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2002 DIGILAW 177 (MAD)

K. N. Srinivasa Gopalan v. V. Siva Sankaran

2002-03-01

K.SAMPATH

body2002
Judgment : K. Sampath, J. 1. The plaintiff in O.S.No.464 of 1981 on the file of the Principal District Munsif, Chengalput, is the appellant in the second appeal. 2. He filed the suit against the respondent herein for declaration of title of his joint family and his brothers to the suit properties, and for permanent injunction restraining the defendant/respondent from entering upon and selling the same on the following averments: The suit properties belonged to the joint family of himself, his brothers and their father Late Neelameghachari. Neelameghachari died on 12.12.1976 leaving his widow, his sons, the plaintiff and his brothers, and his daughters as his sole heirs and legal representatives. The plaintiff was filing the suit in his capacity as the Manager of the joint family. The family was the absolute owner of the suit lands and had been in possession and enjoyment. Item 1 was got by Neelameghachari under a compromise decree, dt.21.9.1949 in O.S.No.139 of 1948 on the file of the District Munsifs Court, Chengalput. That was a suit between him and Vadivelu Mudaliar, the defendants father and others. Ever since the date of compromise, Neelameghachari and the plaintiff had been in possession and enjoyment. The plaintiff had also been paying kist. Suit items 2 and 3 were the ancestral joint family properties of the plaintiff. The defendant, who had no interest whatsoever in the suit properties, taking advantage of his local influence, had been attempting to trespass on the suit properties, and sell the same. In March 1981, when the defendant attempted to sell the suit lands, the plaintiff issued a registered notice, dt.14.3.1981 to the intending purchasers, and there was no reply. Again, in July 1981, the plaintiff caused a notice to another intending purchaser, for which also there was no reply. In these circumstances, the suit came to be filed. 3. The defence was as follows: There was no joint family. The sons of Neelameghachari were all divided. Under Hindu Succession Act, the daughters of Neelameghachari had also become his heirs and there could not be any joint family between the plaintiff and the daughters of Neelameghachari. The suit as prayed for was not maintainable. Suit, O.S.No.139/1948, did not relate to the suit properties. Suit items 1 and 2 were purchased by Vadivel Mudaliar from Rangammal, wife of Bashyachariar under a sale deed, dt.22.12.1943. The suit as prayed for was not maintainable. Suit, O.S.No.139/1948, did not relate to the suit properties. Suit items 1 and 2 were purchased by Vadivel Mudaliar from Rangammal, wife of Bashyachariar under a sale deed, dt.22.12.1943. In suit item 2, apart from 1.90 acres purchased by Vadivelu Mudaliar, he owned 3.84 acres, in all 5.54 acres. He was granted patta for the entire 5.74 acres. In the suit third item, S.No.69, Vadivelu Mudaliar purchased 1.14 acres from Veeraraghavachariar under a registered sale deed, dt.27.9.1943. Patta was granted to him for the said property. The plaintiff had not given any boundary description to the suit properties. For suit Item 3, the plaintiff had clubbed both, S.Nos.68/1 and 69, which was unsustainable. Since the date of his purchase, Vadivelu Mudaliar had been in absolute possession of the suit properties, and cultivating the same with Casurina. He died on 23.11.1979, and as his only son, the defendant was in possession as heir to his father. The defendant and his father Vadivelu Mudaliar and his predecessors had acquired title to the suit properties by adverse possession and prescription. Even in the year 1969, Vadivelu Mudaliar effected improvements in the suit lands through "Manvelapadu Thittam of Tamil nadu" He was making payment to the authorities concerned for improvements effected over the suit lands. The allegation that the defendant was attempting to trespass over the suit property, was false. He had always been in possession. He was not aware of the alleged notices, dt.14.3.1981 and 13.7.1981 by the plaintiff. 4. On the side of the plaintiff, he examined himself as P.W.1, two others as P.Ws.2 and 3 and marked Exs.A.1 to A.29. On the side of the defendant, he examined himself as D.W.1, two others as D.Ws.2 and 3 and marked Exs.B.1 to B.58. On the pleadings, the trial Court framed the following issues: "(1) Whether the plaintiff, his brothers and their father Nellameghachari constituted a Hindu joint family? (2) Whether the family of the plaintiff had title to the suit properties? (3) Whether the family of the plaintiff was in possession of the suit properties on the date of suit? (4) Whether the defendant was in possession of the suit properties on the date of suit? (5) Whether the plaintiff is entitled to declaration of his title? (6) Whether he is entitled to permanent injunction? (3) Whether the family of the plaintiff was in possession of the suit properties on the date of suit? (4) Whether the defendant was in possession of the suit properties on the date of suit? (5) Whether the plaintiff is entitled to declaration of his title? (6) Whether he is entitled to permanent injunction? (7) To what other relief the plaintiff is entitled?" 