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2012 DIGILAW 1100 (MAD)

Kannai Ammal (Died) v. Nava Kounder

2012-02-29

V.PERIYA KARUPPIAH

body2012
Judgment :- This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.129 of 1998 dated 31.08.2004 in confirming the findings of the lower Court regarding declaration of title to the suit property in favour of the plaintiff and in allowing the cross-appeal filed by the plaintiff and thereby reversing the finding of the trial court regarding dismissal of the recovery of possession and for mesne profits in the suit filed in O.S.No.1079 of 1995 by the trial court on 04.09.1998. 2. The appellants herein are the appellants before the first appellate Court who are the legal representatives of the deceased first appellant and defendant before the trial court and the respondent is the plaintiff before the trial court and respondent/cross appellant before the 1st appellate court. 3. The case of the plaintiff in brief would be as follows:- The property of 0.57 cents in R.S.No.146/7 of Nedumanoor Village, Sankarapuram Taluk, belongs to the plaintiff absolutely and he had been in possession and enjoyment of the same. The property originally belonged to the plaintiff's father Muniya Kounder, having been got by him in an oral partition with his brothers many years ago. In a partition had in between the plaintiff and his father, evidences by a registered partition deed dated 12.03.1979, the above mentioned property had fallen to the share of the plaintiff. The plaintiff is producing a registration copy of the partition deed herewith. Thus, the plaintiff had become the owner of the entire 0.57 cents in R.S.No.146/7. The plaintiff is producing herewith the patta Pass Book for patta No.321 in the name of the plaintiff's father Muniya Kounder and the U.D.R. Patta No.835 in the name of the plaintiff along with three numbers of kist receipts in the name of the plaintiff for payment of kist in Patta No.321 and Patta No.835. Thus, by an open, peaceful and continuous possession and enjoyment of the 0.57 cents in R.S.No.146/7 by the plaintiff and his predecessors in title in their own right for over the statutory period, the plaintiff had his title perfected by adverse possession. The land in R.S.No.146/8 is situated to the south of R.S.No.146/7. The defendant does not have any right or interest in respect of any portion in R.S.No.146/7 which has been submitted as exclusively belonged to the plaintiff. The land in R.S.No.146/8 is situated to the south of R.S.No.146/7. The defendant does not have any right or interest in respect of any portion in R.S.No.146/7 which has been submitted as exclusively belonged to the plaintiff. However, the defendant, in a high handed and illegal manner, trespassed into the southern 0.20 cents in R.S.No.146/7 on 1.11.1995 stealthily. The plaintiff questioned the defendant about his unlawful occupation of the southern 0.20 cents in R.S.No.146/7 and requested him to deliver possession of the same to the plaintiff. However, the defendant has not only refused to deliver possession but also has chosen to deny the plaintiff's title to the southern 0.20 cents in R.S.No.146/7. The plaintiff submits that the defendant's denial of the plaintiff's title to the southern 0.20 cents in R.S.No.146/7 and his trespass into the same are unjust and improper. Therefore, the plaintiff filed this suit for declaration and possession of the southern 0.20 cents in R.S.No.146/7 which is the suit property. The plaintiff is also seeking a relief for the provision of future mesne profits payable to him by the defendant. Hence the suit. 4. The case of the defendant as found in the written statement before the trial court would be thus:- The schedule of property found in the partition list is not correct. Plaintiff never enjoyed the suit property according to the partition list. It is for the plaintiff to prove that the partition list has come into force. The schedule of property mentioned in patta Pass Book filed by the plaintiff along with the suit is not correct. Plaintiff never enjoyed the suit property. Plaintiff has not perfected title through adverse possession. R.S.No.146/7 and 146/8 are not owned by the plaintiff. It is false that defendant encroached 0.20 cents in 0.57 cents in R.S.No.146/7. There is no necessity to give possession of 0.20 cents in 0.57 cents in R.S.No.146/7 belonged to the defendant to the plaintiff through the court. 0.57 cents in R.S.No.146/7 is an ancestral property of the defendant. The property was orally divided among the defendant and his brothers Thukkiya Kounder and Muniya Kounder 50 years back. They are in possession and enjoyment of the property by paying kist accordingly. It is not necessary for this defendant to give mesne profits to the plaintiff. Plaintiff is liable to pay compensatory cost to the defendant. The property was orally divided among the defendant and his brothers Thukkiya Kounder and Muniya Kounder 50 years back. They are in possession and enjoyment of the property by paying kist accordingly. It is not necessary for this defendant to give mesne profits to the plaintiff. Plaintiff is liable to pay compensatory cost to the defendant. Kallakurichi Tahsildar had issued a separate patta to the defendant in Patta No.37. Hence, the suit may be dismissed. 5. The trial court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the trial court had decreed the suit regarding declaratory relief and dismissed the suit filed by the plaintiff in respect of recovery of possession without costs. 