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2010 DIGILAW 837 (MAD)

N. Elumalai v. Velu Gramini & Others

2010-02-25

M.DURAISWAMY

body2010
Judgment : M. Duraiswamy, J. The above Second Appeal arises against the judgment and decree made in A.S. No.125 of 2002 on the file of Additional District & Sessions Judge/Fast Track Court II, Tindivanam reversing the judgment and decree made in O.S.No.221 of 1996 on the file of Additional District Munsif Court, Tindivanam. 2. The first defendant in the suit is the appellant in the above second appeal. The plaintiffs 1 and 2 are the respondents 1 and 2 and the third respondent is the third defendant in the suit. 3. Theplaintiffs filed the suit in O.S. No.221 of 1996 on the file of Additional District Munsif Court, Tindivanam for declaration and injunction. 4. The brief case of the plaintiffs are as follows: According to the plaintiffs, the suit property originally belonged to one Dhanabagiyammal wife of Vadivelu Gramani. The northern 711/2 cents and the land on the southern side measuring an extent of 66 cents belonged to the Dhanabagiyammal. The northern 711/2 cents was sold to the first plaintiff’s maternal grand father Pavadai Gramani under a sale deed dated 23. 1956. Out of the said 711/2 cents, half share was given to the first plaintiff and his wife, the second plaintiff under the settlement deed dated 5. 1957. Out of the southern 66 cents, 33 cents were sold to Mangini Gramani under the sale deed dated 3. 1951 and this property was in possession and enjoyment of her mother Sundarammal. After the death of the Mangini Gramani and Sundarammal, the remaining 33 cents which was possessed by Dhanabagiyammal and the 33 cents enjoyed by Sundarammal were enjoyed by the sons of Mangini Gramani. The defendants never enjoyed the suit property. The defendants 1 and 2 have purchased the property on the southern side of the suit property. The defendants 1 and 2 joined together and tried to trespass into the suit property belonging to the plaintiffs. Therefore, the plaintiffs filed the suit. 5. The brief case of the defendants are as follows: According to the defendants Dhanabagiyammal had no right to sell the suit property to Pavadai Gramani and Velu Gramani in the year 1956. Prior to the said sale, Dhanabagiyammal sold an extent of 33 cents out of 66 cents to Mangini Gramani on 3. 1951. Originally, the suit property along with the other property measuring a total extent of 1.43 acres belonged to Vadivelu Graoiani. Prior to the said sale, Dhanabagiyammal sold an extent of 33 cents out of 66 cents to Mangini Gramani on 3. 1951. Originally, the suit property along with the other property measuring a total extent of 1.43 acres belonged to Vadivelu Graoiani. The said Vadivelu Gramani had two wifes viz., Angammal and Dhanabhagiam. After the death of Mangini, the first wife took 77 cents and the second wife took 66 cents, out of the said 1.43 acres. Dhanabagiyammal sold 33 cents to Sundarammal’s son Mangini Gramani on 3. 1951. Therefore, Sundarammal was enjoying a total extent of 1.10 acres out of 1.43 acres. Subsequently, the said Sundarammal executed a settlement deed in favour of her two sons Mangini Gramani and Ramachandra Gramani in respect of 1.10 acres on 210. 1966. Therefore, by virtue of sale deed dated 210. 1966 Mangini Gramani and Ramachandra Gramani were entitled to 1.10 acres. The said Ramachandra Gramani sold his share measuring an extent of 55 cents out of the total extent of 1.10 acres to the first defendant. After the death of Mangini Gramani, his sons sold the share of their father measuring an extent of 55 cents, out of 1.10 acres to the defendant on 17. 1992. Therefore, by virtue of the two sale deeds, the defendant is entitled to 1.10 acres out of the total extent of 1.43 acres. The plaintiff is entitled to the remaining extent of 33 cents. Plaintiffs are not entitled to more than 33 cents. Therefore, the defendants prayed for dismissal of the suit. 6. Before the trial Court, on the side the plaintiffs, two witnesses were examined and 16 documents, Exhibit A-1 to Exhibit A-16 were market and on the side of the defendants, two witnesses were examined and 13 documents, Exhibit B-1 to Exhibit B-13 were market. 7. The trial Court, after taking into consideration, the oral and documentary evidences of both sides, decreed the suit in respect of 33 cents and dismissed the suit in respect of the remaining extent claimed by the plaintiffs. 8. Aggrieved over the judgment and decree of the trial Court, the plaintiff filed an appeal in A.S.No.125 of 2002 on the file of Additional District & Sessions Judge/Fast Track Court II, Tindivanam and the lower appellate Court reversed the judgment and decree of the trial Court and allowed the appeal. Thus decreed the suit in toto. 9. 8. Aggrieved over the judgment and decree of the trial Court, the plaintiff filed an appeal in A.S.No.125 of 2002 on the file of Additional District & Sessions Judge/Fast Track Court II, Tindivanam and the lower appellate Court reversed the judgment and decree of the trial Court and allowed the appeal. Thus decreed the suit in toto. 9. Aggrieved over the judgment and decree of the lower appellate Court, the defendants have foiled the above second appeal. 10. Heard Mr.P.Gopalan, learned counsel appearing for the appellant and Mr.J.R.K. Bhavanandhan, learned counsel appearing for the respondents. 