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2005 DIGILAW 237 (MAD)

Munisamy Reddy v. Chinna Appaiah

2005-02-10

A.R.RAMALINGAM

body2005
Judgment :- The second appeal has been filed by one Munisamy Reddy being the defendant before the court of District Munsif, Hosur in O.S.No.90 of 1981 against the judgment and decree passed by the Sub Court, Krishnagiri in A.S.No.18 of 1992 in and by which the Sub Court has allowed the appeal and set aside the judgment and decree of the said Munsif Court and granted decree in respect of the suit property in favour of the plaintiff Chinna Appaiah. 2. The said suit was filed before the District Munsif Court, Hosur by the plaintiff Chinna Appaiah for the reliefs of declaration of title and permanent injunction against the defendant Munisamy Reddy in respect of the suit property, viz., 19 cents on the north eastern side within a total extent of 58 cents covered by S.No.126/3 at Pothapalli Village with the specific boundaries as described in the plaint schedule, with the following allegations. 3. The suit property belongs to the plaintiff through a registered sale deed dated 4.8.1969 executed by Munisamappa son of Giriappa for Rs.400/=. From the date of the said purchase, the plaintiff alone is in absolute possession and enjoyment of the suit property. The vendor of the plaintiff Munisamappa and one Venkata Ramanappa and one Petha Appaiah alias Muni Anumaiah are his brothers and their father is said Giriappa. The said Giriappa died fifty years ago and in the partition between the sons of Giriappa about 40 years ago, eastern 29 cents out of 58 cents under S.No.126/3 came to the share of the vendor of the plaintiff Munisamappa and no share was allotted to the other two sons of Giriappa under the said survey number and instead some other properties in different survey numbers were allotted to them. The other western 29 cents out of 58 cents under S.No.126/3 is already belonging to the plaintiff and his brothers ancestrally. The said Munisamappa sold 10 cents out of 29 cents allotted to his share in the partition to the plaintiff's brother Venkatappa in the year 1968 under Ex.B3 and the remaining 19 cents was sold by Munisamappa to the plaintiff on 4.8.1969 under Ex.A1. The said Munisamappa sold 10 cents out of 29 cents allotted to his share in the partition to the plaintiff's brother Venkatappa in the year 1968 under Ex.B3 and the remaining 19 cents was sold by Munisamappa to the plaintiff on 4.8.1969 under Ex.A1. Whileso, the defendant has chosen to purchase 19-1/2 cents on 18.1.1981 under Ex.B1 in S.No.126/3 from the brothers and their heirs of Munisamappa who have no manner of right or title upon the suit property and neither the defendant nor his vendors were in possession of the suit property at any time. Therefore, the plaintiff happened to file the suit for declaration and permanent injunction. 4. The said suit has been resisted by the defendant by saying that 58 cents under S.No.126/3 was partitioned between the three sons of Giriappa and in that partition the three sons got 10 cents each and thereby the brother of Munisamappa viz., Venkata Ramanappa and another brother Petha Appaiah's sons Gopalappa, Narayanappa were enjoying the suit property to the extent of 19-1/2 cents by paying kist, etc. In fact, 10 cents obtained by Munisamappa was sold by him in favour of the plaintiff's brother Venkatappa in the year 1968. Therefore, Munisamappa has no right or title upon the suit property or any other property within S.No.126/3 and thereby the plaintiff's purchase under Ex.A1 cannot be valid. Even if there is patta in the name of the plaintiff and his vendor, it should be a fraudulent one and thereby the suit is liable to be dismissed. 5. On trial and after examination of the plaintiff as PW1 and two witnesses Ramaiah and Gauramma as P.Ws.2 and 3 and marking of five documents as Exs.A1 to A5 and examination of the defendant as DW1 and marking of four documents as Exs.B1 to B4, the District Munsif, Hosur came to the conclusion that the plaintiff has no title and possession upon the suit property and consequently dismissed the suit. 6. On appeal by the plaintiff in A.S.No.18 of 1992 before the Sub Court, Krishnagiri, the said court, after considering the oral and documentary evidence available for either side in detail, has come to the conclusion that the plaintiff has got title and possession upon the suit property and the defendant has no manner of right and consequently, allowed the appeal and set aside the judgment and decree of the District Munsif Court. 7. 