6. Aggrievedover the decreeing of the suit the defendant filed appeal in A.S.No.129 of 1998 and the plaintiff filed a cross appeal in the appeal against the dismissal of the relief of recovery of possession and mesne profits. 7. The 1st appellate court heard both parties and dismissed the appeal and allowed the cross appeal. Thus the suit was decreed in its entirety. 8. Aggrieved by such judgment and decree of the 1st appellate court the defendant preferred this second appeal. 9. At the time of admission of the second appeal, this Court has formulated the following substantial questions of law for consideration in this second appeal. 1. Whether the lower appellate court is correct in law in reversing the judgment of the trial court without setting aside the finding rendered by the trial court with regard to possession ? 2. When it has been proved beyond reasonable doubt that the suit property was allotted to the deceased defendant in the partition entered into with the father of the respondent and the same is corroborated by Exs.B1 to B3, whether the courts below are correct in law in not upholding the title of the appellants ? 10. Heard Mrs.Mythili Suresh, learned counsel appearing on behalf of M/s.Sarvabauman Associates, for the appellants/defendants and Mr.Venkateswaran, learned counsel for the respondent/plaintiff. 11. The learned counsel for the appellants would submit in her argument that both the courts below have erroneously come to a conclusion that the plaintiff had established the title to the suit property in S.No.146/7 as if it had been proved that the property was allotted to the plaintiff's father Muniya kounder in the oral partition had with his brothers. The learned counsel for the appellants would submit in her argument that both the courts below have erroneously come to a conclusion that the plaintiff had established the title to the suit property in S.No.146/7 as if it had been proved that the property was allotted to the plaintiff's father Muniya kounder in the oral partition had with his brothers. She would further submit in her argument that the document produced in Ex.A2 is a partition deed had in between plaintiff and his father and it was relied upon by the courts below to show the title of the plaintiff unless the allotment of the suit property was shown to have been in favour of the plaintiff's father, the recitals in Ex.A2 cannot be found as proved. She would further submit in her argument that the patta pass book produced by the plaintiff in Ex.A1 was an inadmissible document having no evidentiary value but it was admitted in evidence. She would further submit that the plaintiff failed to prove his case regarding title but the courts below have erroneously found that the title to the suit property was established through Ex.A2. Both the courts below have lost sight of the well settled principle that the plaintiff has to stand on his own case and they cannot rely upon the weakness of the defendant's case. She would also submit that the defendant even though not under the obligation of proving title and possession to the suit property has established his title by producing the patta which stood in the name of the defendant even in the year 1991 in Ex.B1 and the kist receipts paid for the said patta in Ex.B2. She would also submit that the patta pass book produced in Ex.A1 is being an inadmissible document, the kist receipts produced by the plaintiff in Ex.A4 relating to the patta No.321 could not also be relied upon by the courts below. She would further submit that the patta produced in Ex.A3 cannot be relied since the patta produced by the defendant in Ex.B1 for the suit property was not stated to have cancelled and no endorsement is seen in Ex.A3. She would further submit that the patta produced in Ex.A3 cannot be relied since the patta produced by the defendant in Ex.B1 for the suit property was not stated to have cancelled and no endorsement is seen in Ex.A3. She would also submit that the defendant had no necessity to encroach upon the 20 cents of the suit property since the defendant alone was entitled to the suit property by virtue of the allotment in oral partition, had in between the defendant and his brothers. The patta produced in Ex.B1 is the evidence to show that the suit property was allotted to him in the partition whereas the plaintiff did not produce any early document during the period of Ex.B1 to show that he was put in possession of the suit property to prove that the suit property was allotted to the father of the plaintiff in the said oral partition. She would also submit that the defendant had questioned the grant of patta in Ex.A3 in favour of the plaintiff and the copy of the said petition has been produced in Ex.B3 in which the revenue authorities did not pass any order so far. She would further submit that the plaintiff having failed to prove that the suit property was allotted to the plaintiff's father in the oral partition, cannot rely upon Ex.A2 partition deed had by the plaintiff with his father. She would also submit that the defendant had established her title to the suit property even though the defendant had not obliged to do so but the same was not considered by the courts below to disprove the case of the plaintiff, 'dehors' the partition deed Ex.A2 was considered to be true. She would therefore, request the court to interfere and set aside the judgment of the First Appellate Court and allow the appeal and thereby to dismiss the suit filed by the plaintiff before the trial court. 