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2012 DIGILAW 4614 (MAD)

S. Balakrishnan v. K. Chittibabu

2012-11-07

P.R.SHIVAKUMAR

body2012
Judgment :- The unsuccessful plaintiff, who lost the suit before the trial court and the appeal before the lower appellate court, is the appellant in the present second appeal. The appellant filed the suit O.S.No.490/2001 on the file of Additional District Munsif, Kancheepuram for a declaration that he is the absolute owner of the suit property, which is described to be 74 cents of punja land comprised in Survey No.265/2C in Wallajahbad village, Kancheepuram Taluk, Kancheepuram District. Besides the relief of declaration, the appellant herein/plaintiff had also prayed for the relief of permanent injunction against the respondents herein/defendants not to interfere with his alleged peaceful possession and enjoyment of the said property and as an alternative relief for the recovery of possession of the suit property, but cleverly coining the prayer as one for the relief of mandatory injunction directing them to put the appellant herein/plaintiff in possession of the suit property, if the appellant/plaintiff happened to be dispossessed by the respondents/defendants. 2. The suit was contested by the respondents/defendants contending that out of the total extent of 74 cents comprised in Survey No.265/2C, 10 cents of land was purchased by one Kanniyappa Maistry from Kalyanasundaram, the original owner of the property under a sale deed dated 07.09.1966; that on 10.04.1973, the said Kanniyappa Maistry conveyed the property purchased by him from Kalyanasundaram to Baby Ammal, the mother of the plaintiff; that on the same day, the mother of the plaintiff purchased two cents of land in the very same sub division from Kalyanasundaram and thus she became entitled to 12 cents of land; that the said Baby Ammal, in turn, sold the above said 12 cents of land under a sale deed dated 15.12.1999 to the first defendant; that, if the said 12 cents of land is deducted, the remaining extent in the very same survey number that could have been validly conveyed by Kalyanasundaram to the plaintiff was only 62 cents and that taking advantage of a mistake that crept in the sale deeds dated 10.04.1973 in reciting the total extent of land comprised in Survey No.265/2C, the appellant herein/plaintiff chose to file the suit as a vexatious one. 3. The learned trial judge, after framing necessary issues conducted trial, in which, except the party witnesses, who figured as PW.1 and DW.1 respectively, no other witness was examined. 3. The learned trial judge, after framing necessary issues conducted trial, in which, except the party witnesses, who figured as PW.1 and DW.1 respectively, no other witness was examined. As many as 26 documents were produced as Exs.A1 to A26 on the side of the appellant herein/plaintiff and six documents were produced as Exs.B1 to B6 on the side of the respondents herein/defendants. The learned trial judge, on an appreciation of evidence, came to the conclusion that the vendor of the appellant herein/plaintiff had title only to 62 cents of land in the suit survey number after having alienated 12 cents out of 74 cents. In view of the said finding, the learned trial judge held that the appellant herein/plaintiff tried to claim title over the property, which had been purchased by the first defendant; that the 12 cents of land purchased by the first defendant was in possession and enjoyment of the defendants and that hence the appellant herein/plaintiff was not entitled to any one of the reliefs sought for in the plaint. The learned trial judge chose to decline the relief of declaration even in respect of 62 cents of land on the ground that there was no cause of action and the suit was laid on an imaginary cause of action of attempted trespass into the property of the appellant herein/plaintiff. As against the said judgment and decree of the trial court, the appellant herein/plaintiff preferred an appeal in A.S.No.45/2006 on the file of the lower appellate judge, namely the Subordinate Judge, Kancheepuram. The learned first appellate judge, after hearing, concurred with the findings of the trial court in all respects, dismissed the appeal and thereby confirmed the decree of the trial court dismissing the suit. Now the appellant herein/plaintiff has knocked at the doors of the High Court by way of the present second appeal on various grounds set out in the memorandum of second appeal. 