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2014 DIGILAW 2538 (MAD)

Pattammal v. K. Durai Raj

2014-08-11

T.MATHIVANAN

body2014
JUDGMENT T. MATHIVANAN, J. 1. The judgment and decree, dated 31.7.1996 and made in A.S. No. 168 of 1994 on the file of the learned Additional District Judge, Villupuram, reversing the judgment and decree, dated 19.11.1993 and made in O.S. No. 903 of 1986 on the file of the learned District Munsif, Thirukkovilur, have been challenged in this second appeal. 2. The appellants are the defendants 1 to 4 whereas the respondent is the plaintiff in the suit in O.S. No. 903 of 1986. 3. For the sake of convenience and also for easy reference, the respondent may hereinafter be referred to as the plaintiff, whereas the appellants 1 to 4 be referred to as the defendants wherever the context so require. 4. The plaintiff seems to have filed the suit as against the defendants 1 to 4, who are the appellants herein and other defendants 5 to 8 seeking the relief of declaration of his title over the suit property and for recovery of possession and also for loss of rent. 5. The defendants have contested the suit by filing their written statement. 6. On appreciation of evidences adduced on behalf of both sides, the learned trial Judge had dismissed the suit on 19.11.1993. 7. Impugning the judgment and decree, dated 19.11.1993, the plaintiff had preferred an appeal in A.S. No. 405 of 1994 on the file of the learned District Judge, Villupuram. Thereafter, the appeal was made over to the learned Additional District Judge, Villupuram and after hearing both sides, the learned Additional District Judge, had proceeded to allow the appeal reversing the judgment and decree of the trial court and ultimately granted the relief as sought for by the plaintiff. 8. Having been aggrieved by the impugned judgment of the lower appellate Court, dated 31.7.1996, the defendants 1 to 4 have preferred the present second appeal. The remaining defendants 5 to 8 have neither preferred any appeal nor joined with D1 to D4. 9. The second appeal came to be admitted on the following substantial questions of law:- (a) Whether lower appellate Judge in view of the fact that the plaintiff had deposed that he does not know about the details or boundaries of the land and without properly identifying the property alleged to have been purchased by him and in view of the categoric admission, had not erred in reversing the Judgment of the trial Court? (b) Whether the learned Appellate Judge's reversal is without any evidence whatsoever on that ground whether not perverse? (c) Whether the learned Appellate Judge's interpretation of the document alleging that the property in question had been purchased by the plaintiff is correct? FACTS IN BRIEF 10. Originally the suit vacant site and the adjoining house sites lying on the eastern as well as southern sides were belonged to one Abbayee Iyer S/o Venkatrama Iyer. 11. On 16.12.1957 he had executed a settlement deed in favour of his daughter one Sundarammal and thereby he had settled the suit site, other house sites and other properties in favour of Sundarammal. That settlement deed was accepted and acted upon by Sundarammal. 12. Ever since from the date of settlement, the suit property and other properties were in the possession and enjoyment of the said Sundrammal. 13. While so, she had alienated the house site lying on the eastern side to the suit property to one Perumal Naidu and the house site lying on the southern side of the suit property to one Krishna Pillai. Thereafter, on 29.7.1985 she had sold out the suit vacant site in favour of the plaintiff for a valuable consideration of Rs. 3300/- 14. After his purchase, he had/has been in possession and enjoyment of the suit site. That on 1.9.1986 in the absence of the plaintiff, the defendants 1 and 2 along with the defendants 3 and 4 had forcibly encroached upon the suit site for which they have not any semblance of right or interest over the suit vacant site. 15. Since the plaintiff had been in possession and enjoyment of the suit property from the date of purchase for more than 30 years, even if there is any encumbrance or defect in his title, he had also perfected title over the suit property by way of adverse possession. Therefore, the plaintiff was constrained to file the suit for declaration and for recovery of possession. 16. On the other hand, the defendants 1 and 2 have filed their common written statement, which has been adopted by the remaining defendants 3 to 8. 17. The first defendant is the wife of the second defendant and the defendants 3 and 4 or their children. 