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2005 DIGILAW 1334 (MAD)

Ponnusamy v. Ramasamy

2005-08-11

T.V.MASILAMANI

body2005
Judgment :- (Second Appeal against the judgment and decree dated 7.7.1993 made in A.S. No.12 of 1993 on the file of the Principal Subordinate Judge, Erode confirming the judgment and decree dated 7.2.1991 in O.S.No.764 of 1988 on the file of the II Additional District Munsif, Erode.) The appellant is the defendant who lost before both the courts below. 2. The respondent/plaintiff filed the suit for permanent injunction. The appellant/defendant resisted the same by filing the written statement. On the basis of the pleadings, learned II Additional District Munsif framed the issues and after analysing the evidence both oral and documentary adduced by both the parties, he decreed the suit as prayed for with costs. Aggrieved over the judgment and decree passed by the trial court, the appellant preferred the appeal before the first appellate court. The learned Subordinate Judge after analysing the recorded evidence and upon hearing both sides dismissed the same by confirming the judgment and decree of the trial court. Hence, the Second Appeal. 3. The averments in the plaint filed by the respondent/plaintiff are briefly as follows:- (a) The plaintiff purchased the suit property from Muthuswamy Gounder and his wife Chinnammal by means of a registered sale deed dated 14.7.1971 and since then, he has been in possession and enjoyment of the same. In pursuance of his possession and enjoyment, the plaintiff applied to the Tahsildar, Erode to survey the suit land and assign a separate sub division after recording him as a pattadar in respect of the suit land. The Tahsildar had also effected sub-division and issued a separate patta assigning Survey No.334/2-A in respect of the suit land measuring 0.39.0 Hectare by his proceedings dated 6.6.1988. (b) The defendant is in possession and enjoyment of the land in R.S.No.334/2-E measuring 0.45.5 Hectare. While so, the defendant without having any manner of right or title over the suit property interfered with the plaintiff's peaceful possession and enjoyment of the same. However, the plaintiff was able to prevent such attempt made by the defendant with the help of adjacent owners. It is in these circumstances that the plaintiff is constrained to file the suit for permanent injunction. 4. The averments in the written statement filed by the appellant/defendant are briefly as follows:- (a) The allegations in the plaint are not true and correct. It is in these circumstances that the plaintiff is constrained to file the suit for permanent injunction. 4. The averments in the written statement filed by the appellant/defendant are briefly as follows:- (a) The allegations in the plaint are not true and correct. It is not true to say that by means of a registered sale deed dated 14.7.1971 executed by Muthusamy Gounder and his wife Chinnammal in respect of the suit property, the plaintiff is in possession and enjoyment of the same from the date of the sale deed. In fact, the plaintiff purchased only an undivided extent of 1.20-1/2 acres in old S.F.No.274/B-1 and the said Survey Field along with S.F.Nos.274/A-2, 274/A-1 and 274/C-1 have been resurveyed and assigned Re-Survey No.334/2. Hence, the plaintiff is only a co-owner in the above said land in R.S.No.334/2 and therefore he is not entitled to exclusive possession of any specific land in the said Survey Field. Since there is no partition among the co-owners of the suit land, the suit for permanent injunction is not maintainable and therefore the same is liable to be dismissed in limine. (b) The allegation that on the basis of the application filed by the plaintiff, the suit land was sub-divided and a separate sub-division number has been assigned to the same is denied as false. The defendant was not given any notice with regard to such resurvey of the suit land as contemplated under Tamil Nadu Survey and Boundaries Act. Since the plaintiff is an influential person, he might have obtained certain orders from the revenue authorities which are not binding on this defendant. (c) Similarly, the allegation with reference to the alleged attempt to interfere with the plaintiff's possession of the suit land is not true for the simple reason that the plaintiff has not been in exclusive possession and enjoyment of the same. It follows that the plaintiff is not entitled to any relief in this suit, as there is no cause of action to file the same. Hence, the suit may be dismissed with costs. 5. On the basis of the above pleadings, the following issues were framed for trial:- (1) Whether the plaintiff purchased the suit property from one Muthusamy and his wife Chinnammal by means of a registered sale deed dated 14.7.1971? Hence, the suit may be dismissed with costs. 