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2012 DIGILAW 1597 (MAD)

C. Vedagiri v. C. Nagappan

2012-03-29

RAMANATHAN

body2012
Judgment :- 1. The defendants in O.S.No.315 of 2006, on the file of the learned District Munsif, Chenglepattu, are the appellants herein. 2. The respondent/plaintiff filed the above suit for the relief of declaration of title, recovery of possession and injunction. 3. The suit was dismissed by the Trial Court and the First Appeal filed by the respondent in A.S.No.14 of 2010, on the file of the Subordinate Court, Chenglepattu, was allowed. Aggrieved by the said judgment and decree, this Second Appeal is filed by the appellants. 4. The case of the respondent/plaintiff was that, the suit property and other properties originally belonged to one Mr.Ragavan, who had three sons by name, Mr.Periakanni, Mr.Chinnakanni and Mr.Kanni. The respondent/plaintiff and the first appellant/first defendant are the sons of Mr.Chinnakanni and the second appellant/second defendant is the son of the first appellant/first defendant. The suit property was allotted to the share of Mr.Periakanni, the paternal uncle of the first appellant and respondent/plaintiff. The respondent/plaintiff, purchased the suit property, from the son of Mr.Periayakanni, under a registered sale deed, dated 28.5.1970 and he was in possession of the property. The suit property is a Gramantham and patta was issued originally in the names of the respondent/plaintiff and the first appellant, and on the basis of the application filed by the respondent/plaintiff, separate patta was issued in his favour and taking advantage of the residence of the respondent/plaintiff, which is away from the suit properties, the appellants modified the hut, put up by the respondent/plaintiff in the suit property. The appellants have also encroached upon the suit property and therefore, the suit was filed for declaration of title, recovery of possession and injunction. 5. The appellants/defendants contested the suit, denying the right or title of the respondent/plaintiff over the suit property and contended that, they are in possession of the suit property, for more than 5 decades and also prescribed title and the title of the respondent/plaintiff is not admitted and the house was constructed by the appellants and the respondent/plaintiff has no title to the suit property. 6. 6. The Trial Court, on the basis of the evidence, held that the respondent/plaintiff failed to prove his title to the suit property and even according to the respondent/plaintiff, the property originally belonged to one Mr.Ragavan and he had three sons and it was alleged in the plaint that there was a partition among three sons of the said Mr.Raghavan and the suit property was allotted to the share of one of the sons, by name Mr.Periakanni, from whose son, the respondent/plaintiff purchased the suit property, but, no proof was adduced by the respondent/plaintiff, to prove the said partition. Admittedly, the property is a Gramanatham and patta was issued in the name of first appellant/first defendant and the respondent/plaintiff. Therefore, the respondent/plaintiff cannot claim absolute title to the suit property. 7. The Lower Appellate Court reversed the findings of the Trial Court and held that the respondent herein purchased the property, under Ex.A.1, the sale deed and the execution of Ex.A1, was admitted by the appellants and though, patta was originally issued in the joint names of the respondent and first appellant, subsequently, separate patta was issued in the name of the respondent, and the appellants also admitted the same in Ex.A.11, and there is no dispute regarding the identity of the property and as per the Revenue Records, the respondent is in possession of the property and Ex.A.1, the sale deed is of the year 1970 and it is 30 years old and therefore, a presumption under Section 90 of the Evidence Act can be drawn, regarding the execution of the sale deed and Ex.A.2, the patta, proves the respondent's possession and the Village Administrative Officer also deposed that the respondent was in possession of the suit property and hence, he is entitled to the relief of declaration and other reliefs. 8. The Lower Appellate Court further held that the appellants failed to prove adverse possession and having regard to the title in favour of the respondent, the appellants have to vacate the suit property and handover vacant possession. 8. The Lower Appellate Court further held that the appellants failed to prove adverse possession and having regard to the title in favour of the respondent, the appellants have to vacate the suit property and handover vacant possession. The Lower Appellate Court further held that the exhibits filed by the appellants, do not relate to the suit property and though, the appellants contended that, under Ex.A.1, the property was purchased jointly by the first appellant and the respondent, no proof was adduced by the appellants to that effect and having admitted the execution, they are estopped from questioning the title of the property and allowed the Appeal and set aside the judgement and decree of the Trial Court. Hence, the Second Appeal has been filed by the appellants/defendants. 9. The following Substantial Questions of Law arise for consideration in the Second Appeal:- i) Whether the Lower Appellate Court was right in holding that the respondent/plaintiff proved title to the suit property? ii) Whether the respondent/plaintiff is entitled to the relief of declaration of title and recovery of possession? 