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2000 DIGILAW 952 (MAD)

C. Vellaisamy v. C. Chinnakannu

2000-09-22

V.KANAGARAJ

body2000
Judgment : 1. The plaintiff in the suit in O.S.No.71 of 1995 on the file of the Court of District Munsif, Devakottai has preferred the above Second Appeal against the concurrent findings rendered both by the trial court and the first appellate court, the court of Subordinate Judge, Devakottai in dismissing the suit filed by the plaintiff, seeking the relief of declaration and delivery of possession of the suit property which is a residential building in D.No.2/87 in Old S.No.89/12 of Ariyakudi Village, Karaikudi Taluk in Sivagangai District. 2. The plaint averments, in short, are that the plaintiff having constructed the house in a village natham poramboke land and obtaining patta No.702 for it, in his name, has been in possession and enjoyment of the same for the last 30 years; that on the North of the suit property, there is a house site assigned by the Government in which he has constructed a house falling under S.No.89/10; that he had obtained co-operative loan pledging the said property; that the defendant has no semblance of right in the suit property; that he has no ancestral properties; that the defendant after his marriage had been to Sankarapuram and permanently stayed there along with his father-in-law and came back home only a couple of years back; that at his request the plaintiff permitted him to stay in the suit house, built in S.No.89/12; that in January, 1993 when the plaintiff withdrew the permission asking the defendant to vacate, on the defendants refusal a notice had been issued on 27. 1993, for which the defendant issued a reply with averments that his junior paternal uncle Vellaisamy who was assigned with the land in S.No.89/12 permitted him to construct the suit house and thereafter he has taken up his residence therein for the last ten years which are false; that the defendant has no property at the said locality at all; that it is the plaintiff who is paying the tax having obtained the UDR patta in his favour and on such averments the plaintiff would pray for the reliefs, extracted supra. 3. 3. On the contrary, in the written statement, the defendant would submit that the plaintiff had never been in possession of S.No.89/12 at any point of time; that his house was located in S.No.89/11 and neither this property nor S.No.89/10 has any connection with the plaintiff; that the assessment number of the suit property is 703 and the Door number is 2/87-A; that he is in possession of the suit property for more than ten years having even performed the marriage of his daughter therein in the year 1989; that taking advantage of the plaintiffs name being the same as that of his junior paternal uncle, the plaintiff is trying to fish out something; that excepting the resemblance in names, the plaintiff has no other right to claim in the suit property; that the suit property is only belonging to their junior paternal uncle Vellaisamy with whose permission, the defendant has constructed the house and on such averments the defendants had ultimately prayed to dismiss the suit. 4. Thetrial court on the above pleadings by parties having framed three issues for determination of the above suit namely: .(1) Whether the plaintiff is not entitled to the suit property; .(2) Whether the plaintiff is entitled to the declaration; .(3) What relief, if any, is the plaintiff entitled to. has ordered, the trial in which the plaintiff besides examining himself as P.W.1 has also examined one Chinnaiah as P.W.2. On the part of the defendants, the defendant besides examining himself as D.W.1 has not only examined his junior paternal uncle Vellaisamy as D.W.2 but also yet another Adaikkan as D.W.3, for oral evidence. For documentary evidence, the plaintiff on his side has marked 15 documents as Exs.A-1 to Ex.A-15, Ex.A-1 is an order passed by the Tahsildar, Ex.A-2 and Ex.A-3, penalty receipts, dated 14. 1986 and 5. 1992 respectively, Exs.A-4 and A-5, tax receipts in the name Vellaisamy, dated 2. 1988 and 23. 1967 respectively, Ex.A-6 demand notice for house tax dated 16. 1995, Exs.A-7 to A-10 are the tax receipts for different years, Ex.A-11, the patta issued in the name of Vellaisamy, dated 20.11.1986 Ex.A-12 and Ex.A-13 are the lawyers notice and reply Ex.A-14 and Ex.A-15 are the tax receipts in the name of Vellaisamy and Jamabandhi adangal chitta in the name of Vellaisamy. 5. On the part of the defendants 8 documents have been marked as Exs.B-1 to B-8. 5. On the part of the defendants 8 documents have been marked as Exs.B-1 to B-8. Ex.B-1 dated 26. 1982 is the wedding invitation, Ex.B-2 dated 1. 1993 and Ex.B-3 are the tax receipts in the name of Chinnakannu. Ex.B-4 dated 1. 1993 and Ex.B-5 are the receipts of the complaint by the police, Ex.B-6 is the receipt for the purchase of the building materials, Ex.B-7, dated 16. 