11. At the time of admission of the above second appeal, the following substantial questions of law arose for consideration: “(i) Whether the learned Judge is right in holding that the plaintiffs have prescribed title by adverse possession in respect of the balance extent of 381/2 cents of land, when admittedly, neither there was any pleading nor any issue was framed with regard to claim of adverse possession? (ii) Whether the learned Judge is right in reversing the decree of the trial Court by ignoring the admissions of the plaintiffs with regard to the sale of 33 cents of land under Exhibit B-1 dated 3. 1951 by their vendor which was long prior to the purchase by the plaintiffs under Exhibit A-1 dated 23. 1956? (iii)Whether the learned Judge is right in granting the decree in favour of the plaintiffs, when admittedly, the plaintiffs cannot claim beyond the title of the plaintiffs’ Vendor?” 12. On a careful consideration of the materials available on record and the submissions made by the respective counsels, it could be seen that the appellants had not. disputed the title of the plaintiffs so far as an extent of 33 cents out of the entire extent of 1.43 acres is concerned. Even in the written statement also, they admitted that the respondents are entitled to 33 cents. 13. The trial Court, after taking into consideration, the oral and documentary evidences of both sides, decreed the suit in respect of the said 33 cents only and dismissed the suit with regard to remaining extent. The lower appellate Court reversed the finding of the Trial Court on the ground of adverse possession. 13. The trial Court, after taking into consideration, the oral and documentary evidences of both sides, decreed the suit in respect of the said 33 cents only and dismissed the suit with regard to remaining extent. The lower appellate Court reversed the finding of the Trial Court on the ground of adverse possession. The lower appellate Court has given a finding that the respondents are in possession and enjoyment of the suit property for more than 12 years, therefore, they have prescribed title by adverse possession. .14. The learned counsel appearing for the appellant, in support of his contentions, relied upon a judgment in Mannangatti Gounder v. Janarthanam 2002 (4) CTC 193 which reads as follows: .“In the absence of pleading and framing of issues regarding adverse possession granting of decree of’ declaration of title in favour of plaintiff holding that plaintiff had perfected his title by adverse possession was not correct and proper.” .15. The said finding cannot be sustained for the reason that the respondents/plaintiffs have not pleaded in the plaint with regard to the plea of adverse possession. When there is no plea in the plaint with regard to adverse possession, the lower appellate Court ought not have decreed the suit holding that the respondents/plaintiffs have prescribed title by adverse possession. That apart, the lower the lower appellate Court relied upon Exhibit A-6 to Exhibit A-13 to come to the conclusion that the respondents are in possession of the property for more than 12 years. Exhibit A-6 to Exhibit A-13 are the kist receipts from 1989 to 1995. Even from these documents, it is clear that the respondents failed to prove their possession for more than 12 years in the suit property. The lower appellate Court ought not have granted the relief to the respondents without a specific pleading in the plaint with regard to the adverse possession. Therefore, the judgment and decree of the lower appellate Court cannot be sustained and is liable to be (sic) set-aside. 16. Further, the respondents/plaintiffs have not proved the case by any acceptable oral and documentary evidences. The respondents cannot take advantage of the weakness of the appellant’s case and succeed in their case. They can succeed or fail only on the strength of their case and not on the basis of weakness of the appellant’s case. 16. Further, the respondents/plaintiffs have not proved the case by any acceptable oral and documentary evidences. The respondents cannot take advantage of the weakness of the appellant’s case and succeed in their case. They can succeed or fail only on the strength of their case and not on the basis of weakness of the appellant’s case. In the case on hand, he respondents mainly relied upon the weakness of the appellant’s case. The respondents being the plaintiffs, burden is on them to prove their case and get a decree based on the evidence. The learned counsel appearing for the appellant relied upon a judgment in a case of P. Panneerselvam v. A. Baylis (2005) 4 MLJ 198 : 2005 (5) CTC17 which reads as follows: “Plaintiff must succeed or fail on strength of his own case and not on basis of weakness of defendant’s case.” Applying the principles laid down in the above judgments, the judgment and decree of the lower appellate Court cannot be sustained and is liable to be set aside. 17. In these circumstances, the substantial questions of law are decided in favour of the appellant and the judgment and decree of the lower appellate. Court made in A.S.No.125 of 2002 are liable to be set aside. Accordingly, the judgment and decree of the lower appellate Court are set aside. The judgment and decree of the trial Court made in O.S. No.221 of 1996 are restored. The above second appeal is allowed. However, there shall be no order as to costs. Appeal allowed.