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2014 DIGILAW 2103 (MAD)

Pillaiyar Gounder v. P. Mani

2014-07-14

T.MATHIVANAN

body2014
Judgment 1. This memorandum of second appeal has been filed under Section 100 of the Code of Civil Procedure as against the judgment and decree, dated 20.7.1999 and made in the appeal in A.S.No.158 of 1997 on the file of the learned Principal District Judge, Tiruvannamalai reversing the judgment and decree, dated 12.9.1997 and made in the suit in O.S.No.626 of 1988 on the file of the learned 1st Additional District Munsif, Tiruvannamalai. 2. The defendant in the suit is the appellant herein, whereas the plaintiff is the respondent. 3. For easy reference, the respondent may hereinafter be referred to as the plaintiff, whereas the appellant be referred to as the defendant, wherever the context so require. 4. Excerpts of the facts:- a. As per the plaint schedule, the suit property measuring 1 acre 50 cents is comprised in survey number 56/1 within the following four boundaries. aa. South West of S.No.53/1 bb. North of S.No.56/3 and East of the lands in possession of the plaintiff in S.No.56/1. b. The total extent of S.No.56/1 is 3 acres 30 cents, of which the suit property measuring 1 acre 50 cents forms part. c. The above said suit property is situated in Savalpoondi Village, Tiruvannamalai Taluk. d. There is no dispute that the suit property was originally belonged to one Perumal Nattar, who is none other than the father of the plaintiff herein. As it is seen from the plaint, he had passed away 11 years before. After his demise, the said land was in possession and enjoyment of the joint family consisting of his sons and daughters and his wife, including the plaintiff. Within the family of the plaintiff, i.e. among the heirs of Perumal Nattar a registered partition was effected on 7.2.1986. e. The plaintiff, being one of his four sons, was allotted the said land measuring an extent of 3.30 acres comprised in S.No.56/1. After such allotment, the plaintiff was in possession and enjoyment of the said land. f. The defendant, being the adjoining land owner after taking advantage of the absence of the plaintiff had trespassed to the extent of 1 acre 50 cents in the month of September 1986, which has been described as the suit property herein. When the plaintiff had asked, the defendant had been saying that he would release the said portion after measuring the same by a surveyor. When the plaintiff had asked, the defendant had been saying that he would release the said portion after measuring the same by a surveyor. But in fact, he had not come forward to surrender the vacant possession of the said land. Therefore, present suit has been filed by the plaintiff seeking the relief of declaration declaring his title to the suit property and to direct the defendant to deliver the possession of the said land measuring 1 acre 50 cents and in default, the suit property be directed to be delivered to the plaintiff through the process of court. 5. On the other hand, the defendant has admitted that the suit property was originally belonged to the father of the plaintiff, viz., Perumal Nattar. But he would contend that the plaintiff's father Perumal Nattar had sold the said property to one Kanna Gounder under a registered sale deed, dated 7.3.1962 for a valuable consideration of Rs.200/-. After his purchase the said Kanna Gounder was in possession and enjoyment of the property for about six years and thereafter, he (defendant) had purchased the said property under a registered sale deed, dated 24.5.1968 for the consideration of Rs.500/-. 6. He would further contend that the boundaries with reference to the suit property would clearly show that the property in question is the same as the one alienated in favour of Kanna Gounder by Perumal Nattar on 7.3.1962. 7. The defendant has further maintained that while the property was described in the above said sale deeds by boundaries, the survey number was wrongly mentioned as S.No.53/1 instead of S.No.56/1. The correct survey number is 56/1 and not 53/1. In the said survey number, a portion of 1 acre 50 cents was conveyed to the predecessor-in-title of the defendant and subsequently, he had purchased and taken the possession of the property with the boundaries as mentioned in the above said sale deeds. 8. Firstly, the defendant has stated that after his purchase, he had dug up a well in the said land and installed 5 HP electric motor and pumpset and apart from this, he had also constructed a house in the said land and has been residing there at present. 9. 