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2006 DIGILAW 3533 (MAD)

M. Shanmugam v. K. Padma & Others

2006-12-19

M.CHOCKALINGAM

body2006
Judgment :- (Second appeals preferred under Sec.100 of the Code of Civil Procedure against the judgment and decree passed by the Additional District and Sessions Judge, Tirupattur (FTC), Vellore District, in A.S.Nos.27, 74 and 73 of 2002 dated 30.9.2003 confirming the judgment and decree passed by the District Munsif, Tirupattur, in O.S.No.6/92 and 53 and 25/91 dated 31.8.2000.) Common Judgment This judgment shall govern these three appeals in S.A.Nos.1205, 767 and 768 of 2005. 2. These three appeals have arisen from the common judgment rendered by the Additional District Judge, F.T.C., Tirupattur, Vellore District, made in three appeals in A.S.Nos.27, 74 and 73 of 2002 respectively whereby the common judgment rendered by the trial Court namely District Munsif, Tirupattur, in O.S.Nos.25/91, 53/91 and 6/92 was affirmed. 3. The first suit in O.S.No.25/91 was filed by the appellant herein seeking for declaration and for permanent injunction against the respondents. The said suit on contest, was dismissed. The appeal was taken by the plaintiff, and the same was dismissed. The other two suits in O.S.Nos.53/91 and 6/92 were filed by the respondent herein namely Padma, the first one for the relief of declaration and injunction in respect of one item and the second one for the same relief of declaration and consequential reliefs in respect of four items. Both the suits on trial, were decreed. The aggrieved defendant took it on appeal, and both the appeals were dismissed. Hence, all these three second appeals are brought forth by the plaintiff in O.S.No.25/91 and also the defendant in O.S.Nos.53/91 and 6/92. 4. The case of the plaintiff in O.S.No.25/91 was that the suit properties belonged to him; that he got the first item of property through his ancestors about 30 years ago; that he is in possession and paying kist; that he purchased the second item of property by a sale deed dated 25.5.1985; that the survey number is mistakenly mentioned in the sale deed as 662/2 instead of 663/02; that he is irrigating the lands from the suit wells; that the first defendant who is having property nearby the suit properties, is trying to trespass into the suit properties and also attempted to get electric service connection from the defendants 2 and 3; and that under the circumstances, after issuing a notice, he has filed the suit. 5. 5. The suit was resisted by the first defendant stating that survey No.662/2 originally belonged to one Arunachalam; that on his death, the properties devolved upon his wife and her two sons; that they have sold 1 acre to one Jayanthi on 28.4.1983, who in turn sold the same to the first defendant on 7.6.1984; that thereafter, she dug the well and has been using the same for his lands; that patta was transferred to her name; that she is paying kist; that she is entitled to 1 acre in Survey No.662/2; that she applied to the electricity department for getting electric energy; that there is no cause of action for the plaintiff to file the suit, and hence, the suit was to be dismissed. 6. The defendants 2 and 3 filed a written statement alleging that the suit is not maintainable against them; that they are entitled to give service connection to the first defendant if all the requirements are complied with by her; that she has applied for agricultural service connection; that they have issued a notice for readiness; that she also reported her readiness on 24.9.1990, and thus, she is entitled to the same; that the plaintiff did not produce the Tahsildar certificate, but only produced the xerox copy of the sale deed showing that the properties in Survey Nos.664/2, 663/2, 667 and 662/2 belonged to him; that the first defendant has produced a Tahsildar certificate showing that the well belonged to her; that they are unnecessary parties, and hence, it was to be dismissed. 7. The plaintiff in O.S.53/91 has alleged that the suit property originally belonged to one Arunachalam; that on his death, it devolved upon his wife and his two sons; that they sold it to one Jayanthi who in turn sold the same to her; that from that time onwards, she is in possession of the suit property and paying kist; that she dug the well and also applied to the electricity board for agricultural service connection; that the patta stands in her name; that the defendant has no right to disturb her from getting service connection; that the defendant has attempted to trespass into the suit property, and hence, there arose a necessity to file the suit. 8. 