16. On the other hand, the defendants 1 and 2 have filed their common written statement, which has been adopted by the remaining defendants 3 to 8. 17. The first defendant is the wife of the second defendant and the defendants 3 and 4 or their children. The defendants 5 to 8 are in-laws of the second defendant and therefore, the defendants 5 to 8 are not having any right or interest over the suit property. 18. It is the case of the defendants that the western boundary as well as the east west measurements of the suit property are not correct. The defendants 1 and 2 had purchased the property, which is lying on the western side of the suit site from one Kuppammal orally and as such, they have been in possession and enjoyment of the same. The measurement of the suit site on the east west is 82 feet. 19. The suit site as well as the site lying on its northern side were the ancestral properties of one Kesavalu Naidu, who is none other than the father of the plaintiff. 20. That on 16.5.1985, the first defendant had purchased the suit site including the vacant site lying on the northern side of the suit property measuring north-south 85 feet and east west 82 feet, which is lying in between the house sites of Kuppammal and Perumal, for a valuable consideration of Rs. 4500/- under a registered sale deed. 21. Prior to her purchase, the first defendant had advanced a loan of Rs. 1500/- to Kesavalu Naidu, who is the father of the plaintiff and in lieu of interest she had been enjoying the suit site by putting up a shed and tying cattles and also putting up haystack. Therefore, from 16.5.1985, the first defendant has been enjoying the suit site as an absolute owner including the other properties. 22. Despite this fact is known to the plaintiff, at the instigation of Krishna Pillai, who is the owner of the site lying on the southern side of the suit property, the plaintiff with an oblique motive has filed the suit. 23. The defendants 5 to 8 being the brothers of the first defendant are not having any right over the suit property and therefore, they are not at all necessary parties to the suit. 24. 23. The defendants 5 to 8 being the brothers of the first defendant are not having any right over the suit property and therefore, they are not at all necessary parties to the suit. 24. The trial Court based on the pleadings of the parties to the suit has formulated as nearly as eight issues. 25. In order to substantiate their respective cases, both the plaintiff as well as the defendants were directed to face the trial. 26. Accordingly, the plaintiff had examined himself as P.W.1 and two more witnesses were examined as P.Ws.2 and 3 respectively. During the course of their examination, Exs.A1 to A4 were marked. On the other hand, the second defendant, who is the husband of the first defendant was examined as D.W.1 and two more witnesses were examined. During the course of their examination, Ex.B1 alone was marked. 27. On appreciation of the evidences both oral and documentary, the learned trial Judge had proceeded to dismiss the suit on the ground that the plaintiff does not know about the particulars of the suit property and that the suit property has not been described in the proper manner in the suit. 28. Having been aggrieved by the impugned judgment, dated 19.11.1993, the plaintiff had preferred an appeal in A.S. No. 168 of 1994 on the file of the learned Additional District Judge, Villupuram and on hearing both sides and on appreciation of the evidences, the learned lower appellate Judge had accepted the contention made on behalf of the plaintiff and ultimately, he had proceeded to allow the appeal after setting aside the judgment and decree of the trial court and he has also decreed the suit has prayed for by the plaintiff. 29. Impugning the said judgment and decree of the first appellate court, the defendants 1 to 4 have approached this Court with this second appeal. 30. Heard Mr. S.V. Jayaraman, learned Senior Counsel appearing on behalf of Mr. N. Senthil Kumar, learned counsel, who is on record, for the appellants and Mr. S. Parthasarathy, learned Senior Counsel appearing on behalf of M/s. Sarvabhauman Associates, who is on record for the respondent/plaintiff. 31. Mr. S.V. Jayaraman, learned Senior Counsel at the first instance, has drawn the attention of this Court to the second issue, formulated by the trial court. 32. S. Parthasarathy, learned Senior Counsel appearing on behalf of M/s. Sarvabhauman Associates, who is on record for the respondent/plaintiff. 31. Mr. S.V. Jayaraman, learned Senior Counsel at the first instance, has drawn the attention of this Court to the second issue, formulated by the trial court. 