Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 2199 (MAD)

Jayaraman v. R. Krishnan

2014-07-21

T.RAJA

body2014
Judgment : 1. The present second appeal has been directed against the concurrent findings of both the Courts below, raising the following substantial questions of law:- “(1) Is the learned Sub-Judge right in confirming the decree when both oral and documentary evidence establish the title and possession in the eastern 0.4.25 cents is with the second defendant for over a statutory period? (2) When the issuance of patta coupled with the production of tax receipts with reference to a particular door number and enjoyment as his own property by second defendant for over a statutory period, is the learned Sub-Judge right in negativating the plea of adverse possession?'' 2. When the matter was taken up, Mr.M.Balasubramanian, learned counsel for the first respondent, filing a memo dated 17.2.2014, submitted that the first respondent had already sold the suit property, therefore, he is no longer interested in pursuing this second appeal. The said memo is recorded. 3. Mr.T.R.Rajagopalan, learned senior counsel appearing for the appellant/second defendant urged this Court to consider the above two substantial questions of law to interfere with the impugned judgments and decrees by contending that the first appellate Court has not approached the issue rightly and erroneously confirmed the judgment and decree passed by the trial Court, when both the oral and documentary evidence establish the title and possession in the eastern 0.4.25 cents was with the appellant/second defendant for over a statutory period, more particularly, when Exs.B4, B5, B6 and B7 are clearly supporting the case of the appellant/second defendant that the Naidumangalam Panchayat Board had given the house tax receipts to Door No.3/54 belonging to the appellant/second defendant constructed on the eastern half of the suit property, both the Courts below ought not to have decided the issue only on the question of title, when the appellant/second defendant had been in possession of the eastern half for a long time. When the issuance of patta coupled with the production of house tax receipts with reference to a particular door number and enjoyment by the appellant for over a statutory period has been properly placed, a wrong finding has been given by the Courts below only on the basis of title with reference to the sale deed that shows the name of the first respondent/plaintiff, rejecting the case of the appellant that the property was purchased from the income derived from the joint family business, he pleaded. 4. It is seen that the first respondent/plaintiff filed the suit for a judgment and decree to grant permanent injunction against the defendants in respect of the suit schedule property covered in Dry S.No.37/1D2 (present 34/5G) 3.40 in this 0.68 ½ cents bounded by west of main road, north of Kanji road, east and south of Sowbagayammal land in this tiled house and vacant site in Agaramaippandi village (Naidumangalam), Tiruvannamalai District, on the ground that the suit property was purchased by him under a registered sale deed dated 17.6.76 for Rs.200/- from one Mr.Govindasamy. Since there was a mistake in the survey number, the first respondent also had taken a rectification deed from the vendor under the registered deed dated 29.7.85, therefore, the schedule mentioned property is separate and the self-acquired property of the first respondent. While so, the defendants have no right whatsoever. In support of his claim, the first respondent also pleaded that he had obtained patta for the vacant site. In addition to the patta, house tax receipt was also produced. After purchase of the property, the first respondent kept the suit property as vacant site for ten years and after ten years, he had constructed the tiled house and the family also was using the suit property for storing materials and for staying during the night time. When he had leased out the house for Rs.150/-per month to one Mr.Murugan, the appellant wanted to grab the property from the first respondent. In view of that, the first respondent was constrained to file the suit praying for a judgment and decree of permanent injunction against the appellant. 5. A detailed written statement was filed by the appellant/second defendant taking a specific plea therein that the first respondent/plaintiff, the appellant/second defendant and their parents were living jointly and enjoying the ancestral land bearing Wet S.No.107/1, 0.77.0 hectare jointly. The first respondent/plaintiff was cultivating the ancestral land and the appellant/second defendant was running a tea stall business. That was also joint family business run along with the first respondent, the appellant and their father. Only from out of the said income, the suit property was purchased as vacant site in the name of the first respondent for the benefit of both the first respondent and the appellant from one Mr.Govindasamy under the registered sale deed dated 17.6.76. That was also joint family business run along with the first respondent, the appellant and their father. Only from out of the said income, the suit property was purchased as vacant site in the name of the first respondent for the benefit of both the first respondent and the appellant from one Mr.Govindasamy under the registered sale deed dated 17.6.76. At the time of purchasing the suit property, the first respondent and the appellant contributed Rs.100/- each and they also equally met the incidental expenses for purchase of stamp papers for engrossing the said sale deed and for registration expenses. Since the first respondent is the elder brother, the suit property was purchased in his name for the benefit of both the first respondent and the appellant. From the date of purchase, the first respondent and the appellant had been jointly enjoying the same till the month of December, 1976, when the first respondent and the appellant orally partitioned the suit property between them. In the said oral partition, the eastern 0.04 acre of the suit site was allotted to the share of the appellant and the western 0.04 acre of the suit site was allotted to the share of the first respondent. Thereafter, the appellant constructed a tiled house on the eastern portion of 0.04 acre of the suit property in the year 1977. Since then he had been living in a portion of the said tiled house and running a tea stall and tiffin section in another portion of the tiled house and paying the house tax to the Panchayat Board of Naidumangalam village till 1986, when the said tiled house collapsed. Therefore, the patta standing in the name of the first respondent in respect of the entire property should not be construed as the property entirely and exclusively belonging to the first respondent alone. 