{"id":13406,"date":"2008-11-17T00:00:00","date_gmt":"2008-11-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-subbiah-vs-mookan-on-17-november-2008"},"modified":"2014-05-24T04:45:25","modified_gmt":"2014-05-23T23:15:25","slug":"n-subbiah-vs-mookan-on-17-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-subbiah-vs-mookan-on-17-november-2008","title":{"rendered":"N.Subbiah vs Mookan on 17 November, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
N.Subbiah vs Mookan on 17 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 17\/11\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\nS.A.(MD)No.64 of 2006\nand\nC.M.P.(MD)No.529 of 2006\n\n1.N.Subbiah\n2.N.Chellamal\n3.N.Periakkal\t\t\t.. Appellants\/Respdts.\/Defdts.\n\nVs.\n\n1.Mookan\n2.SivaPerumal\n3.Subbamal\t\t\t.. Respondents\/Appllts.\/Pltffs.\n\nPRAYER\n\nThis Second Appeal has been filed under Section 100 of CPC, against the\ndecree and judgment  passed in A.S.No.72 of 2005 on the file of the Additional\nSubordinate Judge, Dindigul dated 14.09.2005 reversing the Decree and Judgment\npassed in O.S.No.338 of 1991 on the file of the Additional District Munsif,\nDindigul, dated, 13.11.1995.\n\n!For Appellants\t... Mr.K.Balasubramanian, Advocate\n^For Respondents... Mr.A.R.Sethupathy,Advocate\n\n:JUDGMENT\n<\/pre>\n
 \t\tThis appeal has been directed against the decree and judgment in
\nA.S.No.72 of 2005 on the file of the Additional Subordinate Judge, Dindigul,
\nwhich had arisen out of a judgment in O.S.No.338 of 1991 on the file of
\nAdditional District Munsif, Dindigul.\n<\/p>\n
\t\t2.The short facts of the plaint sans irrelevant particulars are as
\nfollows:-\n<\/p>\n
\t\tThe plaint schedule property comprised in S.No.209 measuring 2 acres
\n80 out of total 6 acres 78 cents, originally belonged to one Karuppakudamban.
\nWhile he was alive, he had settled the said property in favour of his daughter
\nNallammal and his son-in-law Thavasikudumban on 18.02.1947.  Both the settlor
\nand settle are now no more.  Nallammal’s daughter Karupayee had executed a sale
\ndeed dated 20.09.1986 in respect of   2 acres only and in respect of balance of
\n80 cents, the said Karupayee had executed another sale deed dated 27.07.1988 in
\nfavour of the 3rd plaintiff.  So, the plaintiffs 1 to 3 are now in possession
\nand enjoyment of the entire plaint schedule property as per the sale deed dated
\n22.09.1986 and 27.07.1988 respectively.  In respect of another 1 acre 18 cents
\non the east of S.No.209, the said  Karuppakudumban had executed another
\nsettlement deed dated 13.02.1947 in favour of Azhagammal, the mother of
\nplaintiffs 1 and 2.  The plaintiffs 1 and 2 are in possession and enjoyment of
\nthe said property, which is comprised in S.No.209\/2.  The balance of 2 acres 80
\ncents in S.No.209 was settled in favour of Palaniammal, the other daughter of
\nKaruppakudumban, who is the mother of the first defendant.  The defendant is in
\npossession and enjoyment of the said 2 acres and 80 cents originally S.No.209
\nwas assigned in favour of Karuppakudumban in respect of the plaint schedule
\nproperty.  After the plaintiffs obtained the sale deed in respect of the plaint
\nschedule property, Patta No.546 was assigned.   A joint patta No.1612 was also
\nassigned in favour of the second defendant. The plaintiff was paying the land
\ntax to the plaint schedule property. S.No.209 has subsequently made sub-divided
\nas 209\/1 and 209\/2. 2 acres 80 cents in the southern potion of S.No.209\/1
\nbelongs to the plaintiffs and the northern 2 acres 80 cents in S.No.209\/2
\nbelongs to the defendants.  The southern two acres 80 cents in the plaint
\nschedule survey number property except the plaintiffs, no one have any right or
\ntitle or possession over the same.  The defendants are attempted to tress-pass
\ninto the plaint schedule property from 28.02.1991 alleging that the plaintiffs
\nhave no right or title in respect of the plaint schedule property.  Hence, the
\nsuit for declaration and for consequential injunction.\n<\/p>\n
\t\t3.The second defendant has adopted the written statement filed by
\nthe first defendant, which runs as follows:-\n<\/p>\n
\t\tThe suit is vexatious one.  The plaint has not disclosed how the
\nplaint schedule property devolved on  Karuppakudumban.  Apart from Nallammal,
\nKaruppakudumban had daughter by name Silampayee, Sittupillai and Palaniammal.
