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2013 DIGILAW 4142 (MAD)

Alamelu Ammal v. Thailammal

2013-12-10

R.KARUPPIAH

body2013
Judgment 1. The appellant herein who is the defendant in the suit filed this second appeal against the decree and judgment dated 05.01.2005 made in A.S.No.20 of 2003 confirming the judgment and decree dated 04.04.2002 made in O.S.No.66 of 1998 on the file of II Additional District Munsifs Court, Kallakruichi. 2. Originally the suit was filed by the deceased first plaintiff for declaration and permanent injunction and alternatively for recovery of possession. During the pendency of the suit, the first plaintiff was died and other plaintiffs 2 to 5 were impleaded as legal heirs of the deceased first plaintiff. 3. For the sake of convenience the respondents herein are referred as plaintiffs and the appellant herein is referred as defendant. 4. Briefly, the case of the respondents/plaintiffs is that the suit property was originally belonged to one Veeran who had purchased the property and he was in possession. In the year 1969, he was died leaving behind his wife and daughter as legal heirs. The above said legal heirs of the deceased Veeran (i.e.,) wife and daughter sold the property to the deceased first plaintiff by way of registered sale deed dated 29.05.1972. Accordingly, the deceased first plaintiff entitled to the suit property and he has been in possession and joint patta also granted in his name as Patta No.357 in respect of S.No.231/4 out of 86 cents in which eastern 44 cents is the suit property. Subsequently, the suit property was sub divided as RS.No.231/4B. Therefore, the plaintiffs are entitled to the suit property. The defendant has no right or title over the suit property but trying to get joint patta as if one Sengan was brother of the deceased Veeran also had right over the suit property. Hence the suit. 5. The appellant/defendant filed detailed written statement in which denied the contention of the plaintiffs that the suit property was originally belonged to one Veeran alone as self acquired property. According to the defendant, the suit property was joint family property of Veeran and his brother Sengan and both of them orally partitioned the suit property in which the northern portion was allotted to Sengan and Southern portion was allotted to Veeran and enjoyed the properties accordingly. Subsequently, the above said Sengan had sold his half share on 17.03.1972 in favour of the defendant for Rs.200/- by way of registered sale deed. Subsequently, the above said Sengan had sold his half share on 17.03.1972 in favour of the defendant for Rs.200/- by way of registered sale deed. In respect of northern 22 cents, joint patta was issued on 15.08.1974 to the defendant, later on UDR joint patta was issued on 10.10.1983. On 10.07.1994, the Tahsildar, Sankarapuram passed an order and sub divided the patta as 231/4B 0.09.0 and it was allotted to the defendant. The deceased first plaintiff had also participated in the above said patta proceedings, therefore, the defendant is entitled to northern portion of 0.22cents and the plaintiffs are not entitled to the relief in respect of entire partition and prayed for dismissal of the suit. 6. The trial Court on the basis of the above pleadings framed four issues for determination. The plaintiffs and the defendant have, in support of their respective claim, the plaintiffs side examined three witnesses as PW1 to PW3 and marked eight documents as Exs.A1 to A8 and the defendant himself deposed as DW1 and marked eleven documents Exs.B1 to B11. Considering the oral and documentary evidence adduced on either side, the trial Court decreed the suit as prayed for. Aggrieved in the above said findings of the trial Court, the defendant preferred an appeal before the first appellate Court, but the first appellate Court dismissed the first appeal and confirmed the decree and judgment of the Trial Court. Being aggrieved the concurrent findings of both the Courts below, the appellant herein who is the defendant in the original suit preferred this Second Appeal before this Court. 7. The Second Appeal is admitted on the following substantial questions of law:- “1. When the deceased plaintiff had participated in the proceedings of the Tahsildar, Sankarapuram under Ex.B5 dated 10.07.194 in which the northern half of the suit property purchased by the appellant was sub divided as 231/4B, whether it is open to him to question the title of the appellant, especially when the principle of estoppel enshrined under Section 115 of the Evidence Act, 1872 would operate against him? 2. Whether a decree for declaration and injunction can be granted particularly when the plaintiff has failed to prove his case in accordance with Sections 101 to 103 of the Evidence Act, 1872? 