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2003 DIGILAW 1529 (MAD)

Sivasankaran v. nnamalai Ammal & Others

2003-09-26

M.THANIKACHALAM

body2003
Judgment :- The second defendant, who was successful before the trial Court, and failed before the first appellate Court, is the appellant. 2. The suit for declaration and for consequential relief of possession, coupled with mesne profits, was filed by the plaintiffs/respondents on the ground that the suit property belongs to them ancestrally, that the same was leased out to the first defendant, who in turn subleased the same to the second defendant, and that despite demand and notice, they have not only failed to pay the arrears of lease amount, but also failed to deliver possession of the suit property, in addition, the second defendant denied the title, thereby prayed for the above said reliefs. 3. The second defendant opposed the claim of the plaintiffs, contending that neither the plaintiffs nor their alleged predecessor in title, had any semblance of right at any point of time, over the suit properties and that in fact, the suit property belongs to him by purchase in which the plaintiffs are not entitled to claim any interest, which should follow, neither the question of possession nor the profit will arise for consideration. Thus, setting up title in himself, the second defendant opposed the claim praying for the dismissal of the suit. 4. The trial Court after framing as many as 11 issues, took the case for trial. On behalf of the plaintiffs, four witnesses were marched in, armed with Exs.A1 to A8. To counter act the claim and support the defence, on behalf of the second defendant, four witnesses were marched in armed with four documents. 5. The learned II Additional District Munsif at Pondicherry, while evaluating and assessing the above materials, came to the conclusion that the suit is bad for non joinder of necessary parties, that the second defendant is not the sub lessee of the first defendant, that the first defendant himself is not the lessee of the suit property, that the second defendant had purchased the property from its original owner and on the strength of ownership alone, he is in possession and enjoyment of the suit property, which could not be disturbed by ordering recovery of possession or directing him to pay mesne profits. Concluding so, the learned II Additional District Munsif, dismissed the suit on 30.11.1989, thereby giving cause of action for the plaintiffs, to prefer an appeal. 6. Concluding so, the learned II Additional District Munsif, dismissed the suit on 30.11.1989, thereby giving cause of action for the plaintiffs, to prefer an appeal. 6. The plaintiffs when appealed before the II Additional District Judge at Pondicherry, impugning the above said judgment, in A.S.No.59/90, the II Additional District Judge found fault with the reasoning given by the learned II Additional District Munsif and concluded that the second defendant had failed to prove his title to the suit property, whereas the plaintiffs have proved the character of ancestral nature of the property. In this view of the matter, he allowed the appeal, setting aside the decree and judgment of the trial Court, thereby decreeing the suit as prayed for. 7. The second defendant, aggrieved and unable to satisfy himself, by the judgment rendered by the learned II Additional District Judge, Pondicherry, preferred this second appeal questioning the correctness of the first appellate Court's judgment, canvassing the correctness of the trial Court's judgment. 8. This Court, while admitting the second appeal, formulated the following substantial questions of law for consideration. "1. Whether the court below was right in holding that in respect of an ancestral property, title has to be traced only from the ancient ancestors? 2. Whether Exs.A4 to A7 will prove the plaintiffs title over the suit property? 3. Whether the respondents 1 to 6 are entitled to a decree for declaration and recovery of possession in respect of the suit property in the absence of any evidence? 4. Whether the suit without impleading the legal heirs of Vaiyapuri Achari was not bad for non-joinder of necessary parties and consequently not liable to be dismissed.?" 9. Heard the learned counsel for the appellant Mr.T.P. Manoharan and the learned counsel for the respondents 1 to 6 Mr. P. Krishnamoorthy. 10. 4. Whether the suit without impleading the legal heirs of Vaiyapuri Achari was not bad for non-joinder of necessary parties and consequently not liable to be dismissed.?" 9. Heard the learned counsel for the appellant Mr.T.P. Manoharan and the learned counsel for the respondents 1 to 6 Mr. P. Krishnamoorthy. 