Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 109 (MAD)

Kannaiyan v. Mayavan & Another

2005-01-25

A.R.RAMALINGAM

body2005
Judgment :- Aggrieved against the judgment and decree of the Sub Court, Chidambaram in A.S.No.32 of 1991, the plaintiff Kannaiyan has filed this second appeal. 2. Originally the plaintiff Kannaiyan filed the suit in O.S.No.663 of 1986 on the file of the District Munsif Court, Chidambaram in respect of the suit properties viz., 9-1/2 cents out of 18 cents covered by dry survey No.123/17 (plaint schedule first item), 16-1/2 cents out of 50 cents covered by dry survey No.126/8 (plaint schedule second item) at Thachakadu Village for the reliefs of declaration and permanent injunction against the defendants viz., one Mayavan and Ramalingam. The said suit was filed with material allegations that the suit properties originally belonged to one Muthian absolutely and he alone was in possession and enjoyment of the suit properties having patta in his name and paying kist and that thereafter, the plaintiff Kannaiyan purchased the suit properties from the said Muthian as per the registered sale deed dated 9.7.1981 and that eversince of the purchase, the plaintiff is in possession and enjoyment of the suit properties. The defendants have no manner of right or title or possession upon the suit properties and they are attempting to interfere with the plaintiff's possession of the suit properties and that is why the plaintiff happened to file the said suit. 3. However, the said suit was resisted by the defendants by filing written statement with material allegations that the defendants are not interested in respect of plaint schedule second item and they are interested only in respect of the first item and the first item viz., 9-1/2 cents, a part of dry survey No.123/17 and that the boundaries are not properly described in the plaint and the plaintiff has no title or possession upon the said 9-1/2 cents and that in fact Muthian possessed only 4-1/2 cents in this survey number and one Pachiammal wife of Raman usufructorily mortgaged the said 4-1/2 cents in the same survey number to Muthian on 2.12.1959 and Muthian in turn assigned the mortgage in favour of the plaintiff Kannian on 13.7.1964 and thereby it is wrong to state that Muthian owned 9-1/2 cents in this survey number and if at all he could have possessory title of 4-1/2 cents only and there cannot be any independent title. In fact, on 19.9.1965, Muthian got money from the first defendant and paid the same to the plaintiff for discharging the mortgage debt on 19.9.1965 and there is also endorsement of discharge and the discharged deed was handed over to the first defendant by the said Muthian. Muthian also assigned the bogyam deed to the first defendant with a promise to sell 4-1/2 cents to him. Further, the first defendant purchased 5 cents in this survey number from one Arayee Ammal and Ayyakannu Ammal on 17.6.1986 which was owned by them ancestrally. This 5 cents land is lying on the south of 4-1/2 cents possessed by Muthian and therefore, Muthian cannot have ownership for more than 4-1/2 cents. The Plaintiff might have obtained patta in his name and paid kist, but, that itself is not enough to confer title upon the plaintiff and consequently, the suit is liable to be dismissed. 4. After trial, the District Munsif, Chidambaram, after considering the oral and documentary evidence available for either side viz., the evidence of P.Ws.1 and 2 and Exs.A1 to A10 and the evidence of D.Ws.1 and 2 and Exs.B1 to B4, has come to the conclusion that the plaintiff can have title only upon the second item of the plaint schedule and not upon the plaint schedule first item and thereby decreed the suit so far it relates to the second item and dismissed the same so far it relates to the first item. 5. Aggrieved against such judgment and decree, the plaintiff Kannaiyan preferred appeal in A.S.No.32 of 1991 before the Sub Court, Chidambaram and the Sub Judge also after considering the documents available including the additional documents marked by him as Exs.A11 and A12, came to the conclusion that the plaintiff has title upon the plaint schedule second item and 4-1/2 cents in plaint schedule first item after deleting the extent of land purchased by the first defendant under Ex.B3 and modified the decree of the Trial Court and that the plaintiff is entitled to get the reliefs of declaration and permanent injunction so far they relate to the plaint schedule second item as well as 4-1/2 cents in the plaint schedule first item. 6. Aggrieved against such judgment and decree, the second appeal has been filed by the plaintiff. 7. 6. Aggrieved against such judgment and decree, the second appeal has been filed by the plaintiff. 