BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/04/2008 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.1770 of 1996 and C.M.P.17642 of 1996 1)V.Subbiah 2)S.P.Sethu Ambalam ... Appellants Vs. 1)V.R.Rethinam 2)N.V.Somasundaram 3)R.Meenakshisundaram Chettiar 4)Kannappa Valliappa ... Respondents Second appeal filed under Section 100 C.P.C. against the judgment and decree of the Sub-court, Devakottai dated 26.07.1986 made in A.S.No.66/1994 confirming the judgment and decree of the Trial Court (Court of District Munsif, Devakottai) dated 09.08.1994 made in O.S.No.50 of 1992. !For Appellants ... Mr.T.R.Rajaraman ^For Respondents ... Mr.VR.Shanmuganathan :JUDGEMENT
Notice of motion was served on the respondents indicating that the appeal
might be disposed of at the stage of admission itself. Meanwhile records were
also sent for from the courts below. After the records were received from the
courts below and the respondents entered appearance, the second appeal came up
for disposal on merits even without being formally admitted.
2. The defendants 2 and 4 in O.S.No.50 of 1992 on the file of the Court of
District Munsif, Devakottai have preferred this second appeal after
unsuccessfully pursuing the appeal A.S.No.66 of 1994 on the file of the lower
appellate court (Sub-court, Devakottai) against the judgment of the trial court.
3. V.R.Rethinam, the first respondent herein had filed the above said
original suit against the appellants 1 and 2 and respondents 2 to 4 in the
second appeal arraying them as defendants 1 to 5. The said suit had been filed
for a declaration that the suit properties absolutely belonged to him (first
respondent herein/plaintiff) and his brother, the 4th respondent/5th defendant
and for a consequential injunction against the appellants 1 and 2 herein and
respondents 2 and 3 herein (defendants 1 to 4 in the suit) not to interfere with
their peaceful possession and enjoyment of the suit properties. However,
subsequently based on a further plea that the defendants 1 to 4 (appellants and
respondents 2 and 3 herein) forcibly took possession of the suit properties
during the pendency of the suit, a prayer for recovery of possession was
incorporated as an alternate relief by amending the plaint.
4. The following are the contentions based on which the first respondent /
plaintiff had sought for the above said reliefs:-
The suit properties were ancestral properties of the first
respondent/plaintiff and his brother the 4th respondent/5th defendant. Join
patta had been issued in their names and the first respondent/plaintiff was
paying kist on his own behalf and on behalf of his brother the 4th
respondent/5th defendant. They were the absolute owners of the suit properties
and were in actual and physical possession of the same as on the date of suit.
The appellants and respondents 2 and 3 (defendants 1 to 4) did not have any
title or right in respect of the suit properties, but they were making attempts
to trespass into the same and were threatening to put up a barbed wire fence
around the suit properties. Hence the first respondent/plaintiff had to rush to
the court for the relief of declaration and injunction. However, during the
pendency of the suit the appellants and the respondents 2 and 3 (defendants 1 to
4) proved to be successful in their attempt to trespass into the suit properties
and take possession. Hence the plaint was amended and the prayer for recovery
of possession was incorporated as an alternate relief for relief of permanent
injunction.
5. The 4th defendant (3rd respondent herein) filed a written statement and
the same was adopted by the defendants 1 to 3 (appellants and respondent No.2).
In the said written statement they had denied the plaint allegations regarding
the claim of title to the suit properties made by the first respondent /
plaintiff for himself and on behalf of his brother the 4th respondent/5th
defendant. The allegations that the appellants and respondents 2 and 3
(defendants 1 to 4) made an attempt to trespass into the suit land and that they
also proclaimed to put up barbed wire fence around the suit properties were also
denied. It was their further contention that, at no point of time the first
respondent/plaintiff was in possession and enjoyment of the suit properties. The
following are the other contentions made in the above said written statement:-
The suit properties having an extent of 3-3/4 kurukkam comprised in
Paimash No.6/39P originally belonged to three persons namely, 1) Kanaga Nadar
S/o Perianna Nadar, 2) Ramasamy Nadar @ Vellaya Nadar S/o Perichi Nadar and 3)
Alagan Nadar, son of the above said Ramasamy Nadar @ Vellaya Nadar. The said
persons sold the suit properties under a registered sale deed dated 17.01.1918
to one Chidambaram Chettiar S/o Murugappa Chettiar. The said Chidambaram
Chettiar sold the southern half of the suit properties to one Shanmugam Chettiar
on 24.11.1954 and retained the northern half for himself. After Kallal Village
was taken over by the Government under Act 26 of 1948, patta for the said land
was granted in the name of Shanmugam Chettiar who had purchased only the
southern half of the suit properties from Chidambaram Chettiar. Survey No.256/3
assigned to the suit properties. Even after the issue of patta for the entire
property comprised in Survey No.256/3, the northern half continued to be in the
possession and enjoyment of Chidambaram Chettiar till his death. There after
the same came to be possessed and enjoyed by his two sons 1) Valliappa Chettiar
and 2) Subbiah Chettiar. Valliappa Chettiar died leaving behind him a son by
name Subbiah Chettiar. The 2nd appellant/4th defendant entered into an
agreement for sale with Subbiah Chettiar S/o.Chidambaram Chettiar and Subbiah
Chettiar S/o.Valliappa Chettiar on 03.02.1992. By virtue of the above said
agreement, the second appellant/4th defendant got possession of 1 Acre 16 .