8. The suit was contested by the defendant stating that the suit property does not belonged to the plaintiff; that at no point of time, either Arunachalam or his family members were in possession of the suit property; that neither the plaintiff nor the said Jayanthi was in possession of the property; that the plaintiff has no right to dig the well; that Survey No.662/2 measuring 5 acres 59 cents along with the wells, belonged to the defendant and it is his ancestral property; that the whole property is not sub divided; that the boundaries mentioned in the plaint, are not correct, and hence, the claim of the plaintiff was to be rejected. 9. The allegations made by the plaintiff in O.S.No.6 of 1992 are that the suit property was purchased by her from one Jayanthi; that all the records stand in her name; that the defendant who is the adjacent land owner, is causing disturbance and attempted to trespass into the property, and hence, the suit has been filed for declaration and injunction. 10. The defendant has contested the suit by stating that he is in peaceful possession and enjoyment of the first item of property along with the two wells; that it is not correct to state that the second item of property belonged to the plaintiff; that it originally belonged to one Arunachalam and Arumugam; that both of them have equal rights; that the defendant purchased the half share of Arumugam; that he is in possession of 2.61 ½ acres; that this suit is filed by concealing the earlier suits, and hence, the suit was to be dismissed. 11. Necessary issues were framed by the trial Court. On trial, the trial Court dismissed the suit in O.S.No.25/91, while decreed the other two suits in O.S.Nos.53/91 and 6/92. The appeals therefrom were also dismissed. Hence, these second appeals at the instance of the appellant before this Court. 12. The Court heard the learned Counsel on either side. After doing so, the following substantial question of law is formulated for consideration: "Whether the Courts below were correct in rejecting the case of the appellant in entirety?" 13. Both the Counsel would submit that the appeals could be heard. Accordingly, they are heard, and the parties hereinafter will be referred to as appellant/plaintiff and respondent/defendant as per the cause title in S.A.No.1205 of 2005. 14. Both the Counsel would submit that the appeals could be heard. Accordingly, they are heard, and the parties hereinafter will be referred to as appellant/plaintiff and respondent/defendant as per the cause title in S.A.No.1205 of 2005. 14. Advancing his arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the plaintiff has proved title to the property which was the first item namely the subject matter in O.S.No.25/91; that the entire property measuring 5.54 acres in Survey No.662/2, came to his hands ancestrally; that sufficient documentary evidence has also been brought forth; that so far as the second item namely 3.71 acres in Survey No.663/2, was concerned, a part of the property measuring 2.61 ½ acres, belonged to him; that documentary evidence was also brought forth in that regard; that both the Courts have not looked into the documentary evidence in the proper perspective; that so far as the first item namely 5.54 acres in Survey No.662/2, was concerned, it was an ancestral property; that it is true that either the partition deed or the original sale deed was not filed; but, sufficient documentary evidence are brought forth by producing the mortgage deed executed by his father, which would cover the entire item in Survey No.662/2; that apart from this, he has also filed the mortgage deed marked as Ex.B1; that Exs.B8 to B14 were all kist receipts pertaining to the property; that Ex.P34 was the chitta; that apart from all these documents, Ex.B40, a registered sale deed, executed by Kulandai alias Arumuga Gounder on 25.5.1985, has also been filed; that it was in favour of the appellant, wherein he sold several properties inclusive of his half share in the property in Survey No.662/2 namely 75 ½ cents out of 1.51 acres; that under the circumstances, the sale deed was quite sufficient to declare his right in respect of that property; but, both the Courts have not considered the same; and that while he has proved his case by documentary evidence, the Courts below should have granted the relief in his favour. 15. 15. Added further the learned Counsel that both the other suits filed by the other side seeking the reliefs in respect of 1 acre in the first item and 2.5 acres in the second item should have been dismissed for the simple reason that she relied upon Ex.A8, the sale deed; that a perusal of the same would clearly reveal that she has claimed in excess of the property which was available to the original vendor; that under the circumstances, the suits should not have been decreed in entirety, and it has got to be considered by this Court. 