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2014 DIGILAW 3496 (MAD)

Saguntala v. Kesavachariyalu (Died)

2014-09-19

T.MATHIVANAN

body2014
Judgment: 1. The judgment and decree dated 25.1.2000 and made in A.S.No.26 of 1999 on the file of the learned Subordinate Judge, Madhuranthagam, reversing the judgment and decree dated 29.1.1999 partly and made in O.S.No.262 of 1995 on the file of the learned District Munsif, Madhuranthagam have been challenged in this Memorandum of Second Appeal. 2. The Cross-Objection has been filed by the Cross-Objector/plaintiff, challenging the dismissed portion of the suit in respect of the prayer of injunction. 3. The appellant herein is the defendant in the suit in O.S.No.262 of 1995 whereas the plaintiff is the respondent herein. It appears that during the pendency of the Second Appeal, the respondent/ plaintiff Dr.Kesavachariyalu had passed away. Therefore, the respondents 2 to 4 have been brought on record as the legal representatives of the deceased sole respondent/plaintiff vide the order of Court dated 6.8.2013 and made in CMP No.707 of 2009. 4. For the sake of convenience and easy reference, the appellant as well as the respondents may hereinafter be referred to as the plaintiffs and the defendant wherever the context so require. 5. In so far as this appeal is concerned, the following crucial question arises for the consideration of this Court:- “Which one will prevail over ? Whether possessory title or documentary title?” 6. Conspectus of facts:- According to the deceased plaintiff Dr.Kesavachariyalu, he is the absolute and exclusive owner of the schedule mentioned properties. 7. The suit property has been described in the plaint schedule in two items:- “Item No.1 – Punja land comprised in Survey No.197/8B measuring 0.41 cents; Item No.2 – Punja land comprised in Survey No.202/7A measuring 0.58 cents situate at Madhuranthagam Taluk and Firka, No.134, Silavattam Village, within the following four boundaries:- (i) East by Ellappa Gounder Punja Land; (ii) West by Devaraja Gounder Punja Land; (iii) North by Arumugha Gounder (Plaintiff's Vendor's Vendor); (iv) South by Krishnasami Iyyangar Punja Land.” 8. The deceased plaintiff has stated that he was enjoying the schedule mentioned properties by establishing a school under the name and style of 'Saraswathi Vidyalaya'. He had purchased the properties described in Item Nos.1 and 2 under a registered Sale Deed Ex.A-1 dated 6.10.1988 from one Kanniyappan and others. While scribing the Sale Deed the Survey Number of item No.2 was inadvertently written as Survey No.202/1A instead of Survey No.202/7A. He had purchased the properties described in Item Nos.1 and 2 under a registered Sale Deed Ex.A-1 dated 6.10.1988 from one Kanniyappan and others. While scribing the Sale Deed the Survey Number of item No.2 was inadvertently written as Survey No.202/1A instead of Survey No.202/7A. However, the boundaries specified in the Sale Deed is relating to Survey No.202/7A. On account of this reason, a Rectification Deed was executed and registered on 12.5.1995 (Ex.A-2). 9. After the purchase, the deceased plaintiff had constructed a school building in the schedule mentioned properties. 10. There was an enquiry conducted by Madhuranthagam Tahsildar in respect of the schedule mentioned properties based on the petition submitted by the defendant. In that enquiry, the plaintiff's title was affirmed by the Tahsildar, and the defendant has therefore no right or title over the schedule mentioned properties. Notwithstanding this, he had been attempting to question the title of the plaintiff and causing disturbance to the peaceful possession of the plaintiff from January 1995. 11. That on 3.7.1995, the defendant had made an attempt to plough the vacant land situate in and around the school premises, however, it was successfully prevented by the plaintiff. Hence, the plaintiff is constrained to file the suit for declaration and consequential relief of permanent injunction. 12. The defendant, while refuting the averments of the plaint, has contended that she is the adjacent owner to the plaintiff’s Saraswathi Vidyalaya School, and that she had been enjoying the suit land for the past 40 years and the Tahisildar, Madhuranthagam had also issued patta, chitta and adangal in her favour in respect of the suit land after verifying the ‘A’ Register. 13. Originally, the plaintiff had obtained an order of interim injunction in the application in I.A.No.673 of 1995 from the Trial Court. Taking advantage of the order of interim injunction, the plaintiff has been trying to grap the suit land, for which the plaintiff has no right or interest over the suit properties and therefore, she has urged to dismiss the suit. 14. The learned Trial Judge, based on the pleadings of the parties to the suit, has formulated as nearly as three issues for the better adjudication of the suit. 14. The learned Trial Judge, based on the pleadings of the parties to the suit, has formulated as nearly as three issues for the better adjudication of the suit. Originally, the Trial Court has dismissed the suit on the ground that adequate evidences are not produced on behalf of the plaintiff to substantiate the fact that he is having right over the suit property and that he had also miserably failed to prove his possession. Therefore, the reliefs in respect of declaration and injunction were rejected. 15. Challenging the judgment and decree of the learned Trial Judge, dated 29.1.1999, the plaintiff had preferred an appeal before the learned Subordinate Judge, Madhuranthagam. On appreciation of the evidences and on considering the submissions made on behalf of both sides, the learned First Appellate Court Judge has found that the plaintiff had established his right over the suit property and therefore, he is entitled to get the relief of declaration over the suit property. 16. In so far as the relief of injunction is concerned, he has found that the defendant is in possession and therefore, the suit was partly allowed, i.e., in so far as the declaratory relief is concerned, the learned First Appellate Judge has granted the decree in favour of the plaintiff. Whereas in so far as the relief of injunction is concerned, he has negatived the suit. 17. Having been aggrieved by the impugned judgment of the First Appellate Court, dated 25.1.2000, the defendant has preferred this Second Appeal before this Court. Similarly, having been aggrieved by the judgment of dismissal in respect of the prayer injunction, the plaintiff has preferred the Cross-Objection. 