8. Firstly, the defendant has stated that after his purchase, he had dug up a well in the said land and installed 5 HP electric motor and pumpset and apart from this, he had also constructed a house in the said land and has been residing there at present. 9. Secondly, he would contend that ever since from the date of his purchase, he has been in possession and enjoyment of the suit property, i.e., right from 1968 upto the date of the suit and as such the allegations levelled in the plaint are all false. 10. Thirdly, he has contended that on the mistake being found out, he had made representations to the revenue authorities and in consequence thereof, the authorities have given patta to him in S.No.56/1B as well as in S.No.53/1B after making it as a separate survey number and therefore, he has submitted that the suit is devoid of any merit and liable to be dismissed. 11. Based on the material proposition of the facts, the learned trial Judge had formulated as nearly as the following six issues:- a. Whether the suit property has been described with wrong boundaries? b. Whether the property which has been purchased by the defendant in the year 1968 has been in his possession and enjoyment? c. Whether the defendant's property has been separately assigned a survey number as 56/1B? d. Whether the excess land measuring 0.35 cents relating to the suit in O.S.No.621 of 1988 is the Government Poramboke land and has been in possession and enjoyment of the defendant? e. Is it correct to say that the plaintiff has been trying to take advantage of the survey number specified in the defendant's sale deeds? f. To what relief? 12. In order to substantiate their respective cases, both the plaintiff as well as the defendant were directed to face the trial and accordingly, two witnesses, including the plaintiff, were examined on his side and during the course of his examination Exs.A1 to A7 were marked. On the other hand, the defendant was examined as D.W.1 and during the course of his examination Exs.B1 to B10 were marked. 13. On the other hand, the defendant was examined as D.W.1 and during the course of his examination Exs.B1 to B10 were marked. 13. On evaluating the evidences both oral and documentary, the learned Additional District Munsif, Tiruvannamalai, had dismissed the suit on 12.9.1997 on the ground that the plaintiff had not produced any documentary proof to show that the defendant had encroached the suit property in the month of September 1986. 14. Having been aggrieved by the judgment and decree, dated 12.9.1997, the plaintiff had preferred an appeal in A.S.No.158 of 1997 on the file of the learned Principal District Judge, Tiruvannamalai. 15. After hearing both sides and on appreciation of the evidences, the learned Principal District Judge, had proceeded to allow the appeal on 20.7.1999 reversing the judgment and decree of the trial Court. 16. Impugning the correctness of the judgment of the first appellate court, the defendant has approached this court with this second appeal. 17. The second appeal has been admitted on the following two substantial questions of law:- a. When the documents in favour of the defendant as well as the admission of the plaintiff would go to show that the defendant has purchased 1 acre 50 cents in S.No.56/1 itself, is the learned District Judge right in granting a decree in favour of the plaintiff? b. Is the learned District Judge right in holding that the plaintiff has title to the suit property when there is no evidence to show that the plaintiff's vendors had any title to convey in S.No.53/1? 18. Heard Mr. A. Rajakumar, learned counsel appearing for the appellant/defendant and Mr. S.I. Muthaiah, learned counsel appearing for the respondent/plaintiff. 19. As observed in the opening paragraphs, the suit in O.S.No.626 of 1988 has been filed by the respondent/plaintiff for declaration to declare his title over the suit property and to direct the appellant/defendant to deliver the possession of the suit property back to him and in default to direct the suit property be delivered to the plaintiff through the process of court. 20. As per the averments of the plaint, the cause of action is said to have been arisen in or about September 1986, when the appellant/defendant had gradually encroached and taken the possession of the suit land illegally. 21. 20. As per the averments of the plaint, the cause of action is said to have been arisen in or about September 1986, when the appellant/defendant had gradually encroached and taken the possession of the suit land illegally. 21. It is, therefore, made clear that as per the cause of action paragraph No.6 of the plaint, the encroachment is said to have been made in the month of September 1986. 