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2000 DIGILAW 1146 (MAD)

Udayanasamy Thevar v. Mootor Thevar

2000-11-16

V.KANAGARAJ

body2000
JUDGMENT This second appeal is directed against the judgment and decree dated 12.10.1998 made in A.S.No.22 of 1998 by the Court of Principal District Judge, Sivaganga, thereby confirming the judgment and decree dated 16.12.1997 made in O.S.No.15 of 1997 by the Court of Principal District Munsif, Sivaganga. 2. To trace the history of the case, it is the respondent herein who has filed the suit in O.S.No.15 of 1997 on the file of the Court of District Munsif, Sivaganga, for declaration that the plaintiff is independently entitled to the suit property and for permanent injunction restraining the defendants from in any manner interfering with or trespassing into and disturbing the plaintiff's peaceful possession and enjoyment of the suit properties and for costs. 3. 3. Adverting to the facts of the case, the plaintiff would state that the suit property belongs to the plaintiff ancestrally; that on 30.6.1973, patta was also granted in his favour; than an Inam Abolition appeal preferred was also decided in his favour; that by construction of a house and by planting trees and putting up haystack thus being in possession and enjoyment of the property for over the statutory period, the plaintiff also became entitled to the suit property, by means of adverse possession; that since those who are residing on the Northern side of the suit property, started claiming the suit property, the plaintiff filed a suit in O.S.No.403 of 1983 which was decided in his favour on 30.1.1986 and on further proceedings, ultimately excluding a small portion for the common pathway, the other major portion remained with the plaintiff's independent possession; that the defendants are not entitled to any right in the suit property, nor had the suit property been enjoyed as a common property of the family; that even prior to the settlement, the plaintiff and the defendants and their other brothers had a partition among themselves and were in independent possession of their own; that while so, at the instance of the defendants, the Tahsildar, Sivaganga, on 22.12.1993 passed orders granting a patta for the suit property and that too on appeal, it was decided in favour of the plaintiff on 20.7.1995; that again on a revision filed by the defendants, a joint patta was ordered by the District Revenue Officer and under that pretext, from 15.11.1996, the defendants started interfering with the plaintiff's peaceful possession and enjoyment of the suit property, and hence, the suit for the reliefs mentioned supra. 4. 4. On the contrary, in the written statement filed by the defendants, they would state that it was the plaintiff's father Muthusamy who initiated the revenue proceedings which has nothing to do with the plaintiff, nor the second and third defendants are the necessary parties to the suit, and hence the suit is bad for misjoinder of parties; that it is false to allege that on the East of the suit property, the plaintiff has constructed his house only in the share belonging to himself; that when the first defendant had been away from the village seeking better livelihood, on a misrepresentation that the plaintiff was the only heir of Muthusamy, had obtained patta in his favour. But, on enquiry, since such version came to be proved false, a joint patta was ordered; that in a portion of 9 cents on the Western side of the suit property, it is this first defendant who is in possession and enjoyment of the same; that this defendant does not know anything about the suit in O.S.No.403 of 1983 on the file of the Court of District Munsif, Sivaganga, since he is not a party to the suit proceeding at all; that there is no pathway on land which has been mentioned in the said suit, nor is there any trace of the same available on ground; that the father of the plaintiff and this first defendant, viz., Muthusamy was entitled to the suit property ancestrally; that by succession, the plaintiff and the first defendant are respectively in possession and enjoyment of the Eastern and Western portions; that the plaintiff is entitled only to 9 cents on the East and the Western 9 cents are belonging to this defendant; that there is no truth or substance in the claim of the plaintiff; that on account of the long possession and enjoyment of the 9 cents on the West by the first defendant, he has also become entitled to that portion by means of adverse possession and on such grounds, the first defendant would pray to dismiss the suit with costs. 5. Based on these pleadings by parties, the trial court having framed five issues, viz., (i) whether the plaintiff is entitled to the suit property. (ii) Whether the suit property is in possession of the plaintiff. (iii) whether defendants 2 and 3 are necessary parties. 