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2000 DIGILAW 775 (MAD)

Karuppusamy Gounder v. Rukmani

2000-08-04

K.SAMPATH

body2000
Judgment : The defendant in O.S.No.577 of 1983 on the file of the District Munsif, Pollachi, is the appellant in the second appeal. 2. The respondent herein filed the said suit for declaration of her right in East-West ‘AB’ ridge in Survey No.323/4 in Kolarpatti Village, Pollachi Taluk, Komangalam Registration Sub District, Tiruppur Registration District and also in the said survey field and for a permanent injunction restraining the appellant from interfering with her right in the ridge and in the survey field. 3. Thecase of the respondent herein as it out in the plaint was as follows: The suit property originally belonged to her grandfather one Subbiah Gounder having been purchased by him in the year 1925 and after his lifetime his son/respondents father Chellappa Gounder became entitled to it, that on the death of Chellappa Gounder the respondent and her sister one Muthulakshmi became entitled to the property and other properties of Chellappa Gounder, and in the partition between the sisters, on 211. 1976 the suit property fell to her share. The respondent and her predecessors in title had been in possession and enjoyment of the suit property for over 60 years and had prescribed for title by adverse possession. The respondents father Chellappa Gounder planted about 250 coconut trees the about 25 years prior to the suit and all those trees had started yielding. The watering for the trees was being done from the separate well in survey field No.323/4. There was another well in S.No.323/5 in which the respondent had right to use the water for two days out of nine days. The respondent had been using the oil engine in S.F.No.323/5 for watering the coconut thope in S.F.No.323/4. There were also mamool hedges on all the four sides of the respondents lands in existence for over 25 years. The water bailed out from the well in S.F.No.323/5 was taken west through her channel along ‘AB’ and the whole coconut thope belonging to her got water that way. South of the said channel East-West ‘AB’ ridge belonging to the appellant was situated and it had been in existence for 60 years and more. To the south of ‘AB’ ridge the respondents lands were situated and those lands were higher in level than the appellants lands by two feet. The respondent had planted 15 palmyrah trees along the ridge going east to West. To the south of ‘AB’ ridge the respondents lands were situated and those lands were higher in level than the appellants lands by two feet. The respondent had planted 15 palmyrah trees along the ridge going east to West. The coconut trees in the respondents lands in S.No.323/6 were ten years old. Just nine months prior to the suit, the revenue officials measured the properties belonging to the appellant and the respondent and on the basis of old boundaries and areas fixed the boundary lines of their properties. During the said updating the appellants lands were given S.No.323/4 and the lands of the respondent S.No.323/6 and the common well belonging to the parties in the area surrounding the same were given S.No.323/5. The enjoyment of the parties and their respective predecessors in interest had been accepted by both the parties in respect of the properties belonging to them. On account of some recent misunderstanding the appellant herein was threatening to obliterate the ‘AB’ ridge and the channel and because of the timely action taken by the respondent herein this was prevented. The appellant herein had no respect for law. He had no right whatsoever to interfere with the respondents possession and enjoyment of ‘AB’ ridge and channel. If these two were obliterated, the respondent herein would be put to great hardship and loss. The appellant herein had also been threatening to interfere with the plucking of coconut by the respondent herein from her coconut trees. If the coconut trees were not watered, they would wither away, resulting in enormous loss to the respondent herein. Since the appellant herein threatened to destroy the ridge on 10. 1983 the suit came to be filed for the reliefs already mentioned. 4. The appellant herein contested the suit inter alia on the following averments. There was a pucca East-West ridge about 30 feet north of East-West ‘AB’ ridge, referred to in the plaint plan, which was the actual dividing ridge between the properties of the parties. A strip of land in between two ridges measuring about 52 cents was in the exclusive possession of the appellant herein and enjoyment in his own right. This extent was never in the possession and enjoyment of the respondents father or her predecessors in interest. The original title documents also had not been produced. Subbiah Gounder become the owner of 4.79 acres in S.F.No.323. This extent was never in the possession and enjoyment of the respondents father or her predecessors in interest. The original title documents also had not been produced. Subbiah Gounder become the owner of 4.79 acres in S.F.No.323. In the said survey field, 1.36 acres were owned by one Muthusamy and Subbian, Sons of Mayilsamy Gounder. The defendant was the owner of 4.83 acres. Subbiah Gounder was the original owner of S.F.No.323 corresponding to S.F.No.79. He had five sons Palani, Karuppan Kulanthai, Chellappa and Kuppandan and on 111. 