{"id":246865,"date":"2006-10-27T00:00:00","date_gmt":"2006-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-rajendran-vs-ramasamy-gounder-on-27-october-2006"},"modified":"2015-01-13T06:07:14","modified_gmt":"2015-01-13T00:37:14","slug":"s-rajendran-vs-ramasamy-gounder-on-27-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-rajendran-vs-ramasamy-gounder-on-27-october-2006","title":{"rendered":"S.Rajendran vs Ramasamy Gounder on 27 October, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Rajendran vs Ramasamy Gounder on 27 October, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 27\/10\/2006\n\n\nCORAM :\nTHE HONOURABLE MR. JUSTICE S.TAMILVANAN\n\n\nSecond Appeal No.145 of 2006\nand C.M.P.No.1072 of 2006\n\n\nS.Rajendran  \t\t\t... \tAppellant\n\n\nVs.\n\n\nS.Ramachandran (died)\n1. Ramasamy Gounder\n2. R.Saraswathi\n3. R.Sethuraman\n4. R.Perumalsami\n5. R.Murugesan\n6. E.Umarani    \t\t... \tRespondents\n\n\n(R2 to R6 are impleaded as LR's of S.Ramachandran\n vide C.M.P.No.8343 of 2005, dated 16.12.2005\n\n\tSecond Appeal is filed against the Judgment and Decree, dated 19.10.2004\nand made in A.S.No.55 of 2003 on the file of the Principal District Judge,\nSrivilliputhur, reversing the Judgment and Decree, dated 11.04.2003 made in\nO.S.No.452 of 2000 on the file of the District Munsif, Srivilliputhur.\n\n\n!For Appellant\t \t...\tMr. A.R.M.Ramesh\n\n\n^For Respondents \t...\tMr.V.Jeyaraj for M\/s. A.Sivaji\n\n\n\n:JUDGMENT\n<\/pre>\n
\tThis Second Appeal is directed against the Judgment and Decree, dated
\n19.10.2004, made in A.S.No.55\/2003 on the file of the Principal District Judge,
\nSrivilliputhur, reversing the Judgment and Decree, dated 11.04.2003 passed in
\nO.S.No.452\/2000 on the file of the Principal District Munsif, Srivilliputhur.\n<\/p>\n
\t2. The brief facts of the case are as follows :\n<\/p>\n
\t\t(a) The appellant herein is the defendant in the suit. The suit
\npertaining to the Second Appeal was filed for declaration of title and
\nconsequential permanent injunction against the appellant \/ defendant in respect
\nof the suit well. As per the plaint schedule, the suit property is an irrigation
\nwell in S.No.1092\/1, measuring about 1 . cents in the total extent of 1 acre 21
\ncents, along with the motor pumpsets and irrigation infrastructure in Vathirappu
\nVillage, Veerasamudrapuram hamlet, Virudunagar District.\n<\/p>\n
\t\t(b) The first respondent herein is the second plaintiff and the
\nrespondents 2 and 6 are the legal representatives of the deceased first
\nplaintiff. According to the plaintiffs, the suit property and the land in
\nS.No.1092\/1 to an extent of 1 acre 21 cents were originally belonged to one
\nPalaniandi Pillai. He had three sons by name Ramaiya Pillai, Venkatachala Pillai
\nand Krishna Pillai. Krishna Pillai died issueless. Hence, after the demise of
\nPalaniandi Pillai, his sons Ramaiya Pillai and Venkatachala Pillai partitioned
\nthe property, by way of a registered partition deed in the year 1938. As per the
\npartition, Venkatachala Pillai got 63 cents and half right in the suit well and
\nRamaiya Pillai got 58 cents and half right in the suit well and both enjoyed the
\nsuit well jointly. The said Ramaiya Pillai had three sons, namely 1. Madasamy
\nPillai, 2. Perumal Pillai and 3. Sundaram Pillai. They enjoyed the property
\nwithout any partition.\n<\/p>\n
\t\t(c) The deceased first plaintiff Ramachandran purchased the said 58
