IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.09.2009 CORAM : THE HONBLE MR. JUSTICE S.TAMILVANAN S.A.No.60 of 2001 Thangavel Gounder .... Appellant vs. Ganesa Udayar .... Respondent PRAYER : Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree, dated 19.01.2000 made in A.S.No.79 of 1997 on the file of the Sub-Court, Kallakurichi, confirming the Judgment and Decree, dated 27.03.1997 made in O.S.No.399 of 1990 on the file of the District Munsif Court, Kallakurichi. For Appellant : Mr.S.Sounthar For respondent : Ms.P.T.Asha for M/s. Sarvabhauman Associates J U D G M E N T
The second appeal is directed against the Judgment and Decree dated 19.01.2000 passed in A.S.No.79 of 1997 on the file of the Sub-Court, Kallakurichi, confirming the Judgment and Decree passed by the District Munsif Court, Kallakurichi in O.S.No.399 of 1990, dated 27.03.1997.
2. The appellant herein was the defendant before the Trial Court. The suit was filed by the respondent/plaintiff for declaration of title and consequential injunction restraining the appellant/defendant from interfering with the peaceful possession and enjoyment of the suit property by the respondent/plaintiff.
3. The suit property is an extent of 50 Cents of dry land in R.S.No.485/4 in Chinnaselam Village, Kallakurichi Taluk. After the trial, the suit was decreed as prayed for with cost. Aggrieved by which, appeal was preferred by the defendant in the suit confirming the Judgment and Decree passed by the Trial Court. Appeal was dismissed by the Trial Court. Aggrieved by which, the defendant before the trial court has preferred this second appeal.
4. The second appeal has been admitted on the following substantial questions of law:
“1. Whether both the Courts below were correct in decreeing the suit when the claim of the appellant is that the wrong survey number is mentioned in the title deed and the boundary will prevail over the survey number?”
5. During the course of argument, the learned counsel appearing for the appellant raised the following substantial questions of law, which are available in the grounds of appeal.
“1. Whether the judgments of the Courts below are vitiated in ignoring the well settled principle of law that in a suit for title the plaintiff must succeed independently on his own strength and he cannot rely on the weakness of the defendant’s case?
2. Whether the Courts below erred in completely ignoring the oral evidence let in on behalf of both the parties. Whether the non discussion of oral evidence vitiates the impugned judgment?”
6. Mr.S.Sounthar, the learned counsel appearing for the appellant/defendant submitted that in the suit for declaration of title, the plaintiff has to succeed independently on his own strength and the same cannot be relied on the weakness of the defendant’s case. According to the learned counsel, in the suit for declaration and injunction, the respondent/plaintiff has not produced supporting materials to establish his claim, however, the courts below have decreed the suit and dismissed the appeal, based on the weakness of the case of the appellant / defendant. In support of his contention, the learned counsel appearing for the appellant relied on the decision, Ram Das vs. Salim Ahmed and Another, reported in 1998 (9) SCC 719, wherein the Hon’ble Supreme Court has held as follows :
“It may be noted that the plaintiff was not entitled to get declaration of title if such title could not be established by the plaintiff by leading convincing evidence. The lower appellate court had considered the evidence in detail and by giving cogent reasons had come to the finding that the plaintiff failed to establish the title to the property. Such finding was not reversed by the High Court by indicating any reason for such reversal but indicating the weakness of the defendant’s title the plaintiff’s suit was decreed.”
The Hon’ble Supreme Court has categorically ruled that the plaintiff was not entitled to declaration of title, as the title could not be established by the plaintiff without adducing convincing evidence. Similarly, the weakness of the defendant’s case cannot be sufficient to decree any suit, in the absence of acceptable positive evidence in favour of the plaintiff.
7. In the instant case, the plaintiff filed the suit, seeking declaration of title to the suit property and consequential permanent injunction restraining the defendant, who is the appellant before this Court from interfering with the peaceful possession and enjoyment of the respondent / plaintiff.
8. In support of his contention, the respondent / plaintiff examined himself as P.W.1, apart from examining P.W.2. On the side of the plaintiff, Exs.P.1 to P.7 were also marked before the trial court.
