Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 2111 (MAD)

C. Annamalai v. R. Balu

2012-04-27

T.RAJA

body2012
JUDGMENT 1. The present Second Appeal was brought by the plaintiff aggrieved by the impugned judgment and decree passed by the learned first appellate Court reversing the judgment and decree passed by the trial court. In this Second Appeal, the plaintiff is the appellant and the defendant is the respondent. 2. Brief facts leading to the filing of the present Second Appeal are given hereunder: (i) It was the case of the plaintiff/appellant before the trial Court that the suit property along with the adjacent property was purchased by the mother of the plaintiff, Arayammal by a registered sale deed from the previous owners on 23.10.1956. After the death of the mother and father of the plaintiff, both the plaintiff and his brother Ramakrishnan partitioned the properties of their parents by means of registered partition deed dated 18.8.1995 and by means of registered partition deed the suit property was allotted to the share of the plaintiff. From the date of partition, the plaintiff has been in possession and enjoyment of the suit property as owner thereof. However, as the plaintiff is an employee of the Insurance Company working in Dharmapuri, he has requested his close relative Thangatchi belonging to Yercaud to look after the suit property. On her request a small thatched shed has been put up by the plaintiff over a portion in the northern side of the suit property for the purpose of Thangachi's son to stay there during night hours to watch the suit property. Whileso, the defendant has no right over any portion of the suit property who is working as a Cook in Mont Fort School and residing elsewhere at Jarinakadu with his family. It was also further averred that the defendant's father was working under the father of the plaintiff in a bakery run by the plaintiff’s father and after sometime, he was stopped by the plaintiff's father because of some misconduct and out of ill-will the family members of the defendant who have nourished spiteful feeling against the parents of the plaintiff, attempted to interfere with the suit property. As the defendant has absolutely no manner of right or possession over any portion of the suit property, when similar attempt was made by the defendant and his brother Elango on earlier occasion, there was an enquiry conducted by the Tahsildar, Yercaud. As the defendant has absolutely no manner of right or possession over any portion of the suit property, when similar attempt was made by the defendant and his brother Elango on earlier occasion, there was an enquiry conducted by the Tahsildar, Yercaud. After the completion of the enquiry, the Tahsildar has also passed an order that the plaintiff alone is the owner of the suit property and is in possession thereof. Yet again on 8.3.1998 the defendant made an attempt to trespass into the suit property and the same was also prevented by the plaintiff and his men. However, the plaintiff apprehending that the defendant might trespass into the suit property, filed a suit for permanent injunction against the defendant and his men restraining them from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. However, after the earlier suit was dismissed, on appeal in A.S.No.91/2000, the case was remanded back to the trial court by judgment dated 28.6.2001. In the meanwhile, the defendant by encroaching upon the suit property, put up a thatched hut that is marked as 'B' schedule in the 'A' schedule property. Therefore, on remand, the plaintiff amended his prayer for declaration of title and permanent injunction. (ii) The defendant herein filed a detailed written statement opposing the claim of the plaintiff contending that the plaintiff has no right or title over the “B” schedule property and therefore, the plaintiff is not entitled to have any relief of declaration and possession. It was also pleaded in the written statement that the entire area of Jarina kadu in Yercaud originally belonged to Yercaud Township, but the said area was encroached by several persons more than 58 years ago. The encroachers were in possession and enjoyment of their respective encroached area. One of the encroachers was the defendant's father and the suit property is the area encroached by him at Zarina Kadu. After some time, the defendant’s father who is a Mason constructed a thatched house in the suit property. By staying in the suit property for a long time, the defendant’s father and other encroachers have perfected their title by adverse possession. After some time, the defendant’s father who is a Mason constructed a thatched house in the suit property. By staying in the suit property for a long time, the defendant’s father and other encroachers have perfected their title by adverse possession. In support of his continuous possession, the defendant’s father was also paying the house tax till his death in 1995 and after the death of his father, the defendant has been paying the house tax by keeping in possession and enjoyment of the suit property. Therefore, it is false to say that the plaintiff is in possession and enjoyment of any portion in the suit property. It was the case of the defendant that when the plaintiff’s mother had purchased only 2,500 sq.ft. of land, they cannot legally make a claim that they are owners of 4,500 sq.ft of land. (iii) Under these circumstances, the matter was taken up for trial. On the side of the plaintiff, 3 witnesses were examined, and 26 documents were marked. On the side of the defendant 3 witnesses were marked and 13 documents were marked. However, during the pendency of the suit when Commissioner was appointed, the Commissioner after