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2002 DIGILAW 168 (MAD)

S. Vijayaraghavan v. Noorjahan and another

2002-03-01

K.SAMPATH

body2002
JUDGMENT: The second defendant in O.S.No.84 of 1994 on the file of the Subordinate Judge’s Court, Pattukottai, is the appellant in the second appeal. 2. The first respondent herein filed the suit for declaration of her title to the suit property, and for recovery of possession for Rs.12,250 towards past profits, on the following averments: The suit property belonged to her having been purchased by her from one Mohammed Sheik Kadiyar under a registered sale deed, dated 10.4.1974. The property was a north eastern portion of a larger extent owned by the vendor in the then S.No.73/6B. At the time of her purchase, it was a vacant site. She was registered as pattadar, and further sub division was effected as 73/6B2 while the vendor was registered for the remaining extent with sub division 73/6B1 in S.No.73/6B. The Tahsildar passed suitable orders on that sub division. The patta number was 472 and she had been entered as owner in possession in R.S.R. Chitta, Adangal, etc. of the Government. The suit property was being assessed in her name exclusively. She put a thatched house and an office room in a portion of it. The property abutted Thaikkal Road in the east, and on the north it was channel poramboke with Sethu Road on its further north. A third party was allowed to enjoy the eastern portion of the suit property for servicing his transport bus. He had put up a ramp and tin shed above to station his bus. This was under leave and licence from the plaintiff. After he surrendered possession, the plaintiff leased out the property on 20.12.1984 to the first defendant providing for a term of one year with an option for renewal on a monthly rent of Rs.350 with non-interest carrying advance of Rs.3,000 repayable to the lessee on the termination of lease, the demise being 50 sq.ft. east to west and 31 ft. north to south measuring 2 1/2 cents only with Tin sheet roof shed, east and north of the plaintiff’s property and south of the second defendant, who had put up a building to the north of the suit property in the channel poramboke. The first defendant had taken the lease for running a hotel. He was allowed to put up his own construction to suit his hotel business purpose. The first defendant had taken the lease for running a hotel. He was allowed to put up his own construction to suit his hotel business purpose. It would appear, he had taken the northern property also from the second defendant and had his business premises extended in the suit property to serve as an annex for his hotel facing the road on the north. The lease deed and the FMB plan had been filed along with the plaint. The first defendant had not paid rents as a holding over tenant after 20.6.1991. The plaintiff caused a registered notice, dated 16.11.1992 to be issued to the defendants through her lawyer calling upon them to clear off the arrears and give vacant possession by 20.12.1992, treating the notice for termination of tenancy with tenancy month ending 19.12.1992, specifically drawing their attention to their unauthorised sub-letting by the first defendant to the second defendant in particular. The first defendant sent a reply immediately on 19.11.1992, disowning liability and pleading surrender by 20.12.1985 itself on the efflux of the period contemplated under the lease deed. The second defendant replied on 17.12.1992 through his counsel claiming title to the property in himself ancestral and disputing the plaintiff’s title and the first defendant’s tenancy with her and also sub-letting from the first defendant. There was a vain attempt to suppress the running of Arun Hotel by the first defendant in the premises. There was also absence of any of of title or possession in his favour. The second defendant, if at all, had been in the channel poramboke by reason of Arun Hotel run by the first defendant and the extension over the suit property was sought to be exploited by him. The first defendant’s occupation in the channel poramboke was totally in a different survey sub division namely 67 and 73/1 in the north with recent encroachment, after his lease from plaintiff, on the suit property. Defendants 1 and 2 were colluding together to deny the plaintiff’s title by clandestine understanding between them to shield the sub-lease by the first defendant contrary to the understanding under the lease agreement between the plaintiff and the first defendant. The first defendant’s disclaimer was unsustainable. Equally, the second defendant’s claim of rival title was untenable. In these circumstances, the suit came to be filed. 3. The first defendant’s disclaimer was unsustainable. Equally, the second defendant’s claim of rival title was untenable. In these circumstances, the suit came to be filed. 