10. The learned counsel appearing for the appellants submitted that, admittedly, Mr.Ragavan, was the owner of 21 cents of property and it is the specific case of the respondent that the sons of Mr.Raghavan, divided the properties among themselves and from the legal heir of Mr.Periakanni, to whom the suit property was allotted the respondent purchased the suit property and the respondent did not prove the modus of division of the properties by three brothers and according to Ex.A.1, 7 cents of property, allotted to the share of the Mr.Periakanni, was purchased from the son of Mr.Periakanni, by the respondent and in the suit, the respondent claims title only in respect of 1872 sq.ft., and no explanation has been given, regarding the remaining extent of the property purchased by him under Ex.A.1, and having regard to the boundary recitals in Ex.A.1, and the boundary recitals given in the plaint, it cannot be stated that the suit property was purchased under Ex.A.1. 11. The learned counsel for the appellants further submitted that even as per Ex.A.2, patta was issued in the joint names of the first appellant and the respondent. 11. The learned counsel for the appellants further submitted that even as per Ex.A.2, patta was issued in the joint names of the first appellant and the respondent. Even according to the evidence of Village Administrative Officer, patta was issued, after verifying possession and as per Ex.A.2, the first appellant and the respondent are in joint possession of the suit property and hence, without filing the suit for partition, the relief of recovery of possession is not maintainable and therefore, the judgment and decree of the Lower Appellate Court are liable to be set aside and the Second Appeal has to be allowed. 12. Per contra, the learned counsel appearing for the respondent submitted that the Lower Appellate Court, after thoroughly considering the oral and documentary evidence, held that the appellants admitted the execution of Ex.A.1, and they also attested the document and therefore, they are aware of the contents of the document and they cannot claim any right, by virtue of Ex.A.2, when they failed to prove their title. The case of the appellants was that they are in possession of the property for more than five decades, but, no acceptable proof was adduced by them to substantiate their contention and even according to the appellants, under Ex.A.1, the suit property was purchased in the joint names of the respondent and the first appellant and having regard to Ex.A.1, the case of the appellants cannot be accepted and the appellants having claimed title, along with respondent, cannot also plead adverse possession and the evidence given by the witnesses P.Ws.2 and 3, also corroborates the evidence of P.W.1, the respondent, about his possession and considering all these aspects, the Lower Appellate Court rightly allowed the Appeal and set aside the judgment and decree of the Trial Court and hence, there is no merit in the Second Appeal and no substantial question of law arises for consideration. 13. Heard both sides. 14. The respondent/plaintiff filed the suit for recovery of possession, declaration of title and for injunction. Therefore, we will have to see whether the respondent proved his title to the suit property. 15. The specific case of the respondent is that originally, one Mr.Ragavan, was the owner of the suit property, having an extent of 21 cents of land, equivalent to 783 sq. metres and he had three sons, by name, Mr.Periakanni, Mr.Chinnakanni and Mr.Kanni. Therefore, we will have to see whether the respondent proved his title to the suit property. 15. The specific case of the respondent is that originally, one Mr.Ragavan, was the owner of the suit property, having an extent of 21 cents of land, equivalent to 783 sq. metres and he had three sons, by name, Mr.Periakanni, Mr.Chinnakanni and Mr.Kanni. There was a partition among the sons of the said Mr.Ragavan, and the suit property was allotted to the share of Mr.Periakanni and from the legal heir of the said Mr.Periakanni, the respondent purchased the suit property. Hence, he got title to the suit property. 16. As rightly pointed out by the learned counsel for the appellants that except Ex.A.1, the sale deed, no document was produced by the respondent to prove the partition among the sons of the said Mr.Ragavan, and the manner, in which, the property was allotted to each sharer. It is seen from the discussion of the property in Ex.A.1 that the total extent of 21 cents was divided into three plots, viz., 7 cents each, and the western extreme must have been allotted to the share of Mr.Periakanni, middle 7 cents, must have been allotted to the share of Mr.Chinnakanni and the eastern extreme, must have been allotted to the share of Mr.Kanni. Though, no evidence was adduced to that effect by the respondent, having regard to the recitals in Ex.A.1, the above mode of division can be presumed. In Ex.A.1, the subject matter of sale was described as situate on the western side of the property, belonging to Mr.Chinnakanni. 17. As stated supra, Mr.Chinnakanni, has got two sons, viz., the respondent and the first appellant and while describing the eastern boundary, it is stated in Ex.A.1 that the eastern property is the property of Mr.Chinnakanni, and western extreme of the property, sold to the respondent, belongs to one Mr.Arumugam, the son of Mr.Periakanni. Therefore, as per Ex.A.1, the eastern boundary belongs to the respondent and the first appellant, and the western boundary belongs to one Pa.Arumugam and the property sold is in S.Nos.291/11 283/7 and 290/2. Therefore, as per Ex.A.1, the eastern boundary belongs to the respondent and the first appellant, and the western boundary belongs to one Pa.Arumugam and the property sold is in S.Nos.291/11 283/7 and 290/2. In the plaint, the suit schedule of property is described as follows:-bounded on the North, by a house site of one Mr.Vadivelu, South by path and house site of Munusamy, East by property of late Chinnakanni, in New S.No.400/6, West by street and the total extent of property is 1872 sq.ft., i.e, around 4 1/4 cents, having East-West measurement of 52 feet and North-South measurement of 36 feet. A comparison of boundaries in Ex.A.1 and the boundaries given in the plaint would prove that the property purchased under Ex.A.1 is not the property as described in the plaint schedule. 