1994 and Ex.B-8 are the receipts issued for the payment of the share amount in the co-operative society. 6. Based on the pleadings and the oral and documentary evidence placed on record, the trial court having appreciated the evidence, had ultimately arrived at the conclusion to hold that the plaintiff had failed to prove his case with the standard of proof required by law and had ultimately dismissed the suit on all grounds. 7. Aggrieved, the plaintiff had preferred an appeal in A.S.No.9 of 1997, on the file of Court of Subordinate Judge, Devakottai and the appellate court having framed two points namely; .(1) Whether the appellant is entitled to the relief of declaration and delivery of possession as prayed for in the suit and .(2) What relief, if any, is the appellant entitled to. and having its own discussion in the light of the pleadings and other materials placed on record would concurrently arrive at the conclusion to dismiss the appeal preferred by the plaintiff, thereby confirming the judgment and decree as passed by the trial court. 8. It is only aggrieved against such concurrent findings rendered by both the courts below, the plaintiff in original suit has preferred the above second appeal on certain grounds as brought forth in the memorandum of second appeal and for determination of certain substantial questions of law namely; .(1) When the plaintiff has discharged his evidentiary burden of proof in respect of his claim in the suit property, Will not the legal burden of proof of the pleading to the effect that the name of the Vellaisamy as referred above to his paternal uncle and the material documents to be treated accordingly lie heavily on the defendant. .(2) Will not the non consideration of material documents filed by the plaintiff vitiate the suit proceedings. .(2) Will not the non consideration of material documents filed by the plaintiff vitiate the suit proceedings. .(3) Will not the non framing of the issue in respect of permissive occupation of the defendant or failure to consider this issue vitiate the proceedings and would ultimately pray for setting aside both the judgment and decree passed respectively by the trial court and court of first appeal. 9. .(3) Will not the non framing of the issue in respect of permissive occupation of the defendant or failure to consider this issue vitiate the proceedings and would ultimately pray for setting aside both the judgment and decree passed respectively by the trial court and court of first appeal. 9. During arguments, the learned counsel appearing on behalf of the appellant would submit that basically the plaintiff and the defendant are brothers; that according to the plaint averments, immediately after the marriage, the defendant left Ariyakudi village, wherein the suit property locates and lived with his father-in-law at a place called Sankarapuram and only a couple of years prior to the filing of the suit, he came back to the village, that the plaintiff, who was in possession and enjoyment of the land, which was a poramboke land, for over thirty years had already constructed the house on it; that the defendant had no property in the suit village at all; that at his request, the plaintiff graciously permitted the defendant to occupy the building but after a couple of years when the plaintiff required the building, the defendant refused to vacate and hand over possession and hence the suit for declaration and possession; that the defence is that the appellant/plaintiff had in no manner be connected to the suit property; that the suit property was assigned in the name of Vellaisamy, their junior paternal uncle, and taking advantage of the similarity in the names of the plaintiff has come forward with the false version that he is entitled to the suit property, further seeking for delivery of possession; that the said Vellaisamy has been examined as D.W.2; that posing a question that is there any reason on the part of the defendant for having waited for 7 or 8 years to claim the property on his part that too after the plaintiff had come forward to file the suit, the learned counsel would submit that it is the admitted case of the plaintiff that he did not get assignment in respect of the suit property in S.No.89/12 but only the southern properties falling under S.Nos.89/10 and 89/11, which are the suit properties, that Ex.A-11 U.D.R. patta has been granted in his favour for S.No.89/12; that in para No.6 of the plaint, he has clarified the anamoly and at this juncture, the learned counsel would cite a judgment of this Court delivered in M.Sundararaju v. S.Periasami M.Sundararaju v. S.Periasami M.Sundararaju v. S.Periasami , (2000)2 L.W. 148 and would conclude his argument stating that both the Courts below have committed grave blunders in concluding