\nThe allegation that Karuppakudumban had executed a settlement in favour of his
\ndaughter Nallammal on 13.02.1947 is false.  The said settlement was executed in
\nfavour of Nallammal and her husband Thavasikudumban.  The said settlement did
\nnot come into force.  The alleged daughter of Karupayee of Thavasikudumban and
\nNallammal was never in possession and enjoyment of the plaint schedule property.
\nNallammal had eloped with one Karuppiah of Dindigul and Karuppayee was born to
\nthe said Karuppiah and Nallammal.  So, Karuppayee is not the daughter of
\nThavasikudumban and Nallammal.  Karupayee, when she was 16 years of age, had
\nillicit intimacy with one Kathan of Kurumbapatti and then lived together as
\nhusband and wife at Dindigul. Thereafter, Karuppayee had developed intimacy with
\none Sangan and she had married him and lead a married life with him at Natham.
\nFor the past 27 years Karuppayee is residing at Natham with one Sangan.  So,
\nKaruppayee had no right or title in respect of the plaint schedule property.  So
\nthe sale deed alleged to have been executed by Karuppayee in favour of the
\nplaintiffs are not maintainable.  When Karuppayee began to live with Kathan,
\nNallammal came and lived with Karupayee’s father.  At that time, Thavasi and
\nNallammal adopted Nallu\/the 1st defendant on 05.11.1965 as their adopted son.
\nThe suit property and other properties of Karuppakudamban was being enjoyed by
\nNallu as the grand son through their daughter. Now patta has been assigned in
\nthe name of the second defendant also in respect of the suit property.  The
\nalleged settlement deed in favour of Nallammal and Thavasikudumban was not acted
\nupon.  So, the sale deed executed by Thavasikudumban’s daughter viz., Karuppayee
\nin favour of the plaintiffs are non-est in law.  The defendants have prescribed
\ntitle by way of long, continuous and uninterrupted possession of the plaint
\nschedule property over a statutory period.  The patta issued in favour of the
\nplaintiffs are not valid under law.  This defendant is in possession of entire
\n2.33.0 hectares of land in S.No.209\/1.  The plaintiffs have no cause of action
\nto file the suit. Hence, the suit is liable to be dismissed.  The learned trial
\nJudge on the basis of the above pleadings had framed four issues for trial.\n<\/p>\n
\t\t4.Before the trial Court P.Ws 1 and 2 were examined. Exs.A1 to 18
\nwere marked and on the side of the defendants D.Ws.1 to D.W.3 were examined and
\nExs.B1 to B8 were marked.\n<\/p>\n
\t\t5.After scanning the evidence both oral and documentary, the learned
\ntrial Judge has come to a conclusion that the plaintiff has not entitled to any
\nrelief under the plaint, had dismissed the suit.  Aggrieved by the finding of
\nthe learned trial Judge, the plaintiffs preferred A.S.No.72 of 2005 before the
\nlearned Additional Subordinate Judge, Dindigul, before whom Exs.A.19 to A.21 and
\nExs.B.9 and B.10 were marked in the first Appeal.  The learned First Appellate
\nJudge after giving due consideration to the submissions of the learned counsel
\non both sides and also after considering the additional documents produced
\nbefore her, had allowed the appeal thereby setting aside the judgment and decree
\nof the learned trial Judge, which necessitated the defendants to approach this
\nCourt by way of this Second Appeal.\n<\/p>\n
\t\t6.The following substantial questions of law are formulated by this
\nCourt:-\n<\/p>\n
\t\t“(1) Whether in a suit for declaration and injunction the First
\nAppellate Court was right  in casting the burden of proof on the defendants when
\nthe trial court had found that plaintiffs failed to prove their vendor’s title?\n<\/p>\n