3. The description of the suit property, given by the plaintiff, as follows: After an Advocate Commissioner was appointed and submitted his report and plan, the description of the suit property was got amended by necessary application before Court and it runs as follows: Why this pointed out at this stage itself is on account of a serious argument having been put forward on the side of the appellant by his learned senior counsel regarding the inconsistency in the claim by the plaintiff with regard to the identity of the property. We will have occasion to refer to this later on. 4. The first defendant filed a written statement to the following effect: It was true that he had taken the suit property on lease from the plaintiff 20.12.1984, but due to loss in the business, he closed down the hotel, and on 20.12.1985 surrendered possession to the plaintiff. There were no arrears. This defendant had also taken on lease the property to the north of the plaintiff’s property, belonging to the second defendant and when he closed down the hotel, he surrendered possession of that property too. Thereafter, there was no relationship of any kind between the defendants. He had not sub let the suit property to the second defendant. It was also false to say that this defendant had seeing paying rent up to 20.6.1991 to the plaintiff. He was an unnecessary party to the suit. The plaintiff was unnecessarily involving this defendant, in some dispute between her and the second defendant, and getting some benefit out of it. The suit was liable to be dismissed as far as the first defendant was concerned. 5. The second defendant filed a written statement and an additional written statement contending inter alia as follows: The case of the plaintiff was not true. The suit property and the property north to the suit property, belonged to him ancestral and by long possession. His grandfather was in occupation of a portion of the property and in the rest of the portion running a shop. Thereafter, his father was running a hotel and also residing on the eastern side of the property. He put up shops on the northern side and enjoying the income there from. His grandfather was in occupation of a portion of the property and in the rest of the portion running a shop. Thereafter, his father was running a hotel and also residing on the eastern side of the property. He put up shops on the northern side and enjoying the income there from. After the death of his father, this defendant had been residing in a portion of the property and running the hotel, and in 1975, after removing the old shops, put up new shops and let them out. No portion of the suit property ever belonged to either the plaintiff or her predecessors in interest. The first defendant was never in enjoyment of the suit property. There was no lease agreement between the plaintiff and the first respondent and the document had been created for the purpose of the case. The first defendant was in enjoyment of the portion belonging to the second defendant including the suit property at a lessee for a period of one year. As the first defendant could not run the hotel, he surrendered possession to him. Thereafter, this defendant had been running the hotel. In as much as the suit property belonged to this defendant, there was no question of taking the property on sub lease from the first defendant. The suit property and the property to the north of the suit property had been in possession of this defendant and his predecessors in interest for several twelve years, and they had purchased for title by adverse possession. There was no suit property on land with stated boundaries at any time. There was no cause of action for the suit. 6. The additional written statement, filed after the plaint was amended, runs as follows: The sale deed in favour of the plaintiff would not include S.No.73/6B1. In S.No.73/6B1, on the north-eastern side, the second defendant and his predecessors in interest had been in enjoyment by putting up buildings, and neither the plaintiff nor her vendor had any right over the suit property. In the suit S.No.73/6B1 he had ancestral and possessory right. He purchased for title by adverse possession. Having taken a stand originally that there was sub division and the property purchased by the plaintiff was given S.No.73/6B2, it was not open to the plaintiff to contend that she had right in S.No.73/6B1 by seeking amendment of the schedule. In the suit S.No.73/6B1 he had ancestral and possessory right. He purchased for title by adverse possession. Having taken a stand originally that there was sub division and the property purchased by the plaintiff was given S.No.73/6B2, it was not open to the plaintiff to contend that she had right in S.No.73/6B1 by seeking amendment of the schedule. In the sale deed, dated 10.4.1974 the measurements had been given as 72 ft. east-west and 96 north-south and the area as 7 1/2 cents, and after the alleged sub division claiming 8 cents in S.NO.73/6B2 as per the sub division effected on 28.11.1983, it was not open to the plaintiff to claim a larger area. As per Survey and Boundaries Act, the plaintiff was not entitled to claim any rights in S.No.73/6B1. The suit was liable to be dismissed. 7. The trial Court framed the necessary issues and on the oral and the documentary evidence accepted the case of the plaintiff and decreed the suit by judgment and decree, dated 18.3.1998. the second defendant appealed in A.S.No.75 of 1998. The learned Principal District Judge, Thanjavur, dismissed the appeal by judgment and decree, dated 27.10.1999. It is as against this, the present second appeal has been filed. 