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2012 DIGILAW 1603 (MAD)

Senguttuvan @ Mannagatti v. Vasantha Ammal

2012-03-29

T.RAJA

body2012
Judgment :- 1. The unsuccessful defendants against whom the suit filed by the plaintiff before the First Additional District Munsif Court, Tirukoilur, in O.S. No.170 of 1998, for declaration and permanent injunction with reference to 'A' schedule property and for recovery of possession of 'B' schedule property after demolition of the compound wall put up by the defendants, was decreed by the trial court vide judgment and decree dated, 04.02.2002, whereupon, they filed A.S. No.84 of 2003 on the file of the I Additional Sub Court, Villupuram, and the said appeal was dismissed by Judgment dated 31.03.2005, hence, the present Second Appeal. 2. Brief facts, which led to the filing of this second appeal, are as follows:- The plaintiff, who became the absolute owner of the plaint 'A' schedule property in Old S. No.19/1 - New S. No.120/3 by virtue of sale deed under Ex.A4, dated 05.06.1984, finding that the defendants attempted to interfere with her peaceful possession and enjoyment of the suit property on 21.05.1998, filed the suit for declaration and permanent injunction and other reliefs as stated above. Originally, 'A' schedule property belonged to five sons of Ponnusamy viz., Angu Pillai, Kesava Pillai, Ramasamy Pillai, Krishna Pillai and Mayavapillai. Ramasamy, one of the sons of Ponnusamy, conveyed his 1/5th share in the property to Angupillai out of five shares to an extent of 30' east-west and after the death of Angupillai, the 2/5th share in the suit 'A' schedule property was allotted to his son Venu in a partition between himself and brother Elumalai. Thereafter, the said Venu got 6' x 6' ie., 12' and he had conveyed the same to Annammal under Ex.A1 registered sale deed, dated 24.10.1968. Subsequently, the 1/5th share of Krishnapillai was conveyed to Kesavapillai, who, on his behalf and on behalf of his minor sons, had conveyed the 2/5th share in the suit 'A' schedule property viz., his 1/5 share and the 1/5 share obtained from Krishnapillai, to plaintiff's mother Annammal under Ex.A2 sale deed dated 16.02.1963. The husband of Annammal was already having 1/5th share, thus, Annammal had become the absolute owner of the 'A' schedule property measuring east-west 30'. The said Annammal and Mayavapillai were enjoying the 'A' schedule property and it was conveyed to one Radhakrishnan under Ex.A3 registered sale deed dated 18.08.1971. The husband of Annammal was already having 1/5th share, thus, Annammal had become the absolute owner of the 'A' schedule property measuring east-west 30'. The said Annammal and Mayavapillai were enjoying the 'A' schedule property and it was conveyed to one Radhakrishnan under Ex.A3 registered sale deed dated 18.08.1971. After enjoying the property, the said Radhakrishnan conveyed the same to the plaintiff under Ex.A4 registered sale deed, dated 05.06.1984. Therefore, it was claimed by the plaintiff/respondent herein that the plaintiff has become the absolute owner of 'A' schedule property. Exs.A5 to A10 are tax receipts marked to show that tax payment was made by the plaintiff's father. The defendants' property lies on the north as well as east of the 'A' schedule property. It was contended that the defendants, who do not have any right, title or interest in the 'A' schedule property, however, attempted to interfere with the plaintiff's possession and enjoyment of the property on 21.05.1988; hence, the plaintiff filed the suit for declaration and injunction in respect of 'A' schedule property. On 20.12.2000, as the defendants trespassed into the 'B' schedule property and raised a compound wall, by showing the encroached portion by the defendant as 'B' schedule property, subsequently, the plaintiff filed an amendment application, seeking for demolition of the compound wall put up by the defendants, by means of granting a mandatory injunction in favour of the plaintiff. Per contra, by filing a written statement, the defendants contended that the plaintiff is entitled to have only 40' south-north and 24' east-west and that the claim of 30' east-west and 70' north-south is not sustainable. They also stated that there is no dispute with reference to the property comprised in R.S.126/3 in Old R.S.19/1 lying in between the property of Mayavan on the north and the patta property comprised in R.S. No.20/12A on the south. It is stated that the plaintiff has no right, interest of title over the patta property in R.S.20/12A. The plaintiff is entitled to have only 40' on the south. The suit property bearing Old S. No.19/1 (new R.S.120/3) is Grama