that the documents in Exhibit ‘A’ series submitted on the part of the plaintiff have been made use of by the plaintiff as though granted in his name and have arrived at the wrong conclusion to dismiss the suit. 10. In the judgment cited by the learned counsel for the appellant, the cases in which the High Court will not interfere in second appeals have been elicited and the learned counsel would point out that it is not a case falling under those categories and the questions involved herein warrant interference of this Court and would pray to allow the above second appeal. .11. On the other hand, the learned counsel appearing on behalf of the respondent/defendant would submit that the findings of the lower Courts are that Exs.A-6 to A-10 are not correlated to the suit property as pointed out in para. No.10 of the trial Courts judgment and in para. Nos.8 to 10 of the Appellate Courts judgment; that under Sec.110 of the Evidence Act, the burden to prove that the defendant is not the owner, since the defendant is admittedly in possession, is heavily on the plaintiff and the plaintiff has failed to establish the same in this case. At this juncture, the learned counsel would cite a Division Bench judgment of this Court delivered in Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai and others , (1995)I MLJ. 426 and would point out that it is held therein that mere patta cannot confer the title. He would also read out Para No.3 of the said judgment, wherein it is held: .“No provision is brought to our notice in the Standing Orders of the Board of Revenue taking away the jurisdiction of the civil court to adjudicate upon the question of title relating to immovable property. Revenue Officers in a patta proceedings may express their views on the question of title, but such expression of opinion or decision is not conclusive and it is only intended to support their decision for granting patta. Ultimately, it is the civil court which has to adjudicate the question as to whether the person claiming patta is the title-holder of the land. Even if the revenue authorities decide the question of title, that will not in any way affect the jurisdiction of the civil court, which has to decide the question without reference to the decision of the revenue authorities.” .12. Even if the revenue authorities decide the question of title, that will not in any way affect the jurisdiction of the civil court, which has to decide the question without reference to the decision of the revenue authorities.” .12. The learned counsel would further argue that prior to the suit, there have been exchange of notices in which the factum of the assignment and patta referring to uncle Vellaisamy and not to the plaintiff has been made clear, but the plaintiff has deliberately failed to implead their uncle Vellaisamy as a necessary party to the proceeding. The learned counsel would also cite a judgment of the Apex Court delivered in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , (1999)3 C.T.C. 340 regarding jurisdiction of this Court under Sec.100 and Sec.103 of C.P.C., so far as the second appeals are concerned. 13. In clarification, the learned counsel for the appellant would point out that the fact of their uncle Vellaisamy having not impleaded is being brought forth only before this Court and never before; that it is up to the defendant to prove that it is not the plaintiff Vellaisamy but their uncle Vellaisamy who had been issued with the patta, especially when the plaintiff is in possession of those documents and caused production of the same further marking them as exhibits before the court. 14. Assessing the merit of the above second appeal in the light of the pleadings, issues framed by the trial court, the points taken up for determination by the first appellate court and all other materials placed on record and upon studying the judgments of the Courts below in depth, what is revealed is that it is suit filed by the appellant herein for declaration of his title to the suit property and for delivery of possession, but this Court is able to find that the trial court has not even framed an issue to decide the delivery of possession, so as to allow the parties to let in evidence on that part of the relief sought for by the appellant/plaintiff. From the issues framed by the trial court, it comes to be known that the first issues pertaining to declaration is framed in the negative form, whether the plaintiff is not entitled to the suit property since the plaintiff has come forward to file the suit claiming that he is entitled to the suit property. From the issues framed by the trial court, it comes to be known that the first issues pertaining to declaration is framed in the negative form, whether the plaintiff is not entitled to the suit property since the plaintiff has come forward to file the suit claiming that