16. Countering the above contentions, it is contended by the learned Counsel for the respondent/defendant that the appellant has not proved his title to the property as regards the first item in his suit nor has he brought forth any evidence contrary to the case of the respondent in the other two suits; that so far as the first case was concerned, the case of the plaintiff was that it was an ancestral property; but, not even one iota of evidence has been brought forth; that the document relied on by the appellant, is only a mortgage deed wherein the property in Survey No.662/2 was mentioned; that the same cannot be taken as sufficient documentary proof for granting the relief; that once he comes with the consistent case that it is an ancestral property, in the absence of any evidence in that regard, the Courts below were perfectly correct in rejecting the relief; that so far as the second item is concerned, the respondent claimed 1 acre in the first item and 2.5 acres in the second item; that she has also filed sufficient documentary evidence through Ex.A8; that a reading of the document would clearly reveal that the property was a part of the property in that Survey Number which originally belonged to one Arunachalam and also Arumuga Gounder; that the legal representatives of Arunachalam sold the property to one Jayanthi; that the said Jayanthi in turn has sold the property to the respondent/defendant, and thus, there was a clear derivation of title; that sufficient documentary evidence has been brought forth; and that the same was well considered by the Courts below. 17. 17. Added further the learned Counsel that the contention put forth by the appellant's side that even assuming that the property which was not available with the legal representatives of Arunachalam, was subsequently conveyed by them to Jayanthi, who in turn conveyed to the defendant under Ex.A8, the said Jayanthi was not examined cannot be countenanced for the simple reason that the case of the respondent was that they were conveyed under the sale deed; that the property originally belonging to the joint family, was subsequently divided; that even after the purchase of the property by the defendant, there was amicable partition among the parties; that pursuant to the partition, the respondent was enjoying more property i.e., 1 acre in the first item and 2.5 acres in the second item, and hence, that cannot be called in excess; that under the circumstances, both the Courts below were perfectly correct in decreeing both the suits filed by the respondent, and hence, all the appeals have got to be dismissed. 18. The Court paid its anxious consideration on the submissions made. 19. The entire case centers round upon two items of properties namely 5.54 acres in Survey No.662/2 and 3.75 acres in Survey No.663/2. The first suit filed by the appellant would cover the entire item i.e., 5.54 acres in Survey No.662/2, where he claimed as per the pleadings, that it was an ancestral property, and it came to his hands by an oral partition before 30 years. But, he has miserably failed to prove the same, and his contentions were negatived by the Courts below and rightly too. The respondent/defendant filed two suits, where she claimed the first item i.e., 1 acre, and the second item i.e., 2.5 acres. It is pertinent to point out that they claimed that both these items of properties fell to their share, and under the circumstances, they sought for declaration; but, the genealogy was not stated by either of the party. However, from the evidence, it would be quite clear that the property originally belonged to one Malayala Gounder who had five sons namely Annamalai Gounder, Chinnasamy Gounder, Mottaiya Gounder, the father of the appellant, Raja Gounder and Batta Gounder. The said Annamalai Gounder and Chinnasamy Gounder died. However, from the evidence, it would be quite clear that the property originally belonged to one Malayala Gounder who had five sons namely Annamalai Gounder, Chinnasamy Gounder, Mottaiya Gounder, the father of the appellant, Raja Gounder and Batta Gounder. The said Annamalai Gounder and Chinnasamy Gounder died. As could be seen from the evidence, Chinnasamy Gounder left the village and settled somewhere, and the said Chinnasamy Gounder and his son sold their share in the property to Chinna Gounder by a sale deed dated 25.6.1939. Ex.A9 was relied upon by the appellant. As could be seen, the sale was made by Chinnasami Gounder for himself and for his minor son in favour of one Chinna Gounder. As could be seen from the evidence, Mottaiya Gounder had two sons and two daughters, and Raja Gounder had three daughters. It remains to be stated that though a partition was pleaded among the members of the family before 30 years and the entire property of 5.54 acres in Survey No.662/2 fell to the share of the plaintiff's father, there is no sufficient evidence in that regard. What was all available was only a mortgage deed executed by the