22. Even on a cursory perusal, the cause of action paragraph itself goes to show that the encroachment was not made all of a sudden, but it was said to have been made gradually. 23. The averments themselves would lead the court to presume that the respondent/plaintiff is not certain about the genesis of cause of action, as he has employed the words 'in or about September 1986.' 24. The allegation of trespass has been denied by the appellant/defendant. The defendant has admitted the fact that the suit property was originally belonged to one Perumal Nattar, who is none other than the father of the respondent/plaintiff. But he has strongly denied the family partition said to have been effected between the heirs, including the plaintiff, of Perumal Nattar. 25. According to the defendant , Perumal Nattar, who is the father of the plaintiff had originally sold the property measuring 1.50 acres to one Kanna Gounder S/o.Allimuthu Gounder on 7.3.1962 under a registered sale deed, dated 7.3.1962 (Exs.A3 and B1, both are same) for a valuable consideration of Rs.200 with specific boundaries. 26. After his purchase, the said Kanna Gounder was in possession and enjoyment of the said property for nearly 6 years and thereafter, he had sold the property in favour of the defendant on 24.4.1968 under a registered sale deed for a valuable consideration of Rs.500/-. The original sale deed has been marked as Ex.B.2. 27. The suit property, as per the plaint schedule, is comprised in S.No.56/1. The total area of the land is 3.30 acres, of which, the suit property measuring 1.50 acres has been bounded by the following boundaries:- aa. South and West of S.No.53/1 bb. North of S.No.56/3 and East of the land in possession of the plaintiff in S.No.56/1. 28. 27. The suit property, as per the plaint schedule, is comprised in S.No.56/1. The total area of the land is 3.30 acres, of which, the suit property measuring 1.50 acres has been bounded by the following boundaries:- aa. South and West of S.No.53/1 bb. North of S.No.56/3 and East of the land in possession of the plaintiff in S.No.56/1. 28. The specific case of the defendant is that though the specified extent of 1.50 acres was purchased by Kanna Gounder from Perumal Nattar under Exs.A3 and B1, (both are same), the survey number in the description of the property has been wrongly mentioned in the sale deed as S.No.53/1 instead of S.No.56/1. 29. Since the defendant has purchased the very same property, the survey number has been wrongly mentioned in his sale deed, Ex.B2 also. But in fact the specific area measuring 1.50 acres comprised in S.No.56/1 alone was purchased by him and since four boundaries have been clearly specified in the above said sale deeds, viz., Exs.A3 and B1 as well as Ex.B2, the property is not different but one and the same. 30. It is also the case of the defendant that mere mentioning of the survey number wrongly in the sale deeds, viz., Exs.A3 and B1 as well as Ex.B2, his right over the exact property measuring 1.50 acres in S.No.56/1 cannot be taken away. 31. Based on Exs.A3, B1 and B2, the defendant has claimed that within the four boundaries specified in these documents he had been in possession and enjoyment of 1.50 acres. 32. As per the case of the plaintiff, the property, which has been in possession and enjoyment of the defendant alone, is disputed. But, it is not the case of the plaintiff that the property purchased by one Kanna Gounder from his father Perumal Nattar, is the different one. 33. In his cross examination, the defendant has stated that when his land was measured by the Village Karnam, as per the UDR Scheme, one Thirunavukkarasu had requested him to hand over the sale deed. He had also handed over his document to show that the land was in his possession. Only at that time, he was put to understand that the survey number is wrongly mentioned in the description of the property. 34. He had also handed over his document to show that the land was in his possession. Only at that time, he was put to understand that the survey number is wrongly mentioned in the description of the property. 34. He has also deposed that his sale deed under Ex.B.2 was executed based on the parental document stood in the name of Kanna Gounder, who is the vendor of the defendant. 35. As aforestated, the defendant has made stress on the point that he has been in possession and enjoyment of the land as per the four boundaries specified in Ex.B2 and that he has never been in possession and enjoyment of the land comprised in S.No.53/1. But, in this connection, the plaintiff has not adduced any rebuttal evidence. 