1909 the sons of Subbiah Gounder divided the properties. So far as S.F.No.323 was concerned Palani was allotted 3.53 acres, Karuppan 1.75 acres, sons of Kulanthai 3.53 acres, Chellappa 1.75 acres and Kuppandan one acre. All the five shares were in different plots and were not contiguous. The defendants father purchased 6.70 acres in the said survey field in the name of Minor Subbian represented by guardian Valliammal and in his own name from the previous owner one Kumarasamy who in his turn had purchased from the his of the descendants of Subbiah Gounder. This dependant was the defacto and dejure owner of 4.83 acres in S.F.No.323. On 3. 1952, there was a registered deed of exchange between Kumarasamy the vendor of this defendants share and Chellappa Gounder father of the plaintiff in which the shares in S.F.No.323 were re-aligned and re-allotted between them, so that the plaintiffs father became the owner of the entire lands in S.No.323 north of northern roll situated north of ‘AB’ ridge referred to in the plaint plan. The plaintiff had suppressed to mention that there was a pucca east west ridge north of ‘AB’ ridge referred to in the plaint plan which was about 30 ft. north of ‘AB’ ridge and which was the actual dividing poll between the plaintiffs and the defendants lands. The suit had been filed with a view to grab about 45 cents of lands in S.No.123 where there were 50 palmyrah trees standing and yielding the usufructs were being enjoyed by the defendant. 45 cents between ‘AB’ ridge and another ridge north of ‘AB’ was in the exclusive possession and enjoyment of the defendant, previously enjoyed by Kumarasamy and his predecessors in interest. This was never in the possession and enjoyment of the plaintiffs father on and from 3. 45 cents between ‘AB’ ridge and another ridge north of ‘AB’ was in the exclusive possession and enjoyment of the defendant, previously enjoyed by Kumarasamy and his predecessors in interest. This was never in the possession and enjoyment of the plaintiffs father on and from 3. 1952 the date of exchange when the plaintiffs father delivered possession of this strip to Kumarasamy the vendor of the defendants predecessors in title. The plaintiff had come to the court with unclean hands and suppressed material facts pertaining to documents of title. The only document of title relied on by the plaintiff being the partition between the plaintiff and her sister Muthulakshmi, could not be taken note of seriously inasmuch as it came into existence during the life time of their father who died only in 1983. As far as this defendant was aware, the plaintiffs father did not execute any settlement deed or gift either to the plaintiff or her sister for them to execute the so-called partition dated 211. 1978. That document was ab initio void containing as it did self serving recitals. With regard to extents and rights pertaining to S.F.No.323 the plaintiffs father had not joined in the alleged partition deed signifying his acceptance. The disputed land of 45 cents were in the possession of the defendant and before him his predecessors in title continuously openly and exclusively and the defendant had prescribed for title by adverse possession. It was the plaintiffs father who planted coconut trees in 45 cents 25 years prior to the suit. No coconut trees were planted by the defendant. Neither the plaintiff nor her father was ever in enjoyment of the same. As far as the survey by the revenue department is concerned, the defendant had not been served with any notice and the plaintiff had to prove the truth, validity, genuineness and binding nature of the same on the defendant. The said strip of 45 cents of land was irrigated by oil engine installed in the South-West corner in the common well. The plaintiff had fraudulently suppressed about the oil engine of this defendant with ulterior motive. This defendant was also entitled to PAP water channel rights. He was paying water tax, etc. for S.F.No.323 and irrigating coconut thope in S.No.323 upto the dividing poll situated northern of AB ridge. The plaintiff had fraudulently suppressed about the oil engine of this defendant with ulterior motive. This defendant was also entitled to PAP water channel rights. He was paying water tax, etc. for S.F.No.323 and irrigating coconut thope in S.No.323 upto the dividing poll situated northern of AB ridge. So far as the defendant was concerned, he never threatened the destroy the ‘AB’ ridge. It was only the plaintiff who was attempting to encroach into 45 cents of land between the two ridges under the quise of frivolous suit. In the land belonging to this defendant he had been plucking coconuts from 50 trees. He had been attending to irrigation of the coconut trees from the common well with the aid of the oil engine and PAP water whenever it was available. There was no cause of action for the suit and the same was liable to be dismissed. 5. Onthe above pleadings, the trial court framed the following issues: .• 1. Whether the plaintiff is entitled to declaration as prayed for. .• 2. Whether the plaintiff is entitled to an injunction as prayed for. .• 3. To what relief. 