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2013 DIGILAW 854 (MAD)

Manonmani v. V. Selvaraj

2013-02-11

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focussed by the plaintiffs, animadverting upon the judgment and decree dated 21.10.2003 passed by the Principal District Judge, Vellore, in A.S.No.54 of 2003, confirming the judgment and decree dated 30.12.2002 passed by the Additional District Munsif, Vellore, in O.S.No.768 of 1992, which was one for declaration of title and for recovery of possession of the suit property. 2. For the sake of convenience, the parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus: (i) The plaintiffs, who are the appellants herein, filed the suit seeking the following reliefs: "(a) To declare the plaintiffs title to the suit property and to direct the defendant to vacate and deliver possession of the same to the plaintiffs; (b) To direct the defendant to pay the plaintiffs the cost of the suit." Extracted as such (ii) The defendant filed the written statement, resisting the suit. (iii) Up went the trial, during which, the second and fifth plaintiffs examined themselves as P.Ws.1 and 2 along with one Unnamalai as P.W.3 and Exs.A1 to A24 were marked on the plaintiffs' side. On the defendant's side, the defendant examined himself as D.W.1 along with one Damodharan as D.W.2 and Madurai as D.W.3 and marked Exs.B1 to B19. (iv) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the dismissal judgment of the trial Court. 4. Challenging and impugning the judgments and decrees of both the Courts below, this second appeal has been focussed on various grounds and also suggesting the substantial questions of law. 5. My learned predecessor formulate the following substantial questions of law: "(i) Whether the findings of he Court below that the defendant is the owner of the 'B' schedule property based upon the certified copy of the sale deed dated 2.8.1965-Ex.B1 without the production of the original sale deed in spite of the notice of demand which pertains to some other survey number is correct? (ii) Whether the findings of the lower appellate Court that the Survey Number in Ex.A-20 to Ex.A-22 is 357/4, whereas Ex.B-18 and B-19 relate to survey number 468/2 and there is no evidence to show that Ex.A-2 is pertaining to S.No.468/2 is sustainable? (iii) Whether the findings of the Courts below that the defendant has perfected the title by adverse possession is sustainable when the defendant encroached the 'B' schedule property in the year 1982 and the plaintiffs have sent legal notice in 1988 itself?" 6. During the pendency of the second appeal, C.M.P.No.1103 of 2011 was filed by the appellants/plaintiffs seeking permission to adduce additional evidence by filing the following documents: (1) The Certified copy of the Adangal extract and (2) FMB sketch 7. The warp and woof of the plaintiff's case would run thus: (i) The 'B' scheduled property measuring an extent of 30 ½ feet East to West and 22 ½ feet North to South, forms part of the 'A' scheduled property measuring an extent of 19 ½ yards East to West and 17 ½ yards North to South and that the B' scheduled property was encroached by the defendant without any manner of right who so ever. (ii) It is the case of the plaintiffs that the entire 'A' scheduled property, of which, the 'B' Scheduled property forms a part, originally belonged to one Madurayee Ammal, the first wife of Munusamy. The couple had one son by name Appa Pillai; while so, the said Munusamy, through his second wife-Govindammal (the first plaintiff) gave birth to the plaintiffs 2 to 5, namely, 1.Manonmani, 2.Muniammal, 3.Vijayalakshmi and 4.Selvaraj. Madurayee Ammal pre-deceased her husband Munusamy during the year 1940; Munusamy died leaving behind the plaintiffs and Appa Pillai and subsequently Appa Pillai also died. As such, the plaintiffs became the absolute owner of the suit property. 8. Whereas the defendant filed the written statement, which could pithily and precisely be set out thus: (i) The suit property was not properly described by the plaintiffs. The defendant's father-Veerasamy purchased the ‘B’ scheduled property as per Ex.B1-the certified copy of the sale deed dated 2.8.1965, from Appa Pillai, son of Munusamy, and one Kuppusamy, in two parts. The plaintiffs are not the legal heirs of Apppa Pillai. At no point of time the plaintiffs were in possession of ‘B’ Scheduled property and they are having no ownership right over it. The plaintiffs are not the legal heirs of Apppa Pillai. At no point of time the plaintiffs were in possession of ‘B’ Scheduled property and they are having no ownership right over it. (ii) After the death of Veerasami in the year 1966, his son the defendant herein started enjoying in his own right as the absolute owner of the ‘B’ scheduled property. He constructed a pacca titled house in the year 1967 in the ‘B’ scheduled property by spending a sum of Rs.30,000/-. Electricity service connection stands in the name of the defendant ever since 1973. 