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2006 DIGILAW 2934 (MAD)

Ramasamy Gounder v. Pavayee Ammal & Others

2006-11-01

K.MOHAN RAM

body2006
Judgment :- PRAYER:- Second Appeal filed against the judgment and decree dated 29.1.1999 made in A.S.No.205 of 1996 on the file of the Subordinate Judge, Kallakurichi against the Judgment and decree dated 22.4.1994 made in O.S.No.529 of 1989 on the file of the District Munsif, Kallakurichi. The plaintiff in O.S.No.529 of 1989 on the file of the District Munsif Court , Kallakurichi is the appellant in the above second appeal. 2. For the sake of convenience, the parties are referred to as per their ranking in the suit. 3. The case of the plaintiff is as follows:- The suit property originally belonged to his sister-in-law Smt.Saraswathi Ammal by virtue of purchase under a registered sale deed dated 9.12.1965 from one Azhagapadayachi; the suit property was purchased in the name of Saraswathi Amal out of the funds of the joint family consisting of the plaintiff and his brothers Periyasamy and Govindasamy and as such though the suit property stood in the name of Saraswathi Ammal it was treated as joint family property and the same was orally partitioned in the year 1977 and allotted to the plaintiff’s share and since then he is in possession of the same and in recognition of his title and possession patta was issued to him under the Updating Registry Scheme. 4. It is the further case of the plaintiff that the plaintiff and his predecessors in title have been in possession and enjoyment of the suit property for more than 60 years in their own right adversely against all and as such the plaintiff has prescribed his title by adverse possession. Since the third defendant who is the sister of the plaintiff attempted to interfere with the plaintiff’s possession on the basis of fabricated order of assignment, the suit has been filed seeking for declaration of title and permanent injunction. 5. The defendants 1 and 2 filed written statement containing the following defence:- The sale by Azhagapadayachi to Saraswathi Ammal and the oral partition claimed by the plaintiff are denied. It is specifically pleaded in the written statement by the defendants 1 and 2 that in the updating Registry Scheme the name of the plaintiff has been mistakenly mentioned by the Tahsildar and the defendants have not admitted the possession of the plaintiff. It is specifically pleaded in the written statement by the defendants 1 and 2 that in the updating Registry Scheme the name of the plaintiff has been mistakenly mentioned by the Tahsildar and the defendants have not admitted the possession of the plaintiff. It is further specifically pleaded that the property mentioned in the sale deed dated 9.12.1965 does not relate to the suit property, but the suit property belongs to the third defendant. According to the defendants 1 and 2 originally the suit property belonged to the Government and the Government assigned the Suit property and another land to the third defendant through D card in Survey No.302/1 in Thottapadai Village, Kallakurichi Taluk in respect an extent of 4 acres and 20 cents and from that date, the third defendant is in possession and enjoyment of the same. These defendants have further pleaded that in the Updating Registry Scheme S.No.302/1 has been subdivided into 302/1A and 302/1B and at that time the UDR patta has been mistakenly given in the name of the plaintiff. It is also pleaded that the third defendant had given a petition to rectify the mistake. While the second defendant was making an enquiry on the petition given by the third defendant, the plaintiff has filed the above suit. An objection regarding maintainability of the suit had been taken for want of statutory notice under Section 80CPC. 6. The third defendant has filed the written statement contending as follows:- The case of the plaintiff that the suit property was purchased in the name of Saraswathi Ammal under the Sale Deed dated 9.12.1965 utilising the joint family funds is denied. The claim of oral partition is also denied. The plaintiff has fraudulently obtained patta in his name in the UDR scheme. The suit property was not a patta land originally, but it was a Government poramboke land bearing S.No.302 in an extent of 4 acres 20 cents which was assigned to her as per proceedings in DKD 116/76 and possession was handed over to her and she and her husband continued to enjoy the same. In the year 1982, she and her husband left the village to her husband's place. It is the further case of the third defendant that in respect of 4 acres and 20 cents patta has been issued to her and the patta number is 658 and she was paying kist. In the year 1982, she and her husband left the village to her husband's place. It is the further case of the third defendant that in respect of 4 acres and 20 cents patta has been issued to her and the patta number is 658 and she was paying kist. Since she left the village in 1982 she asked her brother the plaintiff to take care of the lands and thereafter she