{"id":112009,"date":"2007-09-11T00:00:00","date_gmt":"2007-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sundarraj-vs-g-george-packkiam-on-11-september-2007"},"modified":"2018-09-05T18:11:30","modified_gmt":"2018-09-05T12:41:30","slug":"sundarraj-vs-g-george-packkiam-on-11-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sundarraj-vs-g-george-packkiam-on-11-september-2007","title":{"rendered":"Sundarraj vs G.George Packkiam on 11 September, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Sundarraj vs G.George Packkiam on 11 September, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDated : 11\/09\/2007\n\n\nCORAM:\nTHE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\n\nS.A.No.1228 of 1995\n\n\n1.Sundarraj\n2.Durairaj\n3.Dhairiyam\t\t\t... \tAppellants\n\n\nVs.\n\n\nG.George packkiam.\t\t... \tRespondent\n\n\nPRAYER\n\n\nThe Second Appeal has been preferred under Section100 of CPC against the\njudgment and decree dated 17.4.1995 in A.S.No.5 of 1995 passed by the learned\nSubordinate Judge, Pattukkottai, reversing the judgment and decree dated\n28.12.1994 in O.S.No.807 of 1993 on the file of the District Munsif,\nPattukkottai.\n\n\n!For Appellants    \t\t...\tMr.K.Balasundaram\n\n\n^For Respondent  \t\t...\tMr.A.Hajamohideen\n\n\n\n:JUDGMENT\n<\/pre>\n
\tThe defendant in O.S.No.807 of 1993 on the file of the District Munsif,
\nPattukkottai, who has lost his defence before the first appellate Court, has
\npreferred this second appeal.\n<\/p>\n
\t2.The averments in the plaint in brief relevant for the purpose of
\ndeciding this second appeal sans irrelevant particulars are as follows:-
\n\tThe plaint schedule property originally belonged to Anthoniyammal
\nw\/o.Solaman Manivel Pillai, under family parition.  In the year 1978 the said
\nAnthoniyammal had sold the plaint schedule property to the plaintiff by oral
\nsale.  The plaintiff is in possession of the suit property from the year 1978
\nand thereby had prescribed title to the suit property by way of adverse
\npossession.  The plaintiff is cultivating the suit property by raising paddy
\ncrops and is also paying land tax to the Government. On 8.10.1993, the defendant
\ntaking advantage of the oral sale made an attempt to intervene with the
\npossession of the plaintiff in the suit property and they obstructed the
\nplaintiff from ploughing the suit land.   The defendants have no right title or
\ninterest in respect of the suit property.  Hence, the suit for declaration of
\ntitle and for consequential injunction.\n<\/p>\n
\t3.The first defendant has filed written statement with the following
\ncontentions:-\n<\/p>\n
\tAnthoniyammal got the plaint schedule property in family partition and she
\nwas in possession and enjoyment of the suit property till her death.  The
\naverment that the said Anthoniyammal had sold the plaint schedule property in
\nthe year 1978 for a valuable consideration in favour of the plaintiff is not
\ntrue.  The plaintiff has not prescribed title to the suit property by way of
\nadverse possession.  The suit is not maintainable.  The plaintiff is not in
\npossession and enjoyment of the suit property and he has not raised any crops in
\nthe suit property and he is not paying any land tax to the suit property.  Late
\nAnthoniyammal had sons by name Thairiyam, Suntharaj & Thurairaj and daughters by
\nname Grace, Roseline, Pushpam & Manoranjeetham. Out of the daughters Grace and
\nPushpam are now no more.  Grace died issueless.  But there are legal
\nrepresentatives to late Pushpam.  The suit is bad for non-joinder of necessary
\nparities.  Anthoniyammal was in possession and enjoyment of the suit property
\ntill her death.  A portion of the property was acquired by the Government for
\nformation of canal and the compensation amount was also received by the said
\nAnthoniyammal. After formation of the canal Anthoniyammal was in possession of
\nabout 30 Kuzhi of lands on the east of the canal and 27 kuzhi of lands on the
\nwest of the said canal and was enjoying the same in two flats.  She died on
\n21.12.1985.  After her death, D1 & D2 are in possession and enjoyment of the
\nsaid land as legal heirs of Anthoniyammal.  After the death of Anthoniyammal,
\nplaintiff approached the defendants for the sale of the suit property. Since D1
\n& D2 are not willing to sell the suit property to the plaintiff, with an
\nulterior motive the plaintiff has filed the suit.  The plaintiff is having both
\nmuscle power and money power and the defendants are poor agriculturist.   The
\nplaintiff have demolished the bund  on the northern side of the suit property
\nand had ploughed the land and raised the crops.  In this connection, the
\ndefendants have preferred a police complaint against the plaintiff on 8.10.1993.
\nIn a clandestine manner  the plaintiff had obtained kist receipts in his name
\nfrom out of the money given by Anthoniyammal to pay the land tax in her name.
\nThe plaintiff has no right title or possession in respect of the suit property.