36. Having been brought the suit as against the defendant, the plaintiff has not chosen to examine the adjoining the land owners, such as Angammal and Kanna Gounder. 37. Besides this, the defendant has also stuck on to his stand that he is not claiming any interest over the land comprised in S.No.53/1, instead, he is claiming his absolute right over the land measuring 1.50 acres comprised in S.No.56/1. 38. He has also stated that the land in his possession has now been assigned with new sub division number as S.No.56/1B. Besides this he has contended that after his purchase, he had constructed a house and also dug up a well and put up an electric motor and pump set. 39. He has also deposed that his house and the well fitted with an electric motor and pumpset are located only in S.No.56/1 and not S.No.53/1. 40. On coming to the chief examination of P.W.1, he has stated that he had seen the properties allotted to him after the family partition, dated 7.2.1986. At that time, he was informed by the Village Karnam that during the course of survey conducted as per the UDR Scheme, it was found that the suit property was encroached by the defendant. 41. This piece of evidence would go to crystallize the fact that even prior to the information given by the Village Karnam, the alleged encroachment was not known to the plaintiff. 42. He has also admitted even in his chief examination that from his father's land, 1.50 acres was given to the defendant under UDR Scheme. 41. This piece of evidence would go to crystallize the fact that even prior to the information given by the Village Karnam, the alleged encroachment was not known to the plaintiff. 42. He has also admitted even in his chief examination that from his father's land, 1.50 acres was given to the defendant under UDR Scheme. He has also admitted that the said 1.50 acres out of 3.30 acres comprised in S.No.56/1 was given to the defendant. 43. He has further admitted that when he had asked the defendant, he had given an evasive answer by saying that everything would be corrected and need not be worried. 44. Having been admitted that 1.50 acres out of 3.30 acres comprised in S.No.56/1 was given to the defendant, now it cannot be claimed by the plaintiff that the defendant had encroached the suit property in the month of September 1986. 45. It is established by the defendant that under Exs.A3 and B1, the plaintiff's father Perumal Nattar had sold the land measuring 1.50 acres with specific boundaries in favour of Kanna Gounder as early as on 7.3.1962. Thereafter, i.e., after passing of six years, the defendant had purchased the very same property with the specific boundaries on 24.4.1968. 46. As has been stated above, from the date of his purchase, the defendant has claimed that he has been in possession and enjoyment of the said property. Even prior to that his predecessor-in-title, viz., Kanna Gounder was in possession and enjoyment of the property, i.e., from 1962. Therefore, when the plaintiff himself has specifically admitted in his evidence that the land measuring 1.50 acres comprised in S.No.56/1 was given to the defendant, the question of encroachment in the month of September 1986 does not arise. Therefore, the alleged cause of action itself has not been proved. 47. When the alleged cause of action said to have been arisen in the month of September 1986 left unproved, the construction of whole edifice of the case has become collapsed. 48. As argued by Mr. A. Rajkumar, learned counsel appearing for the defendant, the extent of the land, i.e., 1.50 acres and the four boundaries are tallied with the sale deeds under Exs.A3, B1 and B2. 49. Since the survey number has been wrongly mentioned as 53/1, it will not give any cause of action for the plaintiff to file the suit. A. Rajkumar, learned counsel appearing for the defendant, the extent of the land, i.e., 1.50 acres and the four boundaries are tallied with the sale deeds under Exs.A3, B1 and B2. 49. Since the survey number has been wrongly mentioned as 53/1, it will not give any cause of action for the plaintiff to file the suit. The alleged cause of action has been proved to be imaginery and fictitious. 50. Besides this, on perusal of the documents ranging from Exs.B3 to B10, this Court finds that the defendant has proved his possession over the exact extent of 1.50 acres within the four boundaries specified in the sale deed under Ex.B2. 51. It is obvious to note here that the plaintiff has admitted in his chief examination that he knew that 1.50 acres was sold to Kanna Gounder by his father and that the Kanna Gounder had in turn sold the same property to the defendant. But he has changed his evidencing pattern and deposed that his father had sold the property to Kanna Gounder in S.No.53/1 and not in S.No.56/1. 