5. Based on these pleadings by parties, the trial court having framed five issues, viz., (i) whether the plaintiff is entitled to the suit property. (ii) Whether the suit property is in possession of the plaintiff. (iii) whether defendants 2 and 3 are necessary parties. (iv) whether the plaintiff is entitled to the relief of declaration and injunction for the whole of the suit property and (v) what relief could be granted otherwise and has conducted a thorough trial, in which, both the plaintiff and the defendants on either side would examine two witnesses among whom, P.W.1 is the plaintiff himself and D.W-1 is the first defendant. For documentary evidence, 12 documents would be marked as Exs.A-1 to A-12 on the part of the plaintiff. Ex.A-1 being the rough sketch showing the location of the suit property; Ex.A-2 dated 2.8.1985 is the U.D.R. patta in favour of the plaintiff; Ex.A-3 dated 31.1.1986 is the certified copy of the judgment and decree in O.S.No.403 of 1983; Exs.A-4 and A-5 both dated 7.12.1995 are respectively the certified copies of the decree and judgment in A.S.No.74 of 1994; Ex.A-6 dated 15.11.1996 is the certified copy of the Commissioner's report and sketch submitted in O.S.No.403 of 1983; Ex.A-7 dated 8.10.1991 and Ex.A-8 dated 6.5.1992 are the kist receipts; Ex.A-9 dated 20.7.1995 is the order made in appeal for S.No.141/3; Ex.A-10 dated 12.7.1996 is the order passed in the revision petition for the land in S.No.141/3; Ex.A-11 is the certified copy of the suit registered in Inam Abolition Appeal Court in No.1/77; Ex.A-12 dated 16.8.1996 is the settlement jamapandhi chitta extract. 6. On the contrary, the defendants would also mark 10 documents as Exs.B-1 to B-10. Ex.B-1 dated 22.12.1993 is the order passed by the Tahsildar, Sivaganga for change of patta in S.No.141/3; Ex.B-2 dated 12.7.1996 is the order passed in the revision by the D.R.O; Ex.B-3 dated 30.12.1993 is the jamapandhi chitta extra; Ex.B-4 dated 2.9.1993 is the settlement register extract; Ex.B-5 dated 13.7.1985 is the deposition of P.W.2 in O.S.No.403/83; Exs.B-6 to B-10 are the kist receipt respectively dated 14.12.1993, 2.8.1994, 2.8.1994, 7.3.1995 and 7.3.1995. 7. 7. The trial court having assessed the merit of the case based on the pleadings and in the light of the evidence placed on record, would ultimately arrive at the conclusion that the entire suit property is in possession and enjoyment of the plaintiff and that the claim of the first defendant that he is entitled to and in possession of 9 cents on the Western side of the suit property, is not proved and would decree the suit as prayed for. 8. On an appeal preferred by the defendants, the court of appeal also having framed three points for determination, viz., (i) whether the plaintiff is in possession of the entire suit property and whether he is entitled to the same by adverse possession. (ii) whether the first defendant is entitled to and in possession of 9 cents on the west of the suit property and (iii) whether the appellant is entitled to the relief of declaration and permanent injunction and having his own discussions on facts pleaded before him by parties, would ultimately concur with the findings of the lower court and would dismiss the appeal with costs thereby confirming the judgment and decree passed by the trial court. Aggrieved against this judgment and decree made by the first appellate Court, the defendants have come forward to prefer this second appeal, on certain grounds as brought forth in the memorandum of grounds of second appeal. 9. During arguments, the learned counsel appearing for the appellants would submit that the defendants in the suit are the appellants herein and the respondent filed the suit for declaration and injunction pertaining to the suit property, based on the plea that he obtained patta from the revenue authorities. The learned counsel citing from paragraph 6 of the judgment of the first appellate court, would argue that though first appellate court had concluded that either the earlier proceedings initiated on the part of the respondent or the orders made therein covering Exs.A-3 to A-6 and A-11 are in favour of the respondents, still, they are not binding on the appellants so far as the suit property is concerned. The same court has also decided in para. The same court has also decided in para. 8 of its judgment that from the time of settlement, the patta had been in the name of the respondent thereby showing that he has been in possession and enjoyment of the same, effecting the payment of the kist. However, declining to accept that on the only ground that once the property had been in the name of the father of the plaintiff and the first defendant, the claim of the first defendant cannot be accepted. Further remarking that they have been only in possession of the plaintiff and that the suit property fell to the share of the plaintiff and merely stating that the possibilities of the version of plaintiff to occur are more, the first appellate court has bluntly arrived at the conclusion to dismiss the appeal. 