5. The trial Court found that the plaintiff, his brothers, and their father Neelameghachari constituted a joint Hindu family and the suit properties belonged to their joint family, that they were in the possession of the plaintiff on the date of suit, that the defendant was never in possession of the suit properties, and that the plaintiff was entitled to declaration and permanent injunction. So holding, by judgment and decree, dt.31.7.1987, the trial Court granted the prayers. 6. However, on appeal by the defendant in A.S.No.66/1989, the learned Subordinate Judge, Chengalput, by judgment and decree, dt.19.10.1989 allowed the appeal, set aside the judgment and the decree of the trial Court holding that the suit properties were not the joint family properties of the plaintiff, that the plaintiff was not in possession of the suit properties, that the suit properties were the absolute properties of the defendant, and that the defendant, in any event, had prescribed for title by adverse possession, allowed the appeal and dismissed the suit. It is as against this, the present second appeal has been filed. 7. At the timeof admission, the following substantial questions of law were framed for decision: 1. Whether the defendant is not bound by the compromise decree in O.S.No.139 of 1948 on the file of the sub-Court, Chengalput? 2. Whether the boundary recital in a document to which the plaintiff is not a party, is binding on him? 8. Mr. 7. At the timeof admission, the following substantial questions of law were framed for decision: 1. Whether the defendant is not bound by the compromise decree in O.S.No.139 of 1948 on the file of the sub-Court, Chengalput? 2. Whether the boundary recital in a document to which the plaintiff is not a party, is binding on him? 8. Mr. M.S.Subramanian, learned counsel for the appellant, submitted that the lower appellate Court clearly erred in its appreciation of the material documents, that it had not given proper consideration to the compromise decree passed in the prior suit between the parties, that the plaintiff had clearly shown his ownership and possession, and on the contrary, the defendant had not substantiated his case in the written statement that he got the suit items by purchase, that, in any event, the defendants father, under whom the defendant claimed right, having been a party to the prior proceedings and accepted the compromise and also pursued the same by filing E.P., it was not open to the defendant to take a stand that the suit first item was different from the one which was the subject matter of the prior suit. 9. So far as suit second item was concerned, according to the learned counsel, the defendant had not shown, by any acceptable evidence, that he had title. Even as regards possession, the defendant had not produced any material to substantiate his possession of the suit properties. As regards Item 2, the defendant had claimed by purchase, and the sale deed in his favour did not include suit Item 2. 10. So far suit item 3 was concerned, the learned counsel submitted that the defendant could claim only 1.14 acres and the third item, which was just one cent, was only a cart track, and that for access to the plaintiffs properties, suit Item 3 was absolutely necessary. 11. Per contra, Mr. Nicholas, learned counsel for the respondent, submitted that the boundaries given in the various documents would clearly falsify the case of the plaintiff, and that they would show that the suit first item was different from the properties -subject matter of the prior proceedings. So far as suit second item was concerned, the defendant was entitled to the same in his own right, and, in any event, he had prescribed for title by adverse possession. So far as suit second item was concerned, the defendant was entitled to the same in his own right, and, in any event, he had prescribed for title by adverse possession. The learned counsel also submitted that the plaintiff had not produced any material to show that the suit second item belonged to the family. For the suit third item, learned counsel submitted that the defendants father Vadivelu Mudaliar had purchased 1.14 acres and in re-survey it was found that the extent was 1.15 acres, and that suit third item absolutely belonged to the defendant. 