10. The learned counsel for the appellant submits that there is no proper description of the property in the plaint and on this ground, the suit is liable to be dismissed, that the plaintiffs/respondents have miserably failed to prove their title to the suit property, by producing any satisfactory documentary as well as oral evidence, which were not properly considered by the first appellate Court, though they were considered and decided by the trial Court, that the suit is bad for non joinder of necessary parties, and that the possession of the suit property with the second defendant itself proves, that he is the owner of the property, since the plaintiffs have failed to prove the alleged lease in favour of the first respondent as well as the sub lease in favour of the second defendant and on these grounds, the plaintiffs should be non suited. It is the further case of the learned counsel for the appellant, that the trial Court had properly considered all these points, but unfortunately, the first appellate Court has miscontrued the law, even shifted the burden of proof against the settled proposition and on this ground, the judgment rendered by the first appellate Court, should be considered as perverse in nature, which should not be allowed to stand in the record and in this view of the matter, he prayed for allowing the appeal, in order to restore the decree and judgment of the trial Court. 11. The learned counsel for the respondents/plaintiffs on the other hand submits that the first appellate Court has properly considered the evidence on record, which revealed that the plaintiffs have made out a case, whereas the appellant has failed to establish his title to the suit property and that the first defendant himself had admitted about the tenancy, for which no proof is required and that evidencing that the first defendant was a tenant, even there is a documentary evidence, which was properly considered and decided by the first appellate Court, which in fact does require affirmation and not interference. On these lines, the learned counsel for the respondents has submitted that the appeal deserves to be dismissed, the further fact being, there is no question of law. In order to appreciate the above case of the parties, we have to see the description of the property and how the parties have traced out their title to the suit property and how they have substantiated or not substantiated the same, to the satisfaction of the court concerned. 12. Order VII Rule 3 mandates: "Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers" Rule 11 of Civil Rules of Practice says, what are the particulars to be furnished, in respect of the immovable property. These provisions are grossly violated by the plaintiffs, as seen from the description of the property in the plaint and on this ground, as rightly contended by the learned counsel for the appellant, the suit ought to have been dismissed by the trial Court. As seen from the description of the property, no Survey Number either new or old is given. It is not the case of the plaintiffs, that the suit property is not having any survey number. An extent of 84 1/2 kuzhi of land is described within certain boundaries. It is not known, what is the survey number available within the above said boundaries and whether the same boundaries will include some other survey number also. Therefore, as such, from the reading of the plaint, it is crystal clear that the plaintiffs have violated the above said provisions and in the absence of proper identification of the property, the plaintiffs should face the dismissal of the claim, which was correctly done by the trial Court, unfortunately upset by the first appellate Court. 13. The learned counsel for the respondents/plaintiffs would contend, that there is no dispute regarding the identity of the property and therefore, the non mentioning of survey number may not loom large in this case. Despite the fact, that the plaintiffs have failed to give the survey number, the said extent alone is in the possession of the second defendant, who claims title over the same, giving survey number etc. Despite the fact, that the plaintiffs have failed to give the survey number, the said extent alone is in the possession of the second defendant, who claims title over the same, giving survey number etc. It is not the case of the 2nd defendant, as seen from the defence, that he is not in possession of the suit property, though it does not contain survey number. In this way, as rightly contended by the parties, there is no difficulty in identifying the disputed property and in this way alone, we have to proceed further, ignoring the above defects pointed out by me supra. 