5. On the basis of the above pleadings, the following issues were framed for trial:- (1) Whether the plaintiff purchased the suit property from one Muthusamy and his wife Chinnammal by means of a registered sale deed dated 14.7.1971? (2) Whether the plaintiff is in possession and enjoyment of the suit property from the date of the said sale deed ? (3) Whether the proceedings of the Tahsildar, Erode dated 6.6.1988 in respect of the sub-division of the suit property is valid and binding on the defendant? (4) Whether the plaintiff is entitled to the relief as prayed for in the suit? (5) To what relief the plaintiff is entitled to? 6. The learned II Additional District Munsif rendered the findings in respect of the above issues that the plaintiff has in fact purchased the suit property from Muthusamy Gounder and his wife Chinnammal by means of a registered sale deed dated 14.7.1971; that he has been in possession and enjoyment of the suit property from the date of the said sale deed; that the proceedings of the Tahsildar, Erode dated 6.6.1988 is valid in law and also binding on the defendant; and that therefore the plaintiff is entitled to the relief of permanent injunction as prayed for. Hence, he passed the decree as prayed for in the suit with costs. 7. The learned Subordinate Judge having framed the point for consideration as to whether the plaintiff is entitled to the relief of permanent injunction as prayed for, analysed the evidence and the arguments of both sides and dismissed the appeal by confirming the judgment and decree passed by the trial court. Hence the Second Appeal. 8. Heard Mr.N.Manoharan, learned counsel for the appellant and Mrs.AL.Gandhimathi, learned counsel for the respondent. 9. Learned counsel for the appellant has submitted the following contentions on behalf of the defendant:- Lower appellate court failed to note that the theory of oral partition put forward by the respondent in his evidence has not at all been pleaded in the plaint and he has not filed any reply statement to the written statement to the effect that the properties were divided. Similarly, the Court below has also failed to note that Ex.A-1 sale deed is only in respect of the undivided share of the vendor in the suit property and therefore no specific property had been conveyed under the said sale deed. Similarly, the court below has also failed to note that mutation proceedings and the entries in revenue records cannot prove title to the suit property. Moreover, the said proceedings without notice to the appellant are not valid and binding on him. Further, the revenue authorities have no jurisdiction to divide the property among the co-owners under the guise of sub-division and hence the decree for permanent injunction granted in favour of the respondent is against law and is therefore unsustainable. 10. In the above circumstances, the following substantial questions of law formulated on 17.9.1993 arise for consideration: - (1) Whether the lower appellate court committed material error in law in entertaining the plea of oral partition put forward by the respondent during the course of the time without pleading the same in his plaint? (2) Whether the lower appellate court misconstrued Exs.A-1 to A-3 in holding that the respondent is entitled to the suit property separately? 11. The parties to this appeal may be referred to hereunder as they were arrayed before the trial court for the sake of convenience. 12. The genealogy among the parties to the suit is not under dispute. One Sengoda Gounder had two sons, namely, Marappa Gounder and Muthusamy Gounder. The defendant is the son of Marappa Gounder. The said Muthusamy Gounder and his wife Chinnammal executed Ex.A-1 registered sale deed dated 14.7.1971 in favour of the plaintiff regarding the suit property. Similarly, it is not in dispute that the grand father of the plaintiff, namely, Sengoda Gounder executed a registered settlement deed, Ex.B-1 dated 13.5.1953 in respect of the suit and other properties under 'A' schedule thereto in favour of both the sons and their wives. 13. It is relevant in the facts and circumstances of the case to extract the relevant recitals therein to find out whether the alienation of undivided share by one of the sons of Sengoda Gounder and his wife in favour of the plaintiff is valid and binding on the defendant. 13. It is relevant in the facts and circumstances of the case to extract the relevant recitals therein to find out whether the alienation of undivided share by one of the sons of Sengoda Gounder and his wife in favour of the plaintiff is valid and binding on the defendant. The settlor under Ex.B-1 was categorical in respect of the right of alienation of the settlees regarding any one of the 'A' schedule properties covered by the settlement deed and the same reads as under:- " 'A' bc&&a{y; brhj;Jf;fis 1.. 2 yf;ffkpl;ltu;fs; jdpj;jdpahfnth. 3. 4 yf;ffkpl;ltu;fs; jdpj;jdpahfnth tpy;y';f ghujPdk; bra;af; TlhJ. xd;W nru;e;nj bra;a ntz;oaJ. " 14. It is apparent from a casual reading of the said document in the light of the recitals in the sale deed Ex.A-1 that contrary to the recitals in Ex.B-1, two of the settlees thereunder alienated their undivided share measuring 1.20-1/2 acres out of 2.41 acres in old S.F.No.274/B-1 and therefore this Court is of the view that before ever the 'A' schedule properties settled under Ex.B-1 are divided among all the four settlees under any process known to law, two of the settlees had no authority to alienate their undivided share under Ex.A-1. As has been rightly argued by the learned counsel for the appellant, even though a feeble attempt has been made by the plaintiff in the course of his evidence as P.W.1 that there was an oral partition among the settlees of 'A' schedule property under Ex.B-1, such evidence is not supported by any independent evidence and therefore his self-serving testimony is not sufficient to accept the alleged oral partition. 