4. A second appeal shall lie to the High Court against an appellate decree of a court subordinate to the High Court under section 100 CPC only on a substantial question of law. 4. A second appeal shall lie to the High Court against an appellate decree of a court subordinate to the High Court under section 100 CPC only on a substantial question of law. The High Court dealing with the second appeal should first of all satisfy itself that the second appeal involves a substantial question of law and, if such satisfaction is arrived at, should formulate and record such a substantial question of law based on which the appeal is to be admitted. Even after such admission, on appearance, the respondent can contend that such a question is not at all a substantial question of law or that such a substantial question of law is not involved in the second appeal. In this regard, notice regarding admission was issued to the respondents and the respondents are before this court represented by counsel. 5. This court heard the arguments advanced by Mr.S.Shahul Hameed, learned counsel for the appellant and by Mr.N.Mariappan, learned counsel for the respondents and perused the appeal memorandum, copies of judgments and decrees of the courts below and other documents produced in the form of typed set of papers. 6. The admitted facts are as follows:- A total extent of 91 cents of land comprised in Survey No.265 before sub division was owned by Kalyanasundaram, the original owner, who got it as his share in a partition in his family on 05.04.1951 under a registered partition deed marked as Ex.A1. Subsequent to the said partition, on 07.09.1966, the said Kalyanasundaram conveyed an extent of 10 cents in the suit survey field to one Kanniyappa Maistry under a registered sale deed, a certified copy of which has been marked as Ex.B3. In Ex.B3, the total extent of Survey No.265/2C was given as 74 cents, out of which 10 cents was sought to be sold. Kanniyappa Maistry conveyed the said property in favour of Baby Ammal under a sale deed dated 10.04.1973, a certified copy of which has been marked as Ex.B2. On 10.04.1973 itself Kalyanasundaram sold 2 centsof land in the same survey number to Baby Ammal under the original of Ex.B4. In those two sale deeds executed in favour of Baby Ammal, the total extent comprised in the said survey number came to be noted as 84 cents instead of 74 cents. Those sale deeds were executed on one and the same day. In those two sale deeds executed in favour of Baby Ammal, the total extent comprised in the said survey number came to be noted as 84 cents instead of 74 cents. Those sale deeds were executed on one and the same day. Total extent comprised in survey No.265/2C came to be noted as 84 cents instead of 74 cents as found in Ex.B3. Subsequently, the said Baby Ammal has conveyed the entire 12 cents of land she had purchased under the originals of Exs.B2 and B4, to the first defendant Chitti Babu under a sale deed dated 15.12.1999, a certified copy of which has been marked as Ex.B5. Quite naturally, the total extent allegedly comprised in survey No.265/2C was noted in the said sale deed to be 84 cents, following the recitals found in Exs.B2 and B4. Thereafter, subsequent to the sale of 12 cents in favour of Baby Ammal, the appellant herein/plaintiff got a sale deed dated 27.01.1975 from Kalyanasundaram, a certified copy of which has been marked as Ex.A2. In the said sale deed, the said Kalyanasundaram purported to convey 74 cents of land comprised in survey No.265/2C. Based on the said sale deed, the appellant herein/plaintiff had got patta for the entire 74 cents comprised in survey No.265/2C. Patta issued on 06.12.1999 has been produced as Ex.A16. New patta issued on 07.12.2004 has been produced as Ex.A21. Armed with the same, the appellant herein/plaintiff chose to file the suit staking claim to the entire extent of 74 cents comprised in survey No.265/2C. 7. It is not in dispute that out of the total extent comprised in survey No.265/2C, which stood in the name of Kalyanasundaram, 10 cents of land was sold under the original of Ex.B3 to Kanniyappa Maistry and two cents of land was sold to Baby Ammal under the original of Ex.B4. It is also not in dispute that 10 cents of land purchased by Kanniyappa Maistry under the original of Ex.B3 was sold to the said Baby Ammal by Kanniyappa Maistry under the original of Ex.B2. By two sale deeds dated 10.04.1973, copies of which have been marked as Exs.B2 and B4, Baby Ammal got a valid title for 12 cents of land within the defined boundaries in the total extent comprised in survey No.265/2C. By two sale deeds dated 10.04.1973, copies of which have been marked as Exs.B2 and B4, Baby Ammal got a valid title for 12 cents of land within the defined boundaries in the total extent comprised in survey No.265/2C. There is no quarrel or dispute over the said fact that Baby Ammal was entitled to 12 cents in survey No.265/2C. It