9. The plaintiffs filed the reply statement, challenging the validity of the sale deed dated 2.8.1965 in favour of the father of the defendant. 10. The defendant filed the additional written statement, the gist and kernel of it would run thus: The said Madurayee Ammal got the suit property as 'Sridhana' property, even though she allegedly purchased the property from her mother, vide sale deed dated 29.9.1930. Accordingly, the defendant would pray for the dismissal of the suit. 11. The learned Senior counsel for the plaintiffs would pyramid his arguments, which could succinctly and precisely be set out thus: (i) The description of property as found set out in Ex.B1-the sale deed dated 2.8.1965, does not tally with the property as found described in Ex.A2-the sale deed dated 29.9.1930. One Kuppusamy son of Viriyan, along with Appa Pillai-son of Munusamy, allegedly sold the property contemplated therein without the proper back up of antecedent title deed. There is nothing to indicate as to how Kuppusamy could have any ownership right over the suit property. The defendant himself admitted virtually that the property contemplated in Ex.A2-the sale deed dated 29.9.1930 was the property of Madurayee Ammal, which happened to be her 'Sridhana' property. If so, how Kuppusamy son of Viriyan, in that property could have had any right. As such, the Courts below did not advert to the said fact. (ii) The identity of the suit property no doubt has to be established and for which a Commissioner has to be appointed to locate it with the help of a surveyor and with reference to the documents of both sides and the Revenue records. But unfortunately, in this case, such exercise was not undertaken. Both the Courts below simply, on the ground of non-establishment of identity of the suit property, simply dismissed the suit. But unfortunately, in this case, such exercise was not undertaken. Both the Courts below simply, on the ground of non-establishment of identity of the suit property, simply dismissed the suit. Accordingly, the learned Senior counsel would pray for remitting the matter back to the first appellate Court for appointing an Advocate Commissioner for the aforesaid purpose and after receipt of such report and after entertaining both oral and documentary evidence of both sides, to decide the appeal afresh. 12. Per contra, in a bid to slap down and pulverise the arguments as put forth on the side of the appellants/plaintiffs, the learned counsel for the respondent/defendant would pyramid his arguments, which could tersely and briefly be set out thus: (i) The cardinal point to be noted here in this case is that to the knowledge of the plaintiffs, a pacca building was constructed in the suit property during the year 1967 by the defendant on the strength of Ex.B1-the sale deed dated 2.8.1965. After keeping quiet for a long number of years, holus-bolus the plaintiffs filed the suit and that itself would disentitle them from making any claim. (ii) The description of the property in Ex.B1-the sale deed dated 2.8.1965 is different from the description of the property in Ex.A2-the sale deed dated 29.9.1930 as well as in the schedule of properties found set out in the plaint. The burden is on the plaintiffs to establish how the suit property, namely, ‘B’ scheduled property is covered under Ex.A2 and how they are entitled to it. (iii) The plaintiffs have not established that they are the legal heirs of Appa Pillai. The fact remains that Appa Pillai, during his life time itself, as per Ex.B1-the sale deed dated 2.8.1965, alienated the ‘B’ scheduled property. In such a case, the plaintiffs cannot claim, as legal heirs of Appa Pillai, the ‘B’ Scheduled property. (iv) Both the Courts below taking into account the pros and con of the matter correctly decided the lis, warranting no interference in second appeal. Accordingly, the learned counsel for the defendant would pray for confirming the judgments and decrees of both the Courts below and for dismissing the second appeal. 