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 of the counsels appearing for either side in detail. I am able to see the following important factors for appreciation and conclusion. On perusal of Ex.B3 dated 5.8.1968 executed by Munisamappa and his daughter Gauramma in favour of the plaintiff's brother one Venkatappa in respect of 10 cents in S.No.126/3 bounded on the east by road, on the west by Venkatappa's land, on the south by the very same Munisamappa and Gauramma's land and on the north by Venkata Ramanappa's land. Following that, if Ex.A1 dated 4.8.1969 is perused, I am able to see that it is a sale deed executed by the same Munisamappa in favour of the plaintiff herein in respect of 19 cents (north east portion in S.No.126/3) bounded on the east by road, on the west by the land of Anumappa and plaintiff Chinna Appaiah, on the north by the land of Mathala Sidhareddy and on the south by the land of Venkatappa. Therefore, the Munisamappa who is one of the sons of Giriappa has chosen to sell 10 cents under Ex.B3 in favour of the plaintiff's brother Venkatappa by retaining the rest of the lands on the north and subsequently, the very same Munisamappa has chosen to sell 19 cents under Ex.A1 in favour of the plaintiff herein. Therefore, from the recitals and four boundaries of Ex.B3 and A1, I am able to see that Munisamappa son of Giriappa alone was in possession and enjoyment of the suit property as well as other 10 cents sold to the plaintiff's brother under Ex.B3 and the plaintiff and his predecessor also were owning the western 29 cents out of 58 cents. Further, I am able to see that after execution of Ex.B3 and A1, the eastern 29 cents also came to the plaintiff herein and his brother Venkatappa and thereby the entire 58 cents has come to the plaintiff (48 cents + 10 cents). 8. Further, I am able to see that after execution of Ex.B3 and A1, the eastern 29 cents also came to the plaintiff herein and his brother Venkatappa and thereby the entire 58 cents has come to the plaintiff (48 cents + 10 cents). 8. It is also the evidence of PW1 the plaintiff, PW2 Ramaiah and PW3 Gauramma to the effect that the vendor of the plaintiff viz., Munisamappa alone was in possession and enjoyment of the eastern 29 cents and his two other brothers were never in possession and enjoyment of the suit property and subsequently, the said Munisamappa alone has chosen to sell 10 cents to the plaintiff's brother Venkatappa and the remaining 19 cents to the plaintiff respectively under Ex.B3 and A1. The plaintiff has also filed patta book marked as Ex.A2 and kist receipts marked as Ex.A3 series to show that the plaintiff and his vendor alone was in possession and enjoyment of the suit property and further, the plaintiff has produced Cultivation Adangal Extracts for faslis 1387 to 1389 whereby it is shown that the plaintiff and his vendor alone were in cultivation and enjoyment of the suit property. Therefore, the plaintiff, on the first instance, has discharged his burden by proving that there are valid registered documents in his favour to show that his vendor Munisamappa alone was in possession and enjoyment of the suit property. On the other hand, the defendant has chosen to file Ex.B1 dated 18.1.1981 executed by Venkata Ramanappa, Gopalappa, Narayanappa who are the other brother and yet another brother's sons of Munisamappa in favour of the defendant in respect of 19-1/2 cents covered by S.No.126/3 by giving slightly different four boundaries. Further, the property already sold under Ex.A1 in favour of the plaintiff in the year 1969 appears to have been purchased by the defendant in the year 1981. When that being so, it is not fair and is too much on the part of the defendant to claim that he alone is having title and possession upon the suit property. Further, it is not the evidence of the defendant that the property under Ex.A1 and B1 are different from one another or it is not the evidence of the defendant that there is dispute in identity of property. Further, it is not the evidence of the defendant that the property under Ex.A1 and B1 are different from one another or it is not the evidence of the defendant that there is dispute in identity of property. When that being so, that too when the defendant is not in a position to produce kist receipts in the name of the defendant or his vendors for continuous period of 12 years before the suit nor the defendant has chosen to file any Cultivation Adangal Extract in the name of the defendant or his vendors for a number of years before suit to show as if the suit property was all along in possession and enjoyment of the defendant and his vendors alone. 9. Therefore, considering the evidence available in support of the plaintiff and defendant, I am of the view that the evidence available for the plaintiff is more acceptable and convincing than that of the defendant. That is why, the Sub Court, Krishnagiri, after elaborate discussion, has come to the conclusion that the plaintiff alone has got title and possession upon the suit property and not the defendant and consequently allowed the appeal and set aside the judgment and decree of the Trial Court. The only question of law that is raised in the second appeal is whether the plaintiff has discharged his burden of proof. For this question, I am of the view that the plaintiff has certainly discharged his burden of proof by producing oral and documentary evidence in convincing and acceptable manner. It is also significantly to be noted that the defendant has purchased the suit property under Ex.B1 i.e., nearly after 12 years of the purchase made by the plaintiff under Ex.A1. Therefore, in all, I am of the considered view that the second appeal has no merits in a way inviting this court to interfere with the judgment and decree of the Sub Court, Krishnagiri. 10. Accordingly, the second appeal fails and the same is dismissed with costs.