10. At this juncture, the learned counsel would cite a judgment delivered in S.Subba Reddiar and others v. Bhagyalakshmi Ammal and another S.Subba Reddiar and others v. Bhagyalakshmi Ammal and another S.Subba Reddiar and others v. Bhagyalakshmi Ammal and another (1996)2 MLJ. 327 : (1996)2 L.W. 31 . wherein it is held that the pleading is necessary for adverse possession to be claimed. But both the courts have concluded that the plaintiff has perfected his title by adverse possession without proper pleading to the said effect. The learned counsel would cite para.12 in the above judgment as relevant and hence, it is extracted herein; “The plea is absolutely necessary. What was the adverse character and when it started are only within the personal, knowledge of the person claiming it. He alone can plead his possession from a particular date and claim that it was adverse. Art.65 of the Limitation Act provides that for recovery of possession on the basis of title, 12 years from the date on which adverse possession began. So, a definite date is required to claim adverse possession.” 11. The learned counsel citing the above portion of the judgment would contend that the pleading should be specific to the proposition of the judgment, otherwise, the relief of declaring that the plaintiff has perfected his title, cannot at all be granted; that in this case, the plaintiff says that he is ancestrally entitled to the suit property and then he says that he has also perfected his title by adverse possession. The learned counsel would insist that the plaintiff is not entitled to take alternate pleas whereas, in law, only the defendant is entitled to take such alternate pleas; that having claimed the property to be belonging to him ancestrally, the plaintiff cannot prefect his title by adverse possession for his own property. The pertinent question that is to be noted here is that the plaintiff and the first defendants are brothers which fact has been suppressed in the whole of the plaint, and, therefore, the plaintiff in the whole of the plaint, and, therefore, the plaintiff has not at all come to the court with clean hands and with the true facts and circumstances; that altogether, the judgment of the courts below are perverse. 12. At this juncture, the learned counsel would cite yet another judgment delivered in Natesan v. Chinnachi Kandar & others Natesan v. Chinnachi Kandar & others Natesan v. Chinnachi Kandar & others (1996)2 L.W 344 wherein it is held that for the claim of adverse possession, the claim of right must be actual, exclusive, adequate, in continuity, in publicity and in extent so as to show that it is adverse to the true owner, and must be peaceful, open and continues. Mere user of property cannot be taken as assertion of proprietary right. 13. The learned counsel would ultimately submit that very strong documentary evidence is necessary since strict standard of proof of the claim of adverse possession is expected by law and merely based on some unreliable oral evidence and certain circumstances and without proper discussion at all, the title by adverse possession has been declared and would conclude his argument praying for setting aside the findings of both the courts below. 14. 14. In reply, the learned counsel appearing for the respondent would submit that the suit is based on evidence and it is only the appellant who relies more on adverse possession; that the suit was decided not based on adverse possession alone, but adverse possession has been taken into consideration; that the suit property is measuring 18 cents with the thatched shut put up; that on 30.6.1973, the suit property was assigned in the name of the plaintiff by the revenue authorities; that the defendant did not testify the assignment issued in favour of the plaintiff; that the assignment was confirmed by the Court of Subordinate Judge, Sivaganga on 29.10.1982 as seen in Ex.A-1 judgment; that in the earlier proceedings, the common pathway was declared further deciding the rest of the lands in favour of the plaintiff. 15. Citing the relevant portions from the judgment of both the courts below, the learned counsel would submit that the court cannot declare what has not been specifically prayed for and that there has been pleading to the effect of adverse possession on the part of the plaintiff; that the finding is not based on perfection of title by adverse possession, but on other reasons also, wherein adverse possession came to be found in favour of the plaintiff by the courts below; that the points taken up for determination by the first appellate court have been rightly answered in its judgment. Further, the learned counsel would submit that it is a concurrent finding on facts by the courts below and it is not up to this court to go into such of the findings factually arrived at by the lower courts in a concurrent manner. On such arguments, the learned counsel would conclude praying to dismiss the appeal. 