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2005 DIGILAW 208 (MAD)

R. Arumugha Moopar & Another v. Govinda Moopar

2005-02-07

A.R.RAMALINGAM

body2005
Judgment :- The second appeal has been filed against the judgment and decree passed by the Sub Court, Vridhachalam in A.S.No.13 of 1991 in and by which the Sub Court has dismissed the appeal and confirmed the judgment and decree of the Trial Court viz., the District Munsif, Kallakurichi in O.S.No.498 of 1986, by the defendants Arumugha Moopar and Kuppusamy (defendants 1 and 5) who have failed in both the courts below. 2. O.S.No.498 of 1986 was filed by the plaintiff viz., Govinda Moopar against eight defendants including the appellants herein as defendants 1 and 5 for the reliefs of declaration of title and permanent injunction in respect of the suit property viz., 15 cents out of 45 cents under S.No.373/7 as described in the plaint schedule with the following allegations. Originally, the suit property and other properties were owned by the plaintiff's brother Subramania Moopar. The plaintiff purchased the suit property and other properties from the said brother through a registered sale deed dated 20.7.1976 for Rs.3525/=. The said Subramania Moopar was in possession and enjoyment of the suit property continuously and after purchase, the plaintiff is in possession and enjoyment of the suit property for a long number of years. The defendants being relatives of the plaintiff and particularly the 5th defendant is owning a land on the western side of the suit property and the fourth defendant is owning a land on the southern side of the suit property. Further, the defendants have no manner of right or possession and enjoyment upon the suit property. Due to enmity on account of a dispute over a tree called as "Illuppai Tree", the defendants, particularly, defendants 4 and 5 are attempting to trespass upon the suit property. Hence, the plaintiff happened to file the suit. 3. Defendants 1 and 5 alone have filed written statement and contested the suit and all other defendants remained ex parte before the Trial Court as well as the appellate court. The allegations of the written statement of defendants 1 and 5, in brief, are as follows. The plaintiff or his brother Subramania Moopar never owned the suit property or enjoyed the same at any time. The alleged sale deed in favour of the plaintiff dated 20.7.1976 is not true and valid. The allegations of the written statement of defendants 1 and 5, in brief, are as follows. The plaintiff or his brother Subramania Moopar never owned the suit property or enjoyed the same at any time. The alleged sale deed in favour of the plaintiff dated 20.7.1976 is not true and valid. Originally, 22 cents out of 45 cents in S.No.373/7 was belonging to one Pethammal wife of Subbaraya Padayachi and the mother of the first defendant viz., Ponnammal purchased the same 22 cents through a registered sale deed dated 22.6.1935 and thereafter the first defendant alone is in possession and enjoyment of the said 22 cents. Likewise, the remaining 23 cents out of 45 cents under S.No.373/7 was belonging to one Thiruvenkada Moopar and father of the fifth defendant viz., one Oodhaian alias Petha Moopar has purchased the same 23 cents through a registered sale deed dated 5.8.1942 and thereafter the fifth defendant is in possession and enjoyment of the said 23 cents. So, the entire 45 cents in S.No.373/7 has been purchased and enjoyed continuously by defendants 1 and 5 and they have prescribed title by adverse possession also. Therefore, the plaintiff cannot have any title and interest upon the suit property and the suit is liable to be dismissed. 4. On trial, on behalf of the plaintiff, himself and one Irusa Moopar have been examined as P.Ws.1 and 2 respectively and five documents have been marked as Exs.A1 to A5 and that on behalf of defendants 1 and 5, they themselves have been examined as D.Ws.1 and 2 respectively and one Murugan has been examined as DW3 and five documents have been marked as Exs.B1 to B5. After considering the oral and documentary evidence, the Trial Court viz., the District Munsif Court, Kallakurichi has come to the conclusion that the plaintiff alone is having valid title, possession and enjoyment upon the suit property and defendants 1 and 5 have no manner of right or interest or enjoyment upon the suit property and the documents relied on by them cannot be valid so far it relates to the suit property and thereby decreed the suit as prayed for. 5. 5. On appeal by defendants 1 and 5 in A.S.No.13 of 1991, the Sub Court, Vridhachalam also, after enquiry, has come to the conclusion that the plaintiff alone has got interest, title and possession upon the suit property and defendants 1 and 5 cannot have title and enjoyment upon the suit property and consequently, dismissed the appeal by confirming the judgment and decree of the Trial Court. 6. I have gone 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 of the counsel appearing for either side in detail and I am able to see the important following factors for proper appreciation. After detailed discussion, both the courts below have found that the plaint schedule property viz., 15 cents was all along enjoyed by the vendor of the plaintiff viz., Subramania Moopar and then after purchase under Ex.A1, the plaintiff alone is in possession and enjoyment of the suit property and defendants 1 and 5 have not established that they alone are having title, possession and enjoyment of the suit property for long period of years. Both the courts below have pointed out that Adangal extract marked as Ex.A4 also goes to show that for 1385 to 1399 faslis, the plaintiff alone was in enjoyment of the suit property and that particularly under Ex.A4, in 1388 fasli, the plaintiff is shown to have cultivated the plaint schedule property viz., 15 cents covered by S.No.373/7. Likewise, Ex.A3 also goes to show that kist has been paid by the plaintiff and his vendor Subramania Moopar for faslis 1385, 1380 and 1375. In the same way, it has also been pointed out by both the courts below that defendants 1 and 5 have not produced acceptable documents to show that they have enjoyed the suit property for long number of years and particularly Ex.B3 viz., kist receipts are not relating to the suit property. DW3 viz., one Murugan being the Village Administrative Officer, has gone to the extent of admitting that some errors have been committed while executing the scheme of and that he is also not in position to name the persons who are actually enjoying the lands, particularly the suit property. DW3 viz., one Murugan being the Village Administrative Officer, has gone to the extent of admitting that some errors have been committed while executing the scheme of and that he is also not in position to name the persons who are actually enjoying the lands, particularly the suit property. Further, the documents relied by defendants 1 and 5 marked as Exs.B1 and B2 as if they are very old documents are not original documents and instead they are only certified copies and there is no reason as to why they have not produced original documents. 7. In all, both the courts below have found and come to the conclusion after elaborate and detailed discussion that the plaintiff alone has got title, possession and enjoyment upon the suit property and not defendants 1 and 5 and consequently, they have decreed the suit. Therefore, I am of the considered view that there are no acceptable and legal grounds in this second appeal in a way to interfere with the concurrent judgments of both the courts below. Consequently, the second appeal fails and the same is dismissed with costs.