14. It is the case of the plaintiffs/respondents that the suit property originally belonged to one Perumacha Asari, who had a son by name Periyasami Asari. As seen from the evidence, Periyasami Asari had two sons by name Vaiyapuri Asari and Vedachala Asari. Vaiyapuri Asari had seven issues and Vedachala Asari had five issues. Vedachala Asari's wife is Unnamalai, the first plaintiff and their children are plaintiffs 2 to 6. Vaiyapuri Asari heirs were not impleaded in the suit. In paragraph 3 of the plaint, the ancestral character of the suit property is traced out, which says Vaiyapuri and Vedachala Asari were in possession and enjoyment of the suit property and after the death of Vedachala Asari, the first plaintiff and other plaintiffs as his legal heirs are entitled to the suit property from the year 1981. As said above, Vaiyapuri also had issues. Therefore, if the suit properties are the joint family properties, heirs of Vaiyapuri Asari also should have a share in the suit property and the heirs of Vedachala Asari alone are not entitled to claim absolute right. The plaint is elegantly silent, how the heirs of Vaiyapuri Asari were excluded or how the share of Vaiyapuri Asari in the suit property had been devolved upon Vedachala Asari alone. It is not the case of the plaintiff that the suit is filed on behalf of Vaiyapuri Asari's heirs also, representing the undivided family, whereas, the plaintiff's claim absolute title in the suit property, excluding Vaiyapuri Asari and his heirs. It is not the case of the plaintiff that the suit is filed on behalf of Vaiyapuri Asari's heirs also, representing the undivided family, whereas, the plaintiff's claim absolute title in the suit property, excluding Vaiyapuri Asari and his heirs. Unless it is established how Vaiyapuri and his heirs were excluded , even as per the allegations in the plaint, the plaintiffs are not entitled to claim absolute ownership and in this view of the matter, as rightly submitted by the learned counsel for the appellant, the suit has to be held as bad for non joinder of necessary parties, resulting dismissal. 15. The learned District Munsif, though had not elaborately discussed the evidence as required, had come to a correct conclusion, that the plaintiffs have failed to prove their title, whereas the second defendant had proved his interest, in the suit property. But unfortunately, the first appellate Court, has reversed the said finding, assigning peculiar reasons, not known to law, forgetting the Evidence Act, especially the burden of proof, as contemplated under the Act. It is the settled proposition of law, that who ever desires any Court to give a judgment in his favour, that too for declaration of title, must prove the facts so pleaded, thereby compelling the Court, to confer such declaration. If the plaintiff/s failed to prove the averments made in the plaint, irrespective of the proof on the side of the defendant, the suit has to be dismissed. No duty is cast upon the defendant, generally, to disprove the case of the plaintiffs, that too when the case of the plaintiffs itself collapsed by its own contradiction and nil evidence. But unfortunately, the learned II Additional District Judge, Pondicherry shouldered the burden of proof, upon the appellant, forgetting the duty cast upon the plaintiffs/respondents and the reason is not known. 16. Section 110 of the Indian Evidence Act mandates: "When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner." 17. Admittedly, even as per the averments in the plaint, the second defendant/appellant alone is in possession and enjoyment of the suit property. Admittedly, even as per the averments in the plaint, the second defendant/appellant alone is in possession and enjoyment of the suit property. The second defendant, who is in possession of the suit property is emphatic in his defence, that he is not a sub tenant under the first defendant, whereas he is the title holder of the suit property. Despite this fact, the plaintiffs claim that they are the owners of the suit property. Therefore, the burden is heavy upon the plaintiffs, in proving that the appellant is not the owner of the suit property, since it is proved or admitted and shown that the second defendant alone is in possession and enjoyment of the suit property. This burden of proof, as to the ownership, as enunciated under the Evidence Act has been thrown in the wind by the learned II Additional District Munsif. Whereas he had adopted a peculiar procedure of burden of proof, not known to law, thereby he landed himself or misdirected himself in delivering a judgment, which should be termed as perverse in nature, and in this view, irrespective of the question of law, the interference of this Court is an absolute one, since there is gross violation of appreciation of evidence in its proper perspective, resulting injustice. 