he is entitled to the suit property. Looking at the case of the plaintiff from the angle of the defendant, the trial Court has framed the first issue regarding title in the negative from thereby causing a confusion as to whose burden it is to prove, whether it is the burden cast on the plaintiff to positively prove that he is entitled to the suit property or whether it is the burden cast on the defendant to prove that the plaintiff is not entitled to the suit property. Therefore, even while framing the first issue itself, the trial Court has committed a legal blunder, which is unacceptable in law. Issues, to the extent possible, must be in the simpler and positive form so as to make it clear as to whose burden it is to prove so far as that issue is concerned in spite of the fact being that it is the preponderance of probability that ultimately decides the whole case. Improper issues framed are susceptible to cause much confusion in deciding the matter ultimately. .15. So far as the second issue is concerned, it is also not framed in the expected manner. This issue, whether the plaintiff is entitled to the declaration of possession, also besides causing enough confusion as to what is meant by the trial court, leads to think that it is only regarding declaration of possession and not for delivery of possession, which is sought for on the part of the plaintiff in the plaint. Instead, it is the firm case of the plaintiff that he permitted the defendant to be in possession and when the permission was withdrawn, the permissive occupier, the defendant, has to vacate the property and hand over vacant possession with the plaintiff. Hence, adhering to the facts, there could only be an issue framed for delivery of possession and not for declaration of possession of the suit property, as it has been wrongly done on the part of the trial court. Hence, adhering to the facts, there could only be an issue framed for delivery of possession and not for declaration of possession of the suit property, as it has been wrongly done on the part of the trial court. Even regarding the pleading relating to the uncle of the parties viz., Vellaisamy, no issue has been properly framed since it is the strong case put up on the part of the defendant that he is occupying the place which was allotted to their uncle Vellaisamy and who was issued with all those revenue records marked in Exhibit ‘A’ series lying in the name of Vellaisamy including the U.D.R. patta and that he permitted the defendant to occupy the suit property and hence this is a serious infirmity or inconsistency that had occurred in deciding the suit by the trial court. 16. The first Appellate Court besides having failed to point out these inherent legal defects, which have occurred in the very framing of the issues to determine the entire suit, has barely gone into the facts of the case and has bluntly arrived at the conclusion to confirm the decision of the trial Court. It is further found that there is a point framed on the part of the first Appellate Court to the effect of delivery of possession, but at the same time, the first Appellate Court has lost sight of the fact that there is no issue framed on the part of the trial Court regarding delivery of possession and no decision has been properly arrived at based on that relief sought for on the part of the plaintiff. 17. Since no proper issues have been framed in the proper manner to the facts and circumstances as brought forth in the pleadings by parties by the trial Court and the appellate Court having not gone into such legal infirmities and inconsistencies, but has decided the first appeal thoughtless of the legal defects that have occurred in the suit at the hands of the trial Court, both the judgments and decrees as passed by the trial Court and the first appellate court becomes liable only to be set aside.In result, .(i) the above second appeal is allowed; .(ii) the judgment and decree dated 212. 1996 made in O.S.No.71 of 1995 by the Court of District Munsif, Devakottai and the judgment and decree dated 210. 1996 made in O.S.No.71 of 1995 by the Court of District Munsif, Devakottai and the judgment and decree dated 210. 1997 made in A.S.No.9 of 1997 by the Court of Subordinate Judge, Devakottai are hereby set aside; (iii) the case is remanded to the Court of District Munsif, Devakottai for fresh trial to be held on proper issues framed and with due opportunity for both parties to exhaust their remedies. However, since the matter is a long pending one, the Court of District Munsif, Devakottai is further directed to take up the above matter on priority basis and completing the trial, should deliver the judgment in six months from the date of receipt of this judgment. However, in the circumstances of the case, there shall be no order as to costs. Consequently, C.M.P.No.9944 of 1998 is closed.