9. As per Ex.A.3, one Muthusami Konar and others had executed the sale deed on 03.03.1990 in favour of the plaintiff. The patta, pass book and receipt for payment of property tax for the said land were marked as Exs.A.1 and A.2 respectively. In order to establish the possession and enjoyment of the property, the plaintiff has produced Ex.A.5, Adangal, it being an agricultural land. The documents relating to the suit property has been filed by the respondent / plaintiff, based on which there is concurrent finding by the courts below. As per Ex.B.1, dated 10.02.1990, one Nanneri Gounder and others had executed the sale deed in favour of the appellant / defendant. Ex.B.2 is the copy of the document executed by one Ramasamy Gounder in favour of the said Nanneri Gounder, vendor of the appellant’s property.
10. On the side of the appellant / defendant, P.Ws 1 and 2 were examined before the trial court. As per Ex.B.2, it is seen that 54 cents of land in S.No.468/6 was purchased by Nanneri Gounder, vendor of the appellant. Under Ex.B.3, dated 05.03.1948, only two cents of land in S.No.468/6 was sold by one Ramasamy Konar in favour of Chinnasamy Athikari. The document reads that out of 46 cents in S.No.468/6, two cents with specific boundaries was sold by Ramasamy Konar in favour of Chinnasami Athikari. However, under Ex.B.1, Nanneri Gounder and three others, executed the sale deed, dated 10.02.1990 in favour of the appellant, the land in S.No.485/4, an extent of 50 cents, here, the survey number is different and no four boundaries of the land are given. Therefore, according to the respondent / plaintiff, Exs.B.2 and B.3 would not be the parental documents of Ex.B.1, since the survey number of the property in Ex.B.1 is different from the survey number available for the property in Exs.B2 and B.3 and boundaries are not available in Ex.B.1 to identify the property with the property described in the other two documents.
11. As contended by the learned counsel appearing for the respondent, in the sale deed, Ex.B.1, dated 10.02.1990, for the reasons best known to the parties to the document, four boundaries of the land are not given, though the same are available in Exs.B.2 and B.3.
12. Mr.S.Sounthar, learned counsel appearing for the appellant produced the genealogy tree and contended that one Periya Poomalai Konar was the original owner of the property. He had four sons, namely, Perumal Konar, Ramasamy Konar, Sadaya Konar and Kulla Konar. Perumal Konar died in the year 1968 leaving his son Muthusamy Konar. The said Muthusamy Konar and his sons executed Ex.A.3, sale deed, dated 03.03.1990. According to the learned counsel appearing for the appellant, Sadaya Konar and Kulla Konar died without any direct legal heirs and therefore, the plaintiff’s vendor, Muthusamy Konar and his son had no right to execute the sale deed for the entire property.
13. Under Ex.B.2, the property relating to S.No.468/6, an extent of 54 cents with specific boundaries had been conveyed. Admittedly, the said survey number does not relate to the suit property, that is also a concurrent finding of the Courts below. As per Ex.B.1, an extent of 50 cents in S.No.485/4 in the suit village was sold by Nanneri Gounder and his sons in favour of Thangavel Gounder, the appellant herein on 10.02.1990. It is seen that the four boundaries of the land has not been given in the schedule of property for the reasons best known to the purchaser, the appellant herein and his vendors. Exs.B.2 and B.3 are said to be the earlier documents to Ex.B.1, but in Ex.B.2, the survey number is said to be stated as 468/6 and the extent is stated as 54 cents, out of 56 cents with specific four boundaries. As per the four boundaries of the property given in the document, the land sold by the original of this document on 04.03.1948 are on the east of a pathway, south and west to one Chinnasamy Athigari’s property and north to Solai Gounder’s land. As per Ex.B.3, sale deed, dated 05.03.1948, Chinnasamy Athigari had purchased an extent of 2 cents from one Ramasamy Konar. As per this document, the vendor in Ex.B.2, Ramasamy Konar sold 2 cents in the same S.No.468/6 in favour of Chinnasamy Athigari, out of the total extent of 56 cents.
14. In the plaint, the suit schedule property is described as land in S.No.485/4, an extent of 50 cents. As per the sale deed, dated 05.03.1990, marked as Ex.A.3, the respondent / plaintiff, Ganesa Udayar purchased the land from Muthusamy Konar and others, wherein the survey number is stated as 485/4, and the extent of the land is 50 cents. Ex.A.4 is Kaichat, extract of the revenue record for payment of kist, wherein for patta number 389, for the Fasli 1359, kist has been paid by Muthusamy Konar on 25.01.1990 and for subsequent years also kist has been paid by the vendor of the plaintiff’s property. As per patta pass book, joint patta in the name of Muthusamy Konar, Kulla Konar, Ramsamy Konar and Sadaya Konar in Patta No.389 has been issued.