\ncents and right of half share in the suit well, under Exs.A1 to A3. Similarly,
\nthe first plaintiff purchased the remaining 63 cents of land in S.No.1092\/1 from
\nthe legal heirs of Venkatachalam Pillai on 28.06.1966 under Ex.A.4. Thus the
\nfirst plaintiff purchased the entire land of 1 acre 21 cents with absolute right
\nin the suit well. On 27.07.2000, under Ex.A.12, the first plaintiff sold 59
\ncents of land, out of the said 1 acre 21 cents and th right in the well to the
\nsecond plaintiff, and as such on the date of filing of the suit, the first
\nplaintiff was entitled to “th right and the second plaintiff was entitled to th
\nright in the suit well.\n<\/p>\n
\t3. According to the plaintiffs, the appellant \/ defendant had no right in
\nthe suit well, as he had attempted to interfere with the enjoyment of the well
\nby installing oil engine in the suit well, so as to irrigate his lands on the
\nNorth, on 20.10.2000, the plaintiffs filed the suit for declaration of title and
\nalso for consequential injunction restraining the appellant \/ defendant from
\ninstalling  oil engine for pumping water from the suit well in order to irrigate
\nhis lands on the North.\n<\/p>\n
\t4. The case of the appellant \/ defendant is that the first plaintiff, his
\nmaternal uncle, who had purchased only an extent of 1 acre 21 cents in
\nS.No.1092\/1 along with 2\/3rd share in the suit well. According to him, on the
\nNorth of the suit property, 61 cents of land in S.No.1092\/4, was originally
\nbelonged to one Sundara Mahalingam Asari and Venkatesa Iyer, each were entitled
\nto 30 . cents of land. Under Ex.B.15, dated 20.07.1942, the said Sundara
\nMahalingam Achari executed a sale deed in favour of one Muthiah Konar and
\nSubbiah Konar. The registered copy of the same has been marked as Ex.A.13. As
\nper Ex.B.14, sale deed, dated 04.09.1944, one Muthammal was entitled to the said
\nland and the remaining 30. cents belong to Venkatesa Iyer, who executed the sale
\ndeed in favour of Pommiah Gounder on 14.09.1983. As per the original of Ex.A.16,
\ndated 14.09.1953, the defendants father Sankara Narayanan purchased 30 . cents
\nthrough the said Muthammal on 04.08.1968 under Ex.B.10. Similarly, Appellant’s
\nmother, Ramu Ammal purchased 30 . cents from Pommiah Gounder under the sale
\ndeed, Ex.B.3, dated 09.08.1956. The copy of the same has been marked as Ex.A.17.
\nAs per the aforesaid documents, the defendant’s father and mother had purchased
\nthe entire 61 cents in S.No.1092\/4 with 1\/3 rd irrigation right in the suit
\nwell. The appellant \/ defendant by his written statement has sought declaration
\nof title in respect of his 1\/3rd right in the suit well and consequential
\ninjunction against the plaintiffs, not to interfere with his right of irrigating
\nhis lands by using oil engine pumpset from the suit well, for which he paid
\nnecessary court fee, under Court Fees Act.\n<\/p>\n
\t5. In support of his contention, the first plaintiff has examined himself
\nas P.W.1, apart from examing P.W.2. On the side of the plaintiffs, Exs.A1 to A15
\nwere marked. The defendant was examined as D.W.1, apart from marking Exs.B.1 to
\nB.17 on his side. The trial court after considering the oral and documentary
\nevidence and arguments advanced by both sides, declared that the plaintiffs are
\nentitled to only a 2\/3rd share in the suit well and granted consequential
\ninjunction against the defendant in respect of plaintiffs said irrigating right.