was getting her share of income from the said 4 acres and 20 cents. But the plaintiff obtained patta fraudulently in the UDR Scheme and immediately after coming to know about the same, she had given a petition to the Tahsildar, the second defendant, stating that before granting of patta in favour of the plaintiff no enquiry whatsoever has been conducted and no notice was issued to the third defendant. The case of the plaintiff that he and his predecessors in title were in possession of the suit property for well over 60 years has been denied. The claim of adverse possession has been denied. It is further contended that without attending the enquiry initiated by the second defendant, the plaintiff has filed the above suit. 7. On the above said pleadings the trial Court framed the following issues:- 1. Whether the suit property belongs to the plaintiff? 2. Whether the suit property is in the possession of the plaintiff? 3. Whether the suit property is a part of the property assigned by the Government to the third defendant? 4. Whether the plaintiff is entitled to get a decree for declaration of title? 5. Whether the plaintiff is entitled to get permanent injunction? 6. To what relief the plaintiff is entitled? 8. During the trial on the side of the plaintiff, the plaintiff was examined as PW1 and one Duraisami has been examined as PW2 and Exs.A1 to A3 have been marked. On the side of the defendants, the Junior Assistant from the Taluk Ofice has been examined as DW1 and the third defendant has been examined as DW2 and Exs.B1 to B9 have been marked. 9. The trial court after considering the oral and documentary evidence adduced in the case decreed the suit. Being aggrieved by that the third defendant filed appeal in A.S.No. 205 of 1996 before the Sub-Court, Villupuram. The appeal has been allowed by the lower appellate Court. 9. The trial court after considering the oral and documentary evidence adduced in the case decreed the suit. Being aggrieved by that the third defendant filed appeal in A.S.No. 205 of 1996 before the Sub-Court, Villupuram. The appeal has been allowed by the lower appellate Court. Being aggrieved by that the plaintiff has filed the above second appeal. 10. When the second appeal came up for admission on 10.8.1999 Notice of Motion had been ordered. On receipt of the notice, the third defendant has entered appearance through her counsel and the defendants 1 & 2 have entered appearance through the Government Pleader. That is how the above second appeal has been posted for hearing before me. 11. Learned counsel for the appellant submitted that when the trial Court on a consideration of the entire evidence on record has accepted the case of the plaintiff and decreed the suit, the lower appellate Court has not considered the reasoning of the trial Court and has erroneously reversed the well considered judgment of the trial Court. Learned counsel for the appellant further submitted that Ex.A1 would show that the plaintiff had been in possession of the suit property from 1965 onwards and the lower appellate Court relying upon minor discrepancies in the oral evidence has reversed the judgment of the trial Court . Learned counsel further submitted that Ex.A2 patta and A3 series kist receipts and the evidence of P.W.2 will show that there was oral partition in the family and in the oral partition the plaintiff was allotted the suit property. 12. Per contra, learned counsel for the first respondent submitted that the identity of the suit property has not at all been established by acceptable evidence. Even in Ex.A1 sale deed, the property purchased by Saraswathi Ammal has not been properly described with proper boundary recitals. In Ex.A1 the property is described only as 82 cents out of the total extent of 5.32 acres in S.No.302 and boundary recitals are given as follows:- "rh;nt 302/5.32 y; fpiua epyj;jpw;Fk; (fp)(t)(bj)(nk) ,jd; kj;jpapy; 0.82" In the plaint also the suit property has not been properly described except stating "in Thottapadi Village, Kallakurichi Taluk Dry R.S.302/1A 0.33.0 Hec. 13. In Ex.A1 the property is described only as 82 cents out of the total extent of 5.32 acres in S.No.302 and boundary recitals are given as follows:- "rh;nt 302/5.32 y; fpiua epyj;jpw;Fk; (fp)(t)(bj)(nk) ,jd; kj;jpapy; 0.82" In the plaint also the suit property has not been properly described except stating "in Thottapadi Village, Kallakurichi Taluk Dry R.S.302/1A 0.33.0 Hec. 13. Learned counsel for the first respondent further submitted that there is absolutely no evidence to show that the property was purchased in the name of Saraswathi Ammal under Ex.A1 sale deed utilising the joint family funds and there was a oral partition in 1977 and in the oral partition the suit property was allotted to the plaintiff. Learned counsel further submitted that there is no recital in Ex.A1 to show that the sale consideration paid under Ex.A1 was from the joint family funds. Learned counsel further submitted that the trial Court has erroneously granted a decree declaring the title of the plaintiff to the suit property simply by finding holes in the defence taken by third defendant when the plaintiff has not established his title by acceptable evidence. 