12. So far as suit first item is concerned, the basis of the plaintiffs claim is Ex.A.1. Ex.A.1 is the compromise decree in O.S.No.139/1948 on the file of the District Munsifs Court, Chengalput. The plaintiffs father Neelameghachari and his cousin one Veeraraghavachari were the plaintiffs in that suit. The defendants father Vadivelu Mudaliar was the fourth defendant therein. The suit was for recovery of possession of A.1 to A.5 schedule properties from the defendants father Vadivelu Mudaliar and others, and for future mesne profits. The present suit item 1 is Ex.A.2 schedule item 4. As per the terms of the compromise, the plaintiffs were to be given possession of the present suit item 1 and other items by the respective defendants on the very day the compromise was entered into, namely 21.9.1949 and the respective defendants were to be paid various amounts and it is also recited in the compromise memo as follows: 13. From the above recitals, it would be clear that the possession of the properties, covered by the compromise decree, had been given to the plaintiffs on the very day. This was followed by an Execution Petition in E.P.No.896/1951 filed by the assignee from defendants father Vadivelu Mudaliar for the money agreed to be paid under the compromise decree to him in lieu of giving up his claim in the property. Full Satisfaction Memo, dt.15.10.1952 was also filed into Court. Certified copy of the same has been marked in the present suit as Ex.A.2. This would clearly show that the plaintiffs father and the other plaintiffs in the earlier suit had taken possession of all the properties including the present suit item 1 on 21.9.1949 as recited in the compromise decree. The compromise decree/Ex.A.1 and the Full Satisfaction Memo/Ex.A.2 were accepted by the trial Court. This would clearly show that the plaintiffs father and the other plaintiffs in the earlier suit had taken possession of all the properties including the present suit item 1 on 21.9.1949 as recited in the compromise decree. The compromise decree/Ex.A.1 and the Full Satisfaction Memo/Ex.A.2 were accepted by the trial Court. The trial Court read the recitals properly and held that the present suit item 1, which was also subject matter of the earlier suit, had been taken possession of by the plaintiffs father and his cousin as early as 21.9.1949. It relied on Ex.A.7 also, order in a claim reference under Sec.30 of the Land Acquisition Act, in which both, plaintiffs family and the defendants father, were parties and the compromise under Ex.A.1 was accepted and the reference decided on that basis. However, the lower appellate Court made a serious error in holding that the plaintiff had not established that the possession was taken as per the decree. According to the learned Subordinate Judge, the decree contemplated further proceedings for delivery. The learned Subordinate Judge has clearly misread the recitals in the compromise decree and has not given adequate consideration to the effect of the Full Satisfaction Memo/Ex.A.2. This has led to the learned Subordinate Judge holding that the plaintiff had not taken possession of the present suit item 1. 14. Though it was pleaded in the written statement that the present suit item 1 is different from the suit item covered in the earlier suit, the same has not been substantiated and it was not pursued before the Courts below. Therefore, the finding by the lower appellate Court regarding suit Item 1, cannot at all be sustained. 15. So far as items 2 and 3 are concerned, the plaintiffs case is that they were the ancestral joint family properties. To substantiate that they were ancestral joint family properties, Ex.A.28/Settlement Register has been produced. It is seen from Ex.A.28 that these items have been shown as the properties of the ancestors Gopalachariar and four others, Gopalachariar being the plaintiffs grandfather. In respect of ancestral properties, one cannot have regular title deeds. This has been totally lost sight of by the lower appellate Court. The case of the defendant is that items 1 and 2 were purchased by his father from Rangammal, wife of Bashyachariar. The sale deed/Ex.B.1, dt.22.12.1943 deals only with the present suit Item 1. In respect of ancestral properties, one cannot have regular title deeds. This has been totally lost sight of by the lower appellate Court. The case of the defendant is that items 1 and 2 were purchased by his father from Rangammal, wife of Bashyachariar. The sale deed/Ex.B.1, dt.22.12.1943 deals only with the present suit Item 1. Suit Item 2 is not the subject matter of Ex.B.1. There is nothing to show that Vadivelu Mudaliar ever owned suit item 2. Ex.B.2, dt.5.1.46 is a sale deed by one Rukmani