6. On the basis of the above pleadings, the trial Court framed the following issues and additional issue:- ''(a) Whether the plaintiff is entitled for the permanent injunction as prayed for? (b) Whether the defendants are entitled for the exemplary cost under Section 35(1) CPC? (c) To what relief? 6. On the basis of the above pleadings, the trial Court framed the following issues and additional issue:- ''(a) Whether the plaintiff is entitled for the permanent injunction as prayed for? (b) Whether the defendants are entitled for the exemplary cost under Section 35(1) CPC? (c) To what relief? (d) Whether the second defendant has been in possession and enjoyment of the suit property as per the oral partition alleged by him?'' Before the matter was taken up for trial, an Advocate Commissioner was appointed and he also submitted his report and plan, which were marked as Ex.C1 and Ex.C2. The trial Court, after taking note of the oral evidence adduced by both sides and the documentary evidence, Exs.A1 to A32 marked on the side of the plaintiff and Exs.B1 to B15 marked on the side of the defendants along with the commissioner's report and plan, which show that the possession of the suit property with the second defendant was not properly established, by taking note of the sale deed, Ex.A1 dated 17.6.76 and the rectification deed, Ex.A2 dated 29.7.85, rejected the case of joint purchase and finally, finding no evidence whatsoever to reveal the possession of the second defendant in respect of the eastern portion of 0.04 ½ cents, decreed the suit as prayed for. As against that, when an appeal was filed, the first appellate Court also, framing, among other issues, the crucial issue, namely, whether the second defendant was allotted the eastern half in the oral partition between the plaintiff and the second defendant, came to the conclusion that there was no documentary evidence on the side of the second defendant to show that there was any such oral partition as pleaded by him, however, going into the sale deed, Ex.A1 dated 17.6.76 which stands in the name of the plaintiff, rejected the case of the second defendant, giving rise to the present second appeal. 7. As mentioned above, while arguing on the above mentioned substantial questions of law, the learned senior counsel for the appellant submitted that when there are sufficient documents produced on the side of the appellant viz., Exs.B4, B5, B6 and B7 which are consistently showing the possession of the appellant in the suit property, the first appellate Court ought to have reversed the judgment of the trial Court. But wrongly, taking note of only the patta and the sale deed, Ex.A1, both the Courts below erroneously rejected the case of the appellant holding that no importance can be given to the above documents, namely, Exs.B4, B5, B6 and B7. 8. This Court also is unable to accept the said contentions made by the learned senior counsel for the appellant. The reason is that when the appellant had pleaded his case that the suit property was purchased by using the revenue from the joint family business and he contributed a sum of Rs.100/-, the sale deed, Ex.A1 dated 17.6.76 registered in the name of the first respondent clearly shows that on the date of purchase, the first respondent, the appellant and their father were alive. Therefore, the first appellate Court rightly posed a question as to how it was possible to purchase the suit property in the name of the first respondent alone when his father was alive. Again, posing one more question that when the suit property was not purchased jointly in the names of both the first respondent and the appellant, rightly rejected the case of the appellant. Therefore, this Court finds no merits or substance in the second appeal. Further, this Court, in substituting the findings of the first appellate Court on the basis of Exs.B4, B5, B6, B7, for the simple reason that when the suit was filed in the year 1997, the house tax receipts issued by the Naidumangalam Panchayat were related to the years 1981 and 1982, therefore, no credit can be given to these documents, without mentioning the correct description of the suit property. Moreover, admittedly, in the present case, the suit was filed in the year 1997. But the appellant herein failed to produce at least some documents relating to the suit property either two years prior to the filing of the suit or post filing of the suit. That apart, the finding of facts reached by the trial Court has been rightly, on appreciation, affirmed by the first appellate Court. Such concurrent findings of facts cannot be substituted on re-appreciation of evidence merely on the ground that another view is possible. Therefore, finding no substantial question of law to be answered in favour of the appellant, the second appeal fails and it is dismissed by confirming the concurrent findings of both the Courts below. Such concurrent findings of facts cannot be substituted on re-appreciation of evidence merely on the ground that another view is possible. Therefore, finding no substantial question of law to be answered in favour of the appellant, the second appeal fails and it is dismissed by confirming the concurrent findings of both the Courts below. Consequently, M.P.No.1 of 2009 is also dismissed. In view of the relationship between the parties, there is no order as to costs.