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2002 DIGILAW 630 (MAD)

Sundaram v. Manickam and another

2002-07-17

PRABHA SRIDEVAN

body2002
JUDGMENT: The appellant’s case that he was the owner of the suit property and entitled to a decree for injunction was concurrently rejected. 2. The suit property is an extent of 23 1/2 cents in Survey No.159/3, Anumanthapuram Village. According to the appellant he, the respondents and one Kaliyamurthy are brothers. They divided the properties among themselves orally in 1960. We are not concerned with Kaliyamurthy in this case. The property comprised in Survey No.159/4 was one of the properties so divided. The appellant took the western half, and the second respondent took the eastern half and both of them were given joint patta and have been paying the taxes. The appellant has been raising crops in his portion. Prior to the suit, the prices in the lands in and around the place rose because the Ariyalur Government Cement Factory came up in the nearby area. The respondents with mala fide motive attempted to interfere with the appellant’s possession and therefore the suit was filed. 3. The first respondent denied that this property was ever in the enjoyment of the appellant. However, he admitted that there was a partition in 1960. The cause of action namely, interference was also denied. However, the first respondent is really not concerned with the particular property since the eastern half was allotted only to the second respondent. 4. The second respondent also admitted the oral partition. But claimed that the suit plan was incorrect. He also denied the allotment of the western half of the suit property to the appellant or that it was ever in his enjoyment or cultivation. The second respondent claimed possession of the suit property for over 25 years. At the time of updating of the records, the appellant had somehow managed to introduce his name in the relevant records with the help of the authorities and has now filed the suit alleging a false cause of action. 5. The Advocate Commissioner, who inspected the property, filed his Report and Plan. The trial Court and the appellate court were not impressed by the appellant’s case. 6. Mr.V.S.Sekar, learned counsel appearing for the appellant submitted that the appellate court judgment clearly shows that it is nothing but a reproduction of the trial court judgment. 5. The Advocate Commissioner, who inspected the property, filed his Report and Plan. The trial Court and the appellate court were not impressed by the appellant’s case. 6. Mr.V.S.Sekar, learned counsel appearing for the appellant submitted that the appellate court judgment clearly shows that it is nothing but a reproduction of the trial court judgment. There is no independent application of mind, nor appreciation of oral and documentary evidence and therefore there is lapse on the part of the appellate court as a court of fact. He also submitted that there is absolutely no evidence to show that the respondents ever had total control of the 47 cents in Survey No.159/3. When the oral partition in 1960 is admitted, the division of Survey No.159/3 must also be necessarily accepted. It was submitted that the courts below erred in the conclusion drawn from Ex.B-1, a sale deed, dated 22.11.1961, in which the appellant had singed as a witness. The eastern boundary of Ex.B-1 property is the suit property and Ex.B-1 recites that it belongs to the second respondent. The learned counsel submitted that there cannot be any estoppel merely because the appellant had signed as a witness in a document. The learned counsel also submitted that Ex.A-4 to A-13 are in the name of the appellant, Ex.A-22 in the joint names of the appellant and the second respondent. This would show the appellant’s right. 7. Reliance was placed on B.M.Fathima Bibi v. Idris Mohammed, (1997)2 L.W. 366 ; Sinnammal v. Muthuramalingam, 100 L.W. 668; Madhukar v. Sangram, (2001)3 L.W. 294 and Santosh Hazari v. Purushottam Tiwai, (2001)2 M.L.J. 69 (S.C.): J.T. (2001)2 S.C. 407: (2001)1 Supreme 642 . 8. The learned counsel appearing for the respondents would submit that the respondents need not prove their title to the entire 47 cents, it is the duty of the appellant as the plaintiff to prove his case. The documents produced by the appellant which are chitta extracts cannot confer title. He has to show by other documents that he was entitled to the western 23 1/2 cents. The learned counsel also submitted that if the appellant was aggrieved by the Commissioner and his report, he ought to have examined him and tested his veracity. The learned counsel pointed out to the observations, in the judgments which would show that the appellant as P.W.1, had himself admitted the possession of the respondents. The learned counsel also