\nSimilarly, the trial court has declared that the appellant \/ defendant was
\nentitled to 1\/3rd right in the suit well and also granted consequential
\ninjunction restraining the plaintiffs from interfering with the defendants right
\nof irrigating his land, by way of using oil engine and pumpsets. Aggrieved by
\nthe Judgment and Decree, the plaintiffs preferred the first appeal and the first
\nappellate court has reversed the findings of the trial court and decreed the
\nsuit as prayed for in favour of the plaintiffs and dismiss the counter claim of
\nthe appellant \/ defendant, Aggrieved by which this Second Appeal has been
\npreferred by the defendant.\n<\/p>\n
\t6. This Second Appeal has been admitted on the following Substantial
\nQuestions of Law :\n<\/p>\n
\t“1. Is not the admission of the first plaintiff as could be derived from
\nthe mortgage bond dated 12.03.1979 marked as Ex.B.1, the best form of evidence
\nand entitled to greater weight than the interested testimony of the party ?\n<\/p>\n
\t2. Are not the plaintiffs estopped from pleading contrary to the recitals
\nof Ex.B1 and that of Exs.A1 and A3?\n<\/p>\n
\t3. Are not sub division and patta proceedings (vide Exs.B5 to B9) evidence
\nof defendants joint possession and enjoyment of the suit well ?”\n<\/p>\n
\t7. It has been admitted by both sides that the first plaintiff was the
\nmaternal uncle of the appellant \/ defendant. According to the plaintiffs, they
\nwere the absolute owners of the suit well and that the defendant has no right in
\nthe suit well to install any oil engine for pumping water to irrigate his lands.
\nWhere as the appellant \/ defendant has stated that the plaintiffs were entitled
\nto only 2\/3rd share in the suit well and that the appellant \/ defendant has got
\n1\/3 rd right in the well and was also irrigating his lands in S.No.1092\/4 from
\nthe suit well. According to the appellant herein, he was  entitled to 1\/3rd
\nshare in the well, by way of purchase by his parents under the aforesaid sale
\ndeeds.\n<\/p>\n
\t8. The learned counsel appearing for the appellant \/ defendant contented
\nthat Ex.B1 is the certified copy of the mortgage deed executed by the first
\nplaintiff in favour of Srivilliputhur Cooperative Land Development Bank,
\nwherein, the first plaintiff categorically admitted that he had only 2\/3rd right
\nin the suit well. The said document was marked on the admission, while P.W.1 was
\ncross examined for the appellant \/ defendant.\n<\/p>\n
\t9. As per the findings of the court below, the first plaintiff, who was
\nexamined as P.W.1 had admitted in his cross examination that Ex.B1 is the
\ncertified copy of the mortgage deed executed by him in favour of the
\nSrivilliputhur Land Primary Development Bank. As per Ex.B1, the first plaintiff
\nhad mortgaged his land in S.No.1092\/2, 1 acre 21 cents with 2\/3rd share in the
\nsuit well with 3 HP electric motor and pumpset along with his other properties.