8. Notice of motion was ordered on 21.6.2000. After the contesting respondent was served and entered appearance through counsel, by consent the main second appeal itself was taken up and heard. 9. An application in C.M.P. No.518 of 2000 has been taken out under O.41, Rule 27, C.P.C., to accept the evidence in O.S. No.203 of 1988, on the file of the District Munsif’s Court, Pattukottai, as additional evidence in the present proceedings. 9. An application in C.M.P. No.518 of 2000 has been taken out under O.41, Rule 27, C.P.C., to accept the evidence in O.S. No.203 of 1988, on the file of the District Munsif’s Court, Pattukottai, as additional evidence in the present proceedings. In support of the application, it is stated as follows: After the filing of the second appeal, the petitioner came to know that the first respondent filed a suit in O.S.No.203 of 1988 before the District Munsif’s Court, Pattukottai against one Naina Mohammed and Mohammed Aktar, in respect of the present suit property, for permanent injunction, wherein her husband one Mohammed Yousuf gave evidence on her behalf specifically admitting that the properties enjoyed by the appellant herein did not form part of their purchase and none of his properties was included in their sale deed, that the appellant was running a hotel in C.M.P. poramboke and in highways poramboke and his property did not come within the boundaries of the plaintiff’s sale deed. Apart from that, one Arumugam,a who had deposed as P.W.2 in the present suit and also deposed as P.W.2 in the earlier suit, had admitted that he did not know was within the specific boundaries of the suit property, an that this evidence was contrary to the evidence given in the present suit. According to the petitioner/ appellant, the categorical admission made by the respondent in the prior suit that the properties under the petitioner’s possession and enjoyment did not form part of the suit property, now stopped her from taking a different stand claiming right over the suit property, and that the admission made by her husband was binding on her under Secs.17 and 18 of the Evidence Act. The present suit was therefore misconceived and liable to be dismissed. As he was not a party to the earlier suit and the facts were not within his knowledge at the time the present suit came to be filed, he could not produce those evidence earlier and as soon as he came to know about this evidence, he obtained certified copy of the same and filing as additional evidence by the present proceedings. The case had been made out for receiving the evidence as additional evidence. 10. A counter has been filed by the plaintiff stating as follows: She filed the earlier suit not in respect of the present suit property. The case had been made out for receiving the evidence as additional evidence. 10. A counter has been filed by the plaintiff stating as follows: She filed the earlier suit not in respect of the present suit property. The subject matter of the earlier suit was an extent of 288 sq.ft. in new S.No.73/6B2 bounded on the east by Thaikkal Street, west by defendant’s land, north by plaintiff’s house, and south by defendant’s vacant thatched house. The present property measuring an extent of 4.6 cents is comprised in new S.No.73/6B1 and 73/6B2. The present suit property and the suit property in the earlier suit were not one and the same. There is no question of receiving the earlier evidence in the present suit. Again, both, her husband and P.W.2/ Arumugham are very much alive and hence their evidence in the suit in O.S.No.203 of 1988 cannot be admitted in view of the categorical prohibition under Sec.33 of the Evidence Act. Even in their deposition in the earlier suit, nothing was admitted to the plaintiff’s detriment as alleged. The questions and answers in the previous suit related to the building owned by the appellant, situate in the poramboke land, namely, S.No.73/1 and that evidence could not be construed to be an admission by any stretch of imagination. The appellant/a rank encroacher of Government property, had attempted to lay claim even on the plaintiff’s patta land by erroneously relying on depositions of P.W.1 and P.W.2 in the earlier suit. None of the mandatory requirements set out under O.41, Rule 27, C.P.C. for adducing of additional evidence at the appellate stage is satisfied. The petition is liable to be dismissed. 11. Mr.V.K.Muthusami, learned senior counsel, made the following submissions: In as much as Ex.A-1/ sale deed is not a document executed in respect of the entire property in the suit, the recital thereon ought to have been proved by examining the vendor, the attestor or the scribe of the document, and in the absence of these, the sale deed could not have been relied upon. The discrepancies found in the sale deed and in the patta clearly affected the case of the plaintiff and the discrepancies read along with the report filed by the Advocate Commissioner, clearly disproved the plaintiff’s case. The Courts below erred in holding that the first defendant had sublet the property to the appellant. The discrepancies found in the sale deed and in the patta clearly affected the case of the plaintiff and the discrepancies read along with the report filed by the Advocate Commissioner, clearly disproved the plaintiff’s case. The Courts below erred in holding that the first defendant had sublet the property to the appellant. On the contrary, it was only the appellant who had leased out the premises to the first defendant for a period of one year and thereafter the first defendant handed over possession to the appellant. In any event, the Courts below ought to have held on the materials placed that the second defendant/ appellant had purchased for title by adverse possession. In this connection, the Courts below had not properly considered the oral and the documentary evidence. 