12. She would therefore, request the court to interfere and set aside the judgment of the First Appellate Court and allow the appeal and thereby to dismiss the suit filed by the plaintiff before the trial court. 12. The learned counsel for the respondent/plaintiff would submit in his argument that both the courts below had concurrently found the title of the suit property in favour of the plaintiff and the First Appellate Court had corrected the trial court in respect of recovery of possession of the suit property and mesne profits and had decreed the suit for the recovery of possession and for mesne profits as sought for by the plaintiffs which are based upon the evidence adduced before the trial court. He would further submit that the findings of the First Appellate Court regarding the facts was purely upon the evidence adduced before it and there was no lacuna both in applying law as well in appreciation of facts and therefore, the findings of the First Appellate Court may not be disturbed. He would also submit that findings were not found to have been reached by the courts below either perversely or baisedly. He would also submit that the defendant having admitted the oral partition had in between the defendant and plaintiff's father and their brother Thukiya Kounder, it cannot be questioned that the reference of the suit property in the partition deed had in between the plaintiff and the father in the year 1979 in Ex.A2 would not prove the allotment in favour of the plaintiff in the oral partition. He would further submit that the patta granted to the plaintiff in Ex.A3 was admittedly granted after cancelling the patta standing in the name of the defendant, as mistake, which could be evidenced from Ex.B3, an application given by the defendant to the revenue authorities, after the suit. He would further submit that there was no necessity to make endorsements in Ex.A3 about the cancellation of the patta standing in the name of the defendant in respect of the suit properties. The kist produced in Ex.A4 for patta No.835 referred in Ex.A3 would show that the plaintiff was recognised as in possession of the suit property. He would further submit that there was no necessity to make endorsements in Ex.A3 about the cancellation of the patta standing in the name of the defendant in respect of the suit properties. The kist produced in Ex.A4 for patta No.835 referred in Ex.A3 would show that the plaintiff was recognised as in possession of the suit property. He would also submit that the allotment of the property in any oral partition could be evidenced only through subsequent reference to those properties in the subsequent document like that the suit property has been referred in Ex.A2 and that cannot be termed as a self-serving document. He would further submit that Ex.A2 was further supported by Exs.A3 and A4. Further more, the patta pass book standing in the name of the defendant in Ex.A5 would go to show that the defendant was not in possession of the suit property. The said patta pass book standing in the name of the defendant would also show that the defendant had clandestinely obtained inclusion of the suit property in Ex.B1 which was rightly cancelled by the revenue authorities through Ex.A3 patta. He would also submit that the defendant did not challenge the patta granted in Ex.A3 and grant of patta in Ex.A3 was not disturbed and therefore, the said documents would go to show that the suit property was allotted to the plaintiff's father in the oral partition. He would further submit in his argument that the defendant had filed the present appeal just to prolong his possession of the suit property as far as possible in order to harass the plaintiff. Therefore, he would request the Court to dismiss the appeal. 13. I have given anxious thoughts to the arguments advanced on either side. 14. The suit was filed by the plaintiff for declaration of his title regarding 20 cents in S.No.146/7 and for recovery of possession of the same from the defendant, who is stated to have encroached the same. The said suit property is admittedly part and parcel of 57 cents comprised in S.No.146/7. According to the case of the plaintiff the said 57 cents was allotted to the plaintiff's father in an oral partition had with his elder brothers namely Thukkia Kounder and the defendant. The said suit property is admittedly part and parcel of 57 cents comprised in S.No.146/7. According to the case of the plaintiff the said 57 cents was allotted to the plaintiff's father in an oral partition had with his elder brothers namely Thukkia Kounder and the defendant. However, it has been denied by the defendant that the said property for an extent of 57 cents in S.No.146/7 was allotted to him only in the oral partition. 