6. On the side of the plaintiff Exs.A-1 to A-19 were marked as P.Ws.1 to 4 were examined. On the side of the defendants, Exs.B-1 to B-12 were marked and D.W. 1 (defendant) D.W.2 were examined. There was a Commissioner appointed who filed his reports, Exs.C-1 and C-3 and plans, Exs.C-2 and C-4. There was also Taluk Deputy Surveyor plan filed and marked as Ex.C-5. 7. The trial court found that, with regard to the disputed 45 cents, there was an exchange under Ex.B-5 dated 3. 1952 and as per the terms of the exchange the defendants predecessors in title become entitled to the disputed property and that the partition set up between the plaintiff and her sister was a self-serving document. The extents given in the said document were not factually correct and that the document was not valid. So far as the revenue records are concerned, the trial court found that they were not documents of title, that they would not prove the plaintiffs title, that during the updating of the revenue records proceedings the plaintiff had produced the partition between her and her sister and without reference to the defendant, she had obtained new patta in respect of the suit property in her favour. The trial court also found that the plaintiff had not proved either her title or possession and she was not entitled to either of the reliefs. So holding by judgment and decree dated 33. 1986 dismissed the suit. 8. The plaintiff filed appeal in A.S.No.60 of 1986 before the Subordinate Judges Court, Udumalpet. The learned Subordinate Judge having disagreed with the findings reached by the trial court, reversed them and decreed the suit. The present second appeal has been filed by the aggrieved defendant. 9. At the time of admission, the following substantial questions of law were framed for declaration in the second appeal. .• 1. Whether the court below was right in declaring suo motu that Ex.B-5 a registered exchange deed was not acted upon. and .• 2. Whether the court below was right in declaring that the respondent and her sister are entitled to a larger extent of land by way of inheritance from their father than the extent owned by their father. .10. Mr.T.P.Manoharan, learned counsel for the appellant, submitted that the lower appellate court erred in placing reliance on the patta proceedings ignoring the registered exchange deed between the parties. Under Ex.B-5, registered deed of exchange dated 3. 1952, both the defendants vendor and the plaintiffs father had their shares in S.F.No.323, realigned and reallotted between them for the purpose of convenient enjoyment of their respective shares in which the plaintiffs father became the owner. Only the lands in S.F.No.323 situated north of east-west northern ridge which was about 30 ft. north of east-west ‘AB’ ridge referred to in the plaint plan. According to the learned counsel, the plaintiff had deliberately omitted to mention about this northern ridge north of ‘AB’ ridge in the plaint plan which alone actually divided the lands of the defendant and the lands of the plaintiff from the date of exchange. The lower appellate court had seriously blundered in relying on the patta proceedings which had been taken behind the back of the defendant. The lower appellate court also seriously erred in declaring the plaintiffs title on the ground of possession when the suit itself was based on title and there was also no pleading with regard to adverse possession. The lower appellate court had also relied on additional documents produced before the lower appellate court which had been obtained after the suit. 11. The lower appellate court also seriously erred in declaring the plaintiffs title on the ground of possession when the suit itself was based on title and there was also no pleading with regard to adverse possession. The lower appellate court had also relied on additional documents produced before the lower appellate court which had been obtained after the suit. 11. Per contra, Mr.Ravi, learned counsel appearing for the respondent, submitted that the lower appellate court had correctly assessed the situation and correctly found that the exchange had not come into effect and that the UDR proceedings conclusively showed that the plaintiff was in possession of the disputed land and patta had been issued on the basis of possession found by the revenue authorities. In any event, according to the learned counsel, the lower appellate court had decided the question as the final court of fact and no interference was called for. 12. Mr.Manohar relied on a number of judgments in support of his contention that there had been suppression of material fact that the plaintiff had not come to court with clean hands and that the discretionary relief of injunction should not have been granted. The learned counsel also relied on a number of authorities for the proposition that in a case like this interference under Sec.100 was called for. .13. There was an exchange deed under Ex.B-5, dated 3. 