Natham whereas the property on the south comprised in R.S.20/12A is the patta property owned by the defendant and the same originally belonged to Manickam, who had executed the Settlement deed, dated 29.10.37, in favour of his wife Pachaiammal. The suit property bearing Old S. No.19/1 (new R.S.120/3) is Grama Natham whereas the property on the south comprised in R.S.20/12A is the patta property owned by the defendant and the same originally belonged to Manickam, who had executed the Settlement deed, dated 29.10.37, in favour of his wife Pachaiammal. Later on, the said property was conveyed to the defendants by way of Ex.B2, registered sale deed dated 17.05.1965, for which patta No.148 was also issued by the revenue authorities in the name of the defendants. Since then, the defendants are in possession and enjoyment of the same. It was also pleaded that, 40 years ago, the defendants/appellants herein had constructed a house measuring 24' x 46' which was sub divided in R.S.120/4 whereas the suit property was sub divided in R.S.120/3 under UDR scheme. The patta for the suit property stood in the name of the plaintiff for 24' x 40', therefore, the plaintiff is entitled to only 24' east-west and 40' north-south. In these circumstances, an Advocate Commissioner was appointed, who, after measuring the property, submitted his report and plan under Exs.C1 and C2. Immediately after submission of the report and plan by the Advocate Commissioner, though no one filed any objection, the plaintiff filed an amendment application, restricting her claim for 30' east-west and 56.7' north-south. As the same was not bjected by the defendants/appellants, the matter was taken up for trial. 3. During the course of trial, the defendants admitted that the 'B' schedule property is a part of the 'A' schedule property. It was further admitted by the defendants that whatever the property that lies in between the property of Mayavapillai on the north and the patta property of the defendants on the south belongs to the plaintiff. 3. During the course of trial, the defendants admitted that the 'B' schedule property is a part of the 'A' schedule property. It was further admitted by the defendants that whatever the property that lies in between the property of Mayavapillai on the north and the patta property of the defendants on the south belongs to the plaintiff. On the basis of the above admission and the documentary evidence, in particular Exs.A1 to A4, by taking note of the fact that 'A' schedule property originally belonged to the 5 brothers/sons of Ponnusamy and that the father of the plaintiff Mayavan had purchased the other 4 shares in the name of his wife Annammal and enjoyed the same along with his 1/5th share by paying tax and after sometime, they had conveyed the same to one Radhakrishnan, who, in turn, conveyed the same to the plaintiff and as such, the plaintiff became the absolute owner of the 'A' schedule property, the trial court decreed the suit for declaration and permanent injunction holding that the plaintiff is entitled to 'A' schedule property to an extent of 27.6' east-west and 56.7' on the north south and that in respect of 'B' schedule property, she is entitled for recovery of possession after demolishing the compound wall. On appeal, the first appellate court, affirmed the verdict of the trial court on the basis of the admission made by the defendants that they had acquired the property comprised in S.No.120/4 on the east of the plaintiff's 'A' schedule property, 24' on the east-west and 46' on the North-south by virtue of Exs.B1 and B2 and the same lies in between, on the north of Mayavan's property and the patta land comprised in S. No.21/1 on the south of the defendants and also, whatever the property that lies in between the Keezhandaiveedhi on the west and on the east the defendants property comprised in S.No.120/4 on the east belongs to the plaintiff. Aggrieved by the concurrent findings of the courts below, the present appeal has been brought and this Court has framed the following substantial questions of law:- a) Whether on the fact and in the circumstances of the case the Courts below were right in decreeing the suit when the respondent/plaintiff failed to produce the materials and documentary evidence and oral evidence to establish her claim? b) Whether on the facts and in the circumstances of the case the Courts below were right in decreeing the suit based on the Advocate Commissioner's report and plan in Ext.C1 and C2? 