is also not in dispute that the said Baby Ammal conveyed the same to the first defendant under the original of Ex.B5 and thus the first defendant is entitled to 12 cents of land in survey No.265/2C. On the other hand, the appellant herein/plaintiff has chosen to contend that the total extent comprised in survey No.265/2C was wrongly noted as 74 cents in the original of Ex.B3 instead of the actual extent of 84 cents, which has been reflected in Exs.B2, B4 and B5. The respondents/defendants took a stand that there was no mistake in the total extent mentioned in Ex.B3 and on the other hand, the total extent mentioned in the other documents referred to above alone was erroneous. When such a stand was taken by the respondents/defendants, it is for the appellant herein/plaintiff to prove what was the total extent of survey No.265/2C after sub division was made in respect of survey No.265. Kalyanasundaram had already sold 12 cents of land under the originals of Ex.B3 and B4. If at all the total extent in the survey number is 84 cents as contended by the appellant/plaintiff, the balance to be conveyed to the appellant/ plaintiff would be only 72 cents and not 74 cents. Hence, it is clear that the total extent comprised in Survey No.265/2C has been wrongly mentioned in Exs.A1, B2, B4 and B5. 8. Admittedly, Kalyanasundaram was allotted 91 cents of land under Ex.A1-partition deed dated 05.04.1951. No sub division number is found noted in Ex.A1. Therefore sub division ought to have been made subsequent to the above said partition and prior to 07.09.1966 sale deed, a copy of which has been marked as Ex.B3. Though Kalyanasundaram had been allotted 91 cents of land in one block, how the same came to be reduced to 84 cents is not known. If at all what the plaintiff contends is correct, it should have been explained by the plaintiff. What happened to the balance 7 cents has not been explained. Though Kalyanasundaram had been allotted 91 cents of land in one block, how the same came to be reduced to 84 cents is not known. If at all what the plaintiff contends is correct, it should have been explained by the plaintiff. What happened to the balance 7 cents has not been explained. Though the appellant herein/plaintiff has taken a stand that the total extent comprised in survey No.265/2C after sub division was 84 cents and not 74 cents, no document and no revenue record showing that the said sub division comprised 84 cents has been produced by the appellant herein/plaintiff to substantiate his case. On the other hand, his own documents, namely Exs.A16 and A21 would make it crystal clear that the total extent comprised in survey No.265/2C is 74 cents and not 84 cents. This is in consonance with the stand taken by the respondents/defendants and the recital found in Ex.B3. Out of the 74 cents, Kalyanasundaram had already alienated 10 cents under Ex.B2 and 2 cents under Ex.B4. Sales made by Kalyanasundaram regarding the 12 cents has not been disputed. After such sales, Kalyanasundaram had been left with only 62 cents of land in survey No.265/2C. There is no evidence as to whether the balance extent has not been tagged with some other sub division. As such, both the courts below, have arrived at a correct conclusion that though Kalyanasundaram chose to execute Ex.A2-sale deed purporting to convey 74 cents of land comprised in survey No.265/2C, he could have validly conveyed only 62 cents and the plaintiff could have derived valid title only in respect of 62 cents and not in respect of the 12 cents already been sold by Kalyanasundaram which ultimately came into the hands of the first defendant under Ex.B5. It is made clear that the defendants had not claimed anything more than 12 cents of land sold by Kalyanasundaram, which was ultimately purchased by the first defendant. The courts below have come to a correct conclusion that on an imaginary cause of action, in order to stake claim to the 12 cents of land already sold by Kalyanasundaram, the suit has been filed and that hence the appellant herein/plaintiff should be non-suited for the reliefs sought for in the suit. This court finds no defect or infirmity in the decree passed by the trial court, which was confirmed by the lower appellate court. This court finds no defect or infirmity in the decree passed by the trial court, which was confirmed by the lower appellate court. No substantial question of law has arisen for consideration in this case. All the factual issues have been correctly answered and the findings of fact cannot be termed perverse. As such there is no merit in the second appeal and the same deserves to be dismissed. 9. Accordingly, the second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.