cents being the northern half of the suit properties and continued to be in
possession and enjoyment of the same. Meanwhile, the first respondent/
plaintiff and the 4th respondent/5th defendant approached the son and grandson
of Chidambaram Chettiar to sell Survey No.256/3 to them. As the said attempt
proved ineffective, the first respondent/plaintiff with the connivance of his
brother filed the suit vexatiously. The 2nd respondent/first defendant filed an
additional written statement contending that the suit properties belonged to him
and his family members by virtue of purchase made from the original owners.
6. The learned District Munsif framed necessary issues and conducted trial
in which three witnesses were examined as P.W.1 to P.W.3 and thirty three
documents were marked as Ex.A1 to Ex.A33 on the side of the plaintiffs. Three
witnesses were examined as D.W.1 to D.W.3 and eight documents were marked as
Ex.B1 to Ex.B8 on the side of the defendants.
7. At the conclusion of trial, the learned District Munsif considered the
evidence, both oral and documentary, and came to the conclusion that the
plaintiff and the 5th defendant had title to the suit properties and that the
defendants had trespassed into the same. Based on the said findings, the
learned District Munsif decreed the suit declaring the title of the plaintiff
and the 5th defendant in respect of the suit properties and granting the relief
of recovery of possession.
8. As against the said judgment and decree of the trial court dated
09.08.1994, the present appellants/ defendants 2 and 4 preferred an appeal
A.S.No.66/1994 on the file of the Sub-Court, Devakottai. Similarly,
R.Meenakshisundaram Chettiar (2nd respondent herein/first defendant) filed an
appeal A.S.No.67/1994 on the file of the Sub-court. In the appellate court, 32
documents were produced as additional documentary evidence on the side of the
defendants and they were marked as Ex.B9 to B40. Both the appeals were heard
together and the learned Subordinate Judge, Devakottai by a common judgment
dated 26.07.1996, confirmed the judgment and decree of the trial court and
dismissed both the appeals with cost. As against the dismissal of the appeal
(A.S.No.67/1994) preferred by the 2nd respondent herein/first defendant, he has
not chosen to file any second appeal. As against the dismissal of the appeal
(A.S.No.66/1994) preferred by the appellants herein/2nd and 4th defendants, they
have preferred the present second appeal on the file of this court.
9. This court heard the submissions made by Mr.T.R.Rajaraman, learned
counsel for the appellants and by Mr.VR.Shanmuganathan, learned counsel for the
respondents. The materials on record were also perused.
10. The suit filed by the first respondent herein/ plaintiff against the
appellants and respondents 2 to 4 (defendants 1 to 5) was decreed by the trial
court. The said suit was filed initially for a declaration of title of the
first and fourth respondents herein (plaintiff and fifth defendant) in respect
of the suit properties and for a consequential perpetual injunction not to
disturb their peaceful possession and enjoyment of the same. The relief of
perpetual injunction was sought for on the strength of their contention that
they were in possession and enjoyment of the suit properties and that the
appellants and respondents 2 and 3 / defendants 1 to 4 were trying to interfere
with their possession and were proclaiming to take forcible possession and
enclose the suit properties with barbed wire fence. Subsequently, contending
that the appellants and respondents 2 and 3 / defendants 1 to 4 succeeded in
their attempt to trespass into the suit properties, the plaint was amended
seeking the relief of recovery of possession as an alternate relief for the
relief of perpetual injunction originally sought for in the plaint. The suit
was decreed against the defendants 1 to 4 therein who are the present appellants
and respondents 2 and 3 in the second appeal in respect of the reliefs of
declaration and recovery of possession.