to Vadivel of 1.25 acres, but the survey number given is 66/1. That has nothing to do with suit item 2. So far as suit item 3 is concerned, the defendant claims to have purchased 1.14 acres on 27.9.1943 under the original of Ex.B.3. It is in S.No.69/1. In Ex.B.48/Patta issued on 28.3.1978 an extent of 1.15 acres in S.No.69/1 has been shown to be Vadivelu Mudaliars property. Suit Item 3 is only an extent of one cent and from the Plan, Ex.A.27, it appears that this property is the only access to the plaintiffs other two items, and it is also found in Ex.A.28/Settlement Register. Suit item 3 is shown in Ex.A.28 as cart track and it has not been shown by the defendant that apart from the patta issued to him which was in respect of 1.15 acres though he had bought only 1.14 acres on 27.9.1943 under the original of B.3 that he had any right in suit item. Thus, in my considered view, title to all the three items in the suit has been clearly established in favour of the plaintiff. 16. The next question is one relating to possession. To show the plaintiffs possession of the suit items, Exs.A.6 and A.29 have been produced. It appears that some time in 1970, the defendants father Vadivelu had got the suit items transferred to his patta in Patta No.43 as evident from Ex.B.48. The plaintiff addressed a letter to the Tahsildar, Chengalput and the Tahsildar sent a communication under Ex.A.6 retransferring the properties in S.Nos.68/1 and 69/1 to Patta No.1 jointly in the names of Neelameghachari and others, as it was originally found in the village accounts, and directing status quo to be maintained, before the wrong transfer of registry was effected. Exs.A.8 to A.15 kist receipts show plaintiffs possession from 1975 to 1986. Exs.A.8 to A.15 kist receipts show plaintiffs possession from 1975 to 1986. Exs.A.19 to A.25 show his possession from 1965 to 1973. The possession of the plaintiff in respect of suit items has been proved to the hilt. Neither the title nor the possession of the defendant to the suit items was established by him. If we have a look at the documents on the side of the defendant, the conclusion reached will be only reinforced. Ex.B.1 is the sale deed in favour of defendants father Vadivelu of item 1 and the sale deed got superseded by the compromise decree and the subsequent FS Memo. Ex.B.2 does not relate to suit item 2. Under Ex.B.3 only an extent of 1.14 acres in S.No.69/1 is purchased. It does not take in item 3 of the plaint schedule. Ex.B.4 is a consolidated receipt for payment of kist during the period 3.1.1926 to 23.4.1937. Muthu Mudaliar, father of Vadivelu, is shown to have paid kist for patta No.1 which includes suit survey numbers. Patta No.1 is a joint patta. Plaintiffs predecessors had paid kist for the said patta. As already noted, suit survey numbers are found in Ex.A.28 settlement register and plaintiffs forebears are shown as joint pattadars. Exs.B.5 to B.33 show payment of kist for patta No.1 by defendants grandfather and father for various faslis. In 1974, the mischief starts. Items 1 to 3 are shifted to patta No.43 without reference to plaintiffs family. This is objected to and under Ex.A.6 the status quo ante is restored and the suit properties are sent back to patta No.1. Ex.B.34 to B.45 are further receipts, but, they do not in any way advance the case of the defendant. The other documents also do not prove defendants possession in any manner whatsoever. The entire approach by the lower appellate Court is clearly erroneous, and it has proceeded on wrong assumptions with regard to Ex.A.1/compromise decree. It has also clearly over looked the impact of Ex.A.2/Full Satisfaction Memo, the retransfer of patta in favour of the plaintiff under Ex.A.6, the probative value of Ex.A.28/Settlement Register, and the various kist receipts produced, showing the payment of land revenue by the plaintiff. In the total absence of any material whatsoever on the side of the defendant, the learned Subordinate Judge has misdirected himself misconstrued the documents and erroneously held in favour of the defendant. In the total absence of any material whatsoever on the side of the defendant, the learned Subordinate Judge has misdirected himself misconstrued the documents and erroneously held in favour of the defendant. The judgment of the lower appellate Court is perverse based as it is on mere surmises and conjectures. By reason of misreading and misconstruction of the oral and the documentary evidence by the lower appellate Court, there has been miscarriage of justice and this Court is entitled to interfere. Accordingly, the substantial questions of law are answered in favour of the appellant. The second appeal succeeds. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. No costs.