18. The learned counsel for the appellant submits that the plaintiffs cannot take advantage of any weakness or loopholes in the defendant's case, seeking aid from a decision of this Court in the case of Subramaniya Konar v. Palani Pillai and others, wherein this Court has held that the plaintiff cannot take advantage of any weakness or loopholes of the other side and the plaintiff has to prove his case, independently, which dictum is squarely applicable to this case. 19. The first appellate Court has observed that if the property is an ancestral property, title has to be traced from ancient ancestors, and it is not reasonable to accept any documentary evidence. I am unable to find any logic in this conclusion, since the same principle is not applied to the defendant's case. Whereas, the learned II Additional Judge has adopted different yardsticks, to assess the evidence of the plaintiffs and to assess the evidence of the defendant, which is unjustifiable. I am unable to find any logic in this conclusion, since the same principle is not applied to the defendant's case. Whereas, the learned II Additional Judge has adopted different yardsticks, to assess the evidence of the plaintiffs and to assess the evidence of the defendant, which is unjustifiable. When it is claimed, that the suit property belongs to the family ancestrally, that too tracing the title for more than two generation, certainly though there is no title deed, there will be revenue records, registering the name of the ancestors, conferring patta in their favour, followed by payment of kist, incorporating the cultivation in the Adangal, etc. The first appellate Court was conscious about this fact and that is why, it has observed that possession coupled with records will sustain the ownership. Therefore, we have to see, what are the materials produced by the respondents in this case, to prove the ancestral character of the suit property. 20. This suit was filed on 26.9.1998 and taken on file as O.S.1016/1988, on the file of the II Additional District Munsif, Pondicherry. Exs.A1 to A3 are the lawyer's notice and reply notices respectively. Ex.A4 is the settlement extract relating to the suit properties. This document was obtained on 29.1.1988 i.e. just 8 months prior to the filing of the suit. As seen from this document, for survey number 71/6, an extent of 0.40.0 hectare, one Vedachala Asari's name is mentioned as the Pattadar. That Vedahcala Asari's initial is "it". The first plaintiff's husband Vedachala Asari' father's name is Periyasami Asari. Therefore, this document will not reflect that the husband of the first plaintiff, was recognised as pattadar of the suit property, that too, in the absence of survey number and sub division number, in the description of the property in the plaint, which I have adverted to supra. Ex.A5 was prepared on 31.12.1987 and it is not known under what circumstances, this document was prepared. Here also the name of the Pattadar is given as Vedachala Asari s/o. Vaiyapuri Asari. The first plaintiff's husband is not the son of Vaiyapuri Asari, whereas he is the son of Periyasami Asari. The payment of kist as seen from Ex.A6 is dated 15.2.1988, probably paid by the third plaintiff in anticipation of the litigation. Here also the name of the Pattadar is given as Vedachala Asari s/o. Vaiyapuri Asari. The first plaintiff's husband is not the son of Vaiyapuri Asari, whereas he is the son of Periyasami Asari. The payment of kist as seen from Ex.A6 is dated 15.2.1988, probably paid by the third plaintiff in anticipation of the litigation. Except these two documents, no other revenue records are produced, evidencing that the suit property stood registered either in the name of Periyasami, or in the name of his father Perumachala Asari. If the plaintiffs had produced the previous revenue records and current revenue records, connecting both, this Court could come to a conclusion, irrespective of the title deeds, that the property should have been enjoyed by the family, as ancestral property, which should follow the plaintiffs are entitled to inherit the same. The failure on the part of the plaintiffs to prove that Vedachala Asari or his father Perumalsamy Asari or his father Perumacha Asari, have been recognised as the owner of the property by the revenue authorities, would show that the attempt of the plaintiffs to label the property as ancestral property is an afterthought, without basis, aimed to lay a false claim, which was unfortunately supported by the first appellate Court, which could not be accepted on the basis of law and on the basis of evidence also. 21. Ex.A8 is the lease deed said to have been executed by the first defendant in favour of the third plaintiff on 10.8.1972. This document and its genuineness are disputed. The fact that the first defendant