14. Learned counsel for the first respondent in support of his contention relied on the decision reported in 2003 (1) Mlj 294 ( Varadarasu Alias Devarasu Vs. Malone Veerasamy Alias Thanapal And Others) and another decision reported in 2003(4) Ctc 565 ( Dalip Singh And Others Vs. Sikh Gurudwara Prabhandak Committee And Others). 15. Learned counsel by relying on the above said decisions submitted that the plaintiff has to succeed or fail on the strength of his own case and he cannot succeed by pointing out the defects in the defendant's case . He further submitted that the entries in the revenue records by itself cannot prove the title to the property unless it is supported by other evidence. 16. I have considered the above submissions made on either side. 17. When the plaintiff has approached the Court seeking for declaration of title and injunction with the specific case that the suit property was purchased by Saraswathi Ammal under Ex.A1 Sale deed from Azhagapadayachi and the sale consideration was paid from the joint family funds, the burden is on the plaintiff to prove the same. 17. When the plaintiff has approached the Court seeking for declaration of title and injunction with the specific case that the suit property was purchased by Saraswathi Ammal under Ex.A1 Sale deed from Azhagapadayachi and the sale consideration was paid from the joint family funds, the burden is on the plaintiff to prove the same. Similarly when the plaintiff claims that the suit property was allotted to his share in the oral partition said to have taken place in 1977, the burden is on him to establish the same and it has to be pointed out that the plaintiff has not adduced any acceptable oral and documentary evidence to establish the same. As rightly pointed out by the learned counsel for the first respondent, except the oral evidence of P.W.1 and P.W.2, there is no other evidence to show that the sale consideration under Ex.A1 was paid from the joint family income. The trial Court instead of considering the merits of the case pleaded by the plaintiff has concentrated more in pointing out the defects in the third defendant's case. When the plaintiff has not by acceptable evidence established the identity of the suit property, the trial Court has by assumptions and presumptions held that the property purchased under Ex.A1 by Saraswathi Ammal was given to the share of the plaintiff. The trial Court has placed too much reliance on Ex.A2 UDR patta and A3 series kist receipts. The trial Court has failed to consider the evidence of D.W1 the Junior Assistant from the Taluk Office. 18. It is the specific case of the third defendant that on coming to know about the issuance of patta under the UDR scheme, she gave a petition to the Tahsildar and pursuant to that Ex.B1 memo was issued calling upon the plaintiff to attend the enquiry on 25.5.1989, but the plaintiff instead of attending the enquiry and establishing his claim has rushed to the civil Court by filing the suit. The evidence of D.W.1 and Exs. B2 would clearly establish that an extent of 4 acres and 20 cents in S.No. 302/1 was assigned in favour of the third defendant as early as 15.7.1967. Ex.B3 Chitta stands in the name of the third defendant and Ex.B4 Adangal and Ex.B7 Chitta support the claim of the third defendant that she is in possession of the suit property. B2 would clearly establish that an extent of 4 acres and 20 cents in S.No. 302/1 was assigned in favour of the third defendant as early as 15.7.1967. Ex.B3 Chitta stands in the name of the third defendant and Ex.B4 Adangal and Ex.B7 Chitta support the claim of the third defendant that she is in possession of the suit property. Ex.B4 Adangal and Ex.B9 Adangals would show that she was in possession of the same during the relevant fasilis. All the above said documents have been considered by the lower appellate Court elaborately. The lower appellate Court has rightly pointed out that the trial Court instead of deciding the issue as to whether the plaintiff has proved his case has thrown the burden on the third defendant to establish her title. 19. The lower appellate Court has pointed out that the plaintiff as P.W.1 has deposed that the suit property is in S.No.302/5 and that was purchased by him. After considering the extents in the various survey numbers namely 302. 