15. The relationship in between parties that the plaintiff is the son of one Muniya Kounder and the said Muniya Kounder was the brother of the defendant and one Thukkia Kounder are not disputed. All the three brothers were originally entitled to properties including the suit property and they effected an oral partition. The said oral partition had in between the three brothers was admitted by both parties. The point for consideration was whether the property comprised in S.No.146/7 was allotted to the plaintiff's father Muniya Kounder or to the defendant. No doubt the plaintiff has come forward with the suit for declaration of his title and therefore, he has to establish his title that the said property was allotted to his father Muniya Kounder. In support of his case, the plaintiff has produced Ex.A2 partition deed of the year 1979 had with his father. In the said partition document, the suit property was allotted to the plaintiff. All the properties mentioned in Ex.A2 were stated to be the ancestral properties and therefore, there is no dispute that the said property was derived through oral partition had by the plaintiff's father with his brother. Whether, such reference of the Survey number in Ex.A2 would be sufficient for the plaintiff to establish his case is the question to be decided. However, the defendant has come forward with the patta pass book comprised the Survey number in Ex.A1 and the kist receipts paid in Ex.A3. It is a settled principle that the patta is not a title deed and that can only evidence possession of the said property for the purpose of payment of kist. However, the defendant has come forward with the patta pass book comprised the Survey number in Ex.A1 and the kist receipts paid in Ex.A3. It is a settled principle that the patta is not a title deed and that can only evidence possession of the said property for the purpose of payment of kist. However, the said patta possessed by the defendant was shown to be wrong by the plaintiff by producing Ex.A5 in which the defendant was issued with a patta and in the patta pass book, the suit property was not shown as gift to him even though the properties comprised in the patta pass book in Ex.A5 was shown to be ancestral to those three brothers. The defendant much relied upon the document Ex.A1 which was stated to have been not signed by authorities and Ex.A3 patta was already given to the plaintiff. Even though the defendant had given an application to the revenue authorities to cancel the said change of patta, it was not proceeded or challenged further and no such reversal order has been produced. Accordingly, the patta given in Ex.A3 became final and it was also supported by one of the kist receipts in Ex.A4. Therefore, the reference to the suit property in Ex.A2 partition deed was also supported by subsequent documents from the revenue authorities. In the said circumstances, the trial court as well as First Appellate Court had discussed elaborately the oral and documentary evidence produced by the parties and had come to the conclusion that Ex.A2 partition deed was evidencing the allotment of the property in the suit survey number to the plaintiff's father in the oral partition had in between the three brothers. 16. The said case proved by the plaintiff was not disproved by any documentary evidence or through reliable oral evidence adduced on the side of the defendant. In the said circumstances, the decision reached by the courts below regarding title to the suit property is found to be neither perverse nor biased. Therefore, I could not disturb the said findings of the First Appellate Court which concurrently decided the point in consonance with the trial court. 17. As far as the possession is concerned, the trial court held that the plaintiff did not prove the encroachment made by the defendant in the suit property by seeking appointment of Commissioner. Therefore, I could not disturb the said findings of the First Appellate Court which concurrently decided the point in consonance with the trial court. 17. As far as the possession is concerned, the trial court held that the plaintiff did not prove the encroachment made by the defendant in the suit property by seeking appointment of Commissioner. The First Appellate Court had come to the conclusion that it is tangible when title is proved by the plaintiff and therefore, the property can be identified for granting recovery of possession. The main point which was omitted to be considered by the court below is that the defendant himself has claimed as having possession of 57 cents including the suit property described as 20 cents. However, the plaintiff's case is that the defendant encroached over and in possession of 20 cents only. As rightly said by the First Appellate Court the defendant is in unlawful possession of 20 cents as put-forth by the plaintiff and the said 20 cents could be identified since the entire property in S.No.146/7 can be identified by virtue of revenue records like FMB and so on. The said finding even though precise is correct and the First Appellate Court was also right in allowing the cross-appeal in favour of the plaintiff. 18. Therefore, I do not find any merits in the case of the appellants to decide the questions of law formulated for the disposal of this appeal in their favour. Therefore, both the questions of law are decided against the appellants and the second appeal is liable to be dismissed accordingly. 19. For the foregoing discussion, I am of the considered view that the concurrent finding of the First Appellate Court regarding title and the reversal finding of the First Appellate Court in respect of the possession and mesne profits are based upon the sound principles in appreciation of evidence and in applying law and it cannot be deemed as perverse or biased and therefore it is not liable to be interfered in the second appeal. Accordingly, the judgment and decree passed by the First Appellate Court is confirmed and the second appeal is dismissed. 20. In fine, the second appeal is dismissed, by confirming the judgment and decree of the First Appellate Court. No order as to costs.