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2012 DIGILAW 715 (MAD)

Kesavan v. Sinnappan Alias Sinnappa

2012-02-09

G.RAJASURIA

body2012
JUDGMENT ( 1. ) THIS appeal is focussed by the defendant as against the judgment and decree dated 20.1.2011 made in O.S. No. 72 of 2008, on the file of the learned District Judge, Puducherry at Karaikal. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. ( 2. ) A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: The respondent/plaintiff filed the suit seeking the following reliefs in respect of as many as ten items of the suit properties: "(a) To permit the plaintiff to institute the suit as indigent person; (b) To declare that the plaintiff is the absolute owner of the suit properties and by way of consequential injunction restraining the defendant, his men, relatives and agents from any manner interfering or disturbing the peaceful possession and enjoyment of suit properties by plaintiff; and (c) For costs." (extracted as such) ( 3. ) THE defendant filed the written statement resisting the suit; whereupon issues were framed. ( 4. ) DURING trial, the plaintiff-Chinnappan @ Chinnappa examined himself as P.W.1 along with P.W.2-Rasappa and marked Exhibits A-1 to A-13. The defendant-Kesavan examined himself as D.W.I along with D. W. 2-Sakthivei and marked Exhibits X-1 to X-3. ( 5. ) ULTIMATELY, the trial Court decreed the suit, only in respect of the first and second item of the suit properties in favour of the plaintiff, declaring that the plaintiff is the absolute owner of the suit property and also injuncting the defendant from interfering with the same, and the suit in respect of the other items was dismissed. ( 6. ) BEING aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendant preferred this appeal on various grounds. ( 7. ) DESPITE printing the name of the respondent/plaintiff, no one appeared. Heard the learned counsel for the appellant/defendant. ( 8. ( 6. ) BEING aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendant preferred this appeal on various grounds. ( 7. ) DESPITE printing the name of the respondent/plaintiff, no one appeared. Heard the learned counsel for the appellant/defendant. ( 8. ) THE learned counsel for the appellant/defendant placing reliance on the grounds of appeal, would develop his arguments, which could tersely and briefly be set out thus: (a) The trial Court failed to take into account the basic principle that the burden of proof is on the plaintiff to prove his title and also his possession as on the date of the filing of the suit in a suit for declaration of title and for injunction. Even though the plaintiff did not adduce any evidence in support of his title as well as possession, the lower Court was pleased to grant declaration and injunction,, warranting interference in the appeal. (b) The burden is not on the defendant to prove his case, even then, he pointed out the drawbacks in the case of the plaintiff, but the trial Court despite disbelieving Exhibit A5 - the Will dated 3.7.1979, went to the extent of decreeing the suit in respect of the first and second items of the suit properties. (c) The relationship between Pasupathia Pillai - the original owner of the property concerned, and the plaintiff was not at all established. Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the judgment and decree of the trial Court. ( 9. ) THE points for consideration are as to: (1) Whether the trial Court without adhering to the principle of burden of proof, decreed the suit in favour of the plaintiff, in respect of the first and second item of the suit properties? (2) Whether the trial Court was justified in. rejecting the plea of the defendant, that he has been in possession and enjoyment of the suit property? (3) Whether there is any perversity or illegality in the judgment of the trial Court? ( 10. ) ALL the points are taken together for discussion as they are inter-linked and inter-woven, with one another. ( 11. rejecting the plea of the defendant, that he has been in possession and enjoyment of the suit property? (3) Whether there is any perversity or illegality in the judgment of the trial Court? ( 10. ) ALL the points are taken together for discussion as they are inter-linked and inter-woven, with one another. ( 11. ) THE case of the plaintiff as found exemplified from the records could pithily and precisely be set out thus: One Pasupathia Pillai happened to be the original owner of the items 1 and 2 of the suit properties, by virtue of Exhibits A-1 and A2-the Notarial sale deeds dated 15.6.1951 and 20.12.1951. He died issueless; whereupon, his brother Pakkiriapillai inherited the property. Pakkiria Pillai's daughter is Thillayammai, who happened to be the mother of the plaintiff. Accordingly, the plaintiff contending that the defendant is trying to trespass into the suit property, sought for declaration and injunction. Whereas, the defendant in the written statement pleaded that the first and the second item of the suit properties had been in possession and enjoyment