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2007 DIGILAW 1556 (MAD)

Sankaralingam alias Michael v. Velayudam

2007-05-16

V.DHANAPALAN

body2007
JUDGMENT V. DHANAPALAN, J. The challenge in this appeal is to the judgment of the Sub-Court, Tenkasi, confirming the judgment of the District Munsif Court, Sankarankoil. The case of the respondent/plaintiff who filed a suit for declaration of title and permanent injunction, is as under: The suit property originally belonged to one Irulandi and his minor brothers namely Krishnan and Raman and the said Irulandi sold it to the respondent/plaintiffs father Saathaan vide Exhibit A-1 dated 22.9.1924 and the said Saathaan was in possession of the same and since his demise in the year 1950, the respondent/plaintiff has been in possession and enjoyment of the suit property by way of storing waste materials and rearing and cutting Vela Karuvai trees for firewood therein; while so, the appellant/first defendant interfered with the respondent/plaintiffs possession and enjoyment of the suit property and despite lodging of a complaint with the police, continued to interfere with the respondent/plaintiffs possession and enjoyment of the suit property and hence, the suit. 2. The appellant/first defendant filed his written statement contending that (i) the suit property was never owned by Irulandi and as such, he had no right to sell the same to the respondent/plaintiffs father and neither the respondent/plaintiff nor his father was in possession of the suit property; actually, the suit property belonged to one Irulandi who had two sons by name Sankaralingam and Raman; after the life of the said Irulandi, the western side of the suit property was inherited by Sankaralingam and the suit property was inherited by Raman; the said Sankaralingam had three sons, viz., Irulandi, Krishnan and Raman who do not have any right to sell the suit property; Irulandi and his brothers sold the western side of the suit property to one Muthupetchi; the suit property was in the possession and enjoyment of Raman who sold it to one Pechi on 25.11.1942 who in turn sold the suit property and a vacant land orally to the appellant/first defendant at Rs. 45/- each in 1960 from which period, the appellant/first defendant has been in possession and enjoyment of the suit property by storing waste materials, rearing and cutting trees and by using it as a cattle-shed and as such, the suit property belongs to the appellant/first defendant. 3. 45/- each in 1960 from which period, the appellant/first defendant has been in possession and enjoyment of the suit property by storing waste materials, rearing and cutting trees and by using it as a cattle-shed and as such, the suit property belongs to the appellant/first defendant. 3. Before the Trial Court, while the respondent/plaintiff examined two witnesses and marked nine exhibits, the appellant/first defendant examined three witnesses and marked five exhibits. 4. On examination of the oral and documentary evidence, the Trial Court, holding that the suit property has been acquired by the respondent/plaintiffs father vide Exhibit A-1 and that the appellant/first defendant has no right to the suit property, decreed the suit. The lower appellate Court too stood by the findings of the Trial Court, thereby dismissing the appeal. Hence, the present second appeal challenging the judgments of the Courts below. 5. This Court, based on the following substantial questions of law, admitted this second appeal: Whether the Courts below are right in holding that the plaintiff had perfected title by adverse possession, in the absence of material evidence produced by him Whether the Courts below are right in placing the burden of proof on the appellant while admittedly the plaintiff has to prove his case Whether the Courts below are right in holding that the appellant has not proved the oral purchase 6. I have heard Mr. Ramesh, learned counsel for the appellant/first defendant and Mr. S. Meenakshisundaram, learned counsel for the respondent/plaintiff. 7. The learned counsel for the appellant/first defendant, in sum and substance, has contended that while Irulandi and his brothers had right only over the western side of the suit property and the suit property was owned by Raman, Irulandi does not have any right to sell the suit property to the respondent/plaintiffs father towards which he does not possess any right. He has further contended that the boundaries and measurements mentioned in the plaint are not correct and as such, the appeal has to be allowed and the suit dismissed. 8. He has further contended that the boundaries and measurements mentioned in the plaint are not correct and as such, the appeal has to be allowed and the suit dismissed. 8. The learned counsel for the appellant/first defendant, while contending that an Advocate Commissioner should have been appointed to bring to the notice of the Court the lie of the property, has relied on a judgment of this Court reported in the patter of P. Gunabalan and Others v. A. Subbiyan and Another P. Gunabalan and Others v. A. Subbiyan and Another P. Gunabalan and Others v. A. Subbiyan and Another (2004) 2 MLJ 362 and the relevant para reads as under at p. 365 of MLJ: “9. It remains to be stated that when the defendants came forward with the defence plea stating that there was no space at all in between these two houses as claimed by the plaintiffs, it becomes necessary for the plaintiffs to take out a commission to inspect the property and to file his report bringing to the notice of the Court the lie of the property, but he has failed to do so. All the above would clearly indicate that the plaintiffs have thoroughly failed to prove the existence of passage or any right alleged to have been available for them or used the same in the past……..” 