52. He has further stated that Kanna Gounder has also sold the property to the defendant in S.No.53/1 and not in S.No.56/1. 53. It is significant to note here that even for the second time, he has conflicted with his own evidence by saying that the land measuring 1.80 acres, which is in his possession, is bounded by South and West of S.No.53/1 and North of S.No.56/3. 54. The admission of P.W.1 in his chief examination itself would go to show that the total extent of the land comprised in S.No.56/1 is 3.30 acres, of which, his father had sold 1.50 acres to Kanna Gounder under Exs.A3 and B1 and in the year 1968 the defendant has purchased the very same property under Ex.B2. Therefore, if 1.50 acres is deducted from 3.30 acres, the remaining area would be 1.80 acres, which is in the possession and enjoyment of the plaintiff. 55. It is also pertinent to note here that the land measuring 1.80 acres is comprised in S.No.56/1. When such being the case, how the property, which is in the possession and enjoyment of the defendant, in his capacity as the absolute owner, could have been found in S.No.53/1? This question has not been answered by the plaintiff. 56. 55. It is also pertinent to note here that the land measuring 1.80 acres is comprised in S.No.56/1. When such being the case, how the property, which is in the possession and enjoyment of the defendant, in his capacity as the absolute owner, could have been found in S.No.53/1? This question has not been answered by the plaintiff. 56. In his cross examination also, he has admitted that the total area in S.No.56/1 is 3.30 acres and that he has filed the suit only in respect of 1.50 acres out of 3.30 acres. 57. Apart from this, he has also specifically admitted that the suit property, i.e., 1.50 acres is in the possession and enjoyment of the defendant. 58. The evidence of P.W.2, who is said to be an attestor in the family partition deed, is not in any way lending a helping hand to the case of the plaintiff. 59. It appears that the suit property, which is in the possession and enjoyment of the defendant, has been sub-divided as S.No.56/1B. But in this connection, the plaintiff has stated that he did not know about the sub-division. 60. Mr. S.I. Muthaiah, learned counsel appearing for the plaintiff has adverted to that the defendant had not produced any document to substantiate the fact that his vendor Kanna Gounder had been in possession from the year 1962 and thereafter, he had been in possession from 24.4.1968. 61. He would further argue that Exs.B1 and B2 sale deeds are relating to S.No.53/1 and in respect of S.No.53/1, the entire area is 9.26 acres and that the suit survey number is 56/1 measuring 3.30 acres, of which the suit property measuring 1.50 acres is in question in this suit. 62. He has also drawn the attention of this court to Ex.A5, alleged partition deed, dated 7.2.1986 effected between the heirs of Perumal Nattar and in Ex.A5, the suit property has been specified in Schedule “E”. 63. As it is seen from Ex.A5, Partition deed, dated 7.2.1986, the property measuring 3.30 acres comprised in S.No.56/1 seems to have been allotted to the plaintiff Mani. 64. As adumbrated supra, it is his candid admission that 1.50 acres is in the possession and enjoyment of the defendant. According to him, the defendant had encroached upon the suit property. 63. As it is seen from Ex.A5, Partition deed, dated 7.2.1986, the property measuring 3.30 acres comprised in S.No.56/1 seems to have been allotted to the plaintiff Mani. 64. As adumbrated supra, it is his candid admission that 1.50 acres is in the possession and enjoyment of the defendant. According to him, the defendant had encroached upon the suit property. But the claim of encroachment has not been proved by the plaintiff and therefore, as on 7.2.1986, the entire extent of 3.30 acres could not have been allotted to the plaintiff, instead, 1.80 acres alone could have been allotted as admitted by him. 65. Because, he has specifically stated in his cross examination that he is in possession and enjoyment of 1.80 acres and that the remaining portion measuring 1.50 acres is in the possession of the defendant. Therefore, the argument advanced by Mr. Muthaiah is not discernible and liable to be rejected. 66. Mr. A. Rajakumar, learned counsel appearing for the defendant, while advancing his arguments, has placed reliance upon the following two decisions:- a. K. Seetharam vs. B.U. Papamma and another ( AIR 2001 SC 2182 ). b. Tetali Sooramma vs. Kovvuri Venkayya (died) and others ( 1938 (1) MLJ 806 ). 