32. The second issue has been formulated by the trial court to consider the question as to whether the sale deed, dated 29.7.1985 alleged to have been executed by Sundarammal in favour of the plaintiff is true and valid and he has also drawn the attention of this Court to the issue No. 3 which has been formulated to consider the question as to whether the plaintiff is entitled to perfect his title by way of adverse possession over the suit property. 33. In respect of both the issues, viz. Issue Nos. 2 and 3, the leaned Senior Counsel Mr. S.V. Jayaraman has indicated that the plaintiff had unfortunately, failed to prove his possession after his alleged purchase from Sundarammal and that the Sundarammal herself was having no better title to convey the suit property in favour of the plaintiff and therefore, he has suggested that in order to identify the suit property it might be better to appoint an advocate commissioner. 34. The suit site has been described in the plaint schedule in the following manner:- Kallakurichi Registration District – Ulundurpet Sub Registration District – Pa. Killanoor Village – Agrahara Street - In Gramma Natham Re-survey No. 66/1, situated within the following boundaries:- (a) South to the vacant site of Kesavalu Naidu, who is the father of the plaintiff. (It was previously owned by one Munusamy Naicker, who is none other than the father of Kesavalu Naidu). (b) East to the vacant site of Kuppammal. (c) North to the house site of Krishna Pillai. (d) West to the house site of Perumal Naidu. 35. This vacant site measures east west 60 feet and north south 55 feet and it is situated at Pa. Killanoor in Ward No. 1. 36. P.W.1, who is the plaintiff, in his evidence, has elucidated the measurement of the suit site. He has also stated that on the northern side of the suit site he is having his ancestral property and that at the time of filing this suit, his father was alive and now he is no more. 37. 36. P.W.1, who is the plaintiff, in his evidence, has elucidated the measurement of the suit site. He has also stated that on the northern side of the suit site he is having his ancestral property and that at the time of filing this suit, his father was alive and now he is no more. 37. As rightly pointed out by the lower appellate Judge, five items of properties were settled in favour of Sundarammal by her father Abbayee Iyer. This settlement deed under Ex.A1 has not been challenged by the defendants. 38. On 29.7.1985 under Ex.A.2 Sundarammal had sold the suit property in favour of the plaintiff. As it is seen from this document, the suit property has been described as under:- "(37) The house site measuring 3300 sq. ft. (60 x 55) comprised in S. No. 66/1 is situated at Agraharam street within the boundaries of South to vacant site of plaintiff's father, east to Kuppammals house site, north to Krishna Pillai's house site and west to the house site of Perumal. (38) It is pertinent to note here that the plaintiff has stated in paragraph 2 of the plaint itself that Sundarammal had sold the house site situated on the eastern side of the suit property to one Perumal Naidu and she had also sold the house site situated on the southern side of the suit property to one Krishna Pillai." 39. In order to establish this fact, he has produced Ex.A3 and A4. Ex.A.3 is the sale deed executed by Sundarammal in favour of Krishna Pillai in respect of the house site situated on the southern side of the suit property, whereas Ex.A4 is the sale deed executed by Sundarammal in favour of one Perumal Naidu in respect of the house site lying on the eastern side of the suit property. 40. Ex.B1 is the sale deed, dated 16.5.1985 appears to have been executed by Kesavalu Naidu, who is none other than the father of the plaintiff in favour of the first defendant. 41. The property, which is sold under Ex.B2, has been described in this document as under:- (a) Kallakurichi Registration District – Ulundurpet Sub Registration District – Pa. 40. Ex.B1 is the sale deed, dated 16.5.1985 appears to have been executed by Kesavalu Naidu, who is none other than the father of the plaintiff in favour of the first defendant. 41. The property, which is sold under Ex.B2, has been described in this document as under:- (a) Kallakurichi Registration District – Ulundurpet Sub Registration District – Pa. Killanoor Village – comprised in S. No. 66/1 in the middle of the street – North to the site of Krishna Pillai, West to the site of Perumal Naidu, east to the site of Kuppammal and South to the vendor (Kesavalu Naidu). Within these boundaries the vacant site measuring 6970 sq. ft. (82 x 85) is situated. 