16. In consideration of the facts and circumstances as pleaded by parties to the suit and having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that though the plaintiff has not come out in the open to reveal that the first defendant is none other than his own brother and the said Muthusamy is the father of both, from the written statement, the same comes to be revealed which is not denied on the part of the plaintiff. There is no dispute regarding the property once having been enjoyed by the father of the plaintiff and the first defendant, viz., Muthusamy being in possession and enjoyment of the same. Further, it comes to be known that it is Muthusamy, the father of the contesting parties who initiated the revenue proceedings. But the case of the plaintiff is that even prior to the settlement period, there had been a partition in the family from when onwards the suit property came to be enjoyed by the plaintiff independently and the defendant had never been in possession of any fraction of the suit property thereafter, but on misrepresentations, the first defendant had initiated measures with the Tahsildar, Sivaganga, who ordered joint patta to be issued in favour of both the plaintiff and the first defendant and the said revenue proceeding has been ultimately upheld by the D.R.O. on revision. 17. In the above circumstances, the plaintiff has come forward to file the suit with averments to the effect that there had been some disturbance caused to his possession by third parties and he filed O.S.No.403 of 1983 and in the said suit having been decided in his favour, the appeal had been preferred by the other side and on a remand of the case made by the appellate court, the suit came to be allowed in part and again on appeal in A.S.No.74 of 1984, the said court having declared a portion of the suit property as a pathway, recognising the same to be in common possession of all, the rest of the suit property continued to be in independent possession of the plaintiff and on such averments, the plaintiff would seek for the reliefs to declare that the suit property is in the independent possession of the plaintiff and for permanent injunction restraining the defendants from in any manner interfering with his peaceful possession and enjoyment of the suit property. 18. The entire earlier proceedings instituted in O.S.No.403383 and thereafter the appeal proceedings and the decisions made thereon have absolutely no bearing on the first defendant, since he was not a party to these proceedings at all. 18. The entire earlier proceedings instituted in O.S.No.403383 and thereafter the appeal proceedings and the decisions made thereon have absolutely no bearing on the first defendant, since he was not a party to these proceedings at all. So far as the joint patta is concerned, even though it is stated that the first defendant initiated such proceedings, the joint patta as ordered by the Tahsildar, Sivaganga not only on appeal by the R.D.O., but also in revision by the D.R.O. came to be confirmed, there is no dispute at all in this position. Though the grant of patta by the revenue authorities is in no manner going to indicate that either of the parties to the contest is entitled to the suit property, it is paramount to consider that none of the parties to the contest becomes entitled to the property in any other manner excepting by means of long possession and enjoyment of the suit property. 20. Admittedly by both, it was Muthusamy, the father of the plaintiff and the first defendant was ancestrally entitled to the suit property being in possession and enjoyment of the same and it was he who initiated the revenue proceedings culminating in the final order being passed by the revenue officer concluding that a joint patta should be issued in the name of both the plaintiff and the first defendant. From the documents marked on both sides, Exs.A-3 to A-6 have absolutely no bearing on the first defendant as already seen and concluded, since to these earlier proceedings and the findings given, the first defendant was not the party. Hence, based on these documents, no conclusions could be arrived at to decide the case in hand. 21. It is relevant to consider that though based on possession alone, U.D.R. pattas were granted by the Special Tahsildar appointed under the U.D.R. scheme, since may anomalies occurred in the very scheme itself, they were regularised later, and hence, taking into consideration the U.D.R. patta once granted in favour of the plaintiff, no ultimate conclusion could be arrived at either regarding the title or even the possession of any one. However, at a later stage, on 22.12.1993 by the Tahsildar and on 12.7.1996 by the D.R.O respectively, on application and in revision before them for a joint patta to be issued, the same had been ordered so far as the suit property is concerned, as revealed by Exs.B-1 and B-2, as against the separate patta ordered by the R.D.O., Sivaganga in Ex.A-9 dated 20.7.1995 subsequently by the revenue authorities, it has been ultimately decided that in the circumstances of the case, only a joint patta could be ordered based on their own investigation and finding that it is both the plaintiff and the first defendant who are in joint possession of the entire suit property. This stand based on the revenue records taken on the part of the revenue authorities is relevant, since parties are not in a position to establish their right to the suit property in any other independent source. 