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2012 DIGILAW 200 (MAD)

Ramasamy v. Renu Ammal

2012-01-10

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is preferred against the judgment and decree passed by the First Appellate Court in A.S.No.43 of 2002 dated 08.08.2003 in modifying the judgment and decree passed by the trial court in decreeing the suit absolutely in O.S.No.1119/1996 dated 15.11.2000. 2. The appellant is the plaintiff and the respondents are the defendants 2 and 3 who are also the legal heirs of the deceased first defendant. 3. The brief facts of the plaintiff's case before the trial Court would be thus: The plaintiff is the son of Govinda Gounder. Govinda Gounder and the plaintiff's another brother Vadamalai were doing business at Bombay. The plaintiff looked after the family affairs in the village. The suit properties are situated in Radhapuram Village, Chengam Taluk, originally belonged to Lakshmi Ammal and others and from them, the plaintiff's father Govinda Gounder purchased the same under a registered sale deed dated 16.3.1978 for a sum of Rs.3500/-. After the purchase, the plaintiff's father Govinda Gounder, the plaintiff and his brother were in an uninterrupted possession and enjoyment of the suit properties by paying kists to the Government. Thus, the suit property is the joint family property of the plaintiff and his brother and his father. They also perfected title by adverse possession. The defendants are the adjacent land owners of the suit property. They have no right, title interest over the suit property. Due to the misunderstanding between the plaintiff and defendants, the defendants are laying false claim over the suit property and are threatening to interfere with the plaintiff's possession and enjoyment of the suit property. The plaintiff has filed the suit for himself and on behalf of his brother and father for declaration and permanent injunction restraining the defendants, their men, agents from interfering with the possession and enjoyment of the suit property. 4. The contentions of the defendants raised in the written statement filed by them would be thus: The suit is not maintainable either in law or on facts. The plaintiff is not a power of attorney of his father and his brother. Therefore, the suit filed by the plaintiff is not maintainable. The suit property did not belong to Lakshmiammal and others originally. They have no right or title or interest over the suit property. Neither the plaintiff's father nor the plaintiff and his brother have purchased the property. Therefore, the suit filed by the plaintiff is not maintainable. The suit property did not belong to Lakshmiammal and others originally. They have no right or title or interest over the suit property. Neither the plaintiff's father nor the plaintiff and his brother have purchased the property. The plaintiff did not pay the kists for the suit property. The plaintiff, his father and his brother have not perfected title to the suit property by adverse possession. The suit property comprised of an extent of ac. 9.48 cents originally belonged to one Sabapathi Reddiar. The first defendant's father Kuppusamni Naidu had purchased the suit property and other properties for a valuable consideration by means of a registered sale deed dated 29.1.1957. After the purchase, Kuppusami Naidu was in possession and enjoyment of that property. Subsequent to the death of Kuppusami Naidu in the year 1967, his legal heirs, the defendants are in continuous possession and enjoyment of the suit property. Out of the total extent of ac. 9.48 cents, the defendants having sold 5.00 acres to one Chinnathayeeammal, the remaining extent of 4.48 cents is in the possession and enjoyment of the defendants and are paying kists. Hence, the suit has to be dismissed with costs. 5. The trial court has commenced the trial after framing necessary issues and after the appraisal of the evidence recorded in the suit, it had decreed the suit for declaration and injunction of the suit properties as prayed for. Aggrieved defendants 2 and 3 preferred an appeal before the First Appellate Court in A.S.No.43 of 2002 and the said appeal was allowed in part and thereby, the judgment and decree passed by the trial Court was modified to an extent of 1 acre 24 cents, out of the entire suit property. Aggrieved by the modification of judgment and decree of the First Appellate Court, the plaintiff has preferred the Second Appeal. 6. On admission, this Court has formulated the following substantial questions of law to be decided in the appeal which are as follows: "i) Whether the lower appellate Court is right in holding the non-production of the sale deed dated 16.3.1973 is fatal to the proceedings, when the same had been produced and marked as Ex.A1 in O.S.722 of 1996? 6. On admission, this Court has formulated the following substantial questions of law to be decided in the appeal which are as follows: "i) Whether the lower appellate Court is right in holding the non-production of the sale deed dated 16.3.1973 is fatal to the proceedings, when the same had been produced and marked as Ex.A1 in O.S.722 of 1996? ii) Whether the lower appellate court ought not to have seen the defendants are bound under the principles of estoppel from denying the validity of Ex.A16?" 