1952. That deed was admitted by the plaintiffs husband Nachimuthu Gounder, examined as P.W.1, in the Chief Examination itself. .This exchange is not mentioned in the plaint. There were very many vital admissions made in the course of evidence of the plaintiffs husband, which, as rightly contended by the learned counsel for the appellant, have been clearly lost sight of by the lower appellate court. If we go by the exchange deed, Ex.B-5, it is not disputed that the suit property would fall to the share of Kumarasamy Gounder, the predecessor in title of the defendant. The lower appellate court has observed that merely relying on Ex.B-5 exchange deed, the title of the parties cannot be decided. This observation, to say the least, is clearly unwarranted. The lower appellate court has observed that merely relying on Ex.B-5 exchange deed, the title of the parties cannot be decided. This observation, to say the least, is clearly unwarranted. It is the registered document under which the plaintiffs father Chellappa Gounder and the defendants predecessor in title Kumarasamy Gounder had exchanged lands for more convenient enjoyment and as per the terms of the said exchange deed the entire disputed extent became the property of the defendants predecessor in title. The plaintiff has not been able to explain as to why the terms of the exchange deed were given a go bye. In fact, it has already been noticed that the plaintiff had conveniently suppressed the existence of the exchange deed. It is further noticed that though the plaintiff claimed that even though in the life time of her father, the plaintiff and her sister had partitioned the properties and the father died only in 1983, the suit came to be filed as if she was waiting for the father to die. There is substance in the argument of the learned counsel for the appellant that the plaintiffs husband examined as P.W.1 is behind the whole mischief. The lower appellate court grievously erred in ignoring Ex.B-5 exchange deed. .14. In S.P.Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath (Dead) by L.Rs S.P.Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath (Dead) by L.Rs S.P.Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath (Dead) by L.Rs (1994)1 S.C.C. 1 , it has been held that a litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation and if withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite side. 15. The lower appellate court did not stop with ignoring Ex.B-5, but also relied on the UDR proceedings and also certain other documents which were filed before the lower appellate court as additional evidence and which in my view had been received, totally giving a go bye to the provisions of O.41, Rule 27, C.P.C. All these documents had come into existence after the suit. Before admitting them an additional evidence the lower appellate court ought to have seen whether the certain set out in the relevant provisions of O.41, Rule 27, C.P.C., were satisfied. Before admitting them an additional evidence the lower appellate court ought to have seen whether the certain set out in the relevant provisions of O.41, Rule 27, C.P.C., were satisfied. Even otherwise it is well-established that patta is not a document of title. Equally Jamabandhi entries created not title. Vide: Jattu Ram v. Hakam Singh Vide: Jattu Ram v. Hakam Singh Vide: Jattu Ram v. Hakam Singh (1993)4 S.C.C. 403 . 16. It is clearly seen that the UDR proceedings the plaintiff had suppressed the exchange deed, Ex.B-5, produced the alleged partition between her and her sister, which showed the disputed property as having fallen to her share and thus hood winking the revenue authorities, obtained patta. The patta proceedings will not give her title to the properties. 17. The lower appellate court had embarked on the question relating to possession in a very objectionable manner. It has to be stated that there is no foundation laid in the pleadings regarding adverse possession. When it is found that the plaintiff has no title and there is no pleading regarding adverse possession, the lower appellate court exceeded its limits in finding the plaintiffs possession and deciding the question in her favour on the basis of her possession. The suit is based on title. .18. In Nagar Palika Jind v. Jagat Singh (1995)3 S.C.C. 426, in a suit which was for injunction restraining the defendant from interfering with the possession of the plaintiff over some land, the plaintiff claimed to be the owner of the said land and asserted that he was in possession thereof. As in the present case, the plaintiff claimed under a sale deed of the year 1970. Thereafter, he filed a suit on 14. 1971 for permanent injunction against the defendant. It was ultimately withdrawn on 11. 1977 with permission to file a fresh suit. Subsequent suit was filed on 28. 1979. The Municipal Committee resisted the suit saying that the plaintiff was neither the owner of the land in question nor was he in possession thereof, that the land belonged to the Municipal Committee that it had constructed a park and that there was no question of the plaintiff acquiring any right, title or interest in the same. The trial court dismissed the suit on finding that the plaintiff had failed to prove that he was the owner and was in possession of the land. The trial court dismissed the suit on finding that the plaintiff had failed to prove that he was the owner and was in possession of the land. The appellate court set aside the finding recorded by the trial court and decreed the suit of the plaintiff taking the view that the title of the predecessor in interest of the plaintiff had been exhibited. In so deciding the court of appeal proceeded only to consider the revenue records from the year 1974-75 like Jamabandhi for the year 1974-75. It was held that the plaintiff was in possession of the suit property. The second appeal filed by the Municipal Committee was dismissed as also the review petition. The matter went to the Supreme Court. The Supreme Court held as follows: .