42. In this connection, the learned lower appellate Judge on appreciation of the evidences adduced on behalf of both sides, has concluded that there was a vacant site on the north of S. No. 66/1 at Pa. Killanoor Village, which belonged to one Munusamy Naidu, who is the father of Kesavalu Naidu (father of the plaintiff) as well as Perumal Naidu, who is the brother of Kesavalu Naidu. 43. In the said vacant site, the western portion was in possession of Kesavalu Naidu whereas the eastern portion was in possession of Perumal Naidu. Under Ex.B1, the first defendant had purchased the vacant site, which is lying on the western side of the eastern portion belonged to Perumal Naidu with wrong boundaries. 44. The lower appellate court has come to the conclusion based on the evidence of D.W.1, who is none other than the husband of the first defendant, that the vacant site, which is purchased by the first defendant under Ex.B1 from Kesavalu Naidu has nothing to do with the suit site as the same is different from that of the suit site and probably it might be contiguous to the suit site. 45. This Court has also appreciated the evidences of P.Ws.1 to 3 as well as D.Ws.1 to 3. Except Ex.B1 no other document has been produced on behalf of the defendants, for the purpose of pressing her claim. 46. In his cross examination, dated 28.8.1993, P.W.1 has stated that his father as well as his junior paternal uncle were having properties on the western and eastern sides of suit property. 47. Except Ex.B1 no other document has been produced on behalf of the defendants, for the purpose of pressing her claim. 46. In his cross examination, dated 28.8.1993, P.W.1 has stated that his father as well as his junior paternal uncle were having properties on the western and eastern sides of suit property. 47. As rightly pointed out by the learned lower appellate court Judge, the first defendant might have got confused and it appears that she had purchased the property with wrong description. 48. It is also significant to note here that Ex.A2 sale deed under which the plaintiff has purchased the property is dated back to 29.7.1985, whereas Ex.B.1 under which the first defendant has purchased the property is dated back to 16.5.1985. 49. On a combined reading of Ex.A.2 and Ex.B1, this Court is able to understand that the plaintiff had purchased the suit site two months after the execution of the sale deed under Ex.B1. However, the properties described in both the sale deeds are not one and the same. 50. The testimonies of P.W.2 as well as P.W.3 are supporting the case of the plaintiff. P.W.2 Krishnapillai, who is the owner of the house site, which is lying on the southern side of the suit site, whereas, P.W.3 one Kalia Padayachi is residing opposite to the suit site. 51. They have clearly deposed that originally the suit site and also other properties were belonged to Sundarammal and thereafter, she had sold out the vacant sites lying on the southern and eastern sides of suit property. 52. But it is the case of the defendants that Abbayee Iyer never found to be in possession of the suit property and he had also never enjoyed the same. However, the defendants have miserably failed to produce any acceptable legal evidence. 53. It is also relevant to note here that D.W.1, who is the husband of the fist defendant, has admitted in his cross examination that the plaintiff is having a right over the suit property. 54. He has also admitted that in Ex.B2, the plaintiff being the son of the vendor Kesavalu Naidu had not signed. He has also admitted that Perumal Naidu, who is the younger brother of Kesavalu Naidu had purchased the property from Sundarammal and that he had not handed over the parental document of his house site. 55. 54. He has also admitted that in Ex.B2, the plaintiff being the son of the vendor Kesavalu Naidu had not signed. He has also admitted that Perumal Naidu, who is the younger brother of Kesavalu Naidu had purchased the property from Sundarammal and that he had not handed over the parental document of his house site. 55. He has also specifically stated in his cross examination that Sundarammal had sold the house site lying on the eastern side of the suit property to Perumal Naidu. 56. It is also to be noted here that in the written statement, the defendants have stated that neither Abbayee Iyer nor his daughter Sundarammal had got any right or interest over the suit site. They have also stated that they never enjoyed the suit property at any point of time and that it is absolutely false to say that the plaintiff had purchased the suit site from Sundarammal. 