7. Heard Mr.V.Lakshminarayanan, learned counsel for the appellant. No appearance of the respondents, despite their name have been printed in the cause list. 8. Learned counsel for the appellant would submit in his argument that the Lower Appellate Court has interfered with the well balanced judgment of the trial Court without any valid reason and had granted only a decree for 1 acre 24 cents only. He would further submit in his argument that the plaintiff was found to be entitled to the entire suit property and even during the cross examination of P.W.1 it was admitted through a suggestion to P.W.1 that the plaintiff was entitled to an extent of 198 cents in the said survey number, but however, the First Appellate Court had erroneously come to the conclusion that the plaintiff was entitled only to 1 acre 24 cents. He would further submit that the plaintiff's vendor Lakshmiammal group got the property from the defendants, joint owners who were being joint owners, had partitioned their properties through Ex.A16 and therefore, the defendants are estopped from questioning the title derived by the plaintiff from the vendor of the plaintiff who got title from the co-sharers of the defendants. He would further submit that the partition deed produced in Ex.A16 cannot be questioned by the defendants and the allotment of properties in the said partition deed would also bind the defendants. He would also submit that the lower Appellate Court did not also find that the plaintiff was entitled to 1/3rd right out of 3/4th share in the suit well, kamavadi and other land kept for the purpose in and around the well. He would further submit that the First Appellate Court did not consider the admission made by the defendants in the evidence regarding the title to an extent of ac. He would further submit that the First Appellate Court did not consider the admission made by the defendants in the evidence regarding the title to an extent of ac. 1.98 cents in the suit survey number and the land in and around the suit well would also come to satisfy the total of 2.15 cents and therefore, it should come to the conclusion that the suit ought to have been decreed in its entirety for 2 acres 15 cents. He would further submit that the non-production of the sale deed obtained from the joint owners of defendants by Lakshmiammal would not be fatal to the case since the said document was produced in O.S.No.722 of 1996, a connected suit and the said document was perused by the trial court and it was noted that the said document was giving title to the vendors of the plaintiff in order to pass title to the plaintiff. The said verification done by the trial court ought to have been considered by the First Appellate Court as the trial court had taken judicial notice of the said document which was produced as Ex.A1 in O.S.No.722 of 1996. Therefore, he would submit that there was no flaw in the title of the plaintiff through the non-production of Ex.A1 in O.S.No.722 of 1996 in this suit. He would further submit that the defendants who are bound by principles of estoppel from denying the validity of Ex.A16 cannot also question the title passed by the joint owners who derived the right from Ex.A16 to the vendors of the plaintiff and in turn to the plaintiff. Therefore, he would request the Court that the First Appellate Court had committed an error in law in not granting the declaratory relief and the injunction relief as granted by the trial court, but had unnecessarily restricted it to 1 acre 24 cents which is perverse even though the suggestion was made by the defendants that the plaintiffs are entitled to 1acre 97 cents and it was found from Ex.A1 filed in O.S.No.722 of 1996 for an extent of 1 acre 98 cents He would therefore request the court to set aside the judgment and decree passed by the First Appellate Court and allow the appeal and consequently, to restore the judgment and decree passed by the trial Court. 9. 9. I have perused the documents and given anxious consideration to the arguments advanced by the learned counsel for the appellant. 10. The plaintiff filed the suit (appellant herein) for declaration of his right over the suit property in Thandrampet Sub District, Chengam Taluk, in S.No.87 in and out of 9.48 acres an extent of 2.15 acres within the described boundaries along with his 1/3rd right in the 3/4th right in the well situated in this survey number with kavalai and kavalai badi etc. 11. The trial Court had considered the evidence adduced on either side and had decreed the suit as prayed for by the plaintiff wherein an appeal was preferred by the defendants before the First Appellate Court and in the said appeal, the lower appellate Court had come to the conclusion that the plaintiff is entitled to only an extent of 1 acre 24 cents in the suit survey number and the decree passed by the trial Court was modified to that extent only. Therefore, I could see that the lower Appellate Court had come to the conclusion of relying upon the sale deed through which the plaintiff had purchased the suit property and decided that the plaintiff was entitled to 1 acre 24 cents instead of 2 acre 15 cents along with 1/3rd right in 3/4th right in the well with kavalai and kavalai badi etc. The reasons adduced by the First Appellate Court was that the previous sale deed said to have been purchased by the plaintiff's vendor dated 16.3.1973 from the prior vendor has not been produced nor proved by the plaintiff but however, it had decreed the suit only to an extent of 1 acre 24 cents, by relying on the sale deed Ex.A1. According to the submission of the leaned counsel for the appellant/plaintiff, the said document namely the sale deed dated 16.3.1973 was marked as Ex.A1 in O.S.No.722 of 1996 which is a connected suit and the same was sent for and verified by the trial Court and on that basis, it had come to the conclusion that the title to the suit property under Ex.A1 was available to the vendor of the plaintiff and therefore, the First Appellate Court ought not to have modified the judgment and decree of the trial Court. Such verification of Ex.A1 marked in O.S.No.722 of 1996 is permitted in law by the doctrine of taking judicial notice. However, the trial Court could have marked the said document in this suit itself as an exhibit and after substituting with the certified copy of the same, the said Ex.A1 of that suit could have been returned to the said suit O.S.No.722 of 1996. It was not done so. The mistake committed by the court shall not prejudice the litigant. In view of the said doctrine, I could see that the First Appellate Court could have also directed the plaintiff to produce the certified copy of Ex.A1 in O.S.No.722 of 1996 before the First Appellate Court for being received as an additional evidence. It was also not done. Further more, the 1st appellate Court could also end for the said document Ex.A1 of that suit for taking judicial notice before deciding to set aside the finding of the trial Court. In the said circumstances, the non-production of the document namely sale deed dated 16.3.1973 shall not be a bar for coming to any conclusion that the plaintiff is not entitled to the suit property as described in Ex.A1. 