\nHad the first plaintiff got exclusive right in the suit well, he could not have
\nmentioned specifically 2\/3rd share in the suit well in the mortgage deed, dated
\n12.03.1979. Subsequent to Ex.B1, the first plaintiff sold 59 cents in
\nS.No.1092\/1 and also 1\/4th right in the suit well under Ex.A12, dated 27.07.2000
\nto the second plaintiff. As contented by the learned counsel for the appellant,
\nthe trial court has given a finding that the first plaintiff who mortgaged all
\nhis properties under Ex.B1, has admitted that  he had only 2\/3 share in the suit
\nwell as per Ex.B1, since he had only 2\/3rd share in the suit well. It is seen
\nthat the first appellate court has not given any clear finding in its Judgment
\nto reverse the finding of the trial court with regard to the clear admission
\nmade by the first plaintiff in Ex.B1, that he had only 2\/3rd share in the suit
\nwell. Had the first plaintiff entitled to absolute right to entire well, while
\nexecuting the mortgage deed, there could be no need for him to state that he had
\nonly 2\/3 share in the well, though he mortgaged his entire property in the
\nsurvey number along with other properties.\n<\/p>\n
 \t10. It is not in dispute that the land in S.No.1092\/4, 61 cents belongs to
\nthe appellant \/ defendant, out of which 30 . cents of land was purchased by his
\nfather Sankara Narayanan, under Ex.B10 and the certified copy has been marked as
\nEx.A15. Similarly, the remaining 30 . cents of land in S.No.1092\/4 was purchased
\nby Ramu Ammal, the mother of the appellant \/ defendant, under Ex.B3 and the
\ncertified copy has been marked as Ex.A17, its parental document is Ex.A16. As
\nper the findings of the trial court on the aforesaid documents, irrigation
\nchannel has been stated as  “mjd; ghrd tha;f;fhy; ghj;jpaKk;”. Ex.A14 is the
\ncertified copy of the parental document, dated 04.09.1944, wherein there is a
\nclear averment that the land in S.No.1092\/4 comprising 61 cents,  out of which
\n30 . cents land with irrigation channel and also 1\/3rd right in the well was
\nconveyed by Muthammal, the vendor of the appellant’s father Sankara Narayanan.
\nIn its parental document, dated 20.07.1942, the original of Ex.A13, it has been
\nstated that Muthiah Konar and Subbiah Konar had purchased 30 . cents land, out
\n61 cents in S.No.1092\/4 with irrigation channel and 1\/3rd right in the  well.
\nThe first plaintiff as P.W.1 has deposed that there was a well in S.No.1092\/4
\nand the same was closed 50 years back, which was disbelieved by the trial court.
\nIn order to substantiate the contention  that the well referred to<\/p>\n
in the aforesaid document was some other well, no evidence was produced by the
\nfirst plaintiff.\n<\/p>\n
\t11. As per Section 101 of the Indian Evidence Act, 1872, the person who
\nasserts the existence of certain facts must prove that those facts were in
\nexistence, which can not be shifted on the other side.\n<\/p>\n
\t12. According to the defendant, there was no well in S.No.1092\/4, except
\nthe suit well in S.No.1092\/1.  P.W.2, the Draftsman of land survey, attached to
\nTahsildar Office of Srivilliputhur has deposed in his evidence with the help of
\nrevenue records, that there was no well in S.No.1092\/4, as stated by the first
\nplaintiff, except the well in S.No.1092\/1. Ex.B4, sketch prepared with
\nmeasurements and signed by the Tahsildar, Srivilliputhur would clearly show that
\nthere was no separate well in S.No.1092\/4 and that the land in which the suit
\nwell situated has been subdivided as S.No.1092\/1A, which was originally in
\nS.No.1092\/1 before the sub division was made. According to P.W.2, immediately on
\nthe North of the suit well, the land belongs to appellant \/ defendant, bearing
\nS.No.1092\/4 is situated. In Ex.A1, at page No.8, Sundaram Pillai S\/o. Ramaiya
\nPillai, who executed the sale deed in favour of the first plaintiff has stated
\nthat out of 58 cents in S.No.1092\/1, he had conveyed 1\/3rd share in the land
\nwith a common 1\/3rd share in the suit well.\n<\/p>\n
\t13. The learned counsel for the appellant would contend that Ramaiya
\nPillai’s, legal heirs  by way of Ex.A1, Ex.A2 and Ex.A3 have conveyed, each
\n1\/3rd right in the well and as per the said documents, the absolute right was
\nconveyed by the legal heirs of Ramaiya Pillai, though the first plaintiff has
\nadmitted that Ramaiya Pillai had only . right in the well. Further, the learned
\ncounsel for the appellant drew the attention of this Court to the recorded
\nevidence of P.W.1, at  Page No.8, the first plaintiff has stated that Ramaiya
\nPillai had only 1\/3rd right in the well and that his 3 sons, each had only 1\/9th
\nshare, which is also contradictory to his pleadings.\n<\/p>\n
\t14. As held by the trial court, both the plaintiff’s land in S.No.1092\/1
\nand the defendant’s land, S.No.1092\/4,  were once in S.No.1092 without any
\nsubdivision and that the well is more or less at the boundary of both the lands.