father wherein only the Survey No.662/2 was mentioned. It is pertinent to point out that it is not the only field that would cover 5.54 acres; but, number of properties were also found in the mortgage deed. Both the Courts below have clearly pointed out that the kist receipts relied upon by the appellant, did not contain the survey number. Hence, at that juncture, both the Courts took a view that the appellant/plaintiff has miserably failed to prove the case of declaration in which a duty is cast upon him to prove his case; but, he has not done so. 20. In the instant case, the respondent/defendant not only denied the title of the appellant, but also came forward with two suites claiming title to the properties namely 1 acre in the first item and 2.5 acres in the second item. Now, at this juncture, the document relied upon by the respondent, was only the sale deed executed by one Jayanthi in her favour. The evidence would go to show that the said Jayanthi purchased the property from the legal representatives of Arunachalam. Now, at this juncture, the document relied upon by the respondent, was only the sale deed executed by one Jayanthi in her favour. The evidence would go to show that the said Jayanthi purchased the property from the legal representatives of Arunachalam. Now, at this juncture, the contention put forth by the learned Counsel for the respondent that she purchased the property from Jayanthi under a sale deed Ex.A8; that this document would show that it covers a lesser property; that subsequent to the purchase, there was a partition; that pursuant to the partition, the properties namely 1 acre in the first item and 2.5 acres in the second item, were sold to the respondent; and that she has been enjoying so has got to be discountenanced for the simple reason that for the first time, such a partition is put forth before the Court. The entire case of the respondent before the lower Courts was only based on the sale which was made by Jayanthi who purchased the property from the legal representatives of Arunachalam. It is also quite clear from the pleadings that she claimed title to the property only by way of purchase under Ex.A8. Nowhere the respondent has pleaded a case that subsequent to the purchase under Ex.A8, there was a partition in the family by which she got more share and has been enjoying so. It can be stated that she has failed to make any pleading to that effect. 21. Now, the learned Counsel for the respondent wanted to rely on the evidence of P.W.3, according to whom, there was a family partition among the members of the family by which the property found in the latter two suits, were allotted to the respondent. This contention cannot be countenanced. In the absence of any pleading, no more evidence adduced, can be looked into, since they are of no legal consequence. Added further, in the instant case, it is also pleaded by the appellant in the written statement filed by him in the latter two suits, that originally the property namely 1.51 acres in the first item, belonged to Arunachalam and Arumugam, and so far as the second item was concerned, 3.71 acres belonged to both of them. If to be divided equally, Arumugam branch will get 75 ½ cents and 1.86 acres only. Accordingly, Arunachalam branch will also get equally. If to be divided equally, Arumugam branch will get 75 ½ cents and 1.86 acres only. Accordingly, Arunachalam branch will also get equally. From the pleadings put forth by the respondent in the latter suits, it would be quite clear that she has purchased the property from one Jayanthi under Ex.A8 document who purchased the same from the legal representatives of Arunachalam. Thus, it would be quite evident that when Arunachalam's branch did not have more than 75 ½ cents and 1.86 acres respectively, they have conveyed 1 acre in the first item and 2.5 acres in the second item, which actually they did not have. Under the circumstances, even if a declaration to be granted in favour of the respondent in respect of these two items, it could be limited only to 75 ½ cents and 1.86 acres respectively, and to that extent, declaration could be granted. After marshaling the evidence, it would be quite clear that so far as the first item is concerned, though the plaintiff is not entitled to 5.54 acres in Survey No.662/2 as claimed by him, he is entitled to 24.5 acres in the first item and 64.5 acres in the second item, and to that extent, declaration could be granted. So far as the other two suits are concerned, the respondent is entitled to 75 ½ cents and 1.86 acres in the first and second items respectively. 22. Accordingly, declaration is granted only to the extent indicated above. With the above modificiation in the judgments and decrees of both the Courts bleow, all the appeals are partly allowed leaving the parties to bear their costs.