4. While addressing on the substantial questions of law, learned senior counsel appearing for the appellants would submit that at the time of filing the suit, the plaintiff was not even aware of the exact extent of the suit land and that only after submission of the report and plan by the Advocate Commissioner, the plaintiff filed the application for amendment of the prayer, and that being the case, the learned trial court without knowing that the prayer made in the amendment application is going to change the entire nature of the suit property, erroneously allowed the amendment. Only on the basis of the Advocate Commissioner's report, the plaintiff/respondent came to know about the extent of the land covered under 'A' schedule property. On the basis of the subsequent amendment, the trial court committed a serious mistake in decreeing the suit. By referring to a Division Bench Judgment of this Court reported in 2005 (5) CTC 17 (Pannerselvan, P. vs. A.Baylis), it is submitted that the plaintiff must succeed or fail on the strength of his own case and not on the basis of the weakness of defendant's case or based on the report filed by the Advocate Commissioner. A decision reported in 2006 (5) CTC 494 (Chinnathambi and others vs. Anjalai), is relied upon to state that the plaintiff, in a suit for permanent injunction, while seeking for appointment of commissioner, cannot take the assistance of the report of the Advocate Commissioner for collecting evidence to build up his/her case because the possession of the property has to be adjudicated only by oral and documentary evidence. 5. 5. In reply to the said submission, learned counsel for the respondent, by referring to the deposition of the defendants to the effect that whatever the property that lies in between the property of Mayavapillai on the north and patta property of the defendants on south belongs to the plaintiff/respondent herein, would add that the extent of the land covered in 'A' schedule property on the admission made by the defendants themselves goes to show that the plaintiff is the owner of the 'A' schedule property which measures east-west 30' and north-south 56.7' comprised in Old S. No.19/1 -New Survey No.120/3. According to him, when there is no dispute about the boundaries of the property, the plaintiff/respondent is entitled to have the 'A' Schedule property without any hindrance from the respondents and also the 'B' schedule property which is nothing but a part and parcel of the 'A' schedule. 6. This submission of the learned counsel appearing for the respondent carries merit for a couple of reasons. Firstly, the plaintiff had acquired the 'A' schedule property by virtue of sale deed under Ex.A.4 dated 05.06.1984. On the basis of the sale deed, title to the 'A' schedule property to an extent of 30' east-est and 56.7' south-north comprised in New S. No.120/3 was claimed. The defendant also claimed that he acquired the patta land comprised in S. No.20/12A on the south of 'A' schedule property based on two documents Exs.B1 and B2, dated 29.10.1937 and 17.05.1965 respectively. There is no dispute as per Exs.B1 and B2 with reference to the property lying in between the property of Mayavan Pillai and the patta property comprised in S. No.20/12A. Therefore, if the defendants' lands as shown under Exs.B1 and B2 do not fall into 'A' schedule property, the plaintiff is entitled to maintain the suit as found by both the courts below. It is more significant to find out as to what is the extent of the land covered by Exs.B1 and B2. Therefore, if the defendants' lands as shown under Exs.B1 and B2 do not fall into 'A' schedule property, the plaintiff is entitled to maintain the suit as found by both the courts below. It is more significant to find out as to what is the extent of the land covered by Exs.B1 and B2. As contended by the learned Senior Counsel for the appellants, the defendants had acquired their properties comprised in S. No.120/4 on the east of the plaintiff's 'A' schedule property, 24' on the east-west and 46' on the north-south by virtue of Exs.B1 and B2 and it lies in between the north of Mayavanpillai property and the patta land comprised in S. No.21/1 on the south of the defendants' land and whatever the property that lies in between the Keezahandaiveedhi on the west and on the east the defendants' property comprised in S. No.120/4 on the east belonging to the plaintiff/respondent herein. Under Exs.B1 and B2, the property is shown as comprised in S. No.19/1 measuring east-west 23' and 54' north-south, but the defendant, in his written statement, stated that he has property on the east of 'A' schedule property measuring east-west 24' x 46' north-south. Again, in his evidence, by marking Exs.B1 and B2, he deposed that he acquired the property on the east of 'A' schedule property in S. No.19/1 measuring east-west 23 feet and