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2005 DIGILAW 143 (MAD)

Kuppusamy Naicker & Others v. Chandra & Others

2005-01-31

A.R.RAMALINGAM

body2005
Judgment :- The second appeal has been filed by the defendants viz., Kuppusamy Naicker, Senthamarai Naicker and Delli alias Devaraj against the concurrent findings and judgments and decree passed against them in O.S.No.162 of 1986 by the District Munsif, Chingleput and A.S.No.58 of 1992 by the Additional Subordinate Judge, Chingleput. 2. The said suit was filed by the plaintiffs viz., Chandra, Baby and Venkatesan for the reliefs of declaration and permanent injunction against the defendants in respect of the suit property viz., 10 acres covered by S.No.165/3 in Kannivakkam Village in patta No.66 at Chingleput District. The claim, as per the allegations in the plaint made is to the effect that the plaintiffs' father Veerasamy Pillai purchased the suit property from one Viswanatha Devae through a registered sale deed dated 17.9.1958 for Rs.300/= for the purpose of avoiding revenue sale on 18.9.1958 due to arrears of kist to the tune of Rs.48/= and that eversince of the purchase, the plaintiffs' father was in possession and enjoyment of the suit property by paying kist and after his death, the plaintiffs' mother was paying kist and enjoying the suit property and after her death, the plaintiffs are possessing and enjoying the suit property by paying kist with patta changed in their name on 26.6.1980 as Patta No.66 and that the defendant, without any manner of right, attempted to trespass upon the suit property and that is why the plaintiffs happened to file the suit. 3. 3. The suit was resisted by the defendants by raising contentions in the written statement to the effect that the suit property originally was meykal poramboke and it was assigned to Thiagi Viswanatha Devae and since the said Thiagi did not pay kist, the property was brought to revenue auction for recovery of revenue and that the first defendant purchased the suit property in revenue auction held on 22.8.1958 and paid the entire sale amount of Rs.85/= on the same day and took possession of the suit property and that eversince of the purchase, the first defendant alone was enjoying the same by paying kist, etc., and that the claim of the plaintiffs as if their father purchased the suit property from the said Viswanatha Devae is false and as such the sale deed should be a rank forgery and it is invalid and that the allegation as if the said Viswanatha Devae paid arrears of kist along with the sale commission is also false and that due to long standing enmity between the first defendant and the plaintiffs' father, the sale deed should have been created and forged and that the revenue auction sale was never set aside and thereby the said Viswanatha Devae could not execute the sale deed and that the transfer of patta as patta No.66 in favour of the plaintiffs in the year 1980 is without notice to the defendants and thereby in all, the plaintiffs had not been in possession and enjoyment of the suit property at any time and the defendants alone have prescribed title by adverse possession also and consequently, the suit is liable to be dismissed. 4. 4. On trial, the District Munsif, Chingleput examined four witnesses viz., the third plaintiff Venkatesan as PW1, one Palaninatha Pillai as PW2, one Devae as PW3 and one Narayanan as PW4 and marked 30 documents as Exs.A1 to A30 on the side of the plaintiffs and examined three witnesses viz., the first defendant Kuppusamy Naicker as DW1, one Chinnakannan as DW2 and one Marimuthu as DW3 and marked eleven documents as Exs.B1 to B11 and after considering the oral and documentary evidence in detail and elaborately found and came to the conclusion that the alleged revenue auction sale was not acted upon and the same was not confirmed in favour of the first defendant and the defendants never took possession of the suit property and that on the other hand, the plaintiffs' father's purchase through a registered sale deed from Thiagi Viswanatha Devae is a true and valid one and thereby the plaintiffs alone have got title, possession and enjoyment upon the suit property and consequently, decreed the suit as prayed for by the plaintiffs. 5. On appeal preferred by the defendants before the Sub Court, Chingleput in A.S.No.58 of 1992, the Additional Sub Judge also, after enquiry, has found and come to the conclusion that the plaintiffs alone have got possession and title upon the suit property based upon the sale deed obtained by the plaintiffs' father from Viswanatha Devae in the year 1958 and consequent payment of kist for number of years and by change of patta for the suit property in the plaintiffs' name and that the revenue auction sale claimed by the first defendant was not acted upon and the first defendant never took possession of the suit property and thereby dismissed the appeal and confirmed the judgment and decree of the Trial Court. 6. Pending the second appeal, the first appellant/first defendant viz., Kuppusamy Naicker was reported to be dead and the counsel for the appellants filed a memo stating that appellants 2 and 3 are the legal representatives of the deceased first appellant and as they are already on record, they may be treated as legal representatives of the deceased first appellant. The memo is recorded and appellants 2 and 3 are treated as legal representatives of the deceased first appellant. 7. The memo is recorded and appellants 2 and 3 are treated as legal representatives of the deceased first appellant. 