22. While such being the position, the plaintiff is left with no other better document in proof of his case excepting two kist receipts under Exs.A-7 and A-8. The first defendant has produced five kist receipts under Exs.B-6 to B-10. These are the only documents left with for deciding the case besides the revenue proceedings having gone in favour of the first defendant with joint patta being issued and the earlier court proceedings indicated in Exs.A-3 to A-6 have no relevance in the context of the first defendant/appellant. Hence, only based on these documents with the other oral evidence adduced by parties, the case has to be decided. So far as the witnesses are concerned, they have spoken to the effect of their pleadings and no significance would be attached to the same. 23. It is relevant to consider that it is a suit filed by the plaintiff. Needless to mention that the onus is heavily on the plaintiff in proof of the case put up by him to the relief sought for. Both the plaintiff and the first defendant have pleaded to be entitled to the suit property by adverse possession. But, on the part of the plaintiff, he has taken this plea only as an alternative one and his main plea is that he is ancestrally entitled to the suit property. Both the plaintiff and the first defendant have pleaded to be entitled to the suit property by adverse possession. But, on the part of the plaintiff, he has taken this plea only as an alternative one and his main plea is that he is ancestrally entitled to the suit property. There is no specific issue framed by the trail court to this effect whether the plaintiff is entitled to the property ancestrally and no proper evidence has also been let in to the said effect. Absolutely, no documentary evidence of any kind has been placed on record to substantiate this claim of the plaintiff. It is only the possession that is highlighted based on a specific issue. 24. The other issue is regarding the plaintiff's alternate prayer in the suit. Yet another issue is regarding the misjoinder of parties so far as it is concerned with defendants No.2 and 3 about whom, absolutely, there is no mention nor any proof to the effect that they are the necessary parties and hence, it is safe to conclude at this stage itself that the suit is bad for misjoinder of defendants 2 and 3. However, since the first defendant is the contesting party, the suit cannot altogether become bad. Likewise, from the points framed by the first appellate court, it comes to known that though the issue has been framed to the effect of plaintiff's entitlement and possession, there is no specific mention as to what type of entitlement much less ancestrally by the plaintiff, as it is pleaded on the part of the plaintiff. Absolutely, no positive evidence comes forth that the plaintiff is entitled to the suit property ancestrally excepting to orally state something about it in an unreliable manner. 25. Moreover, the appellate court has ultimately decided the matter on ground that on the part of the first defendant, he has not established his plea as to the second point framed by the court whether he is entitled to 9 cents on the Western portion of the suit property and mainly based on such ground on a negative approach, the first appellate court has ultimately arrived at the conclusion to confirm the finding of the trial court to the effect that the plaintiff is entitled to the relief sought for thus decreeing the suit in favour of the plaintiff. 26. 26. Evidence is absolutely lacking and no proper pleading put forth on the part of the plaintiff. Only regarding the consequent relief, the plaintiff is entitled to plead, but not for the alternate relief. It is only the defendant who is entitled to take such alternate plea. No proper issue or point framed both by the trial court and the first appellate court to decide whether the plaintiff as pleaded primarily by him, is entitled to the suit property ancestrally. No issue or point had also been framed to the pleading of the plaintiff that there had been a partition, in which, he came to be in possession of the entire suit property, from when onwards he claims to continue to be in possession and enjoyment of the same. 27. This vital aspect of the case has gone unnoticed by both the trial court and the first appellate court. Neither there is proper pleading nor any reliable evidence let in on the part of the plaintiff in proof of even a weak case put up on his part, especially in view of the position of law is such that the onus of proof of the case is heavily on the true plaintiff, since it is the plaintiff, who has come forward to institute the suit on ground of the existence of the facts or none existence of the same. Hence, it is paramount to note whether the plaintiff has basically proved his case to that standard and requirement of law that is with preponderance of probability. If this question is to be answered, it has to be mentioned that the plaintiff has neither put up a strong or valid case nor projected the same in the proper manner before the court below nor proper evidence let in to the pleadings and prayer, and hence, the only conclusion that could be arrived at in the circumstances of the case is that the plaintiff has miserably failed to substantiate his claim to the suit property pertaining to the relief sought for. 28. 