12. On the above pleadings, judgments of Courts below and the arguments advanced by the learned senior counsel, the following substantial questions of law arise for decision: (1) Whether the Courts below are right in admitting in evidence Ex.A-1/ sale deed, dated 10.4.1974 in the absolute of any evidence to prove the same? (2) Whether the Courts below are right in accepting the version of the plaintiff regarding sub-letting? (3) Whether the Courts below are right in rejecting the appellants case of adverse possession? 13. Mr.Ayyasamy, learned counsel for the contesting first respondent/ plaintiff contended that the Courts below have property appreciated the materials on record and had come to a factual finding regarding the title and possession of the plaintiff with regard to the suit property. The learned counsel further submitted that the Commissioner’s report and plan, would clearly show that the plaintiff was the absolute owner of the suit property and that the appellant/ second defendant was a rank trespasser, who had encroached on Government property, attempted to make a claim on the patta property of the plaintiff. 14. As regards sub-letting, the learned counsel submitted that the Courts below were right in accepting the case put forward by the plaintiff as probable in view of the several admissions made by the appellant in the course of his evidence. 15. 14. As regards sub-letting, the learned counsel submitted that the Courts below were right in accepting the case put forward by the plaintiff as probable in view of the several admissions made by the appellant in the course of his evidence. 15. On adverse possession, the learned counsel submitted that there was no proper pleading as to when the adverse possession commenced and the mere averment in the written statement of that for several 12 years the second defendant had been in possession would not show that there was proper pleading of adverse possession. The learned counsel, in this connection, relied on a couple of judgments which I will refer to in the course of the order. 16. The plaintiff applied for sub division and in the sub-division S.No.73/6B2 was assigned to her and the total extent so assigned was 8 cents. On the basis of the sale deed and the patta issued to her in the proceedings of the Tahsildar, she filed the suit claiming 8 cents as her property. However, in the course of the proceedings, on the basis of the Commissioner’s report and plan prepared with the assistance of the Taluk Surveyor, she had her plaint schedule amended and made a claim for the northern 4.6 cents. This revised claim was commented upon by the learned senior counsel stating that the plaintiff had no consistent case and that she was trying to lay claim to the property belonging to the appellant. At this juncture, it has to be noticed as to what exactly was the case of the appellant. The appellant did not produce any title deed. It was also not disputed that from the north of the patta property there was channel poramboke and still north of it Sethu Road was there. It would appear that the second defendant had occupied channel poramboke, raised constructions and running a hotel therein. His title to the property, north of the suit property had not been established. May be, the plaintiff should succeed or fall on the strength of her case, but this principle is not an absolute one and it has its own exceptions. The plaintiff has not made a claim to any property in channel poramboke. Her claim was to patta property by purchase under Ex.A-1 in 1974. In this connection, it would be relevant to notice the boundaries. The plaintiff has not made a claim to any property in channel poramboke. Her claim was to patta property by purchase under Ex.A-1 in 1974. In this connection, it would be relevant to notice the boundaries. It is established law that when there is dispute with regard to measurements boundaries would prevail. The northern boundary to her property is given as channel poramboke. The Courts below have rightly approached this aspect and held that what the plaintiff claimed as owner is within stated boundaries and merely because a particular area had been given in the sale deed, that would not by itself militate against her case that she was entitled to the property within the specified boundaries. It is not necessary to quote chapter and verse on this aspect. 