3. 2. Whether a decree for declaration and injunction can be granted particularly when the plaintiff has failed to prove his case in accordance with Sections 101 to 103 of the Evidence Act, 1872? 3. When the boundary recital in Ex.B1 Sale deed dated 09.10.1999 would prove that the northern half of the suit property belonged to the appellant, whether the courts below are justified in law in rejecting the same on the ground that the document is not inter parties? 8. Heard the rival submissions made on both sides and perused the entire records. 9. The learned counsel for the appellant/defendant mainly contended that the burden of proof lies only on the plaintiffs to prove their case, but the courts below failed to considered the said legal proposition. It is also submitted that both the Courts below have wrongly held that the mutation in the revenue records does not confer any title, while the mutation was done in pursuance of the registered sale deed Ex.B2 dated 17.03.1972 and the deceased first plaintiff had also participated in the enquiry proceedings before the Tahsildar, Sankarapuram and hence the plaintiffs are estopped from claiming the title over the entire suit property. The learned counsel for the defendant further submitted that both the courts below have miserably failed to consider the documents Ex.B1 dated 09.10.1999 executed by one Arumugapillai in favour of one Ponnan who purchased the adjacent property wherein the boundary mentioned as half of the suit property belongs to the defendant but the Courts below not properly considered the documents and therefore, the judgment and decree passed by the Courts below are not correct. 10. Per contra, the learned counsel for the respondent/plaintiff would submit that the plaintiffs have produced Ex.A2 sale deed dated 09.09.1950 executed by one Murugesa Pillai in favour of Veeran in respect of the entire suit property and the Ammachi and Pappammal legal heirs of the deceased Veeran had sold the entire suit property to the Subramania Pillai (i.e.) deceased first plaintiff under the Ex.A1 sale deed dated 29.05.1972. Further the plaintiffs have produced Ex.A3 Joint Patta No.357 issued in the name of the deceased first plaintiff for entire S.No.231/4 punja 0.86acres and also relied on the Exs.B4 and B5/Tax receipts and Exs.A7 and A8/Chitta and Adangal respectively. Further the plaintiffs have produced Ex.A3 Joint Patta No.357 issued in the name of the deceased first plaintiff for entire S.No.231/4 punja 0.86acres and also relied on the Exs.B4 and B5/Tax receipts and Exs.A7 and A8/Chitta and Adangal respectively. The learned counsel appearing for the plaintiffs further submitted that the plaintiffs have filed the above said reliable documentary evidence and also examined three witnesses as PW1 to PW3 to prove the title and possession of the entire property and hence both the Courts below have correctly held that the plaintiffs are entitled to the reliefs as sought for in the suit. 11. Admittedly, the plaintiffs filed the suit in respect of entire suit property i.e., new S.No.231/4B (19 aers) 44 cents. But the defendant claimed half share in the suit property. The learned counsel for the defendant mainly contended that the suit property was originally belonged to one Veeran and Sengan as joint family property and they were orally partitioned the property and in the above said oral partition, northern 22 cents was allotted to Sengan and southern side 22 cents was allotted to Veeran. The above said 22cents of the land belonged to Sengan was sold under Ex.B2 dated 17.03.1972 in favour of defendant and hence the defendant is entitled to claim half share (i.e) 22 cents in the suit property. Further, it is submitted that the boundary recitals in Ex.B1 sale deed dated 09.10.1999 proved that the northern portion of the suit property belonged to one Sengan and joint patta was also issued in the name of defendant at the time of UDR and produced the tax receipts in support of the same. 12. In the instant case, no documentary evidence to prove that the suit property belonged to joint family property of Sengan and Veeran. Admittedly, only Veeran purchased the suit property under Ex.A2 sale deed dated 09.09.1950. On the side of the defendant has not stated in the written statement or at the time of evidence that the sale consideration