9. On his argument that recitals as to the boundaries in documents not inter partes are not inadmissible in evidence, the counsel for the appellant/first defendant has relied on para 16 of a Division Bench of this Court reported in the matter of V. A. Amiappa Nainar (died) and Others v. V. Annamalai Chettiar (died) and Others V. A. Amiappa Nainar (died) and Others v. V. Annamalai Chettiar (died) and Others V. A. Amiappa Nainar (died) and Others v. V. Annamalai Chettiar (died) and Others (1972) 1 MLJ 317 which reads as under: “On a consideration of the aforesaid decisions, we hold that this decision of the Division Bench of the Court in Sripala Venkatarayagopala Raju v. Fota Narasayya, is not in accordance with preponderance of authorities in various High Courts that recitals as to boundaries in documents not inter partes are inadmissible in evidence under Sections 11, 13(a) , 32(3) and 32(7). As pointed by WADS WORTH, J., in Thygaraja v. Narayana, the only method by which recitals in a document not inter partes could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found…” 10. The learned counsel for the appellant/first defendant, to contend that the plaintiff cannot be allowed to claim relief on the state of facts alleged by the defendant, has drawn the attention of this Court to a judgment of this Court reported in the matter of Kandasamy Udayar v. T.S. Karuppudayar V.82 Law Weekly 99 : “Long ago, the learned Judges of the Calcutta High Court pointed out in Ramdayal v. Jummenjoy Coondoo that it would certainly be very unusual to permit a plaintiff, who has alleged one state of facts against the defendant, who has denied that case and alleged another of facts, to turn round and ask to be allowed to carry on the suit and claim relief on the state of facts alleged by the defendant abandoning his own case….” 11. In support of his contention that the plaintiff can contend adverse possession only when he admits that another person has got title, reliance has been placed by the counsel for the appellant/first defendant on a judgment of this Court reported in the matter of Kannappan v. Pargunan and 9 Others Kannappan v. Pargunan and 9 Others Kannappan v. Pargunan and 9 Others 2000 (2) CTC 219 : “An argument was also taken by learned counsel for appellant that he has prescribed title by adverse possession. … When plaintiff is recognising title only by him and he is claiming title in vendors, he cannot say that he has got animus to hold the property against others. Only when he admits that another person got title, the question of prescribing title by adverse possession will arise…” 12. Lastly, the counsel for the appellant/first defendant has contended that as per Section 54 of the Transfer of Property Act, when the total value of two properties (out of which one was the suit property) purchased by the appellant/first defendant was only Rs. 90/- i. e. less than Rs. 100/-, just an oral sale is sufficient and it need not be registered and mere delivery of possession will suffice. 13. 90/- i. e. less than Rs. 100/-, just an oral sale is sufficient and it need not be registered and mere delivery of possession will suffice. 13. Per contra, at the foremost, the counsel for the respondent/plaintiff has contended that when no issue with regard to adverse possession was framed before the Trial Court and particularly when both the Courts below have not discussed the same, the contention of the counsel for the appellant/first defendant that the respondent/plaintiff has not proved his adverse possession does not have legs to stand. 14. On his contention that the first question of law as regards adverse possession cannot be considered as such when there was no finding or discussion by both the Courts below, the counsel for the respondent/plaintiff has placed reliance on the following judgments of the Supreme Court: i) In the matter of Manicka Poosali (dead) by LRs and Others v. Anjalai Ammal and Another Manicka Poosali (dead) by LRs and Others v. Anjalai Ammal and Another Manicka Poosali (dead) by LRs and Others v. Anjalai Ammal and Another (2005) 2 MLJ 116 (SC) at p. 119 of MLJ: “14. Section 100 of the Code of Civil Procedure provides that the second appeal would lie to the High Court from a decree passed in an appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case “involves a substantial question of law”. Bare perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal… 15. Clause 3 of Section 100 provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case, formulate the said question. Sub-section (5) provides that “the appeal shall be heard on the question so formulated.” It reserves the liberty with the respondent against whom the appeal was admitted ex-parte and the question of law was framed in his absence to argue that the case did not involve the question of law so framed. Sub-section (5) provides that “the appeal shall be heard on the question so formulated.” It reserves the liberty with the respondent against whom the appeal was admitted ex-parte and the question of law was framed in his absence to argue that the case did not involve the question of law so framed. … A reading of Section 100 makes it abundantly clear that if the appeal is entertained without framing the substantial question of law, then it would be illegal and would amount to failure or abdication of the duty cast on the Court. In a number of judgments, it has been held by this Court that the existence of the substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code of Civil Procedure.” ii) In the matter of Govindaraju v. Mariamman 2005 (1) TLNJ 85 : (2005) 2 MLJ 122 at p. 127 of MLJ: “16. As per settled law, the scope of exercise of the jurisdiction by the High Court in Second appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari's case (supra) that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be a 'substantial‘ question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law “involving in the case, it was observed that to be a question of law “involving in the case”, there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of facts and it must be necessary to decide that question of law for a just and proper decision between parties.” 