\nHad there been some other well in S.No.1092\/4, as stated by the first plaintiff,
\nsince the defendant is the owner of the entire 61 cents in S.No.1092\/4 in the
\nancient document, Ex.A14, there could be no need to make a  recital stating
\n1\/3rd right in the well, instead of stating the entire well.  As found by the
\ntrial court  under Ex.B3, sale deed, dated 30.09.1970, the defendant’s father
\nhad purchased the land in S.No.1092\/4 along with 1\/3rd share in the well
\nsituated at the border of both the lands.\n<\/p>\n
\t15. In cross examination, P.W.1, the first plaintiff in the suit, has
\nadmitted that the mother of the appellant \/ defendant, was his own sister and
\nthat he signed as a witness in Ex.B3, by which the mother of the appellant \/
\ndefendant purchased 30 . cents in S.No.1092\/4. The oral and documentary evidence
\nadduced by both the sides would clearly show that the first plaintiff by Ex.B1,
\nmortgage deed has clearly admitted that he had 1 acre 21 cents of land in
\nS.No.1092\/1 and 2\/3 rd share in the well therein with 3 HP electric motor and
\npumpset, apart from other lands stated in the document. Therefore, I am of the
\nview that it is a clear admission of the first plaintiff that he had only 2\/3
\nright in the suit well and the documents marked on the side of the appellant \/
\ndefendant and the evidence of P.W.2 would also  probablise  the fact that the
\nremaining 1\/3 rd right in the well was enjoyed by the appellant \/ defendant and
\nbefore him,  his predecessors in title.\n<\/p>\n
\t16. Section 115 of the Indian Evidence Act, 1872 reads as follows :
\n\t” 115. Estoppel – When one person has, by his declaration, act or
\nomission, intentionally caused or permitted another person to believe a thing to
\nbe true and to act upon such belief, neither he nor his representative shall be
\nallowed, in any suit or proceeding between himself and such person or his
\nrepresentative, to deny the truth of that thing.”\n<\/p>\n
\t17. By way of Ex.B1, dated 12.03.1979, prior to the sale deed Ex.A12,
\ndated 27.07.2000, executed by him in favour of the second plaintiff, the first
\nplaintiff has clearly admitted that he had only 2\/3 rd right in the suit well,
\nthough he had owned the entire 1.21 acre of land in S.No.1092\/1. Hence, as per
\nSection 115 of the Indian Evidence Act, the first plaintiff is estopped from
\nsaying that he was the absolute owner of the well against his own admission made
\nin the said document, Ex.B1.\n<\/p>\n
\t18. Therefore, based on the evidence, I am of the view to answer the
\nSubstantial Questions of Law 1 and 2 against the respondents herein and in
\nfavour of the appellant \/ defendant.\n<\/p>\n
\t19. The learned counsel for the respondents would contend that Ex.B5,  the
\njoint patta issued by the Head Quarters, Deputy Tahsildar, Srivilliputhur cannot
\nconfer any right on the appellant \/ defendant, since the patta is not a document
\nof title. In support of his contention, the learned counsel cited the decision
\nreported in (2004) 1 MLJ 329 (Kalidoss Pillai v. Palani Subbab Pillai),<\/a> wherein
\nthis court has held as follows :\n<\/p>\n
\t” 23… The second defendant has failed to explain the circumstances under
\nwhich the parties were issued in the joint names of the plaintiff and the
\ndefendants 1 and 2, when the second defendant relies upon the pattas, it is for
\nhim to establish by cogent evidence the circumstances under which the joint
\npattas were issued in favour of the plaintiff and the defendants 1 and 2. We
\nfind that when the plaintiff was cross-examined, he was not questioned reference
\nto the joint pattas and the appellant has also not deposed regarding the joint
\npattas. Further, the pattas are not document of title.\n<\/p>\n
\t20. It has been categorically held in various judgments and in the
\njudgment referred above that patta is not a document of title. In this case the