completing his inspection submitted his report along with the plan that were marked as Exs.C1 and C2. On completion of the trial, the trial court-First Additional District Munsif, Salem decreed the suit as prayed for giving one month’s time for handing over the property. (iv) Aggrieved by the judgment and decree passed by the trial Court, the defendant/respondent herein filed the appeal. (v) The learned first appellate Court by raising a question that when the plaintiff has purchased the property by Ex.A1-sale deed, having an extent of 1910 and ¼ sq.ft with the building thereon to an extent of 534 and ¼ sq.ft. leaving 1,375 sq.ft vacant on the eastern side of the building, the plaintiff and his brother could not have partitioned 4,386 and ½ sq.ft of land, because the difference between Ex.A1-sale deed and Ex.A2-partition deed comes to 1,886 and ½ sq.ft. In the pleadings no explanation has been given by the plaintiff for this difference. The learned counsel for the plaintiff pointed out that in the Ex.A2-partition deed it has been stated that along with the property purchased through the sale deed, adjacent land also belongs to the plaintiff’s family. In the pleadings no explanation has been given by the plaintiff for this difference. The learned counsel for the plaintiff pointed out that in the Ex.A2-partition deed it has been stated that along with the property purchased through the sale deed, adjacent land also belongs to the plaintiff’s family. But the learned first appellate Court refusing to accept the argument, reversed the judgment and decree passed by the trial court. Aggrieved by the same, the present Second Appeal has been filed by the plaintiff/appellant. 3. This Court while entertaining the present Second Appeal formulated the following substantial questions of law. "(i) Whether the lower appellate Court fell in error in dismissing the suit by not properly construing the effect of Exs.A1 and A2 which clearly establish that the plaintiff has title to the suit property? (ii)Is not the lower appellate Court wrong in rejecting the plaintiff's case by overlooking the fact that the suit property is situate within the measurements given in the property purchased under Ex.A1 by the plaintiff's mother which is evident from the Commissioner's report and plan besides the other legal evidence on record?" 4. (i) The learned counsel for the plaintiff/appellant would submit that when the plaintiff’s mother has purchased the suit property by registered sale deed dated 23.10.1956-Ex.A.1. after the death of the plaintiff’s father and mother, the properties of the plaintiff's parents were partitioned between the plaintiff and his brother Ramakrishnan into two equal shares by means of registered partition deed dated 18.8.1995-Ex.A.2. From the date of partition, the plaintiff/appellant had been in effective possession and enjoyment of the suit property and ownership. However, for the reason that the plaintiff is an employee of the Insurance Company working at Dharmapuri, he has requested his close relative Thangatchi belonging to Yercaud to look after the suit property and a small thatched hut has been put up over a portion of the suit property on the northern side of the suit property for the purpose of Thangatchi’s son to stay there during night hours and to watch the suit property. But the defendant who is working as a Cook in the Mont Fort School residing elsewhere at Jarina Kadu with his family, out of ill-will caused by the difference of opinion for stopping the defendant’s father by the plaintiff’s father while he was working in the plaintiff’s father family for his misconduct, attempted to interfere by trespassing into the suit property. However, the said attempt was defeated. (ii) The matter was referred before the Tahsildar of Yercaud who conducted thorough enquiry and on completion of the enquiry passed an order that the plaintiff alone is the owner of the suit property. In spite of the order passed by the Tahsildar, without challenging the same, the defendant made further attempt on 8.3.1998 trespassing into the suit property. The same was also prevented by the plaintiff. Apprehending further interference the plaintiff filed a suit for declaration. But the trial court dismissed the said suit. However, on appeal in A.S.No.91/2000, the learned first appellate Court by judgment dated 28.6.2001 remanded the matter to the trial court for fresh disposal of the suit. In the meanwhile, when the defendant trespassed into the suit property by amending the prayer the plaintiff has prayed for declaration of title and consequential injunction restraining the defendant from interfering with the peaceful possession of the suit property. (iii) The trial court finding that the plaintiff and his brother have partitioned their family ancestral properties along with the property purchased by their mother Arayammal by again going into both the partition deed dated 18.8.1995-Ex.A.2 and sale deed dated 23.10.1956-Ex.A.1., after considering the fact that the extent mentioned in the sale deed-Ex.A.1 purchased by the mother Arayammal is lesser than the partition deed-Ex.A.2 dated 18.8.1995, again finding that the description mentioned on the 4 sides of the property shown in Ex.A.2-partition deed and the boundaries found in Ex.A.2, came to the conclusion that the plaintiff need not give any explanation for the larger extent of land that became the subject matter of partition. This case was also supported by the report of the Commissioner who had also on inspecting the suit property on 25.12.2001 submitted his reports-Exs.C1 and C2 clearly mentioning that the encroached portion which is marked as "B" Schedule property is clearly falling within the 'A" schedule property of the plaintiff that came to be allotted by way of partition between the plaintiff and his brother Ramakrishnan. Therefore, when the reports of the Advocate Commissioner also clearly support the case of the plaintiff that the encroached portion of the defendant marked as 'B' Schedule property is falling within the 'A' schedule property, the learned first appellate court ought not to have disagreed with the well reasoned judgment of the trial court. On that basis, the learned counsel for the plaintiff/appellant further submitted that a close reading of the Commissioner's reports-Exs.C1 and C2, Tahsildar's report-Ex.A.3 dated 28.3.1997 clearly show that the suit property is belonging to the plaintiff/appellant and therefore, the impugned judgment passed by the learned first appellate Court is liable to be set aside. 