north-south 56 feet. This shows that the defendants did not come up with a consistent case and that as such, the contention in the written statement is rendered unsustainable. Therefore, the defendants/appellants cannot say that the plaintiff/respondent herein was unaware of her extent of land at the time of filing the suit, but only after filing the suit, by inviting appointment of Advocate Commissioner, she attempted to strengthen her case on the basis of the report of the Advocate Commissioner. Accordingly, by answering the first substantial question of law, the judgment and decree passed by both the courts below on the basis of the admission made by the defendant that whatever the property that lies in between the property of Mayavapillai on the north and the patta property of the defendants on the south belongs to the plaintiff needs to be affirmed. Therefore, this Court does not find any error in the concurrent findings of the courts below. Therefore, this Court does not find any error in the concurrent findings of the courts below. In other words, when the plaintiff filed her suit for declaration and permanent injunction with reference to 'A' schedule property which includes 'B' schedule property along with a prayer for mandatory injunction for removal of compound wall put up by the defendants, based on Exs.A3 and A4, it was her claim that she has got 30' on east-west and 56.7' on north-south covered in Old S. No.19/1 and new S. No.120/3. The case of the defendants, as admitted before the trial court shows that the plaintiff is entitled to have south-north 40 feet and east-west 24 feet only and that the claim of the plaintiff for 30 feet east-west and 70 feet north-south is not sustainable. The admission made by the defendants, being a significant factor, militates against their own case. The admission of the defendants that the property lying in between the property of Mayavan on the north and the patta property of the defendants on the south belongs to the plaintiff, ultimately led the courts below to decree the suit based on such admission and the documentary evidence in particular Exs.A3 and A4. It must be also be pointed out here that, after cross-examining PW-1, learned counsel who appeared before the trial court, argued that there was no share allotted to Mayavan who was the father of the plaintiff and that shares had been allotted to four brothers only, except to Mayavan in the suit 'A' schedule property. This contention was repelled by the trial court holding that the suit property originally belonged to 5 brothers/sons of Ponnusamy and each one of them got 1/5th share in the suit 'A' schedule property. Thereafter, all of them conveyed their respective shares to Annammal under Exs.A2 and A2, thereby, Annammal and her husband Mayavan became owners of 'A' schedule property. After sometime, they had conveyed the same to Radhakrishnan, who in turn, conveyed the property to the plaintiff and as such, she became the absolute owner of the 'A' schedule property. In this background, if we look at the admission of the defendants, it is sufficient to grant the decree in favour of the plaintiff. After sometime, they had conveyed the same to Radhakrishnan, who in turn, conveyed the property to the plaintiff and as such, she became the absolute owner of the 'A' schedule property. In this background, if we look at the admission of the defendants, it is sufficient to grant the decree in favour of the plaintiff. As already pointed out, the admission of the defendants that whatever the property that lies in between the property of Mayavapillai on the north and the patta property of the defendants on the south belongs to the plaintiff, goes to show that the plaintiff is the absolute owner of the suit property as covered under Exs.A3 and A4, based on which, and coupled with the aforesaid admission, when the trial court rightly decreed the suit and the first appellate court also, proceeding in a proper perspective, affirmed the verdict of the trial court, this Court finds no reason or ground to disturb the well-founded judgments of the courts below. In view of the above, the other substantial question of law is also found against the appellant, hence, I am of the considered opinion that both the trial court as well as the first appellate court have rightly appreciated the evidence and arrived at reasoned findings. The first appellate court not only re-appreciated the evidence but also re-assessed the entire case of both sides and recorded a flawless finding supported good reasonings on all issues. Therefore, there is no scope for interference at all. 7. In the result, Second Appeal fails and it is dismissed. No costs.