of the family of the defendant and following the said possession, he continues to be in possession of those two items. According to him, the plaintiff is not at all in any way connected with items 3 to 10 and even as per the plaintiff, some of the items were sold by Pasupathia Pillai himself. ( 12. ) 1 RECOLLECT and call up the following maxims: (1) Affirmants est probate: The person who affirms must prove. (2) Affirmantif non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies. ( 13. ) THE bur den of proof is on the plaintiff to have positively his case. He cannot pick holes in the case of the defendant and try to achieve access in the litigative process. Exhibits A-1 and A-2 - the Notarial sale deeds, would already evince and demonstrate that Pakkiria Pillai purchased those properties. THE trial Court placing reliance on Exhibit A-9-the patta for R.S. No. 98/6, which stands in the name of the plaintiff concerning the first and second items of the suit properties and also the relationship of the plaintiff with the original owner, held that the plaintiff is the owner of the suit property. THE trial Court placing reliance on Exhibit A-9-the patta for R.S. No. 98/6, which stands in the name of the plaintiff concerning the first and second items of the suit properties and also the relationship of the plaintiff with the original owner, held that the plaintiff is the owner of the suit property. I am fully aware of the fact that patta will not confer title; however, patta could rightly be relied upon for the purpose of proving the possession of the patta holder. ( 14. ) THE trial Court pointed out that the defendant claimed possession over the first item of the suit property in Cadastre No. 498, but he did not choose to file any document in support of his contention. THE trial Court gave a categorical finding that the defendant contended that the second item of the suit properties belonged to one Kasinathan and he could not point out in what manner that would enure to the defendant's benefit. THE trial Court gave a finding that the defendant did not even during trial, lay claim in any manner over the second item of the suit properties. D.W.2 who was examined on the defendant's side in fact, gave evidence against the interest of D.W.I, the defendant to the effect that Cadastre Nos. 497 and 498 which are referring to items 1 and 2 belonged to the plaintiff. THEse are all the evidences which weighed very much in the mind of the trial Court and the judgment for rendering the judgment. ( 15. ) EVEN in the written statement there is not even any plea of adverse possession; however, the defendant would vaguely state as follows in para No. 2: "2. The suit claim is very much speculative in nature. The plaintiff has no right, title or interest over the suit properties to the best knowledge of this defendant. From the days of his father, the first two Items of suit properties are in the possession and enjoyment of the family of the defendant. This defendant after his father continued to be in possession of those two items of properties alone." He has not chosen as to when the defendant's family members started enjoying the said property and how long. In order to prove his possession, not even patta has been produced in his name. This defendant after his father continued to be in possession of those two items of properties alone." He has not chosen as to when the defendant's family members started enjoying the said property and how long. In order to prove his possession, not even patta has been produced in his name. It is therefore, crystal dear that in a half-hearted manner alone the defendant resisted the suit. It is a trite proposition of law that judgments passed in matters of this nature are only judgment in personam and not judgment in rem. The trial Court weighed the case of the plaintiff as well as the defendant and found that the case of the plaintiff is on a better footing, whereas the defendant has not even chosen to plead specifically the facts constituting his title and possession over the properties; whereas, the Court on evidence found that the plaintiff is the relative of the original owner and the patta also stands in his name in respect of I and II Items of the suit properties and accordingly, the Court decreed the suit only in respect of Items 1 and 2 of the suit properties, which cannot be treated as perverse or illegal. ( 16. ) ACCORDINGLY, the point No. 1 is answered to the effect that the trial Court correctly adhering to the principle of burden of proof, decreed the suit in favour of the plaintiff, in respect of the first and second item of the suit properties. ( 17. ) THE point No. 2 is answered to the effect that the trial Court was justified in rejecting the plea of the defendant, that he has been in possession and enjoyment of the suit property. ( 18. ) THE point No. 3 is answered to the effect that there is no perversity or illegality in the judgment of the trial Court. In the result, the appeal stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.