13. All the substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another. 14. Accordingly, the learned counsel for the defendant would pray for confirming the judgments and decrees of both the Courts below and for dismissing the second appeal. 13. All the substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another. 14. For better appreciation of this case, I would like to extract hereunder the schedule of properties as found in Ex.A2-the sale deed dated 29.9.1930 as well as in Ex.B1-the sale deed dated 2.8.1965 and also the schedule of properties in the plaint. (a) The schedule of property as found in Ex.A2-the sale deed dated 29.9.1930: “TAMIL” (b) The schedule of properties as found in Ex.B1-the sale deed dated 2.8.1965: “TAMIL” (c) The schedule of properties as found in the plaint: 'A' Schedule: In North Arcot Ambedkar District, Vellore, Sub-District, Vellore Taluk, Pennathur Village, Old Survey No.468/2, New Survey No.153/13, Adi-Dravida Colony, House measuring East to West 19 ½ yards, North to South 7 ½ yards, bounded on the West side by North-south street, on the north by well, on the south by vacant site of Madurai, on the east by House of Mari, in this House 5 Anganam and Cattle shed 3 Anganam. 'B' Schedule Out of 'A' Schedule property, the front portion measuring North-south 22 ½ feet, East-West 30 ½ feet, bounded on the West by north-south streets, on the north by well on the south by houses of Madurai, on the East by plaintiff's house. 15. From a mere comparison of those schedules, the following could be deduced: (a) In Ex.A2-the certified copy of the ancient deed dated 29.9.1930 in the name of Madurayee Ammal, the following could be inferred. Madurayee Ammal purchased the property measuring 19 ½ yards from East to West and 7 ½ yards from North to South. This is the crucial extent which should be borne in mind. Over and above that, the boundaries also should be taken note of as found set out supra; on the Northern side there was a well; on the Western side there was a street; on the Southern side the vacant land of one Madurai is situated and on the Eastern side, the house of one Mari stood. The ‘B’ scheduled property is claimed to be forming part of the front portion of the aforesaid property. The ‘B’ scheduled property is claimed to be forming part of the front portion of the aforesaid property. (b) Whereas, as per Ex.B1-the sale deed dated 2.8.1965, two items are purported to have been sold by Appa Pillai and Kuppusamy in favour of defendant’s father and as per which, the said property is stated to be sandwiched by two streets one on the Eastern side and another on the Western side. On the North a common well is situated and to the South of it, the property of the said Kuppusamy is stated to have situated. (c) An extent of 8 ½ yards from East to West and 5 yards from North to South was sold by Appa Pillai and Kuppusamy in favour of the defendant’s father and to the South of the said small item, the same two vendors sold an extent of 17 ½ yards from East to West and 5 yards from North to South sandwiched by the same two streets and that item is stated to be situated to the South of the earlier item. Over and above that, still to the south of that second item, Kuppusamy’s property is stated to be situated, whereby one could understand that ‘L’ shaped property was sold under Ex.B1. 16. There is no clarity about it. How in respect of the said ‘L’ shaped land, there could be one and the same set of streets, one on the East and another on the West of it. There is no knowing of the fact as to how Kuppusamy could own property there as narrated in Ex.B1 when Ex.A2 covers that area. The property covered under Ex.A2 admittedly belonged to Madurayee Ammal. As such, absolutely there is no clarity as to how Kuppusamy, son of Viriyan, could join with Appa Pillai and sell the two items covered under Ex.B1. It has to be clarified as to how the property covered under Ex.B1 which forms part of Ex.A2 could have been sold by Appa Pillai and Kuppusamy. 17. There is a recital in Ex.B1 that the properties referred to therein originally belonged to the ancestors of the vendors. If really these properties belonged to Madurayee Ammal as per Ex.A2, the question of Appa Pillai and Kuppusamy describing the ‘B’ scheduled property or the property covered under Ex.B1 as the ancestral property, so to say, 'Pithurajidha property' would be a well neigh impossibility. If really these properties belonged to Madurayee Ammal as per Ex.A2, the question of Appa Pillai and Kuppusamy describing the ‘B’ scheduled property or the property covered under Ex.B1 as the ancestral property, so to say, 'Pithurajidha property' would be a well neigh impossibility. As such, these are points which both the Courts below failed to take note of. No doubt, the defendant would content that he acquired title by prescription over the 'B' Scheduled property. 