5. (i) Per contra, learned counsel appearing for the respondent would submit that when the plaintiff has averred before the trial court in his plaint that his mother Arayammal by means of sale deed dated 23.10.1956-Ex.A1 had purchased from the previous owner the suit land having an extent of 2,500 sq.ft. and after the death of said Arayammal and her husband, when the plaintiff and his brother Ramakrishnan, partitioned the said property on 18.8.1995 by registered partition deed-Ex.A.2 dividing the said land property into two equal parts, the partition deed-Ex.A.2 dated 18.8.1995 cannot have a total extent of 4,386 and ½ sq.ft., because through Ex.A.1-sale deed dated 23.10.1956, a total extent of 2,500 sq.ft., alone was purchased. Whileso, the difference in the Ex.A2-partition deed and the sale deed-23.10-1956 is 1,886 and ½ sq.ft. But this difference of land has not been explained anywhere. Therefore, the learned first appellate Court was right in reversing the judgment of the trial Court. (ii) The learned counsel for the respondent in support of his submissions brought to the notice of this Court the decision rendered in KANCHANA JOHN BOSCO V. A GANDHI AND ANOTHER ( 2011 (1) LW 918 ) for a proposition that it is a common or garden principle governing the law of pleadings that any amount of evidence without the backing of pleadings should be eschewed. 6. (i) This argument does not carry any merit. Ex.A2-registered partition deed dated 18.8.1995 clearly carries a recital to the extent that the plaintiff and his brother Ramakrishnan have partitioned not only the land purchased by their mother Arayammal under Ex.A1-sale deed dated 23.10.1956 having an extent of 2,500 sq.ft., but also their ancestral property lying adjacent to the purchased land. (i) This argument does not carry any merit. Ex.A2-registered partition deed dated 18.8.1995 clearly carries a recital to the extent that the plaintiff and his brother Ramakrishnan have partitioned not only the land purchased by their mother Arayammal under Ex.A1-sale deed dated 23.10.1956 having an extent of 2,500 sq.ft., but also their ancestral property lying adjacent to the purchased land. This can be seen from para 4 of the plaint filed by the plaintiff before the trial court which states that on 18.8.1995 the plaintiff and his brother Ramakrishnan partitioned the properties of their parents into two portions by means of a registered partition deed and the suit property by means of a registered partition deed was allotted to the share of the plaintiff. Therefore, when the plaintiff and his brother Ramakrishnan have gone for partition of the family properties, the properties became the subject matter of the partition was not only the purchased properties under sale deed dated 23.10.1956, but also their ancestral properties. Therefore, the learned first appellate court is wrong in giving a finding that the plaintiff and his brother Ramakrishnan could not have partitioned more than what was purchased by their mother Arayammal by Ex.A1, registered sale deed 23.10.1956 having an extent of 2,500 sq.ft., when admittedly, from the date of purchase of 2,500/-sq.ft., the plaintiff's family was also having ancestral property. Therefore, it is not proper for the learned first appellate court to say that when there is no pleading, no evidence can be adduced to corroborate the pleading. (ii) Another argument advanced by the learned counsel for the respondent that the erroneous finding of the trial court placing reliance of the order of the Tahsildar dated 28.3.1997 has been rightly reversed by the lower first appellate court is also not in order, for the reason that when the plaintiff was working as an employee in the Insurance Company at Dharmapuri in his absence, the defendant attempted to encroach upon the suit property. In view of the encroachment made by the defendant, a complaint was lodged before the police station. In view of the encroachment made by the defendant, a complaint was lodged before the police station. Subsequently, the matter was referred before the Revenue authorities and as a result, the Tahsildar came to enquire into the dispute and finally, on completion of the enquiry along with the Village Administrative Officer and other Revenue authorities by proper verification of the records came to the conclusion that the suit property belongs to the plaintiff. In para 1 of the Tahsildar's order-Ex.A.3 dated 28.3.1997 it has been mentioned that the land in dispute is the patta land belonging to the plaintiff. When the Tahsildar of concerned jurisdiction along with the Village Administrative Officer and his subordinates staff enquired into the complaint referred before them and finally, on the basis of the revenue records passed the order-Ex.A.3, no doubt proceedings passed by the Tahsildar will not confer title or ownership on a disputed land. But, in the present case, on