admitted that he is cultivating the suit property, as tenant, is falsified from his oral evidence as seen from the deposition (P.W.4), since he had accepted his ignorance, regarding the Survey Number, extent, nature of tenancy, etc. Probably to have a support as if the title of the plaintiff was recognised by the first respondent, in my opinion, a lease deed might have been created, as if he is cultivating the suit property as tenant. The falsity of the lease in favour of the first defendant, and the falsity of the plaintiff's case, in this regard, could be seen from the stand taken by the first defendant himself. There is no documentary evidence of any kind that the first defendant had paid lease amount to the plaintiff or their predecessor, at any point of time. The falsity of the lease in favour of the first defendant, and the falsity of the plaintiff's case, in this regard, could be seen from the stand taken by the first defendant himself. There is no documentary evidence of any kind that the first defendant had paid lease amount to the plaintiff or their predecessor, at any point of time. If the first defendant had been cultivating the suit property as tenant, his name should have been entered as such in the adangal, maintained by the Revenue Department. Evidencing this aspect, no document is also produced. Therefore, the so called admission of the first defendant, in his letter that he is cultivating the property as tenant will not lend support to prove the alleged title in favour of the plaintiff. In the plaint, the second defendant is described as sub tenant. The relevant recital in the plaint reads that he has subleased the property to the second defendant. If it is true, at least the first defendant should have admitted so, either in his reply to the notice or when he was in the box before the Court. Ex.A1 notice, which emanated on 20.2.88, would say that the second defendant is cultivating the land as sub lessee. But in the reply emanated from the first defendant, as seen from Ex.A2, it says that the second defendant trespassed into the suit property, and he is cultivating the same as trespasser and not as sub tenant. Therefore, the fertile imagination or the stand taken to explain the possession of the suit property by the second defendant, was shattered into pieces, thereby showing, impliedly that the second defendant must be in possession of the property in his own right, without reference to the first defendant or the plaintiffs. 22. The learned counsel for the plaintiffs/respondents invited my attention to Ex.B3, to prove that the second defendant must be a tenant. As aforementioned, it is not the case of the plaintiffs, as well as of the first defendant that Sankaran Pillai was the tenant of the suit property. In Ex.B.3, for the suit property, which bears patta No.470, the second defendant/appellant's name is given, as Pattadar. As aforementioned, it is not the case of the plaintiffs, as well as of the first defendant that Sankaran Pillai was the tenant of the suit property. In Ex.B.3, for the suit property, which bears patta No.470, the second defendant/appellant's name is given, as Pattadar. While describing the name of the Pattadar under coloum 13, Patta Number is written, and in continuation of the same, the second defendant's name is also written, covering column 14 also, where the revenue authorities are expected to write the tenant's name. Taking advantage of this fact, the learned counsel for the respondents, would submit that the appellant is described even in the documents produced by him, as tenant and therefore, he cannot claim any right over the suit property. It seems, the Revenue Authorities, instead of restricting the name under coloum 13, extended the same under column 14 also, and this will not in any way support the case of the plaintiffs. If the second defendant is the tenant as contended, which is not the case of the first defendant, then the second defendant's name should find place, so, in Ex.A5, we do not find the name of the second defendant as tenant. In this view, on the basis of Ex.B3, it is impossible, to conclude that the second defendant was cultivating the suit property as tenant. Considering the above documents, the trial Court had clearly come to the conclusion, unerring in nature, that the second defendant is not cultivating the property as tenant, whereas, he should be cultivating the suit property in his own right, which is unnecessarily disturbed by the first appellate Court, by writing a perverse judgment, shifting the burden also, ignoring the basic norms. The oral evidence of P.Ws.1 to 4 is not inspiring, and in fact the oral evidence of P.W.4 cuts the root of the plaintiffs' case. Therefore, I have no hesitation, to conclude that the plaintiffs have miserably failed to prove their title, as well as they have miserably failed to explain the possession of the second defendant, and the corollary should be, the second defendant is in possession of the property, in his individual capacity and that capacity must be as that of the owner. 