17. Let us now have a look at the report of the Commissioner and the plan prepared with the assistance of the Taluk Surveyor. The report and the plan clearly show that the plaintiff’s property is situate both in S.Nos.73/6B2 and 73/6B1. This came to light after the surveyor measured the entire area and reported that the property covered by Ex.A-1 would take in the northern portion of S.No.73/6B1. I am satisfied that on this point the Courts below have dealt with the question from a proper angle and held that the sale deed/ Ex.A-1 in favour of the plaintiff would take in the suit schedule as amended. As against this case of the plaintiff, the appellant/ second defendant made his claim in a two-fold manner. He claimed that the suit property belonged to him ancestral and that he had purchased for title by adverse possession. As already noted, he did not produce any material to show that the suit property belonged to him ancestrally. He had not produced any village records to show his title to the suit property. His claim that the suit property belonged to him ancestrally had been rightly rejected by the Courts below. The second limb of the appellant’s claim is based on adverse possession. The written statement and the additional written statement do not specifically say as to when the alleged adverse possession commenced. Merely saying that for several twelve years the appellant and his predecessors in interest had been in possession, would not be enough. There must be specific pleading as to when the possession commenced and when it became adverse. 18. The written statement and the additional written statement do not specifically say as to when the alleged adverse possession commenced. Merely saying that for several twelve years the appellant and his predecessors in interest had been in possession, would not be enough. There must be specific pleading as to when the possession commenced and when it became adverse. 18. There is no dispute that the property to the north of the suit property has for its S.No.73/1, and it is channel poramboke. As pointed out by the Courts below, it was possible that the appellant’s father had put up some constructions in the channel poramboke. On the east of the suit property, there is Thaikkal Road. there are two shops facing Thaikkal Road on the east. According to the plaintiff, only after the second defendant/ appellant got the suit property from the first defendant, this construction had come into existence. Significantly, the tax receipts for this construction have been produced only from 1988 and there is no other evidence as to when, prior to 1988, the construction was put up. Apparently, at the time when the original construction, put up by the father of the appellant, was renovated, the construction on the eastern side should have been put up. This is re-inforced by Ex.A-9, which is the decree in O.S. No.95 of 1978 filed by the appellant for an injunction against the Government restraining it from interfering with his enjoyment of the construction put up by him in S.No.73/1. The present suit property was not subject-matter of the said suit. He had sought relief only in respect of the construction put up by him or his father in poramboke land in S.No.73/1. If really, the suit property had been in his possession during the relevant time, he would have sought relief in respect of the suit property also. This clearly probabilised the case of the plaintiff that the second defendant got the suit property on sub-lease from the first defendant in 1985. It was also possible and probable that the suit property was required for access to the hotel from the backyard. We cannot fault the Courts below when, on the appreciation of the materials on record, they came to the conclusion that the appellant had not proved his possession of the suit property prior to 1985. It was also possible and probable that the suit property was required for access to the hotel from the backyard. We cannot fault the Courts below when, on the appreciation of the materials on record, they came to the conclusion that the appellant had not proved his possession of the suit property prior to 1985. The plaintiff had also issued notice in 1992 to both the defendants calling upon them to surrender possession of the suit property. It is within seven years of her giving the property on lease to the first defendant and sub lease in favour of the second defendant/ appellant. The appellant has been rightly found to have not only pleaded but also not proved his possession prior to 1985 in respect of the suit property. Rightly, have the Courts below pointed out that the first defendant’s case that he was in possession of the suit property in 1984-85, but the second defendant/ appellant while giving evidence attempted to shift the date to 1980, and if this was true, the same would have been mentioned in the forefront in his reply notice/ Ex.A-6. He could also examined the first defendant in this regard. Any construction in the suit property should have been only on permission from the plaintiff. The Courts below have rightly accepted the case of the plaintiff and decreed the suit. 19. For the sake of completeness, it is necessary to refer to the decisions relied on by either counsel in support of their respective cases. 