11. The first respondent herein/plaintiff, in order to protect his
interest as well as the interest of his brother-the fourth respondent/fifth
defendant as joint owners of the suit properties, had filed the suit. According
to the plaint averments, the suit properties are their ancestral properties and
patta was issued jointly in their names when the Government took over the
village under the Act 26 of 1948. On the other hand, the appellants and
respondents 2 and 3 / the contesting defendants (defendants 1 to 4) claimed that
the suit properties were purchased by one Chidambaram Chettiar, son of Murugappa
Chettiar under a sale deed dated 17.01.1918, a certified copy of which was
marked as Ex.B5; that the said Chidambaram Chettiar sold the southern half of
the suit properties to one Shanmugam Chettiar under a sale deed dated
24.11.1954, a certified copy of which has been marked as Ex.B2 and the northern
half was retained for himself and that the appellants and respondents 2 and 3 /
defendants 1 to 4 got the suit properties under sale deeds and sale agreement
from the legal heirs of the above said Shanmugam Chettiar and Chidambaram
Chettiar.
12. The learned counsel for the appellants argued that the courts below,
especially the first appellate court, committed an error in decreeing the suit
for the reliefs of declaration and recovery of possession despite the
production of a number of documents by the appellants and respondents 2 and
3/defendants 1 to 4 in support of their contention. The learned counsel also
submitted that the oral evidence adduced as well as documents produced on the
side of the appellants and respondents 2 and 3 / defendants 1 to 4 should have
been held sufficient to prove that the suit properties were purchased by
Chidambaram Chettiar in the year 1918; that thereafter Shanmugam Chettiar
purchased the southern half of the suit properties from the said Chidambaram
Chettiar and the appellants and the respondents 2 and 3 / defendants 1 to 4
became entitled to the suit properties by virtue of a sale deed obtained from
the legal representatives of Shanmugam Chettiar in respect of the southern half
of the suit properties and an agreement for sale obtained from the legal heirs
of Chidambaram Chettiar in respect of northern half of the suit properties.
13. On the other hand, the learned counsel for the first
respondent/plaintiff argued that none of the documents submitted on behalf of
the appellants and respondents 2 and 3/defendants 1 to 4 were relating to the
suit properties; that all the documents produced by them in support of their
claim of title related to another property comprised in Survey No.256/3 whereas
the suit properties are comprised in Survey No.256/2C; that the courts below
have rightly held that those documents did not relate to the suit survey
numbers; that all the witness examined on the side of the appellants and
respondents 2 to 4 (contesting defendants) were not able to give the correct
boundaries of the suit properties and that the admission made by the witnesses
examined on their side regarding their ignorance of some of the boundaries
itself would be enough to show that the conclusion arrived at by the courts
below in this regard were unassailable.
14. This court gave its consideration to the above said submissions made
by the learned counsel appearing on either side.
15. The sale deed dated 17.01.1918 under which Chidambaram Chettiar
allegedly purchased the suit properties from Kanaga Nadar and others has been
produced and marked as Ex.B5. 3-3/4 kurukkam of land within defined boundaries
was purchased under Ex.B5 by the Chidambaram Chettiar. In order to show that
the properties sold under Ex.B5 was lying on the south of the property belongs
to Karuppa Nambalam and Mahalinga Asari, Ex.B6 has been produced. In none of the
said documents, either the Paimash number or Survey number has been provided.
More particularly Ex.B5 does not contain either the Paimash number or the Survey
number. It is the admitted case of the contesting defendants that out of 3-3/4
kurukkam of land purchased under Ex.B5, Chidambaram Chettiar sold the common
half share (1 7/8 kurukkam) to Shanmugam Chettiar under Ex.B2. Ex.B3 is a
letter dated 20.10.1958 titled as partition letter executed by Chidambaram
Chettiar in favour of Shanmugam Chettiar under which he agreed to retain the
northern half for himself and leave the southern half to the share of Shanmugam
Chettiar. As pointed out supra, none of the above said documents contain either
the Survey number or Paimash number. It is the definite case of the first
respondent/plaintiff that the suit properties are comprised in Survey Nos.256/2A
and 256/2C2 whereas the property purchased under Ex.B5 by Chidambaram Chettiar
was admittedly comprised in Survey No.256/3. It is pertinent to note that the
appellants and Respondents 2 and 3 / defendants 1 to 4 did not produce any
document to show that any part of the property purchased by Chidambaram Chettiar
under Ex.B5 comes under Survey No.256/2. They also failed to produce any
adangal extract or kist receipts to show payment of kist for the suit properties
comprised in Survey Nos.256/2A and 256/2C2. All other documents produced on
bahalf of the contesting defendants before the trial court as well as lower
appellate court show that the contesting defendants claim title to Survey
No.256/3 and not to Survey Nos.256/2A and 256/2C2 namely, the suit properties.
