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2009 DIGILAW 2111 (MAD)

Chandrammal v. Jayarama Naicker

2009-07-06

M.DURAISWAMY

body2009
Judgment : Second Appeal filed under Section 100 of the Code of Civil Procedure judgment and decree dated 8. 1999 made in A.S.No.111 of 1998 on the file of Subordinate Judge, Maduranthakam confirming the Judgment and Decree dated 24.09.1997 passed in O.S.No.119 of 1992 on the file of the District Munsif Court, Maduranthakam. The above Second Appeal arises against the judgment and decree in A.S.No.111 of 1998 on the file of Sub Court, Maduranthakam confirming the Judgment and Decree in O.S.No.119 of 1992 on the file of the District Munsif Court, Maduranthakam. 2. The plaintiff in the suit is the appellant in the above second appeal. The respondent is the defendant in the suit. 3. The plaintiff filed suit in O.S.No.119 of 1992 on the file of the District Munsif Court, Maduranthaham for declaration and injunction. .4. The brief case of the plaintiff is as follows:- .The plaintiff is the absolute and exclusive owner of the suit property measuring an extent on 0.07 cents. She purchased the property under a registered sale deed dated 21. 1982. Since then, she is in absolute possession and enjoyment of the suit property. Originally one Balatherasammals mother and one Innaiya Reddiar purchased 0.85 cents in S.No.348/5 under a registered sale deed dated 11. 1950. The plaintiffs vendor Balatherasammal and Innaiya Reddiar entered into an oral partition and a suit property was allotted to Ananthammal. The plaintiffs vendor Balatherasammal got the property from the said Ananthammal through a settlement deed. Since then, her vendor was in absolute possession and enjoyment of the property. The suit property is a part of the property in S.No.348/5 measuring 0.85 cents. The plaintiff stored hayricks in the suit property. The defendant is no way connected with the suit property. He is the utter stranger to the suit property. Since the defendant tried to put up temporary hut in the suit property and also casting cloud over the title of the plaintiff, the plaintiff filed the suit. .5. The brief case of the defendant is as follows: .According to the defendant, the plaintiff is not the absolute owner of the suit property. The plaintiff is not in possession of the suit property. The plaintiffs house is facing west and defendants house is facing east. The schedule mentioned property has been wrongly described as 0.07 cents. The defendant is in lawful possession and enjoyment of a total extent of 0.15 cents. The plaintiff is not in possession of the suit property. The plaintiffs house is facing west and defendants house is facing east. The schedule mentioned property has been wrongly described as 0.07 cents. The defendant is in lawful possession and enjoyment of a total extent of 0.15 cents. The defendant is living in the said property for more than 20 years. The defendant has been paying the house tax to the Panchayat Board. According to the defendant, the sale deed dated 21. 1992 is a sham document. The boundaries mentioned in the suit schedule are not correct. The suit property is a Gramanatham land. Neither Balatherasammals mother Ananthammal nor Innaiya Reddiar have been in possession of the suit property. Therefore, the defendant prayed for dismissal of the suit. 6. Before the trial court, the plaintiff examined 2 witnesses and marked 3 documents Exs. A1 to A3. On the side of the defendant, 2 witnesses were examined and 10 documents Exs. B1 to B10 were marked. 7. The trial court, after taking into consideration the oral and documentary evidences of both the parties found that the the plaintiff failed to prove his title and possession over the suit property and also found that the defendant by marking Exs.B1 to B8 proved his possession and enjoyment over the suit property. The trial court dismissed the suit. 8. Aggrieved over the judgment and degree of the trial court, the plaintiff filed an appeal in A.S.NO.111 of 1998 on the file of Sub Court, Maduranthagam. 9. The lower appellate court after taking into consideration the materials available on record also found that the plaintiff failed to prove her title and possession over the suit property, since the property purchased under Ex.A1 is only a Gramanatham and ultimately the lower appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. 10. Aggrieved by the judgments and decrees of the courts below, the plaintiff has filed the above second appeal. 11. Heard Mr. Mr.S.Sadasivam, learned counsel appearing for the appellant and Mr.T.V.Krishnamachari, learned counsel for the respondent. 