23. The learned counsel for the appellant submits that the suit property originally belonged to one Kandasamy, having purchased the same under a notarial sale dated 12.5.1926 seeking aid from Ex.B1. 23. The learned counsel for the appellant submits that the suit property originally belonged to one Kandasamy, having purchased the same under a notarial sale dated 12.5.1926 seeking aid from Ex.B1. Under Ex.B1 as represented by the learned counsel for the appellant, the suit property was purchased by Kandasamy and Cadastre No.159. It is not the case of the plaintiffs that this document does not relate to the suit property. As seen from Ex.B3 for old survey number i.e. Cadastre No.159, resurvey number is 71/6. The fact that the suit property is in Survey No.71/6, is not in dispute, since the plaintiffs have also filed Ex.A4, which says the survey number is 71/6. After the death of Kandasamy, according to the second defendant, this property was inherited by Kumarappa Asari, whose sons are Rangasamy Asari and Gurusamy Asari. From the sons of Kumarappa Asari as evidenced by Ex.B4, the defendant had purchased the property on 18.4.1981. From the said date onwards, more or less admittedly also, the second defendant alone is in possession of the property, though he is described at some point of time as sub tenant and at some point of time as trespasser, by the plaintiffs. 24. The oral evidence of D.Ws.1 to 4 coupled with Exs.B1 to B4 prompts me, to conclude that the appellant has proved his title to the suit property, by producing the document, which is attached with certain presumptions also, as pointed out by the learned counsel for the appellant. To nullify these documents, I find nil evidence on the side of the respondents/appellants. 25. In the case of notorial sale, there is some presumption also, and if a person wants to assail an alienation concluded by executing a document before a Notary, should prove that the Notary had not personally examined the parties and ascertained that they were fit and able to give their consent to the transaction. It is also held by a Division Bench of this Court in Mourougaessa Modealiar v. Aguilandammalle and others (1995-1-L.W.72 J.S.) that "Purchaser having acted in good faith, it is for plaintiff to prove that sale was not actuated by good faith." Supported by the satisfactory evidence, coupled with the presumption available to the notorial sale deed, I should conclude, that the appellant had proved the title to the suit property. But unfortunately, the first appellate Court went to the extent of saying that the second defendant has not examined the officer, who issued Ex.B3 and took a strange and perverse view, that the defendant had not explained the long gap of 55 years between Ex.B1 and B2, forgetting the fact that the second defendant alone is in possession and enjoyment of the suit property. Therefore, the observation by the first appellate Court, that there is nothing to show any continuity of the possession, with the second defendant's predecessors in title, is unwarranted, when the plaintiffs themselves have miserably failed to prove the title, in favour of their predecessors in interest, as well as possession with them. The admitted possession with the second defendant, coupled with satisfactory evidence available on record, as rightly assessed and held by the trial Court, would show that the second defendant is in possession of the property in his own right and the plaintiffs have no semblance of right, over the subject matter of the suit, and only in order to explain the absence of possession, an imaginary lease was created and the same is not even supported by the concerned person also. Thus, having analysed the case from all possible and probable angle, the irresistible conclusion that could be drawn by any Court is, that the respondents have failed to prove their title, to the suit property, but unfortunately it was not taken note of by the first appellate Court. For the foregoing reasons, I conclude, by allowing the first appellate Court's judgment and decree to remain in force, will amount to injustice and in this view, the same is liable to be set aside, restoring the trial Court's judgment and decree. In the result, the appeal is allowed with costs setting aside the decree and judgment of the first appellate Court restoring the decree and judgment of the trial Court in O.S.1016 of 1988 on the file of the II Additional District Munsif, Pondicherry.