submitted that if the appellant was aggrieved by the Commissioner and his report, he ought to have examined him and tested his veracity. The learned counsel pointed out to the observations, in the judgments which would show that the appellant as P.W.1, had himself admitted the possession of the respondents. The learned counsel also pointed out that the appellant’s exhibits showed that the joint patta in the name of the appellant and the respondents, also mentioned other survey numbers, besides S.No.159/3. But, when questioned, P.W.1 had no idea as to who the owners of those survey numbers were. So, the courts below refused to give any weight to these documents. Therefore, according to the learned counsel, no substantial question of law falls for consideration. 9. The oral partition in 1960 is admitted, Ex.B-5, is a rough plan. This had been marked without objection. It shows the genealogy and the manner in which the various properties were allotted to the brothers including the parties herein. The shares allotted to each of the brothers has been shown in Ex.B-5 and the properties allotted to the appellant are shaded Red and the properties allotted to the second respondent, the main contesting party, are shaded Blue. Ex.B-5 alone cannot decide the case. 10. The appellant made a feeble attempt to point out the difference in the levels of the properties in S.No.159/3 to prove separate enjoyment, the eastern half and the western half. But he has actually admitted that all the properties are on the same level. So there are no demarcating ridges to help the appellant’s case. The suit Survey Number consists of 47 cents. Ex.A-4 to A-13 which are receipts to show payment of kist, have been marked by the appellant. Various adangal extracts have been marked and they are Exhibits A-15 to A-22. In some of them, the names of the appellant and the second respondent are found and in some, the name of the second respondent alone. The appellant is unable to explain why the second respondent’s name alone is found. He is also not able to say why there are two other Survey Nos. 159/3 and 156/6 in the joint patta. It is not his case that the properties in those survey numbers are also his. This is why the courts below were not inclined to declare his title on the basis of these exhibits. He is also not able to say why there are two other Survey Nos. 159/3 and 156/6 in the joint patta. It is not his case that the properties in those survey numbers are also his. This is why the courts below were not inclined to declare his title on the basis of these exhibits. 11. In addition, in his evidence, P.W.1 has stated that he claims the property to the west of . By calculation, the appellate court found that the property to the west of is only 13 cents. If the appellant’s claim is only for 13 cents, then his case that in 1960, he was given the western 22 1/2 cents half and the second respondent the eastern 22 1/2 cannot be correct. It is clear that the cumulative effect of the evidence has been considered by the courts to arrive at the conclusion. 12. In Madhukar v. Sangram, (2001)3 L.W. 294 the Supreme Court held sitting as a court of first appeal it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings, because first appeal is a valuable right and the parties have the right to be heard both on question of law and on facts. In that case the first appellate court namely, the High Court had set aside the judgment and decree of the trial court. The Supreme Court referred to the decision reported in Santosh Hazari v. Purushottam Tiwai, (2001)2 M.L.J. 69 (S.C.): J.T. (2001)2 S.C. 407: (2001)1 Supreme 642 , wherein it was laid down that while reappraising the finding of fact, the appellate court must assign its own reason for arriving at a different finding. The Supreme Court also held that the appellate court while agreeing with the view of the trial court “need not restate the effect of the evidence or reiterate the reasons given by the trial court, expression of general agreement with reasons given by the courts, decision of which is under appeal, would ordinarily suffice”. The appellate court was also warned by the Supreme Court that this expression “general agreement” should not be a device adopted by the appellate court to shirk its duty. The appellate court was also warned by the Supreme Court that this expression “general agreement” should not be a device adopted by the appellate court to shirk its duty. The Supreme Court also held that while writing a judgment of reversal, the appellate court should give its reasons for doing so and as a matter of law, the appellate court could interfere with the findings of fact if the judgment of the trial court suffers from material irregularity in the appraisal of evidence or is based on inadmissible evidence. The following paragraph is also relevant: 13. In this case the appellate court has concurred with the findings of the trial court. With regard to certain findings, the language may even be similar, but sometimes this may be unavoidable. But, that alone is not enough to discredit the appellate court’s judgment as one of non application of mind. In fact, the judgment of the appellate court shows that the various points urged on behalf of the appellant were adverted to and findings have been rendered. The Appellate court did not reverse the trial court’s findings, since it did not suffer from material irregularity, nor was it based on inadmissible evidence or on conjectures and surmises. 