\nThere is not cause of action for the suit.  Hence, the suit is liable to be
\ndismissed.  The other defendants have adopted the written statement filed by D1.\n<\/p>\n
\t4.On the above pleadings the learned trial judge has framed  seven issues
\nfor trial.  Before the trial Court P.W.1 to P.W.5 were examined and Ex.A.1 to
\nEx.A.3 were marked on the side of the plaintiff.  On the side of the defendants
\nD.W.1 was examined and Ex.B.1 to Ex.B.13 were marked.  After going through the
\noral and documentary evidence, the learned trial judge had come to a conclusion
\nthat the plaintiff is not entitled to any relief asked for in the plaint and
\naccordingly, dismissed the suit with costs, which necessitated the plaintiff to
\nprefer an appeal in A.S.NO.5 of 1995 before the learned first appellate Judge,
\nwho after due deliberations to the submissions made by the counsel of the
\nappellant as well as the counsel for the respondents and after meticulously
\nscanning the evidence, has come to the conclusion that there are grounds to
\ninterfere with the findings of the learned trial Judge and accordingly allowed
\nthe appeal, thereby setting aside the findings of the learned trial Judge, which
\nnecessitated the defendants to approach this Court by way of this Second Appeal.\n<\/p>\n
\t5.The following substantial questions of law arose for consideration in
\nthis second appeal:\n<\/p>\n
\ti)Whether the lower appellate Court was right in sustaining the plea of
\noral sale in the absence of  proper pleading or proof in accordance with law?\n<\/p>\n
\tii)Whether the non-compliance of the provisions of Section 54 of the
\nTransfer of Property Act renders the oral sale pleaded unsustainable in law?\n<\/p>\n
\tiii)Whether the plaintiff, who  has pleaded oral sale can fall back on the
\nplea of adverse possession also?\n<\/p>\n
\t6.The Point:- 6(a) The plaintiff has filed the suit for declaration and
\ninjunction on two grounds.  First being, he had purchased the suit property from
\none Anthoniyammal for Rs.90\/- orally in the year 1978.  At the same time, the
\nplaintiff would plead that he had prescribed title to the suit property by way
\nof his long, continuous and uninterrupted possession for more than the statutory
\nperiod.  But as correctly held by the learned trial Judge, the plaintiff has
\nmiserably failed to prove the oral sale as well as the plea of adverse
\npossession.  The plaintiff should stand or fall on his own legs.  Either he must
\nplead that he has prescribed title under oral sale or he must plead and prove
\nthat he had prescribed title to the suit property by way of adverse possession.
\nAs rightly observed by the learned trial judge, the plaintiff is not definite
\nabout his oral sale, as to the purchase of the suit property for Rs.90\/- from
\nAnthoniyammal in the year 1977 or in the year 1978.\n<\/p>\n
\t\t6(b) In the plaint, the plaintiff would aver that the oral sale is
\nof the year 1978, but in the Court as P.W.1 in the box, he would depose that he
\nhad purchased the suit property by oral sale in the year 1977.  If it is so,
\nthen the plaintiff would have filed the land tax receipts relating to the year
\n1977 or 1978 to show that from the date of oral sale, he took possession of the
\nsuit property and he is paying the land tax to the property from the date of the
\npurchase.  The land tax receipts Ex.A.1 to Ex.A.3 produced by the plaintiff, are
\nof the year 1986, 1987 and 1993 respectively.  A perusal of Ex.A.-land tax
\nreceipt dated 15.4.1986 will go to show that on behalf of Anthoniyammal, the
\nplaintiff had paid the land tax for the fasalis 1388, 1389, 1390, 1391, 1394 &
\n1395.  From Ex.A.1 it cannot be presumed that the plaintiff is in possession of
\nthe suit property from the year 1978.  If the case of the plaintiff is true that
\nhe had purchased the suit property from Anthonyammal then there is no necessity
\nfor him to pay the land tax on behalf of Anthoniyammal under Ex.A.1.  Ex.A.2 is
\nneither in the name of Anthoniyammal nor in the name of the plaintiff, but it is
\nin the name of one Margret Gatherin.  The plaintiff has not given any
\nexplanation in his evidence as to in what way thesaid Margret Gatherin was
\nrelated to the said Anthoniyammal or in respect of the suit property.  Ex.A.3
\nalone is in the name of the plaintiff, which is dated 27.2.1993.  It is settled
\nproposition of law that if a person claims adverse possession then he must admit
\nthe title in respect of the said property vest with the other person against
\nwhom he claims adverse possession.  Having taken a plea that he had purchased
\nthe suit property under oral sale from Anthoniyammal it is not open for him to
\ncontend that he had prescribed title by way of adverse possession against
\nAnthoniyammal.\n<\/p>\n
\t6(c)The learned counsel for the respondent relied on 2005(1)CTC 494
\n(N.S.Spance Vs. D.S.Kanagarajan and another), wherein it has been held that a
\nperson, who is in possession of the property is entitled to take alternative
\nplea.  But there was no pleading in the said case taken by the plaintiff that he
\nhad prescribed title to the suit property under a sale.  Once the plaintiff has
\ntaken a plea that he has prescribed title by way of adverse possession then it
\nis not open to him to claim that he has also prescribed title to the suit
\nproperty under oral sale.  The facts of the case relied on by the learned
\ncounsel for the respondent in the above ratio is that:\n<\/p>\n
\t“The plaintiff had filed the suit for declaration of the title and
\nconsequently for permanent injunction.  According to him, the suit property
\noriginally belonged to one ‘A’, the father of D1 ancestrally. He had sold the
\nproperty to the plaintiff’s paternal uncle ‘B’ on 22.5.1960 for a valuable
\nconsideration and in the subsequent family partition in the year 1958 the suit
\nproperty was allotted to the sons of one Subramania Chettiar, the brother of
\n‘B’.  After the family arrangement in the year 1958, ‘B’ had purchased the suit
\nproperty in which the others have no interest. ‘B’ had no issues.  The plaintiff
\nwas looking after the affairs of ‘B’.  Subsequently ‘B’ gave the suit property
\nto the plaintiff in the year 1970 and according to the plaintiff, he was in
\npossession from that date onwards and he would claim that the right vested in
\nfavour of him by ‘B’ was confirmed in the family arrangements dated 30.10.1972.