12. As regards the right, title derived by the plaintiff from the vendor as well as the vendor's right derived from the vendor's vendor, it is an admitted case that the vendor's vendor of the plaintiff as well as the defendants predecessor in title were joint owners of the property and all the properties belonging to the plaintiff as well as the defendants were divided among the co-shares in a partition deed dated 31.7.1964 produced as Ex.A16. When the defendants predecessor in title and the vendor's vendor of the plaintiff are parties to the partition deed produced in Ex.A16, certainly, the defendants are estopped from questioning the said partition deed. The contents made in the said partition deed are certainly binding upon the defendants who also derived title from his predecessor in title flowing form the partition deed Ex.A16. In the said circumstances, both the questions of law are answered in favour of the plaintiff/appellant only. 13. The contents made in the said partition deed are certainly binding upon the defendants who also derived title from his predecessor in title flowing form the partition deed Ex.A16. In the said circumstances, both the questions of law are answered in favour of the plaintiff/appellant only. 13. However, I could see that the lower Appellate Court had miserably failed to apply its mind to see what is the evidence produced by the plaintiff and what was the stand taken by the defendants in respect of the extent of the suit property in which the plaintiff was entitled to. On a careful perusal of the evidence of P.W.1, there was a suggestion made by the defendants during the cross examination of P.W.1 to the effect that the plaintiff was entitled to an extent of 1 acre 97 cents in S.No.87 through the sale deed obtained from Lakshmiammal and others and the said Lakshmiammal and others had only purchased 1 acre 97 cents from Gopal Naicker and others. By virtue of such suggestion, it is the stand of the defendants that the plaintiff is at best, entitled to an extent of 1 acre 97 cents or 1 acre 98 cents, as contended in the sale deed dated 16.3.1973 exhibited as Ex.A1 in O.S.No.722 of 1996. On the basis of such admission given, the First Appellate court had come to the conclusion that the plaintiff was only entitled to 1 acre 24 cents. Having found that there was an admission by the defendants that the plaintiff was entitled to 1 acre 97 cents, the first Appellate Court ought to have decreed the suit for a lesser extent namely 1 acre 97 cents. Further, the trial court had referred the extent of property mentioned in the sale deed dated 16.3.1973 as 1 acre 98 cents. The same ought to have been verified by the First Appellate Court at the time of granting reliefs. 14. The arguments advanced by the learned counsel for the appellant/plaintiff that 2 acres 15 cents have been mentioned in the sale deed Ex.A1 including the well and the surrounding lands of the well and therefore, it has to be construed that 2 acres 15 cents as mentioned in Ex.A1 has to be accepted. 14. The arguments advanced by the learned counsel for the appellant/plaintiff that 2 acres 15 cents have been mentioned in the sale deed Ex.A1 including the well and the surrounding lands of the well and therefore, it has to be construed that 2 acres 15 cents as mentioned in Ex.A1 has to be accepted. On a careful perusal of the description of the properties in Ex.A1, I could see that the extent of 2 acres 15 cents have been mentioned and apart from that, 1/3rd right out of ¾th right in the suit well and also the land surrounding well comprising the 'kamalai' and 'kamalaivadi' right also have been mentioned. In the said circumstances, the separate mentioning of the land that 'kamalai' and 'kamalaivadi' would show that 2 acres 15 cents is not comprising the land surrounding the well. Therefore, the actual extent of land is transferred under Ex.A1 would be only an extent of 1 acre 98 cents. The trial Court had committed a mistake in accepting Ex.A1 in toto and the First Appellate Court had also committed an error in mentioning the actual land conveyed as 1 acre 24 cents instead of 1 acre 98 cents. Therefore, I am of the considered view that the finding of both the questions of law in favour of the appellant would entitle the Court to modify the decree passed by the First Appellate Court for granting the decree for an extent of 1 acre 98 cents in the suit survey number and also 1/3rd right out of 3/4th right in the suit well and in the land surrounding the suit well comprising Kamalai and kamalai vadi right, instead of 1 acre 24 cents in the suit survey number. 15. For the foregoing discussion, I am of the considered view that the appeal has to be allowed in part and accordingly, the judgment and decree passed by the First Appellate Court is modified to the extent of 1 acre 98 cents in the suit survey number and also 1/3rd right out of 3/4th right in the suit well and in the land surrounding the suit well, 'Kamalai' and 'Kamalai vadi', and other rights attached with 1 acre 98 cents in the suit survey number. The judgment and decree of the trial court as well as the First Appellate Court are modified accordingly. There shall be no order as to costs throughout.