28. On the other hand, the very fact that the first defendant is the brother of the plaintiff and the son of Muthusamy who was admitted in possession of the property, is sufficient evidence to preliminarily conclude that the first defendant is jointly entitled to whether based on possession and enjoyment of the suit property of even the title in some form or other, as it had been rightly decided by the revenue authorities, especially the Tahsildar and the District Revenue Officer in ordering a joint patta to be granted in favour of the plaintiff and the first defendant which has become final so far as the grant of patta in the revenue forum is concerned. If at all any other right is there for the first defendant, it cannot be declared here in this case and no vivid discussion need be necessary so far as the other rights of the first defendant to the suit property is concerned. Hence, it is sufficient to conclude that it is the plaintiff who instituted the suit and he has only failed to prove the case with preponderance of probability as against the first defendant, who is the contesting party to the suit. 29. For declaring the title of the plaintiff to the suit property by adverse possession as held in the judgments cited on the part of the appellants, pleading with specifications of the requirements regarding the suit property by the plaintiff must be there and the same should be substantiated in the manner expected by law, and hence, both the courts below have erred in declaring that the plaintiff is entitled to the suit property by adverse possession, merely on suppositions and surmises, hypothesis and conjectures and without any basis or proof for the same. All the requirements of law for declaration of title by adverse possession must be pleaded, proved and established. 30. The point for consideration to decide every case which, is civil in nature is preponderance of probabilities and though both parties are equal in the exercise of showing such probabilities preponderantly, still, the responsibility of the plaintiff in discharging the onus of the proof is heavily on him, since it is he who comes forward to institute the suit or appeal or application pleading that there is existence or non-existence of the fact. Of course, depending on the defence taken, the burden would also be shifted on the defendant, if any new set of facts are alleged on his part. But, so far as the original case as put up on the part of the plaintiff is concerned, the onus which does not get shifted is heavily fixed on the plaintiff. 31. Courts should always focus their attention to find out whether the plaintiff, to the pleadings and prayer, has proved and established his case by causing production of such evidence and with such preponderance of probability in a positive manner without having a negative approach expecting such proof from the defendants even pertaining to those reliefs sought for by the plaintiff. In the case in hand, neither a uniform case is put forth on the part of the plaintiff with such pleadings, nor such positive evidence placed on record either in establishing the title having acquired ancestrally or for having perfected the title by means of adverse possession, placing such strong documentary evidence right from the day that he is alleged to have entered into the property to the knowledge of the owner and continues for over the statutory period, till the date of filing of the suit, nor even for the other relief of permanent injunction that is sought for by the plaintiff to the requirements of law, but the lower courts without bothering much to see whether the plaintiff has established his case, have focused their attention unnecessarily on the defendants and remarking that the defendants have not placed such best evidence on record, they have granted the relief in favour of the plaintiff which negative approach should be discredited and discouraged. It should be found that no relief is going to be ordered in favour of the defendants. 32. Both the courts below, without analysing the facts and circumstances encircling the whole case in its proper perspective and without framing proper issues and points, have arrived at wrong conclusions and the approach of both the courts below is only perverse, thus calling for interference to be made by this Court into their decisions. The judgments of the lower courts not only suffer from legal infirmities and inconsistencies, but also from patent errors of law and perversity in approach. 33. In result, the above second appeal succeeds and the same is allowed. The judgments of the lower courts not only suffer from legal infirmities and inconsistencies, but also from patent errors of law and perversity in approach. 33. In result, the above second appeal succeeds and the same is allowed. The judgment and decree dated 12.10.1998 made in A.S.No.22 of 1998 by the Court of Principal District Judge, Sivaganga, thereby confirming the judgment and decree dated 16.12.1997 made in O.S.No.15 of 1997 by the Court of Principal District Munsif, Sivaganga is hereby set aside. No costs. 34. Consequently, 17605 of 1999 is closed. Second appeal allowed.