of the above said sale deed was paid only out of income from joint family properties or the above said property was treated as joint family property, except the interested oral testimony of DW1/Sambasivam who is the husband of the defendant. The defendant has not deposed as one of the witnesses in this case, only the defendant's husband i.e, Sambasivam alone examined as DW1. The defendant has not deposed as one of the witnesses in this case, only the defendant's husband i.e, Sambasivam alone examined as DW1. Except the oral testimony of DW1 no other evidence to prove the suit property was purchased out of income from joint family properties of Veeran and Sengam as pleaded in the written statement. Further absolutely no documentary or oral evidence to prove the alleged oral partition between the two brothers. In the written statement also, it is not stated that the place, date and year of the alleged oral partition took place between the two brothers. Therefore, the defendant has miserably failed to prove the contentions of the defendant that the suit property was joint family property of Veeran and Sengam and orally partitioned the above said property and northern 22 cents allotted to the defendants vendor/Sengan. 13. The next contention of the defendant is that the Ex.B1 sale deed dated 09.10.1999 was executed by one Arumugapillai in favour of Ponnan in respect of adjacent property, wherein the boundary mentioned as the suit property shown as defendant property and therefore, the 22 cents belongs to defendant property. Admittedly, on the side of the defendant has not examined the executor of the said document. It is also settled principle of law is that unless the executor of the document is examined, the boundary recitals cannot be relied to prove the contention. 14. Further, the learned counsel for the defendant contended that at the time of UDR, joint patta was issued in the name of defendant and in the said proceedings the deceased first plaintiff also participated and therefore, the defendant is entitled to half share in the suit property. It is settled law is that patta is not a document of title only to collect the revenues the pattas being issued. Therefore, on the basis of the alleged joint patta, the defendant cannot claim right over the suit property. 15. It is settled proposition of law in that the burden lies on the plaintiff to prove his case by reliable documentary and oral evidence. In the instant case the plaintiffs have produced the Ex.A1 sale deed dated 29.05.1972 executed by Ammachi/PW2 and Pappammal who are the legal heirs of the deceased Veeran and the plaintiffs produced the Ex.A2 sale deed dated 09.09.1950 in which the suit property was sold by one Murugesa Pillai in favour of one Veeran. In the instant case the plaintiffs have produced the Ex.A1 sale deed dated 29.05.1972 executed by Ammachi/PW2 and Pappammal who are the legal heirs of the deceased Veeran and the plaintiffs produced the Ex.A2 sale deed dated 09.09.1950 in which the suit property was sold by one Murugesa Pillai in favour of one Veeran. It is not in dispute that the vendor of the plaintiffs Ammachi and Pappammal are wife and daughter of the deceased Veeran, therefore, the plaintiffs proved the title by reliable documentary evidence. Further, the plaintiffs have also produced tax receipts, Chitta and Adangal and other revenue records. 16. Per contra, the defendant has not produced any reliable documents to prove the contention that the suit property was purchased out of joint family property income. In the above said circumstances, the UDR joint patta issued in the name of defendant cannot give any title to the defendant. The contention of the defendant is that the deceased first plaintiff had participated in the UDR joint patta proceedings and hence the plaintiffs are estopped from contending that the defendant is not entitled to the suit property cannot be accepted since mere issuance of patta is not a document for title. Further, the plaintiffs have proved their title by reliable oral and documentary evidence and both the Courts below concurrently held and no serious infirmity or perversity in the findings of both the Courts below, that the plaintiffs have proved the title over the suit property. Therefore, all the substantial questions of law are answered in favour of the respondents/plaintiffs and as against the appellant/defendant and the second appeal is to be dismissed confirmed the findings of the Courts below. 17. In the result, the Second Appeal stands dismissed. There is no order as to costs.