57. Entirely contrary to their pleadings, D.W.1 has stated in his cross examination that Abbayee Iyer was having house and house sites and that he had no male issue, and that he had executed a settlement deed in favour of his daughter Sundarammal. 58. Apart from this, he has also admitted that the suit site itself is lying on the eastern side of the site belonged to Kuppammal and equally, he has admitted that the plaintiff's father Kesavalu Naidu, who is the son of Munusamy Naicker and the remaining witnesses have not supported the case of the defendants at any length. 59. As observed herein before, P.W.1 has also fairly admitted that his father Kesavalu Naidu had executed Ex.B.1 sale deed in favour of D1 in respect of his (Kesavalu Naidu's) property prior to his sale deed under Ex.A2. 60. It is also more relevant to note here that Kesavalu Naidu, who is the father of the plaintiff, was having his ancestral properties and since it is established by the plaintiff that the suit site, which is in dispute was purchased from Sundarammal under Ex.A2, who is the daughter of Abbayee Iyer from whom she had acquired the property by way of settlement deed under Ex.A1. 61. In this connection, no rebuttal evidence is adduced on behalf of the defendants. 62. As rightly pointed out by Mr. S. Parthasarathy, learned Senior Counsel, Item No. 2 of Ex.A1 settlement deed refers to the suit property. 61. In this connection, no rebuttal evidence is adduced on behalf of the defendants. 62. As rightly pointed out by Mr. S. Parthasarathy, learned Senior Counsel, Item No. 2 of Ex.A1 settlement deed refers to the suit property. Ex.A3 is the sale deed under which P.W.2 Krishna Pillai has purchased the property from Sundarammal. In the description of the property referred to in Ex.A3, it is stated that south & west of my vacant sites, i.e. the vacant site belonged to Sundarammal from whom the plaintiff had purchased the vacant site, which is described as the northern side boundary of Krishna Pillai's house site. (P.W.2 has clearly spoken to this fact in his evidence). 63. On a cursory perusal of the trial court's judgment, it is revealed that while considering the issue No. 4 in paragraph No. 15 the learned trial Judge has stated that the property, which is purchased by the first defendant on 16.5.1985 for a consideration of Rs. 4500/- is the ancestral property of Kesavalu Naidu. Therefore, he has also ascertained that the property purchased by D1 is the property belonged to the forefathers of Kesavalu Naidu. 64. On coming to the case of the plaintiff, it is to be noted that to substantiate his claim he has produced unambiguous evidences that he had purchased the property from Sundarammal, who is the daughter of Abbayee Iyer. Therefore, the suit property has got nothing to do with the property purchased by the first defendant, which probably might be contiguous to the suit site. 65. On an analytical approach of the judgment of the trial court, it is found that for the two issues, viz. Issue Nos. 1 and 2, the trial Judge has answered in favour of the plaintiff. In respect of the first issue, i.e. whether the settlement deed, dated 16.2.1957, which is said to have been executed by Abbayee Iyer in favour of Sundarammal is true and valid, he has given a finding saying that the settlement deed, dated 16.2.1957 executed by Abbayee Iyer in favour of her daughter Sundarammal is true and valid. 66. In respect of the first issue, i.e. whether the settlement deed, dated 16.2.1957, which is said to have been executed by Abbayee Iyer in favour of Sundarammal is true and valid, he has given a finding saying that the settlement deed, dated 16.2.1957 executed by Abbayee Iyer in favour of her daughter Sundarammal is true and valid. 66. Similarly, in respect of Issue No. 2, whether the sale deed, dated 29.7.1985 through which Sundarammal had sold the property in favour of the plaintiff is true and valid, the learned trial Judge has given a finding that the sale deed, dated 29.7.1985, which is executed by Sundarammal in favour of the plaintiff is true and valid. 67. Having been given a finding in respect of the issues No. 1 and 2 in favour of the plaintiff, it is surprise to note that the learned trial Judge has gone against the case of the plaintiff and ultimately, dismissed the suit. 68. This court also finds that the learned trial Judge has got confused himself like that of the defendants and therefore, he has given a finding which ended in the dismissal of the suit. 69. Keeping in view of the above observations and findings, the substantial questions of law are answered in favour of the plaintiff. 70. Accordingly, the second appeal is dismissed confirming the judgment and decree of the lower appellate court. However, there will be no order as to costs.