the basis of the Revenue records due to frequent disputes between the plaintiff and the defendant when a complaint was made by the plaintiff, after facing repeated problems from the defendant, made a complaint before the Tahsildar to come and measure the extent of suit property to resolve the correct boundaries between the plaintiff and the defendant. To dispose of the said complaint, the Tahsildar, Yercaud along with the Revenue authorities came and measure the suit property along with other revenue records finally came to the conclusion that the plaintiff and his brother Ramakrishnan have paid house tax to the suit property from 1956-1997 for about 41 years. Further, from 1956 onwards it was also found that the plaintiff/appellant has obtained electricity service connection in the year 1956 itself. On that basis, while answering the petition found that the suit property belongs to the plaintiff. It is not in dispute that any order passed by the Revenue authorities deciding the dispute of the land does not give title or ownership. But in the present case, the learned first appellate court while brushing aside Ex.A.3, tahsildar's order dated 28.3.1997 wrongly came to the conclusion that Ex.A1-sale deed and Ex.A2-partition deed, are not supporting the case of the plaintiff. But in the present case, the learned first appellate court while brushing aside Ex.A.3, tahsildar's order dated 28.3.1997 wrongly came to the conclusion that Ex.A1-sale deed and Ex.A2-partition deed, are not supporting the case of the plaintiff. As I mentioned earlier, when the plaintiff and his brother Ramakrishnan, partitioned their family properties by registered partition deed dated 18.8.1995 clearly mentioned that they have divided not only the land of 2,500 sq.ft purchased by their mother Aryammal, but also the ancestral property. In that view of the matter, it is not proper on the part of the learned first appellate court to hold that Ex.A.1-sale deed and Ex.A.2-partition deed are not supporting the case of the plaintiff. (iii) Another finding of the learned first appellate court is that the house tax receipts filed by the plaintiff/appellant do not relate to the disputed thatched shed. It can be seen that in the assessment register-Ex.B.14, No.10155 for Door No.29/40 mentioning the defendant's name Balu, son of Ramu was found to be written only in the year 1996-97. The trial Court while considering the veracity of Ex.B.14 came to the conclusion that overwriting was found after using the ink remover on the assessment No.10155. Further, the assessment came to be issued without any application was also found by the trial Court. On that basis Ex.B.14-assessment register came to be issued after the filing of the suit was held to be a created document for the purpose of the suit. This aspect was not properly considered by the first appellate Court. The mandatory condition mentioned under Order 41 Rule 31 C.P.C., is, every appellate court is required to address all the issues of fact and law before setting aside the judgment of the Trial Court. But this mandatory requirement is completely ignored and overlooked by the first appellate Court while reversing the judgment of the trial court. As this flaw vitiates the entire impugned judgment, the same cannot be sustained. But this mandatory requirement is completely ignored and overlooked by the first appellate Court while reversing the judgment of the trial court. As this flaw vitiates the entire impugned judgment, the same cannot be sustained. (iv) Though the general principle as enunciated by the Court holding that the common amount of evidence without the backing of pleadings should be eschewed is not in dispute, in the present case, as I mentioned above, the plaintiff in para 4 of the plaint has averred that the plaintiff and his brother Ramakrishnan, partitioned the family properties, namely, the properties covered in the sale deed Ex.A.1 dated 23.10.1956 and also the ancestral properties lying adjacent to the same. Therefore, the contention of the respondent's counsel that there was no pleadings that the plaintiff had other properties than the land covered in the sale deed also fails. (v) The trial court while considering the documents Ex.B5 and Ex.B13 has given a categorical finding that all these documents were post-suit documents only for the purpose of using them in the suit proceedings. Therefore, when the defendant has not produced any document, the learned first appellate court is not justified in rejecting the claim of the plaintiff. (vi) The Hon'ble Apex Court in HERO VINOTH(MINOR) v SESHAMMAL ( 2006 (5) SCC 545 ) has held when the courts below ignored the material evidence or acted on no evidence, the High Court is bound to interfere with such erroneous findings. The above ruling clearly shows that when the impugned judgment has reversed the well reasoned and cogent finding given by the trial court and ignored the material evidence-Exs.A1 and A2one of the findings in the impugned judgment is capable of being accepted by this Court. 7. Under these circumstances, by answering the substantial questions of law against the defendant/respondent, this Court holds that the learned first appellate Court has committed serious material irregularities in appreciating the evidence on record. In that view of the matter, as the learned first appellate Court has not dealt with the issues correctly, it deems fit to set aside the judgment and decree of the first appellate Court. 8. Accordingly, this Second Appeal is allowed. The impugned judgment and decree passed by the learned first appellate Court is set aside and the judgment and decree of the trial Court is restored. Connected pending M.Ps. are closed. No costs.