\nappellant \/ defendant has categorically stated in his written statement and
\nevidence that his predecessors in title enjoyed 1\/3 rd right in the suit well,
\nas per their sale deeds and the same was continuously being enjoyed by him,
\nafter he became the owner of the property and that he was irrigating his land in
\nS.No.1092\/4 by motor engine, pumpset.  Based on that, he placed his counter
\nclaim before the trial court and also paid necessary court fee as per Court Fees
\nAct.\n<\/p>\n
\t21. It is seen that the suit was filed before the trial court on
\n03.11.2000, wherein the plaintiffs have stated that the appellant \/ defendant
\nwithout any right in the suit well was openly declaring on 20.10.2004 that  he
\nwas going to install oil engine in the suit well, so as to irrigate his lands in
\nS.No.1092\/4 and the same has been stated as the alleged cause of action for
\nfiling the suit. But, it<\/p>\n
is seen that  prior to the said date, on 04.10.2000 itself, the Headquarters,
\nDeputy Tahsildar, Srivilliputhur had issued a joint patta, Ex.B5,  in the name
\nof the defendant and the first plaintiff in respect of the suit well and the
\nsame was counter signed on 03.10.2000 itself by the Village Administrative
\nOfficer, Vathirappu Village. But Exs.B6 to B9 are subsequent documents obtained
\nafter filing of the suit. The joint patta, Ex.B5 was issued in the name of the
\nfirst plaintiff and the defendant prior to the date of the alleged cause of
\naction and for filing of the suit.\n<\/p>\n
\t22.  P.W.2, the Draftsman attached to Tahsildar Office has also deposed
\nclearly in his evidence during cross examination that the suit well is situated
\nin S.No.1092\/1A, for which joint patta was issued in the name of the first
\nplaintiff and the appellant \/ defendant. Though the patta is not a document in
\ntitle, it being a public document issued by Revenue authorities is certainly a
\nsupporting document, which corroborates the defendant’s case that he was
\nirrigating his lands in S.No.1092\/4 from the suit well as per the rights
\nconveyed by his vendor under the sale deed and other documents filed in the
\nsuit. Therefore, the documents Exs.B5 to B7 marked on the side of the appellant
\n\/ defendant would support the joint possession and the enjoyment of the suit
\nwell by  the appellant \/ defendant and according I am of the view to answer the
\nSubstantial Question of Law 3 also in favour of the appellant \/ defendant.\n<\/p>\n
\t23. Though, the trial court has given its finding based on the oral and
\ndocumentary evidence, the first appellate court  without  considering  the same
\non merits has reversed the Judgment and Decree rendered by the trial court and
\ntherefore, I am of the view that the appeal has to be allowed and the Judgment
\nand Decree passed by the first appellate court are to be set aside.\n<\/p>\n
\t24. In the result the Second Appeal is allowed, confirming the Judgment
\nand Decree passed by the trial court in O.S.No.452 of 2000 and the Judgment and
\nDecree, dated 19.10.2004  passed by the first appellate court in A.S.No.55 of
\n2003 is set aside. However, there is no order as to costs. Consequently,
\nconnected C.M.P.No.1072 of 2006 is closed.\n<\/p>\n
tsvn<\/p>\n
To<\/p>\n
1. The Principal District Judge
\n   Srivilliputhur.\n<\/p>\n
2. The District Munsif
\n   Srivilliputhur.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Rajendran vs Ramasamy Gounder on 27 October, 2006 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 […]<\/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-246865","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Rajendran vs Ramasamy Gounder on 27 October, 2006 - 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\/s-rajendran-vs-ramasamy-gounder-on-27-october-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Rajendran vs Ramasamy Gounder on 27 October, 2006 - 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