no separate well in S.No.1092/4 and that the land in which the suit
well situated has been subdivided as S.No.1092/1A, which was originally in
S.No.1092/1 before the sub division was made. According to P.W.2, immediately on
the North of the suit well, the land belongs to appellant / defendant, bearing
S.No.1092/4 is situated. In Ex.A1, at page No.8, Sundaram Pillai S/o. Ramaiya
Pillai, who executed the sale deed in favour of the first plaintiff has stated
that out of 58 cents in S.No.1092/1, he had conveyed 1/3rd share in the land
with a common 1/3rd share in the suit well.
13. The learned counsel for the appellant would contend that Ramaiya
Pillai’s, legal heirs by way of Ex.A1, Ex.A2 and Ex.A3 have conveyed, each
1/3rd right in the well and as per the said documents, the absolute right was
conveyed by the legal heirs of Ramaiya Pillai, though the first plaintiff has
admitted that Ramaiya Pillai had only . right in the well. Further, the learned
counsel for the appellant drew the attention of this Court to the recorded
evidence of P.W.1, at Page No.8, the first plaintiff has stated that Ramaiya
Pillai had only 1/3rd right in the well and that his 3 sons, each had only 1/9th
share, which is also contradictory to his pleadings.
14. As held by the trial court, both the plaintiff’s land in S.No.1092/1
and the defendant’s land, S.No.1092/4, were once in S.No.1092 without any
subdivision and that the well is more or less at the boundary of both the lands.
Had there been some other well in S.No.1092/4, as stated by the first plaintiff,
since the defendant is the owner of the entire 61 cents in S.No.1092/4 in the
ancient document, Ex.A14, there could be no need to make a recital stating
1/3rd right in the well, instead of stating the entire well. As found by the
trial court under Ex.B3, sale deed, dated 30.09.1970, the defendant’s father
had purchased the land in S.No.1092/4 along with 1/3rd share in the well
situated at the border of both the lands.
15. In cross examination, P.W.1, the first plaintiff in the suit, has
admitted that the mother of the appellant / defendant, was his own sister and
that he signed as a witness in Ex.B3, by which the mother of the appellant /
defendant purchased 30 . cents in S.No.1092/4. The oral and documentary evidence
adduced by both the sides would clearly show that the first plaintiff by Ex.B1,
mortgage deed has clearly admitted that he had 1 acre 21 cents of land in
S.No.1092/1 and 2/3 rd share in the well therein with 3 HP electric motor and
pumpset, apart from other lands stated in the document. Therefore, I am of the
view that it is a clear admission of the first plaintiff that he had only 2/3
right in the suit well and the documents marked on the side of the appellant /
defendant and the evidence of P.W.2 would also probablise the fact that the
remaining 1/3 rd right in the well was enjoyed by the appellant / defendant and
before him, his predecessors in title.
16. Section 115 of the Indian Evidence Act, 1872 reads as follows :
” 115. Estoppel – When one person has, by his declaration, act or
omission, intentionally caused or permitted another person to believe a thing to
be true and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.”
17. By way of Ex.B1, dated 12.03.1979, prior to the sale deed Ex.A12,
dated 27.07.2000, executed by him in favour of the second plaintiff, the first
plaintiff has clearly admitted that he had only 2/3 rd right in the suit well,
though he had owned the entire 1.21 acre of land in S.No.1092/1. Hence, as per
Section 115 of the Indian Evidence Act, the first plaintiff is estopped from
saying that he was the absolute owner of the well against his own admission made
in the said document, Ex.B1.
18. Therefore, based on the evidence, I am of the view to answer the
Substantial Questions of Law 1 and 2 against the respondents herein and in
favour of the appellant / defendant.
19. The learned counsel for the respondents would contend that Ex.B5, the
joint patta issued by the Head Quarters, Deputy Tahsildar, Srivilliputhur cannot
confer any right on the appellant / defendant, since the patta is not a document
of title. In support of his contention, the learned counsel cited the decision
reported in (2004) 1 MLJ 329 (Kalidoss Pillai v. Palani Subbab Pillai), wherein
this court has held as follows :
” 23… The second defendant has failed to explain the circumstances under
which the parties were issued in the joint names of the plaintiff and the
defendants 1 and 2, when the second defendant relies upon the pattas, it is for
him to establish by cogent evidence the circumstances under which the joint
pattas were issued in favour of the plaintiff and the defendants 1 and 2. We
find that when the plaintiff was cross-examined, he was not questioned reference
to the joint pattas and the appellant has also not deposed regarding the joint
pattas. Further, the pattas are not document of title.
20. It has been categorically held in various judgments and in the
judgment referred above that patta is not a document of title. In this case the
appellant / defendant has categorically stated in his written statement and
evidence that his predecessors in title enjoyed 1/3 rd right in the suit well,
as per their sale deeds and the same was continuously being enjoyed by him,
after he became the owner of the property and that he was irrigating his land in
S.No.1092/4 by motor engine, pumpset. Based on that, he placed his counter
claim before the trial court and also paid necessary court fee as per Court Fees
Act.
21. It is seen that the suit was filed before the trial court on
03.11.2000, wherein the plaintiffs have stated that the appellant / defendant
without any right in the suit well was openly declaring on 20.10.2004 that he
was going to install oil engine in the suit well, so as to irrigate his lands in
S.No.1092/4 and the same has been stated as the alleged cause of action for
filing the suit. But, it
is seen that prior to the said date, on 04.10.2000 itself, the Headquarters,
Deputy Tahsildar, Srivilliputhur had issued a joint patta, Ex.B5, in the name
of the defendant and the first plaintiff in respect of the suit well and the
same was counter signed on 03.10.2000 itself by the Village Administrative
Officer, Vathirappu Village. But Exs.B6 to B9 are subsequent documents obtained
after filing of the suit. The joint patta, Ex.B5 was issued in the name of the
first plaintiff and the defendant prior to the date of the alleged cause of
action and for filing of the suit.
22. P.W.2, the Draftsman attached to Tahsildar Office has also deposed
clearly in his evidence during cross examination that the suit well is situated
in S.No.1092/1A, for which joint patta was issued in the name of the first
plaintiff and the appellant / defendant. Though the patta is not a document in
title, it being a public document issued by Revenue authorities is certainly a
supporting document, which corroborates the defendant’s case that he was
irrigating his lands in S.No.1092/4 from the suit well as per the rights
conveyed by his vendor under the sale deed and other documents filed in the
suit. Therefore, the documents Exs.B5 to B7 marked on the side of the appellant
/ defendant would support the joint possession and the enjoyment of the suit
well by the appellant / defendant and according I am of the view to answer the
Substantial Question of Law 3 also in favour of the appellant / defendant.
23. Though, the trial court has given its finding based on the oral and
documentary evidence, the first appellate court without considering the same
on merits has reversed the Judgment and Decree rendered by the trial court and
therefore, I am of the view that the appeal has to be allowed and the Judgment
and Decree passed by the first appellate court are to be set aside.
24. In the result the Second Appeal is allowed, confirming the Judgment
and Decree passed by the trial court in O.S.No.452 of 2000 and the Judgment and
Decree, dated 19.10.2004 passed by the first appellate court in A.S.No.55 of
2003 is set aside. However, there is no order as to costs. Consequently,
connected C.M.P.No.1072 of 2006 is closed.
tsvn
To
1. The Principal District Judge
Srivilliputhur.
2. The District Munsif
Srivilliputhur.