67. The decision cited first supra is relating to an injunction suit. 68. In this case, the plaintiff had claimed to be the owner of the property seeking to restrain the defendant from interfering with his possession and enjoyment over the suit property. 69. While defending the suit, the defendant clearly denied of encroachment on portion of the plaintiff land for constructing a building. 70. In this connection, a question had arisen as to whether the defendant while constructing the building had encroached upon the portion of the suit land. The report of the Commissioner disclosed that the defendant had not encroached on any portion of the land of the plaintiff. The other evidence on record clearly showed that the plaintiff failed to prove that the defendant had encroached upon the suit land. 71. Under these circumstances, the Apex Court has held that the plaintiff is not entitled to the relief of injunction. 72. On coming to the decision cited second supra, it is relating to rectification of mortgage deed. 73. The other evidence on record clearly showed that the plaintiff failed to prove that the defendant had encroached upon the suit land. 71. Under these circumstances, the Apex Court has held that the plaintiff is not entitled to the relief of injunction. 72. On coming to the decision cited second supra, it is relating to rectification of mortgage deed. 73. In this case, a Division Bench of this Court has held that, “so long as it is open to the parties to a suit to adduce oral evidence on the ground of mutual mistake in regard to the mis-description of property, a Court can give effect to the real intentions of the parties and no question of limitation need arisen at all when the substantial relief prayed for by the plaintiff is not rectification of the deed but some other relief which he is entitled to claim under the law on the basis of the transaction which he seeks to enforce. Rectification in such a case is not necessary. 74. It is also held that where in a suit upon mortgage the defendant contended that one of the properties to be brought to sale could not be sold owing to a wrong description of survey number and the plaintiff in his plaint had admitted the mistake already, but the substantial relief prayed for in the plaint was the sale of the property on the basis of the mortgage. 75. Under these circumstances, it is held that even though the right of the plaintiff to sue for rectification of the mortgage deed was barred by limitation under Article 96 Schedule II of the Limitation Act, still he was entitled to the relief for sale of the property which was agreed to be mortgaged. 76. On coming to the instant case, the flagrant defect is the mis-description of the survey number. The boundaries are clearly tallied with the documents under Exs.A3, B1 and B2. The extent of the property, viz., 1.50 acres has not been disputed even by the plaintiff as well as the defendant. The defendant has clearly demonstrated that he had purchased 1.50 acres with clear boundaries and therefore, the wrong description of survey number will not in any way take away his right. 77. Now it has been brought to the notice of this Court, the survey number 56/1 has been sub divided as 56/1B. The defendant has clearly demonstrated that he had purchased 1.50 acres with clear boundaries and therefore, the wrong description of survey number will not in any way take away his right. 77. Now it has been brought to the notice of this Court, the survey number 56/1 has been sub divided as 56/1B. Further, for future convenience and also to avoid any chaos and confusion as well as confliction, the defendant is at liberty to strike a rectification deed, if he does desire. Since the proceedings have been in adjudication ever since from the date of the filing of the suit, the question of limitation whatever may be will not come in the way of rectification process. 78. On careful analysis of the testimonies of P.Ws.1 and 2 and D.W.1 as well as on appreciation of the documentary evidences, this Court finds that the trial Court has correctly found that the plaintiff had miserably failed to establish his case on the ground that the plaint schedule was absolutely wrong and that the defendant had purchased the suit property under Ex.B2 comprised in S.No.56/1, which was sub-divided as S.No.56/1B, which is now in the possession and enjoyment of the defendant. 79. The lower appellate court has not appreciated the evidences both oral and documentary with proper perspective, which resulted in the dismissal of the appeal. 80. In the result, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside. The judgment and decree of the trial court are restored. However, there will be no order as to costs.