302/1, 302/2, 302/3 and 302/4 the lower appellate Court has held that in Ex.B5 Survey No. 302/5 is not mentioned and as such the finding of the trial Court that the plaintiff is entitled to the property situated in S.No.302/5 is not correct. The lower appellate Court has also independently considered the evidence of P.W1 and P.W.2 and held that the plaintiff has not established that the suit property was being enjoyed by Azhagapadayachi for 60 years. The lower appellate Court has also pointed out that the trial Court has not properly construed Ex.A1. The lower appellate Court has also pointed out that the prior title deeds of Azhagapadayachi have not been produced. The lower appellate Court has not accepted the evidence of P.W.2 regarding the possession of the plaintiff. The lower appellate Court has rightly pointed out that Ex.A2 patta issued under the UDR scheme cannot be construed to be a document of title. It is also pointed out that apprehending that the enquiry proposed by the second defendant Tahsildar may end against him the suit has been filed by the plaintiff. The lower appellate Court on a consideration of the deposition of D.W.1 and Ex.B2 pointed out that the trial Court has not property construed Ex.B2 and the evidence of D.W.1. It is also pointed out that apprehending that the enquiry proposed by the second defendant Tahsildar may end against him the suit has been filed by the plaintiff. The lower appellate Court on a consideration of the deposition of D.W.1 and Ex.B2 pointed out that the trial Court has not property construed Ex.B2 and the evidence of D.W.1. The lower appellate Court has recorded a categorical finding that the suit property belongs to the third defendant, as the same has been assigned to her under Ex.B2. 20. In Varadarasu Alias Devarasu Vs. Malone Veerasamy Alias Thanapal And Others ( 2003 (1) MLJ 294 ), the learned Judge after referring to the decisions reported in 1999(3) MLJ 507 (Kammavar Sangam Through Its Secretary R.Krishnasamy Vs. Mani Janagarajan ) And 1999 (3) Ctc 650 (Guruvammal And Another Vs. Subbiah Naicker And Others)in paragraph 25 has observed as follows:- "25. It is also well established that even if the Revenue Authorities decided the question of title, that will not affect the jurisdiction of the Court, which has to decide the question without reference to the decision of the Revenue authorities. It is the Civil Court Judge to adjudge the question as to whether the person claiming it is the title holder of the land. 21. In 1999(3) Ctc 650 (Guruvammal And Another Vs. Subbiah Naicker And Others) it has been laid down that patta does not constitute a document of title and in that decision the plaintiff therein relied on an order of Tahsildar for transfer of patta without producing the material to show as to how the Tahsildar came to such a conclusion and that mutation of entries is done to enable the State to collect revenue from persons who are in possession of property and that it could not be relied on for granting relief. 22. In the instant case, the plaintiff, except producing Ex.A2 patta, has not produced any other material to show as to how and after what enquiry the same was issued to him. As rightly pointed out by the lower appellate Court the correctness or otherwise of the issuance of Ex.A2 patta could only have been decided by the Tahsildar in the enquiry contemplated by him. But without participating in the enquiry, the plaintiff has filed the suit. The said reasoning of the lower appellate Court cannot be said to be erroneous. 23. As rightly pointed out by the lower appellate Court the correctness or otherwise of the issuance of Ex.A2 patta could only have been decided by the Tahsildar in the enquiry contemplated by him. But without participating in the enquiry, the plaintiff has filed the suit. The said reasoning of the lower appellate Court cannot be said to be erroneous. 23. In the decision reported in 2003 (4) Ctc 565 Sc ( Dalip Singh And Others Vs. Sikh Gurudwara Prabhandak Committee And Others), the Apex Court has observed that the entries in the revenue records by itself cannot prove the title to the property unless it is supported by other evidence. 24. As rightly pointed by the learned counsel for the first respondent except Ex.A1 and A2, there is no other evidence to show that the plaintiff is entitled to the suit property. Even in Ex.A1 as pointed out above, the property purchased is not properly described with boundaries and in the plaint also the suit property has not been described with four boundaries to identify the same. When the plaintiff has miserably failed to establish the identity of the suit property, the trial Court has erred in granting a decree declaring his title and granting a decree for permanent injunction. Therefore, the lower appellate Court has rightly interfered with the finding of the trial Court and has recorded independent reasons for doing so. 25. Hence I do not find any reason to interfere with the same. When it is not the contention of the learned counsel for the appellant that the finding of the lower appellate Court is not based on evidence or perverse, this Court exercising power under Section 100 CPC cannot re-appreciate the evidence and record a different finding. Learned counsel for the appellant is unable to point out any infirmity in the reasoning of the lower appellate Court. No question of law much less any substantial question of law arises for consideration in the above second appeal and hence the second appeal fails and the same is dismissed. Consequently, the connected C.M.P is also dismissed. However, there will be no orders as to costs.