\t(ii) Whether the recitals in unilateral and inadmissible documents can be
\nrelied on for the purpose of conclusively establishing relationships when the
\nperson connected with the documents was not examined before the trial court and
\nthe trial court has drawn adverse inference?\n<\/p>\n
\t(iii) Whether the non-examination of the plaintiffs’ vendor is fatal
\nespecially when the defendants have pleaded that the vendor had no title or
\npossession of the suit property?\n<\/p>\n
\t(iv) Whether the First Appellate Court’s decision ignoring the specific
\nadmissions in oral evidence by P.W.1 and P.W.2 and statement of D.W.2 is
\nperverse and unsustainable in Law?\n<\/p>\n
\t(v) Are not the revenue records viz., patta, chitta, adangal and kist
\nreceipts conclusive proof of possession and enjoyment of the property?\n<\/p>\n
\t(vi)Whether the First Appellate Court was correct in rejecting the case of
\nthe defendants while there was sufficient evidence to show the long, open and
\nuninterrupted possession for 40 long years by the defendants by which perfected
\ntitle in the suit property by adverse possession?”\n<\/p>\n
\t7.The substantial questions are recast as follows:-\n<\/p>\n
\t1. Whether the vendor under Ex.A3 and A4 had valid title in respect of the
\nproperties conveyed under them in favour of the plaintiffs 1 to 3?\n<\/p>\n
\t2.Whether the defendants have prescribed title to the plaint schedule
\nproperty by way of their long, uninterrupted continuous possession for over the
\nstatutory period?\n<\/p>\n
\t\t8.Substantial Question of Law No.1:-\n<\/p>\n
\t\tEven though there is a pleading in the written statement of the
\ndefendants that Karuppayee is not the daughter of Nallammal and Thavasikudumban,
\nwho derived his title in respect of the plaint schedule property under Ex.A1
\nsettlement deed dated 13.02.1947.  Under Ex.A1, Karuppakudumban had settled 2
\nacres 80 cents out of 6 acres 78 cents in S.No.209, which is the subject matter
\nof this suit along with the other properties in other survey numbers, in favour
\nof his daughter Nallammal and his son-in-law Thavasikudumban.  Both P.W.1 and
\nP.W.2, who is well aware about the family of the vendor of the plaintiffs have
\ndeposed that the vendor of the plaintiffs and before her, her mother Nallammal
\nwere in possession and enjoyment of the plaint schedule property from the date
\nof Ex.A1.  P.W.2, in the cross-examination has deposed that Karuppayee is the
\ndaughter of Nallammal and Thavasikudumban, the settlor under Ex.A1.  Against
\nthis evidence D.W.2 was examined on the side of the defendant to show that
\nKaruppayee, the vendor under Ex.A3 and Ex.A4 is not the daughter of Nallammal
\nand Thavasikudumban.  D.W.2 would depose that Nallammal and Thavasikudumban had
\nadopted the first defendant as their son, who had performed last rites for
\nKaruppakudumban.  If  Karuppayee, the vendor under Exs.A3 and A4 had no right or
\ntitle in respect of the plaint schedule survey number property, there is no
\nnecessity for the 1st defendant to join her also under Ex.A18 mortgage deed and
\nEx.A19 sale deed, which were executed by the first defendant.  Ex.A.18 was
\nexecuted by the first defendant on behalf of his minor son Subbiah (who is D-2)
\nand also Karuppayee on behalf of her minor children Peria Pandiammal,
\nChellapandian and Chinnapandiammal in respect of two acres of land in S.No.209
\nout of 6 acres 78 cents.   Ex.A.19 is the sale deed executed in favour of one
\nPalaniammal by Karuppayee and also by the first defendant in respect of 72 cents
\nin S.No.362\/5.  Ex.A18 was executed in the year 1983 and Exs.A19 is of the year