20. Before that, I should point out that the Commissioner’s report and plan clearly show that the appellant had encroached upon the suit property and put up construction and made a claim to the suit property as if it was his property. The portions in the occupation of the plaintiff and the portions encroached upon by the appellant are clearly set out in the plan. 21. The learned senior counsel for the appellant relied on Bharat Singh v. Bhagirathi, (1966)2 S.C.J. 53: A.I.R. 1966 S.C. 405. That relates to mutation entry. It is laid down in that decision that it is not for the revenue authorities to make any regular enquiry about the devolution of title, by making entries about the person who is considered prima facie successor of the deceased. That relates to mutation entry. It is laid down in that decision that it is not for the revenue authorities to make any regular enquiry about the devolution of title, by making entries about the person who is considered prima facie successor of the deceased. This mere fact of mutation entry being made in favour of a particular person, would not be a clear indication that the person was the absolute owner of the property. The learned senior counsel wants to rely on this with a view to obliterate the effect of the grant of patta in respect of S.No.73/6B2 in favour of the plaintiff. It has already been noticed that her claim is not only in respect of S.No.73/6B2, but also to a portion of 73/6B1 also. I do not think that this decision in any way helps the case of the appellant. In the same decision, the scope of admission under Secs.17, 21, 145 of the Evidence Act is dealt with. It is stated that- “Admissions must be clear if they are to be used against the person making them. They are substantive evidence by themselves in view of Secs.17 and 21 of the Evidence, though they are not conclusive proof of the matters admitted. The admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Sec.145 of the Evidence Act is quite different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and only serves the purpose of throwing doubt on the veracity of the witness. Weight to be attached to an admission made by a party is a mater different from its use as admissible evidence.” This decision and the decision in Biswanath Prasad v. Dwarka Prasad, A.I.R. 1974 S.C. 117 are relied upon by the learned senior counsel in support of his contention that in a prior suit, in respect of the suit property, there was an admission made by the plaintiff’s husband and that would be substantive evidence in the present case, as it would satisfy the requirements of Sec.21 of the Evidence Act. I should say that the decisions do not, in any way, help the case of the appellant. It is not established in any acceptable manner that the prior suit was in respect of the present suit property. Only if that criterion is satisfied, there could be any question of accepting the evidence of the plaintiff’s husband in the prior proceedings or that of P.W.2/ Arumugham as substantive evidence in the present case. I should say that absolutely no case is made out for reception of additional evidence under O.21, Rule 27, C.P.C., and that none of the ingredients is satisfied. 22. The next decision is that P.Sathasivam, J. In A.S. No.304 of 1989. This is for the proposition that the plaintiff should stand or fall on the strength of his own case and not rely on the alleged weakness of the defendant’s case. There is no quarrel over the preposition. But the decision has no application to the facts of the present case. The present plaintiff has stood by her case and proved the same, and has not relied on my alleged weakness in the case of the appellant. 23. The decision in Chakicherla Audilakshmamma v. Atmakuru Ramrao, (1972)2 An W.R. 346: A.I.R. 1973 A.P. 149 is also for the same preposition. In a suit for ejectment, the plaintiff is non-suited if he failed to establish his own title irrespective of the question whether the defendants have proved tier case or not. The Andhra Pradesh High Court relied on the earlier judgment of the Supreme Court reported in Moran Mar Basselios Catholicas v. Most Rev. Marpolous Athanastus, (1954)2 S.C.J. 736: A.I.R. 1954 S.C. 526. 24. As against these decisions, the learned counsel for the contesting respondents relied on the judgment of the Supreme Court in Smt.Rabti Devi v. Ram Dutty. A.I.R. 1998 S.C. 310, wherein it was held that if both sides led evidence, the question of burden of proof pales into insignificance. He also referred to some of my decisions touching the scope of Sec.100, C.P.C. 25. In as much as the Courts below have, on a proper and careful analysis of the materials on record, accepted the case of the appellant/ second defendant was false and had not been established, the substantial questions of law raised in the second appeal have to be answered against the appellant and they are so answered. In as much as the Courts below have, on a proper and careful analysis of the materials on record, accepted the case of the appellant/ second defendant was false and had not been established, the substantial questions of law raised in the second appeal have to be answered against the appellant and they are so answered. The second appeal fails and the same is dismissed. The C.M.Ps. for reception of additional evidence and stay are also dismissed. There will be no order as to costs.