12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- i) Whether the courts below were right in recording a finding too the effect that the respondent herein had title tot he suit property placing reliance on the revenue records being Exs. 12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- i) Whether the courts below were right in recording a finding too the effect that the respondent herein had title tot he suit property placing reliance on the revenue records being Exs. B1 to B10 which were marked as exhibits during trial by the respondent herein, as against the registered documents of title being registered deeds of sale which were marked as Exs. A1 and A2 on behalf of the appellant herein? ii) whether he courts below were right in dismissing the ;suit filed by the appellant herein on the ground that the appellant had not proved by positive evidence that she was in possession of the suit property albeit the fact that Exs.A1 and A2. Deeds of sale proved the appellants title tot he suit property? iii) Whether the courts below were right in concluding that the appellant herein was to be non-suited on the ground that the revenue records relating to the suit property were not field in court, in the teeth of the fact that the appellant had adduced unimpeachable evidence to prove her title in the form of deeds of sale3 being exs.A1 and A2 relating to the suit property? iv) Whether the trial court was right in reaching the conclusion that the appellant was not entitled to a declaratory relief relating to the suit property inasmuch as the appellant had not proved by acceptable evidence that either the appellant or her predecessors in title were in possession and enjoyment of the suit property? v) Whether the trial court was right in its conclusion that the appellant had to prove by evidence that the patta and tax receipt submitted on behalf of the respondent herein and marked as Exs.B1 to B10 did not relate to the suit property, thereby wrongly placing the burden of proof on the appellant?" 13. Learned counsel for the appellant relied on a judgment reported in 1996 AIR SCW 3613(Sawarni v. Inder Kaur and others), which reads as follows: "The lower appellate court did not come to any positive finding that defendant was the daughter of plaintiffs father. The appellate court could not reverse the decree of the trial court merely on ground of mutation entry in favour of the defendant. The appellate court could not reverse the decree of the trial court merely on ground of mutation entry in favour of the defendant. Mutation of a property in the revenue records n does not create or extinguish title nor has it any presumptive value on title. It only enable the person in whose favour mutation is ordered to pay the land revenue in question. Mutation entry in favour of the defendant did not convey any title in her favour. Non-consideration of oral evidence by the appellate court also vitiated its judgment." 14. Learned counsel for the appellant also relied on a judgment reported in AIR 1997(7) SCC 137 (Balwant Singh and another v. Daulat Singh (dead) by Lrs. and others), which reads as follows: "21.We have considered the rival submissions and we are of the view that Mr.Sanyal is right in his contention that the courts were not correct in assuming that as a result of Mutation No.1311 dated 17. 1954, Durga Devi lost her title from that date and possession and was given to the persons in whose favour mutation was effected. In Sawarni case Pattanaik, J., speaking for the Bench has clearly held as follows: (SCC p. 227, para 7) "7.. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment." The above referred judgments do not apply to the facts and circumstances to the case on hand. 15. On a careful consideration of the materials available on record and the submissions made by both the learned counsel, it could be seen that under Ex.A2 dated 11. 1950, Anandathmal and Innaiyan Reddiar purchased the property in S.No.348/5. Under Ex.A3 Ananthammal executed a deed of settlement in favour of Balatherasammal under Ex.A3 dated 14. 1997. The appellant under Ex.A1 dated 21. 1992 purchased a portion of land in S.No.348/5 from Balatherasammal. The respondent marked Exs.B1 Thoraya patta and house tax receipts Exs.B2 to B8. Ex.B9 is the ration card issued to the respondent. Under Ex.A3 Ananthammal executed a deed of settlement in favour of Balatherasammal under Ex.A3 dated 14. 1997. The appellant under Ex.A1 dated 21. 1992 purchased a portion of land in S.No.348/5 from Balatherasammal. The respondent marked Exs.B1 Thoraya patta and house tax receipts Exs.B2 to B8. Ex.B9 is the ration card issued to the respondent. It could be seen from the documents marked on the side of the respondent that the respondent is in possession and enjoyment of the property. On the contrary, the appellant did not produce any document to prove his possession over the suit property. The suit property in S.No.348/5 is a Grama Natham. The appellant also did not produce the patta standing in her name. Further, the appellant failed to produce any document to prove her possession and enjoyment over the suit property. Even in the document Ex.A1 and A3, the suit property has been mentioned only as Gramanatham. The courts below after taking into consideration the oral and documentary evidences of both the parties have correctly came to the conclusion that the appellant/plaintiff failed to prove her case by producing any acceptable evidence. 16. Therefore, I find no ground much less substantial questions of law to interfere with the findings of the courts below. The second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. However, there will be no order as to costs.