15. It is admitted that both the settlors under Ex.B-1 died leaving behind both the sons and their wives as the absolute owners of 'A' schedule properties thereunder. It is in the evidence of D.W.1, defendant that the properties covered by Ex.B-1 had never been divided by means of a partition with reference to good and bad soil, that they were enjoying separate portions for the sake of convenience and that the proceedings initiated by the plaintiff to sub divide the suit property and to have the mutation entries made in the revenue records is not binding on him as he has not served with any notice. The plaintiff has produced Ex.A-4 to A-12 to show that the suit properties had been sub-divided and patta issued in his name separately and that the appeal petition preferred by the defendant before the Revenue Divisional Officer had also been dismissed (vide) Exs.A-16 and A-17. 16. But, on the contrary, learned counsel for the respondent has drawn the attention of this Court to the decision, NAVALSHANKAR ISHWARIAL DAVE AND ANOTHER v. STATE OF GUJARAT AND OTHERS ( AIR 1994 S.C. 1496 ) in support of his contention that mutation of revenue records is not evidence of title to the property. Similarly, he has relied upon another decision of the Apex Court SWAMI v. INTDER KARUR AND OTHERS ( 1996 (6) S.C.C. 223 ) wherein the principle of law on this aspect of the matter has been laid as under:- "Mutation of a property in the Revenue Records does not create or extinguish the title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question." 17. A careful consideration of the oral and documentary evidence in this case discloses clearly that there was no partition among the four settles under Ex.B-1 with reference to the 'A' schedule property settled in their favour and therefore having regard to the dictum of law, that one cannot convey better title than what he had on the date of conveyance, this Court is of the considered view that the vendors under Ex.A-1 could not have conveyed title to and exclusive possession of the suit property in favour of the plaintiff. 18. As has been pointed out above with reference to the ratio laid down in the said decisions, Exs.A-4 to A-12, A-16 and A-17 cannot in any way confer better title to the plaintiff in respect of the suit property than what had been conveyed under the sale deed Ex.A-1 in favour of him. For the above said reasons, I am of the opinion that the learned Subordinate Judge committed an error in entertaining the plea of oral partition put forth by the respondent during the course of his evidence as P.W.1 without pleading the same in his plaint and therefore the contention of the learned counsel for the respondent in this respect is rejected as unsustainable. 19. 19. Similarly, the learned counsel for the appellant has relied upon the decisions, NAIR SERVICE SOCIETY LTD v. K.C. ALEXANDER AND OTHERS ( AIR 1968 S.C. 1165 ) and MADHAVAN NAMBIAR v. NARAYANAN NAIR (1970 K.L.T. 653) in support of his further contention that the suit filed by the plaintiff against the defendant, who is also a co-owner of the undivided share in 'A' schedule property under Ex.B-1 is not maintainable in law. 20. A careful reading of the decision NAIR SERVICE SOCIETY LTD v. K.C. ALEXANDER AND OTHERS ( AIR 1968 S.C. 1165 ) would go to show that even though the plaintiff is in possession of the suit land, he can not maintain the suit for permanent injunction against the defendant, another co-owner of the undivided 'A' schedule properties under Ex.B-1. 21. Similarly, it was held in MADHAVAN NAMBIAR v. NARAYANAN NAIR (1970 K.L.T. 653) on this aspect of the matter as under:- "It is well-settled that a co-owner, who is in possession holds it for himself as well as on behalf of the other co-owner or co-owners if they are out of possession." 22. On a careful consideration of the above statement of law in the said decisions, this Court is of the view that the suit filed by the plaintiff for permanent injunction against the co-owner of the undivided 'A' schedule property in Ex.B-1 is not maintainable in law. 23. For the reasons stated above, this Court finds that both the Courts below have failed to appreciate the evidence of the case and question of law involved therein in a proper perspective to come to the right conclusion. In view of the perverse finding both on facts and in law rendered by the courts below, I am of the opinion that the impugned judgments and decrees have to be reversed and the suit for permanent injunction has to be dismissed. 24. Thus, the Second Appeal is allowed with costs throughout setting aside the judgments and decrees passed by both the Courts below and the suit in O.S.No.764 of 1988 is dismissed. In view of the above findings, the parties to this appeal, if so advised, are directed to file a comprehensive suit for partition within six months, in order to bring a finality to the dispute with reference to the suit and other properties.