7. After going through the entire oral and documentary evidence available for either side in the light of the judgments of both the courts below and the arguments advanced by the counsels for either side, I am able to see the following points to be considered for the purpose of disposing the second appeal. The plaint schedule first item covered by Survey No.123/17 is with the extent of 18 cents and there is no dispute between the parties in this respect. There were two brothers originally, viz., Ariyan and Mangan and there is also no dispute between the parties in this respect. Ariyan was having two sons viz., Ramasami and Muthian and that the said Muthian is the vendor of the plaintiff Kannaiyan under Ex.A1 sale deed dated 9.7.1981 pertaining to 9-1/2 cents out of 18 cents covered by dry survey No.123/17 and that the said Ramasami died earlier and his daughter viz., one Anjalai who is examined as PW2 is none other than the wife of the plaintiff herein viz., Kannaiyan. In this respect also there is no dispute between the parties. On the other hand, the above said Mangan, according to DW2 Ayyakannu, was having four daughters including herself viz., Pachaiammal, Anjalai and Arayee and out of the four, Pachiammal and Anjalai already died. At the same time, according to PW1, there is no right for the said Ayyakannu and Arayee upon the suit properties and likewise, according to PW2, Anjalai wife of the plaintiff, originally, Ariyan and Mangan were having each 4-1/2 cents and after the death of Ariyan, his sons Ramasamy and Muthian got 4-1/2 cents and that after the death of Mangan, his daughter Pachaiammal got 4-1/2 cents and the said Muthian alone was not the heir of Pachaiammal and he got 4-1/2 cents of Pachaiammal and that she has denied the suggestion in the cross examination that Mangan was having two daughters viz., Ezhaiammal and Arayee. Therefore, the close relations of the said Ariyan and Mangan are giving contradictory versions about the particulars regarding the daughters of Mangan. In other words, it is still in dispute and doubt that whether Pachaiammal was the only daughter of Mangan and there were some more daughters of Mangan. Therefore, the close relations of the said Ariyan and Mangan are giving contradictory versions about the particulars regarding the daughters of Mangan. In other words, it is still in dispute and doubt that whether Pachaiammal was the only daughter of Mangan and there were some more daughters of Mangan. In this context, it is to be noted that there is no evidence of any other elderly related persons to say as to how many daughters were born to Mangan and where are they and other details of them. On the first instance, it is the responsibility of the first defendant to prove that actually Mangan was having four daughters as spoken by his vendor Ayyakannu and other two daughters died and that is why he purchased 5 cents from Ayyakannu and Arayee through acceptable and convincing independent witnesses. It is more so when his purchase under Ex.B3 dated 17.6.1986 is long after the purchase made by the plaintiff Kannaiyan under Ex.A1 dated 9.7.1981 for the entire 9-1/2 cents. At the same time, according to PW2 Anjalai, there were some more brothers of Mangan, but, without detailed particulars about them. 8. Even according to DW1 viz., the first defendant, in his evidence that the usufructory mortgage deed executed by the daughter of Mangan, viz., Pachaiammal on 2.12.1959 in favour of Muthian the vendor of the plaintiff Kannaiyan was discharged by Muthian and then again mortgaged the same properties to the plaintiff Kannaian on 13.7.1964 and the said Muthian handed over the discharged mortgage deed and endorsement therein marked as Exs.B1 and B2 to the first defendant with the assurance that he would sell 4-1/2 cents to him. But, as assured, the said Muthian did not sell 4-1/2 cents to the first defendant and that is why it appears that the first defendant determined to purchase litigation somehow and in furtherance of such determination, he has chosen to purchase 5 cents (without any basis) from one Arayee and Ayyakannu on 17.6.1986 under Ex.B3. 9. But, as assured, the said Muthian did not sell 4-1/2 cents to the first defendant and that is why it appears that the first defendant determined to purchase litigation somehow and in furtherance of such determination, he has chosen to purchase 5 cents (without any basis) from one Arayee and Ayyakannu on 17.6.1986 under Ex.B3. 9. As per Ex.B1, it is clear that it is a usufructory mortgage deed executed by Muthian on 13.7.1964 in favour of the plaintiff Kannaiyan for Rs.40/= and in this document, there is a recital and it indicates that the earlier mortgage deed executed by Pachaiammal in favour of Muthian on 2.12.1959 should be discharged by the plaintiff Kannaian and that accordingly, the plaintiff Kannaiyan appears to have discharged the mortgage deed incurred by Pachaiammal on 19.9.1965 as evidenced by the discharge endorsement marked as Ex.B2. It is to be noted that this Ex.B1 is relating to 4-1/2 cents out of 18 cents under Survey No.123/17 with specific four boundaries (north of Karuthan's land, west of Ezhaimuthu's land, east of Arumugam's land and south of Ramayee's land). The fact still remains that the mortgage deed due by Muthian in favour of the plaintiff Kannaiyan has not yet been discharged and consequently, the plaintiff Kannaiyan is at liberty to continue to possess the land and particularly the power of redeeming the usufructory mortgage has also become time barred and thereby he is having independent right and title upon the said 4-1/2 cents covered by Ex.B1 with specific boundaries. 