18. Be that as it may. First of all, there should be clarity with regard to the aforesaid unanswered questions and the properties should necessarily be identified, as correctly highlighted by the learned Senior counsel for the appellants. The defendant also is duty bound to explain as to how Kuppusamy, as has been pointed out supra, could claim share in that property, which is apparently covered by Ex.A2, which originally belonged to Madurayee Ammal. Hence, I am of the considered view that necessarily the matter has to be remitted back to the first appellate Court with the following direction. 19. The learned counsel for the defendant would contend that there is nothing to indicate that the property purchased by Madurayee Ammal as per Ex.A2 should not be treated as her 'Sridhana property'. 20. I would like to observe that the Courts below have not considered the concept "Sridhana" properly and the first appellate Court should necessarily reconsider it, in the light of the definition of 'Sridhana property' as to whether the self-acquired property of a lady under the Hindu Law would form part of her 'Sridhana property'. The appellate Court also should consider that among the heirs of the Sridhana property, the unmarried daughter and in her absence, the married daughter, and in her absence, the daughter's son and in the absence of son, the grand-son and only in the absence of him, the husband would be preferred. But these aspects have not been considered at all. However, I hasten to add that since the matter is being remitted back to the lower appellate Court, I do not want to decide on that fact finally and it is for the appellate Court to refer to the correct legal position, by referring to the treatises and precedents and render a judgment on that point also. 21. However, I hasten to add that since the matter is being remitted back to the lower appellate Court, I do not want to decide on that fact finally and it is for the appellate Court to refer to the correct legal position, by referring to the treatises and precedents and render a judgment on that point also. 21. Relating to adverse possession is concerned, the first appellate Court is excepted to refer to the recent decision of the Honourable Apex Court reported in2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) and decide the issue. 22. Accordingly, the Substantial Questions of law are answered as under: In view of the inexplicable and unanswered questions still looming large, in view of my discussion supra, the substantial questions of law (i) and (ii) are decided that there is no clarity relating to the identity of the 'B' Scheduled property with reference to Exs.A2 and B1. Substantial Question of law (iii) relating to adverse possession is concerned; it has to be adjudged afresh by the first appellate Court in view of my discussion supra. 23. The first appellate Court shall do well to see that an Advocate Commissioner is appointed with the mission to visit the suit properties and measure the same with the help of a Surveyor and locate them with reference to the documents of both sides and Revenue records also note down the physical features. On receipt of such report by the Court, both sides should be given opportunity to file objections, if any, and they should also be given opportunity to file additional documentary and oral evidence. Thereafter, the first appellate Court, which happens to be the last Court of facts, should pass a reasoned judgment on all issues and material points, untrammelled and uninfluenced by any of the observations made by this Court, while disposing of this second appeal. 24. Accordingly, the aforesaid points are answered and the judgment of the first appellate Court is set aside and the matter is remitted back to the first appellate Court. Both the parties shall appear before the first appellate Court on 4.3.2013. The first appellate Court shall see to it that the matter is disposed of within a period of four months from the date of copy of this order. Consequently, the connected miscellaneous petition is closed.