7. I have gone through the entire oral and documentary evidence available for either side in the light of judgments of both the courts below and the arguments made by the counsels appearing for either side. On keen and careful perusal of Ex.B1, I am able to see that it is in the form of kist receipt wherein some recital has been written as if the first defendant bid in revenue auction sale and thereby he purchased the suit property and likewise, Ex.B2 also seems to be in the form of kist receipt and kist has been paid therein for the property covered by patta No.66, 67, 81 and 75 and it is dated as 1.3.1961. Therefore, these material documents viz., Exs.B1 and B2 relied upon by the defendants written in pencil do not appear to be genuine, true, acceptable and believable documents to indicate that the first defendant purchased the suit property in revenue auction and paid the sale amount properly. This aspect is also probabilised by the fact that another document relied on by the defendants marked as Ex.B9 clearly goes to show that the very same first defendant has purchased a property covered by the adjacent survey number viz., 165/4 on the very same date viz., 22.8.1958, the date of alleged auction purchase, and it is the original challan for payment of sale consideration of Rs.65/= and it has been signed by the Revenue Official in red ink with the seal of Sub Treasury, Chingleput. So, Exs.B1 and B2 are not at all similar to Ex.B9 and it is something suspicious leading to show that these Exs.B1 and B2 are not at all pertaining to demand of sale amount for the suit property covered by S.No.165/3 in revenue auction. Moreover, it is to be pointed out that if really Exs.B1 and B2 are pertaining to payment of sale amount, as claimed by the first defendant, there is no reason as to why the Revenue Department has not confirmed the said sale and issued sale certificate in the name of the first defendant and has not carried out the change in the revenue records. It is also admitted by DW1 viz., the first defendant in his evidence that there was no confirmation of sale and he was not issued the sale certificate and there was no change of revenue records in his name by recognising his revenue auction purchase. 8. Furthermore, it is to be pointed out that from Exs.A2 and A3 relied on by the plaintiff, I am able to see that Ex.A3 is the original challan of Sub-Treasury, Chingleput dated 18.9.1958 showing that Viswanatha Devae having residential address at 448, Thanga Salai, Chennai has paid Rs.5/= being sale commission pertaining the suit property covered by S.No.165/3 and this amount also has been received by the Sub Treasury with the signatures of the Treasury Officer in red ink. In the same way, Ex.A2 also shows that it is also original challan of Sub-Treasury, Chingleput showing therein that the same Viswanatha Devae has paid the arrears of kist pertaining to the suit property covered by S.No.165/3 to the extent of Rs.43/= and it has also been received by the Treasury and signed by the Treasury Officer in red ink. So, both Exs.A2 and A3 clearly show that on 18.9.1958 itself, the arrears of kist along with the sale commission of Rs.5/= has been paid by Viswanatha Devae and that these Exs.A2 and A3 are preceded by Ex.A1 which is a registered sale deed dated 17.9.1958 i.e., one day before Exs.A2 and A3 in and by which the same Viswanatha Devae has sold the suit property in favour of the plaintiffs' father viz., Veerasamy Pillai for Rs.300/- with recitals therein to the effect that money was required to pay the arrears of kist, etc. Therefore, the claim of the plaintiffs that they have got title and possession and enjoyment upon the suit property is strengthened and proved by the follow up documents such as kist receipts for number of years marked as Exs.A4 to A20, A25 to A28 and change of patta in their name as evidenced by Exs.A21, A22 and A30. 9. On the other hand, defendants who claim independent title based upon the revenue auction sale as well as by adverse possession have produced only kist receipts of the year 1981 and 1986 apart from partition deed between the sons of the first defendant viz., defendants 2 and 3. 9. On the other hand, defendants who claim independent title based upon the revenue auction sale as well as by adverse possession have produced only kist receipts of the year 1981 and 1986 apart from partition deed between the sons of the first defendant viz., defendants 2 and 3. In other words, the defendants have not filed acceptable and reliable documents such as payment of kist for continuous period of more than twelve years and it is also significant to note that the first defendant's son Senthamarai Naicker himself was admitted to be the Village Administrative Officer of the concerned suit village when the plaintiff got the change of patta in respect of the suit property after conducting enquiry by the Tahsildar. In such circumstances, it goes without saying that the plaintiffs alone have got valid title and possession and enjoyment of the suit property as claimed by them and the defendants have no title nor possession upon the suit property and that is why both the courts below have concurrently found and come to the conclusion that the plaintiffs have got title and possession upon the suit property and decreed the suit. 10. On the strength of the above mentioned aspects, I am also of the considered view that there is no need for this court to interfere with the concurrent findings and judgments of both the courts below. Hence, the second appeal fails and the same is dismissed with costs.