15. Learned counsel appearing for the appellant / defendant submitted that the four boundaries are tallying with the suit property, according to him, only there is a mistake in the survey number and therefore, four boundaries will prevail over the survey number.
16. It is an admitted fact that in Ex.B.2 and Ex.B.3, the alleged earlier documents, the survey number of the property is stated as S.No.468/6, however, under Ex.B.1, the appellant herein has got the sale deed for the land in S.No.485/4, a different survey number. Had he purchased 54 cents under Ex.B.2 in S.No.468/6 without any description of boundaries, he could not have obtained 50 cents out of the alleged 54 cents from his vendors, Nanneri Konar and others. When there is boundaries given in Ex.B.1 and the survey number is also different, the appellant cannot argue that the boundaries will prevail over the survey number available in Ex.B.1 and further, the appellant has not produced any kist receipt or adangal issued in the name of the appellant or his vendor to show the possession and enjoyment of the suit property, whereas the respondent / plaintiff has produced Ex.A.2 issued in the name of his vendor, Muthusami Konar, apart from patta and further, Ex.A.4, Patta extract issued by the revenue authorities and the adangal, Ex.A.5 relating to the 50 cents of the suit land in S.No.485/4 for the Faslis from 1377 to 1398 for about 21 years and therefore, the substantial question of law raised by the appellant that the boundaries will prevail over the survey number is no way helpful to the appellant in deciding the second appeal. According the substantial question of law is answered against the appellant / defendant and in favour of the respondent / plaintiff.
17. When there is a concurrent finding by the courts below, only on the ground of perverse finding, the Court can interfere in the second appeal. In order to treat a concurrent finding as perverse, it must be against the evidence available on record or without evidence.
18. In the instant case, the respondent / plaintiff filed the suit, seeking declaration of title to the suit property and for permanent injunction restraining the appellant / defendant from in any manner interfering with the respondent’s peaceful possession and enjoyment of the property. As per Ex.A.3, sale deed, dated 03.03.1990, the respondent herein purchased the property, an extent of 50 cents in S.No.485/4 from Ramasamy Konar. In order to establish the title as well as the possession and enjoyment of the suit property, the respondent / plaintiff, apart from adducing oral evidence has filed Ex.A.1, patta pass book, Ex.A.5, Adangal showing the enjoyment of 19 years for the Faslis 1377 to 1396, apart from kist receipts and other revenue records. Had the S.No.468/6 been wrongly stated in Ex.B.2 and Ex.B.3 in the year 1948 and the extent was also wrongly stated as 54 cents instead of 50 cents, it could have been corrected by way of registering a rectification deed, but that was not done. In Ex.A.6, proceedings of the District Revenue Officer, dated 31.03.1993 at page number 5, it has been referred that the land in R.S.No.468/6 was settled by Ramasamy Konar in faovur of one Mookayi Ammal, then sold to one Pacchamuthu Gounder on 19.06.1957. It was further averred in the proceedings that Nanneri Gounder, the alleged vendor of the appellant had never been in possession and enjoyment of the property and therefore, on the available evidence on record, I am of the view that the Courts below have concurrently held that the respondent / plaintiff was entitled to declaration and injunction as prayed for, which is neither against the evidence available on record, nor without any evidence, hence, it cannot be construed as perverse finding and therefore, the second Substantial Question of law raised by the appellant that the Judgment of the courts below are vitiated on account of ignoring the oral evidence let in cannot be accepted.
19. It cannot be said that respondent / plaintiff has succeeded on the weakness of the defendant’s case and not by establishing his own case and therefore, the decision cited by the learned counsel appearing for the appellant is not applicable for the facts and circumstances of this case. Similarly, it cannot be said that the courts below have not discussed anything on the oral evidence let in by both the parties. The courts below have followed the principle that the oral evidence cannot impeach the documentary evidence available on record to decide the issues and the point for determination, accordingly, all the substantial questions of law are answered against the appellant and in favour of the respondent.
20. In the result, confirming the concurrent Judgments rendered by the courts below, this Second Appeal is dismissed. However, both the parties are directed to bear their costs in the Second Appeal.
tsvn
To
1. The Sub-Court, Kallakurichi
2. The District Munsif Court,
Kallakurichi