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2014 DIGILAW 2554 (MAD)

R. Karuppan (Deceased) v. Ramasamy Mooper

2014-08-12

S.VIMALA

body2014
Judgment : 1. Originally, the sole defendant has filed the second appeal along with petition to condone the delay and pending decision, he died and on his death, appellants 2 to 6 have been brought on record, as legal representatives of the sole appellant/deceased defendant. The plaintiff is the respondent. 2. The plaintiff filed the suit for declaration of title and for injunction. The trial Court has granted the decree for declaration while declining the relief of injunction. As against the trial Court judgment, the defendant preferred an appeal in A.S.No.196 of 1996. The appeal was dismissed. Aggrieved over that, the present second appeal has been filed. 3. The second appeal has been admitted on the following substantial questions of law: 1. Whether the Courts below are justified in rejecting the documentary evidence of the appellant even after holding that the appellant is in possession of the property is correct in law ? 2. Whether the Courts below are justified in passing a judgment and decree for declaration even after accepting the evidence of the appellant regarding his continuous possession is correct in law ?” Brief Facts: 4. The suit property, measuring an extent of 86 cents, is located in R.S.No.54/3, at Ninnaiyur village at Kallakurichi Taluk. The suit properties originally belonged to Krishnappa Padayachi and his brothers, Muthusami Padayachi and Mottiappa Padayachi. The plaintiff's grandfather, Krishna Moopar, purchased the suit properties for a sum of Rs.200/- from his vendors on 16.05.1908 through a registered sale deed. Thereafter, the plaintiff's father Venkatarama Moopar and after his death, the plaintiff are in possession and enjoyment of the property. Patta stands in the name of the plaintiff. 4.1. The defendant is an adjacent owner of the property. With an intention to grab the property, from 28.06.1987 onwards, the defendant is attempting to interfere with the possession and enjoyment of the property. Claiming protection over the interference, suit for declaration and injunction was filed. 5. The suit claim was opposed on the following grounds:- 1. The suit properties did not belong to plaintiff's ancestors. 2. The suit properties were purchased by the defendant (Karuppan) on 14.08.1990, for a valuable consideration of Rs.2638/-, from one Iyyamperumal Padayachi. From then onwards, the defendant is in possession and enjoyment of the property. 3. 5. The suit claim was opposed on the following grounds:- 1. The suit properties did not belong to plaintiff's ancestors. 2. The suit properties were purchased by the defendant (Karuppan) on 14.08.1990, for a valuable consideration of Rs.2638/-, from one Iyyamperumal Padayachi. From then onwards, the defendant is in possession and enjoyment of the property. 3. The defendant's vendor, Iyyamperumal Padayachi, had title to the properties, by virtue of the settlement deed executed by Valliammal in favour of Iyyamperumal Padayachi on 03.01.1963. 4. The defendant also pleaded adverse possession. 5. The defendant is in possession and enjoyment of the property. 6. The trial Court framed issues regarding the title and possession of the suit property and partly decreed the suit, accepting the plea of declaration alone. Finding that the plaintiff is not in possession of the property, the relief of injunction was refused. 7. In order to add support to the case of the plaintiff, the sale deed dated 16.05.1908 (Ex.A4) has been pressed into service and similarly, on the side of the defendant: (a) settlement deed (Ex.B1) executed in favour of Iyyamperumal Padayachi, dated 03.01.1963, and (b) sale deed dated 14.08.1980 (Ex.B8) executed by Iyyamperumal Padayachi in favour of the defendants are relied upon. 8. The trial court accepted the title of the plaintiff based upon the oral and documentary evidence. So far as the title of the defendant is concerned, the finding was that the defendant has purchased the property from a person, who does not have title in respect of the suit property. The further finding is that the plea regarding ownership and adverse possession are mutually destructive of each other and therefore, the defendant cannot succeed. 9. Claiming that the plaintiff's ancestors were in possession and enjoyment of the property, the plaintiff has relied upon Kachathu book under Ex.A2; kist receipts under Ex.A3; apart from adangal under Ex.A6 and patta issued under Updating Registry Scheme under Ex.A5. The old patta number is stated to be 118 and new patta number is stated to be 363. After correlating this patta numbers with the kist receipts filed, the trial Court has given a finding that from fasli 1371 to 1392, the plaintiff had been in possession and enjoyment of the property. Adangal stood in the name of the plaintiff from the year 1962 to 1983 as an owner. After correlating this patta numbers with the kist receipts filed, the trial Court has given a finding that from fasli 1371 to 1392, the plaintiff had been in possession and enjoyment of the property. Adangal stood in the name of the plaintiff from the year 1962 to 1983 as an owner. There is also a finding that the survey number for the suit property had been R.S.81/B and thereafter, it has been changed to R.S.No.54/3. Relying upon Exs.A-1 to A-7 it was held that the plaintiff has established title to the suit property. 