10. Likewise, the brother of Muthian viz., Ramasamy, son of Ariyan also appears to have executed a usufructory mortgage along with his own brother Muthian (during his minority) in favour of one Arumbu Ammal in respect of 4-1/2 cents out of 18 cents under Survey No.123/17 (western side) with specific boundaries (west of land of Arumugam, north of land of Karuthan, east of land of Pakkiri and south of land of Ramayee) as evidenced by Ex.A11 dated 15.6.1945. This usufructory mortgage also has been assigned by the said Arumbu Ammal in favour of the plaintiff's vendor Muthian as evidenced by Ex.A12 dated 2.12.1959. This usufructory mortgage also has been assigned by the said Arumbu Ammal in favour of the plaintiff's vendor Muthian as evidenced by Ex.A12 dated 2.12.1959. Therefore, the fact still remains that 4-1/2 cents covered by Ex.B1 and another 4-1/2 cents covered by Ex.A11 and A12 have come to the hands of Muthian the vendor of the plaintiff and then the plaintiff Kannaiyan under Ex.A1 dated 9.7.1981 to the extent of 9-1/2 cents with specific boundaries covering both extents of 4-1/2 cents + 4-1/2 cents. The usufructory mortgage debt also remains undischarged still by the said Ramasamy and consequently, the right of redeeming the usufructory mortgage also is time barred and consequently, Muthian and then the plaintiff Kannaian alone got independent title holder of the entire 9-1/2 cents. While the state of affairs is like this, the first defendant who is very fond of purchasing 4-1/2 cents from Muthian now appears to have vindictively chosen to purchase 5 cents from Ayyakannu and Arayee under Ex.B3 on 17.6.1986 as if those two vendors are having title upon 5 cents in the same survey number viz., S.No.123/17. On the other hand, the other Exhibits marked on the side of the plaintiff viz., Ex.A2 proceedings of the Revenue Department by issue of patta in the name of Muthian with number 323 and Exs.A3 to A10 viz., kist receipts in the name of Muthian and then in the name of Kannaian additionally go to establish that the plaintiff and his vendor Muthian alone are having right and title upon the suit properties and particularly the plaint schedule first item to the extent of 9-1/2 cents. When this being so, the first defendant viz., DW1 in the cross examination goes to the extent of saying that he has filed additional documents to show the right of Arayee Ammal upon the property and there is patta and kist also has been paid by Arayee, etc., but, he has not chosen to produce any of the said documents into court. He has further admitted in the cross examination that after execution of Ex.B3 in his name, patta came in his name, but, he does not know the number and he has also paid kist and he is having kist receipts., etc., but, he has not chosen to file any of such documents into court. He has further admitted in the cross examination that after execution of Ex.B3 in his name, patta came in his name, but, he does not know the number and he has also paid kist and he is having kist receipts., etc., but, he has not chosen to file any of such documents into court. He has also significantly admitted in the cross examination that he is aware as to how the property was belonging to the said Arayee. He has also significantly admitted that both Muthian and Kannaiyan jointly executed the assignment of usufructory mortgage by way of unregistered document and yet, he has not chosen to file that document also. He has also significantly admitted that as on the date of Ex.B2, the property belongs only to Muthian and the property under usufructory mortgage deed and the property under purchase are different from one another and there is no patta in his name and so on. Therefore, the cumulative effect of admissions of DW1 indicates that without any basis and verification, he has chosen to obtain Ex.B3 sale deed from one Arayee and Ayyakannu with the determination of purchasing litigation and causing troubles to the plaintiff Kannaiyan. It is also fortified by the admission of DW2 Ayyakannu in the cross examination that they never enjoyed the suit properties. 11. Therefore, taking note of the above observed points, I am of the considered view that the appellant/plaintiff viz., Kannaiyan has got interest and title upon the plaint schedule first item viz., 9-1/2 cents and thereby he is entitled to get the reliefs of declaration and permanent injunction against the defendants and the defendants cannot have any right upon 4-1/2 cents covered by Ex.B3 which already owned by Muthian and then Kannaiyan and thereby the modified decree granted by the Sub Court, Chidambaram is liable to be set aside. 12. Accordingly, the second appeal succeeds and the same is allowed and the judgment and decree of the Sub Court, Chidambaram to the extent of modification is set aside and the decree for the entire plaint schedule first item as well as second item is passed, but, in the peculiar circumstances, there will be no order as to costs.