\nIn pursuance of the mutation took place in the property register and other
\nconnected records and on that basis he was in possession and enjoyment of the
\nsaid property and paying the tax and leasing out the same to the third parties,
\nto the knowledge of the first defendant, who is adjacent owner of the suit
\nproperty.  Since the defendants have made attempt to take possession by illegal
\nmethod and trespassed into the suit property, denying the title of the
\nplaintiff, the plaintiff approached the Court on the ground that he had
\nprescribed title by way of adverse possession and also pressing his title
\nthrough B, who was allotted the suit property in the family partition.”\n<\/p>\n
Only under such circumstances, the alternative plea taken by the plaintiff was
\nupheld by this Court in the above dictum, which has no barring at all in respect
\nof the present facts of the case, in which the plaintiff claims title in respect
\nof the suit property under a oral sale and also by way of adverse possession.
\n\t6(d)It is pertinent to note here that in the plaint the plaintiff has not
\neven stated about the oral sale consideration for the suit property.  Only in
\nthe box he would contend that the oral sale consideration for the suit property
\nwas Rs.90\/-.  The learned first appellate Judge under surmises and conjectures
\nheld that Anthoniyammal was under dire circumstances to sell the suit property.
\nBut in his judgment it has been stated that Anthoniyammal was getting pension
\nand was a pensioner.  To prove the oral  sale, the plaintiff had examined P.W.2,
\nwho is none other than the brother-in-law of the plaintiff and also he has given
\nin marriage his daughter to the son of the plaintiff.  But in the cross-
\nexamination he would admit that he cannot say on which date, month and year the
\noral sale was effected.  P.W.3 is another witness examined on the side of the
\nplaintiff to prove the oral sale.  P.W.3 is a chance witness. According to him,
\nhe went to Anthoniyammal’s house for the purchase of cattle and at that time the
\nplaintiff and Anthoniyammal were discussing about the sale of the land and that
\nAnthoniyammal had demanded Rs.150\/- for the land, but later settled for Rs.90\/-.
\nAccording to him, Anthoniyammal had received Rs.90\/- from him and handedover the
\nsame to the plaintiff.  He would further state that he had purchased the cattle
\nfrom the plaintiff and for that he gave Rs.250\/- to the plaintiff and gave
\nanother sum of Rs.250\/- for executing a promissory note.  But in the cross-
\nexamination he would depose that the promissory note executed by him became time
\nbarred and that he had discharged the said loan after 3 or 4 years.  If oral
\nsale was effected in the presence of P.W.2 and P.W.3 then the plaintiff would
\nhave stated about the same in the plaint.  The plaint is silent about the fact
\nthat the oral sale was effected in the presence of P.W.2 & P.W.3.  So it goes
\nwithout saying that P.W.2 & P.W.3 have been procured by the plaintiff only for
\nthe purpose of the case.  If oral sale is true, then there is no need for the
\nplaintiff to plead adverse possession.  Under such circumstances, I do not find
\nany reason to interfere with the findings of the learned trial Judge, which was
\nunfortunately set aside by the learned first appellate Judge. Point is answered
\naccordingly.\n<\/p>\n
\t7.In fine, the second appeal is allowed setting aside the findings of the
\nfirst appellate Judge in A.S.No.5 of 1995 on the file of the Subordinate Judge,
\nPattukkottai, consequently the suit is dismissed.  Parties shall bear their own
\ncosts.\n<\/p>\n
ssv<\/p>\n
To,\n<\/p>\n
1.The Sub-Judge, Pattukkottai.\n<\/p>\n
2.The District Munsif, Pattukkottai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sundarraj vs G.George Packkiam on 11 September, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 11\/09\/2007 CORAM: THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.1228 of 1995 1.Sundarraj 2.Durairaj 3.Dhairiyam … Appellants Vs. G.George packkiam. … Respondent PRAYER The Second Appeal has been preferred under Section100 of CPC against the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-112009","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSundarraj vs G.George Packkiam on 11 September, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sundarraj-vs-g-george-packkiam-on-11-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sundarraj vs G.George Packkiam on 11 September, 2007 - 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