14. As regards the effect of the appellant signing Ex.B-1 as a witness, the courts below have not held this as estoppel against the appellant. The courts below have given some weight to this document on the ground that it is of the year 1961, at least 20 years before the suit and after the oral partition which is admittedly of the year 1960. Under Ex.B-1, the first respondent’s wife Rukmani had purchased a property from one Valambal and the property on the east is said to belong to Mani @ Swaminathan. P.W.1 admits that the second respondent is also called as Mani. But as per Ex.B-1, it belongs to the second respondent. Ex.B-5 shows that the property on the east of Ex.B-1 property lies to the west of So this is the land claimed by the appellant. The words found in the document are An attempt was made by the appellant during cross examination of D.W.1 (the first respondent) that he had deliberately inserted this recital regarding the boundary to prejudice the appellant. The words found in the document are An attempt was made by the appellant during cross examination of D.W.1 (the first respondent) that he had deliberately inserted this recital regarding the boundary to prejudice the appellant. But there is nothing to show that from 1961, there has been enmity between the two brothers, namely the first respondent and the appellant. So, the courts below rightly held that there is no reason why the second respondent’s name should be shown as the owner of the land lying to the east of Ex.B-1, property, unless he was entitled to it. This is an additional piece of evidence noted by the courts below to hold that the appellant is not entitled to the relief of declaration and injunction. 15. So, the decision reported in Sinnammal v. Muthuramalingam, 100 L.W. 668, where it was held that attestation does not impute knowledge of the contents of the document and the decision reported in B.M.Fathima Bibi v. Idris Mohammed, (1997)2 L.W. 366 where it was held that attestation by itself will not create any interest and unless there is something to show that they had knowledge of the contents of the document, will not apply to this case. Specifically, the trial court observes that the attestation may not bind the appellant. The following extract from the judgment makes it clear: 16. The courts were of the opinion, it is extremely unlikely that a misleading recital would have been introduced in 1961 in anticipation of a case that came to be filed in 1985. On a total appreciation of the oral and documentary evidence, as also the Commissioner’s plan and report, the courts below were inclined to reject the plaintiff’s case. 17. The rejection of the plaintiff’s documents cannot be faulted with. The appellant himself is unable to explain why the other survey numbers are found and to whom they belong and therefore the inclusion of the names of the appellant and the respondents in the joint patta cannot be the sole basis for declaration of title. He is also unable to explain why the second respondent’s name alone is found on some of them. Nor, have the courts below decided the case only on the basis of Ex.B-5, a rough plan. It is noteworthy that this has been marked without any objection. He is also unable to explain why the second respondent’s name alone is found on some of them. Nor, have the courts below decided the case only on the basis of Ex.B-5, a rough plan. It is noteworthy that this has been marked without any objection. Yet, it is only taken into account to see the lie of the land and the manner of division of properties. Nor have the courts below held that the appellant is estopped by attestation from asserting the title. 18. The substantial question of law raised were regarding the rejection of Ex.A-1 to A-3 and A-15 etc., the erroneous acceptance of Ex.B-5, and the issue of estoppel by attestation. The reasons for looking to Ex.B-1 have been given above. 19. Therefore, the questions of law raised are answered against the appellant and obviously they are not substantial questions of law. 20. The second appeal is therefore dismissed. There is no order as to costs.