9.1. Even though the trial court has accepted the fact that the plaintiff had been in possession and enjoyment of the suit property, finding that in respect of the years 1984 and 1985, as no adangal has been filed, the plaintiff did not prove that he was in possession as on date of filing of the suit, the relief of injunction was refused. 9.2. Aggrieved over the grant of declaratory decree, the defendant filed an appeal in A.S.No.196 of 1996 and the said appeal was dismissed. 9.3. Challenging the same, the second appeal has been filed by the defendant. 10. The contention of the learned counsel for the respondent / plaintiff is that the second appeal itself is not maintainable, as there is no substantial question of law arising for consideration. It is contended that, when the defendant claimed adverse possession that amounts to admission of the title of the plaintiff; as admitted facts need not be proved, the title of the plaintiff automatically gets proved on account of admission; thus, the judgment of the Courts below are correct; as there is no substantial question of law, the appeal is not maintainable. 10.1. These contentions cannot be accepted, as the defendant did not take the exclusive plea of adverse possession. The defendant has taken the plea of ownership in himself and only in the alternative, plea of adverse possession has been taken. The appreciation of evidence with regard to the title of the defendant is the main contention raised in this appeal. 10.2. It is contended by the learned counsel for the appellant that the finding given by the Courts below, without even looking into the legible copy of the settlement deed, cannot be said to be just and reasonable. 10.3. The appreciation of evidence with regard to the title of the defendant is the main contention raised in this appeal. 10.2. It is contended by the learned counsel for the appellant that the finding given by the Courts below, without even looking into the legible copy of the settlement deed, cannot be said to be just and reasonable. 10.3. This contention has to be accepted, because of the fact that the settlement deed presented was not in a legible form and the Court was unable to read the document in a complete form. 10.4. The defendant claimed title based upon Ex.B-1 settlement deed dated 03.01.1963 executed by Valliammal in favour of Iyyamperumal Padayachi and subsequent purchase of the property from Iyyamperumal Padayachi through a sale deed, dated 14.08.1980 by the defendant. So far as Ex.B-1 is concerned, the observation of the trial Court is that, several sentences in the document are missing and they remain vanished in some places and seems smashed in some places. The sum and substance of the finding is that, the document was not in a readable form and the Court was not in a position to understand the contents. Therefore, it is clear that a decision has been arrived at, without looking into the merits of the basic document, i.e., source of title relied upon by the defendant. The trial Court should have directed the production of the certified copies. That has not been done. The first appellate court has endorsed the view of the trial court, without finding it proper to call the defendant to produce the clear / certified copy of the settlement deed. 11. As now the copy of the settlement deed, dated 03.01.1963, has been produced before this Court, this Court thought it fit to remand the matter for the purpose of placing the document in evidence, for the purpose of proper and better appreciation. 11.1. To the limited extent of adducing evidence with reference to the settlement deed, dated 03.01.1963, the suit is remanded back to the trial Court. 11.2. If the settlement deed, dated 03.01.1963, is to be received in evidence, it can be done only subject to proof. The other side should be given an opportunity to test the veracity of the document. 11.3. Normally, this Court would not be inclined to remand the matter as it would lead to another round of litigation. 11.2. If the settlement deed, dated 03.01.1963, is to be received in evidence, it can be done only subject to proof. The other side should be given an opportunity to test the veracity of the document. 11.3. Normally, this Court would not be inclined to remand the matter as it would lead to another round of litigation. But, so far as this case is concerned, the certified copy of the settlement deed, dated 03.01.1963, now produced before this Court had remained unreadable and therefore, unchallenged before the Courts below. There had been no cross-examination, just because the sentences in the document remained partly invisible and illegible. Therefore, the judgments pronounced, without looking into the merits of the basic document, which is claimed to be the source of title, cannot be sustained and it has to be set-aside. 12. In the result, the second appeal is allowed. The judgment and decree, in O.S.No.461 of 1987, dated 30.08.1994, which was confirmed in A.S.No.196 of 1996, dated 26.02.1999, are set-aside. The suit in O.S.No.461 of 1987 is remanded back to the trial court, with direction to permit the parties to lead evidence, with reference to the settlement deed, dated 03.01.1963, and to dispose of the suit within a period of three months from the date of receipt of a copy of this judgment. No costs.