In fact the patta passbook marked as Ex.B11 and the field map of Survey No.256
marked as Ex.B13, ‘A’ Register extracts marked as Ex.B15 and B16, Survey Land
Register extract marked as Ex.B17 and the field map pertaining to the Survey
No.258 marked as Ex.B14 would clearly show that Survey No.256/2 lies on the
north and Survey No.256/3 lies on the south. It is abundantly clear that the
contesting defendants have not made any claim of title in respect of Survey
No.256/2. They contend that they are the owners of Survey No.256/3. Perhaps
under the mistaken identity of the land, the contesting defendants have taken a
plea that the suit properties are the properties purchased under Ex.B5 by their
predecessor in title namely, Chidambaram Chettiar. The lower appellate court
considered the above said aspect and came to a correct conclusion that the
contesting defendants could claim right in respect of Survey No.256/3 and not in
respect of any part of Survey No.256/2.
16. The first respondent/plaintiff has produced settlement patta passbook
issued in his favour and his brother-the 4th respondent/5th defendant and marked
it as Ex.A1. Under Ex.A1, patta has been issued in their favour for Survey
Nos.256/2A and 256/2C2. The order of Tahsildar for the issue of patta in their
favour is Ex.A6. Several kist receipts showing payment of kist to the suit
properties have been produced and marked as Ex.A9 to Ex.A15. Ex.A22 and Ex.A24
are the FMBs pertaining to Survey No.256. Ex.A25 and Ex.A26 are certified
copies of ‘A’ Registers relating to Survey No.256. Though the contesting
defendants did not produce the agreement they had got from the legal heirs of
Chidambaram Chettiar, the first respondent/plaintiff has produced a certified
copy of the same as Ex.A21. As pointed out supra, Ex.B12 patta pass-book shows
that the property purchased by Chidambaram Chettiar under Ex.B5 was assigned
Survey No.256/3. Ex.A21 also shows that the northern half of Survey No.256/3
was agreed to be sold to the second appellant/4th defendant. The northern
boundary of the said land is also shown to be “bghpafUg;gd; brl;oahh; fpiuak;
bra;J nUf;Fk; kid nlA;fs;”. The said recital of the northern boundary refers to
the suit properties alone, according to the first respondent/plaintiff. The
lower appellate court, after considering the above documents plus Ex.B16 ‘A’
Register extract and B17 Survey Settlement register, has come to a correct
conclusion that the properties purchased by Chidambaram Chettiar under Ex.B5 was
assigned Survey No.256/3. It is obvious from various sale deeds produced on the
side of the contesting defendants that the property comprised in Survey No.256/3
was laid out as house sites and the house sites were sold to several persons.
This aspect was clearly considered by the lower appellate court. After properly
considering the above said documentary evidence as well as oral evidence adduced
before the courts below, the trial court and the lower appellate court have
rendered a concurrent finding of fact to the effect that the suit properties
comprised in Survey No.256/2A and Survey No.256/2C2 and the property purchased
by Chidambaram Chettiar under Ex.B5 are not the one and the same; that the
contesting defendants could claim title only in respect of the properties
purchased by Chidambaram Chettiar under Ex.B5 which is comprised in Survey
No.256/3 and that neither Chidambaram Chettiar nor anybody claiming through him
could claim title to the properties comprised in Survey No.256/2A and in Survey
No.256/2C2. The courts below have also rendered a clear and correct finding
that the first respondent/plaintiff had proved the suit properties comprised in
Survey Nos.256/2A and 256/2C2 were the ancestral properties of the first
respondent/plaintiff and his brother-the 4th respondent/5th defendant. There is
no scope, whatsoever, to interfere with the said finding of fact recorded by the
courts below and the same, at no stretch of imagination, could be termed a
perverse finding.
17. A second appeal to the High Court, as per Section 100 of Code of Civil
Procedure, shall lie only on a substantial question of law. In the instant case
appellants have not proved that this second appeal involves a substantial
question of law. Second appeals cannot be admitted even on mere questions of
law if they are not substantial questions of law. A question of fact may assume
the character of a substantial question of law when such a finding of fact shall
be perverse. In the case on hand, there is nothing to show that the courts
below, (especially the lower appellate court) have misinterpreted any document
or omitted to consider any piece of evidence. The findings of the courts below
cannot be said to be based on legally inadmissible evidence. It can’t be said
that no reasonable person would have arrived at such a conclusion based on the
evidence available on record. In short, the finding of facts recorded by the
courts below cannot be termed perverse. No substantial question of law is
proved to have involved in the second appeal. Hence this court comes to the
conclusion that there is no merit in the second appeal and the same deserves to
be dismissed.
18. For all the reasons stated above, the second appeal is dismissed. Any
how there shall be no order as to cost. Consequently connected miscellaneous
petition is closed.
asr
To :
1) The Subordinate Judge, Devakottai