18. As stated supra, the respondent did not prove the manner in which, 21 cents of property was divided among the sons of Mr.Raghavan. No evidence was let in by the respondent, whether Mr.Periakanni was allotted eastern portion, middle portion, or western portion. Assuming that there was a division among three brothers, as per the recitals in Ex.A.1, the property allotted to the share of Mr.Periakanni was on the west of the property allotted to Mr.Chinnakanni and having regard to the western boundary of the property sold in Ex.A.1, Mr.Kanni, the other son of Mr.Raghavan, must have been allotted the property on the eastern side to Mr.Chinnakkanni, and therefore, out of 21 cents, 7 cents, on the western side was allotted to the share of Mr.Periakanni, and 7 cents in the middle was allotted to the share of Mr.Chinnakanni and 7 cents on the eastern side was allotted to the share of Mr.Kanni. This division, stated above, can be inferred from the recitals of boundaries in Ex.A.1. But, while describing the suit property, the eastern boundary is mentioned as the property belonging to Mr.Chinnakanni, i.e., in consonance with the boundary recitals in Ex.A.1, the western boundary of the suit property belonged to Pa.Arumugam. But, in the plaint schedule, the western boundary of the property is described as street. No explanation has been given by the respondent how the western boundary has been changed and as per Ex.A.1, western boundary is not the street, but the land belonged to Pa.Arumugam, and in the plaint, while describing the suit property, western boundary is mentioned as street. No explanation has been given by the respondent how the western boundary has been changed and as per Ex.A.1, western boundary is not the street, but the land belonged to Pa.Arumugam, and in the plaint, while describing the suit property, western boundary is mentioned as street. Further, in Ex.A.1, the respondent purported to have purchased 7 cents of property and no evidence was let in regarding the remaining extent of property purchased under Ex.A.1, whether the remaining extent is in possession of the respondent or in possession and enjoyment of the appellants. Out of 7 cents conveyed in Ex.A.1, the suit property is in respect of 4 ½ cents and no details have been given, regarding the remaining extent. Further, under Ex.A.2, a joint patta was issued in the names of the respondent and the first appellant and admittedly the property is a Gramanatham and patta will be issued only in favour of persons, who are in possession of the property, and therefore, as per Ex.A.2, the first appellant and the respondent, must be deemed to have been in joint possession of the property, and in that case, the respondent cannot claim absolute title to the suit property, even assuming that he got the property under the sale deed Ex.A.1. 19. Therefore, having regard to the variance in the boundary recitals between Ex.A.1 and the description of the property in the plaint schedule and having regard to Ex.A.2, the joint patta, it cannot be stated that the respondent/plaintiff has proved absolute title to the suit property. This was not properly appreciated by the Lower Appellate Court and the Lower Appellate Court presumed that the respondent is the owner of the property, on the basis of the admission made by the appellants in Ex.A.11, wherein, they have stated that there is no dispute regarding the identity of the property. Further, the Lower Appellate Court erred in holding that Ex.A.1, is 30 years old and therefore, execution can be presumed by virtue of Section 90 of the Evidence Act and the appellants also claimed joint title with the respondent and contended that under Ex.A.1, the property was purchased in the joint names of the respondent and the first appellant and having regard to Ex.A.1, it is in the name of the respondent and therefore, the appellants have admitted respondent's title to the property. 20. 20. As stated supra, that admission must be taken as a whole and it is the case of the appellants that they are in possession of the property for more than five decades and even under Ex.A.2 the appellants are in joint possession of the property,with the respondent and no proof was adduced regarding the partition that took place, among the three sons of Mr.Ragavan. 21. Therefore, the Lower Appellate Court ought to have held when the respondent filed the suit for declaration, it is the duty of the respondent to prove his title over the property, ought not to have granted decree in his favour, on the ground that, the appellants fails to prove their title and possession to the suit property and therefore, the respondent is entitled to the decree. Hence, findings of the Lower Appellate Court is erroneous and for the reasons stated above, the respondent failed to prove his title and therefore, he is not entitled to the relief of declaration and hence, he is not entitled to other reliefs, as sought by him . Therefore, the Substantial Questions of Law are answered in favour of the appellants. 22. In the result, judgment and decree of the Lower Appellate Court is set aside and that of the Trial Court is restored and the Second Appeal is allowed. No costs. Consequently, connected M.P. is closed.