“The onus to prove title in the property in question was on the plaintiff respondent. The Court of Appeal without considering the question whether the plaintiff respondent had proved his title to the property in dispute proceeded to examine whether the respondent was in possession thereof. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the respondent. The Court of Appeal never inquired or investigated that question which was at issue saying that the title of the plaintiff respondent was admitted by the appellant. This was a serious error of record. The title and possession of the respondent had always been disputed by the appellant from the stage of the written statement. In this background suit of the respondent could not have been decreed merely on the basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971. A substantial question of law was involved in the second appeal presented before the High Court against the judgment of the court of appeal and the High Court ought to have interfered and set aside the judgment of the court of appeal.” 19. The position in the present Secopnd Appeal is alomost identical. The lower appellate court misapplied the legal principles. It was in error in finding that merely on the basis of the exchange deed the title of the parties could not be decided. The position in the present Secopnd Appeal is alomost identical. The lower appellate court misapplied the legal principles. It was in error in finding that merely on the basis of the exchange deed the title of the parties could not be decided. The lower appellate court clearly overlooked that the plaintiff had deliberately suppressed the exchange deed as it would give the lie direct to her case. The appellate court erred in placing reliance on patta proceedings which would not prove the title of the plaintiff and in any event the patta proceedings had been gone through without reference to the defendant. It has omitted to note that there was no pleading for adverse possession and in the absence of pleading no amount of evidence could be looked into. The conclusion reached by the lower appellate court was based on mere surmises and it is not possible to sustain the decision of the lower appellate court. Without any pleading whatsoever the lower appellate court had concluded that the exchange deed did not come into existence. Once the exchange deed is there, it is upto the plaintiff to show by some acceptable evidence that it never came into effect. When no such pleading was taken, the lower appellate court introduced a special pleadings for the plaintiff. The lower appellate court grievously erred in accepting the case of the plaintiff on materials which had no probative value as documents of title. 20. It has been held by the Supreme Court in Ishwar Dass Jain (Dead) through L.Rs. v. Sohan Lal (Dead) by L.Rs. Ishwar Dass Jain (Dead) through L.Rs. v. Sohan Lal (Dead) by L.Rs. Ishwar Dass Jain (Dead) through L.Rs. v. Sohan Lal (Dead) by L.Rs. (2000)1 L.W. 425, as follows: “There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a serious of judgments of this Court in relating to Sec.100, C.P.C., after the 1976 amendment. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a serious of judgments of this Court in relating to Sec.100, C.P.C., after the 1976 amendment. In Dilbgrai Punjabi v. Shraq Chandra 1983 S.C.C. (Supp.) 710, while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1982, L.H.Sharma, J., (as he then was) observed that, The court of the first appellate court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case.” 21. The reasons in the instant case are compelling. Having regard to the clear erroneous approach of the learned Subordinate Judge in placing reliance on immaterial documents and ignoring vital documents, the decision of the lower appellate court is arbitrary, unreasonable and perverse. It had not focussed its attention on the vital reasons adduced by the trial court without examining the material on record in that respect in proper perspective and reversed that decree of the trial court. It has failed to draw proper inference from the proved facts and apply law in proper perspective. 22. In view of the discussion above, the substantial questions of law raised in the second appeal are answered as follows. The lower appellate court was not right in declaring suo motu that Ex.B-5 a registered exchange deed was not acted upon. The lower appellate court was clearly to error in declaring that the plaintiff and her sister were entitled to larger extent of land by way of inheritance from their father than the actual extent owned by their father. The judgment and decree of the lower appellate court are set aside and those of the trial court restored. However, there will be no order as to costs. C.M.P.No.8444 of 1988 is also dismissed.