15. It is seen that on the aspect of transfer of property, the counsel for the respondent/plaintiff has not questioned the transfer of suit property by oral sale but has contended that the delivery of possession which is a sine qua non has not been proved by the appellant/first defendant and on this score also, the appellant/first defendant has to fail. 16. Coming to the first substantial question of law framed with regard to adverse possession, I have carefully gone through the judgments of both the Courts below wherein it is uniformly observed as and nowhere, it is stated as. In this context, useful reference can be made to Section 100 of Civil Procedure Code which makes it abundantly clear that if an appeal is admitted without a substantial question of law, then, it would be illegal and would amount to failure or abdication of the duty cast on the Court. In the instant case, I am of the view that the question formulated at the time of admission about adverse possession need not be answered as there was no issue framed and discussed by both the Courts below as regards adverse possession. Further, a substantial question of law, in order to be framed, should have been pleaded which is the foundation and the question should emerge from the sustainable finding of the fact arrived at by the Court of facts and it must be necessary to decide that question of law for just and proper decision between the parties. In this case, in the absence of any pleading and finding to that effect, the question of law as regards adverse possession is answered against the appellant/first defendant. 17. Secondly, on the point of burden of proof being placed on the appellant/first defendant instead of respondent/plaintiff, it is seen that while the respondent/plaintiff claims title to the suit property vide Exhibit A-1 by which his father Saathaan purchased the suit property from Irulandi, the appellant/first defendant claims that he got the suit property by way of oral sale from Pechi who acquired the same from Raman vide Exhibit B-1, sale deed. According to the case of the appellant/first defendant, by way of partition consequent to the demise of Irulandi, Sankaralingam got the western side of the suit property and Raman inherited the suit property. According to the case of the appellant/first defendant, by way of partition consequent to the demise of Irulandi, Sankaralingam got the western side of the suit property and Raman inherited the suit property. The appellant/first defendant who was examined as D.W.1, besides admitting that he is not aware as to when Sankaralingam and Raman got their respective properties by partition, further concedes that he is not sure as to whether Raman's land has any patta. While, according to him, he has acquired the suit property by way of oral sale from Pechi on the 1st day of ‘Thai‘ month along with another piece of land at the rate of Rs. 45/- each, he who has filed a suit in O.S. 333 of 1986 against one Pechimuthu in respect of another piece of land, has given deposition in the said suit that he had bought the suit property and one vacant land for a consideration of Rs. 80/- on the 18th day of ‘Thai‘ month and this is evidenced by Exhibit A-6 and A-7, the relevant portion of his deposition in the judgment in O.S. No. 333 of 1986. There is no clue as to why there is extra-ordinary difference between his deposition in the suit on hand and in O.S. No. 333 of 1986. Obviously, one cannot tend to forget the date and price of purchase. Whereas, though the appellant/first defendant has stated in his written statement that the boundaries and measurements in the plaint are not specified correctly, the boundaries and measurements which are mentioned in the plaint fully correlate with the boundaries and measurements found in Exhibit B-1, sale deed executed by Raman to Pechi, which is relied on by the appellant/first defendant himself. Thus, it is clear that the respondent/plaintiff has proved beyond any doubt his title to the suit property. As such, it cannot be said that the Courts below have placed the burden of proof on the appellant/first defendant instead of placing it on the respondent/plaintiff as per the settled law that the burden of proof lies on the plaintiff. 18. As regards the third question of law as to whether the appellant/first defendant has not proved his oral purchase, it can be seen from the previous paragraph itself that the appellant/first defendant has given contradictory statement in two different suits with regard to oral purchase. 18. As regards the third question of law as to whether the appellant/first defendant has not proved his oral purchase, it can be seen from the previous paragraph itself that the appellant/first defendant has given contradictory statement in two different suits with regard to oral purchase. In other words, his conflicting statement in two different suits with regard to date and price of purchase is a vital factor to be reckoned with. From this, it is clear that both the Courts below have rightly held that the appellant/first defendant has not proved his oral purchase; as such, the third substantial question of law also is decided against the appellant/first defendant. 19. In nutshell, (i) while the question of law with regard to adverse possession has not been pleaded and no issue has been framed by the Courts below and not discussed by them, (ii) when it is clear that the burden of proof has not been placed on the appellant/first defendant and the respondent/plaintiff has succeeded only on the strength of his own case and (iii) when the appellant/first defendant has not proved his oral purchase, this Court is of the considered view that the conclusion arrived at by the Courts below is in no way infirmed and does not warrant interference of this Court. In view of the above, the judgments of the Courts below are confirmed and consequently, the second appeal fails and is accordingly dismissed. However, there is no order as to costs. Second appeal dismissed.