\n1987.  The suit was filed in the year 1991.  So, the contention of the defendant
\nthat Karuppayee is alien and she is not the daughter of Thavasikudumban and
\nNallammal and that she has no right or title in respect of the plaint schedule
\nproperty falls to the ground, as rightly held by the learned First Appellate
\nJudge.  The property conveyed under Ex.A1 in favour of Nallammal,
\nThavasikudumban, the parents of Karuppayee had been conveyed under Ex.A3 in
\nfavour of the first and second plaintiffs (2 acre) and under Ex.A4 (remaining 80
\ncents) to 3rd plaintiff.  So, the substantial questions of Law No.1 is answered
\naccordingly.\n<\/p>\n
\t\t9.Substantial Question of Law No.2:-\n<\/p>\n
\t\tOnce the defendant claims that he has prescribed adverse possession
\nin respect of the plaint schedule property that will amount to an admission as
\nto the fact that the said Karuppayee was the owner of the plaint schedule
\nproperty. To show that the defendants have prescribed title by way of adverse
\npossession,  they have produced Exs.B3 and B9 tax receipts. But in B7 tax
\nreceipts, there is no survey number is mentioned.  Under Ex.B7 series tax
\nreceipts only patta Nos.229 and 546 are mentioned.  Ex.A7 is relating to the
\nyear 1973, 1974, 1976.  After some years there is no tax receipts produced by
\nD1.  The tax receipts produced by D2 is relating to patta No.546 for the year
\n1988, 1989 and 1991 whereas, Exs.A18 and A19  documents have been executed in
\nthe year 1983 and 1987.  Under such circumstances, as rightly held by the
\nlearned First Appellate Judge, there is absolutely no material to derive us to
\narrive at a conclusion that the defendants have prescribed title to the plaint
\nschedule property by way of adverse possession.  According to P.W.1, since the
\ndefendants have made an attempt to interfere with the possession of the
\nplaintiffs in respect of the plaint schedule property, they have come forward
\nwith the suit on the basis of Exs.A3 and A4, sale deeds.  The plaintiffs also
\nadmit that the defendants are in possession and enjoyment of another 2 acres and
\n80 cents south of the plaint schedule property. The defendants have failed to
\nprove that they have prescribed title by way of adverse possession to the plaint
\nschedule property.  Substantial Question of Law No.2 is answered accordingly.\n<\/p>\n
\t\t10.In fine, the appeal fails and the same is hereby dismissed
\nconfirming the judgment and decree of the learned first appellate Judge in
\nA.S.No.72 of 2005 on the file of Court of Additional Subordinate Judge,
\nDindigul.  No costs.  Consequently, connected miscellaneous petition is closed.\n<\/p>\n
Mpk<\/p>\n
To,<\/p>\n
1. The Additional Subordinate,
\n   Dindigul<\/p>\n
2. The Additional District Munsif
\n   Dindigul.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N.Subbiah vs Mookan on 17 November, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17\/11\/2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.(MD)No.64 of 2006 and C.M.P.(MD)No.529 of 2006 1.N.Subbiah 2.N.Chellamal 3.N.Periakkal .. Appellants\/Respdts.\/Defdts. Vs. 1.Mookan 2.SivaPerumal 3.Subbamal .. Respondents\/Appllts.\/Pltffs. PRAYER This Second Appeal has been filed under Section 100 of […]<\/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-13406","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN.Subbiah vs Mookan on 17 November, 2008 - 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\/n-subbiah-vs-mookan-on-17-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.Subbiah vs Mookan on 17 November, 2008 - 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