18. The Second Appeal came to be admitted before this Court, on the following single substantial question of law:- “Whether the Lower Appellate Court was right in its conclusion that the plaintiff is the owner of the property and among the two, possessory title and documentary title, which one will prevail over?” 19. Heard Mr.M.V.Muralidharan, learned counsel appearing for the appellant/defendant and the respondents 2 to 4, being the legal heirs of the deceased first respondent/plaintiff, remained absent, despite the service of notice on them. Therefore, they were called absent when the Second Appeal was taken up for hearing. 20. Heard Mr.M.V.Muralidharan, learned counsel appearing for the appellant/defendant and the respondents 2 to 4, being the legal heirs of the deceased first respondent/plaintiff, remained absent, despite the service of notice on them. Therefore, they were called absent when the Second Appeal was taken up for hearing. 20. It is obvious to note here that in her written statement, the defendant has admitted that she is the adjacent owner to the plaintiff’s Saraswathi Vidyalaya School. What Mr.M.V. Muralidharan, learned counsel appearing for the defendant/appellant, would contend is that in so far as the appeal is concerned, the dispute is over the title. He has invited the attention of this Court to the substantial question of law and also raised a question as to which one will prevail over? (i) whether a possessory title? or (ii) a documentary title? 21. He has submitted that originally patta was granted in favour of the defendant/appellant and subsequently, it was cancelled by the Tahisldar of Madhuranthagam, by his proceedings under Ex.A-3, dated 27.6.1995. It appears that the defendant had preferred an appeal before the Revenue Divisional Officer and the Appeal, according to Mr.M.V. Muralidharan, is still pending on the file of the Revenue Divisional Officer, Madhuranthagam. 22. The plaintiff (since deceased), has claimed that he had purchased the suit properties specified in Item Nos.1 and 2 in the plaint schedule on 6.10.1988 under Ex.A-1 registered Sale Deed. He has also claimed that the Sale Deed under Ex.A-1 is consisting of two items of properties. The first item is comprised in Survey No.197/8B, measuring 0.41 cents and the second item is comprised in Survey No.202/7A, measuring 0.58 cents. 23. With regard to the second item, according to the plaintiff, while scribing the document, it was wrongly written as Survey No.202/1A instead of Survey No.202/7A. Thereafter, a Rectification Deed was executed, correcting the Survey Number of the second item as No.202/7A and registered the same on 12.5.1995 Ex.A-2 is the deed of rectification. Ex.A-3 is the proceedings of the Tahsildar, Madhuranthagam, dated 27.6.1995. It discloses that the Tahsildar, Madhuranthagam, has found that the correct Survey Numbers which are subjected to transfer of patta, are Survey No.197/8B, measuring 0.41 cents and Survey No.202/7A, measuring 0.58 cents. 24. Ex.A-3 is the proceedings of the Tahsildar, Madhuranthagam, dated 27.6.1995. It discloses that the Tahsildar, Madhuranthagam, has found that the correct Survey Numbers which are subjected to transfer of patta, are Survey No.197/8B, measuring 0.41 cents and Survey No.202/7A, measuring 0.58 cents. 24. Besides this, the Tahsildar, Madhuranthagam has also found that the defendant Sagunthala had not produced any legal evidence to show as to how she was entitled to the property comprised in Survey No.197/8B. Instead she had produced only chitta, patta and adangal, which were issued during UDR Scheme. He has also found that when the mistakes which were crept during updated survey, were brought to the notice of the Officials, they had to take appropriate steps to rectify the mistake and therefore, he has found that the defendant cannot claim exclusive ownership over the property, as she had been cultivating the land, since the real owner of the land had been residing outside the village. Only on this ground, the objection raised by the defendant before the Madhuranthagam Tahsildar, was rejected. 25. Based on the title deeds of the deceased plaintiff as well as on the revenue records, the patta, which was issued in the name of Sagunthala, was cancelled and issued in favour of the plaintif. 26. As argued by Mr.M.V.Muralidharan, now the appeal before the Revenue Divisional Officer is pending and when the matter was taken up for hearing, he was not able to apprise about the result of the appeal. Ex.A-4 is the proceedings of the Sub-Collector, Chinglepet dated 19.9.1995. It discloses that the defendant had filed an appeal before the Sub-Collector, Chinglepet, challenging the order of the Tahisldar dated 18.8.1995 and requesting to issue patta in her name in respect of the lands comprised in Survey Nos.197/8B and 202/7A. 27. During the enquiry, as it is revealed from the proceedings of the Sub-Collector, Thanjavur, it was brought to his notice that a civil suit was pending on the file of the learned District Munsif, Madhuranthagam and an application in I.A.No.673 of 1995 in O.S.No.262 of 1995 was also pending. Therefore, the petitioner i.e., the defendant Sagunthala was directed to seek patta transfer, after getting title declaration from the Civil Court. 28. This Court has examined the evidences, both oral and documentary, which were produced on behalf of both sides. 29. Therefore, the petitioner i.e., the defendant Sagunthala was directed to seek patta transfer, after getting title declaration from the Civil Court. 28. This Court has examined the evidences, both oral and documentary, which were produced on behalf of both sides. 29. From the averments of the written statement, this Court find that the defendant has not denied the ownership of the deceased plaintiff in respect of the suit land, as she had admitted that she is the adjacent land owner to the plaintiff’s Saraswathi Vidyalaya School. 30. The learned First Appellate Court Judge, in paragraph No.15 of his judgment, has found that it is established that the plaintiff had purchased the suit property, which has been described under item Nos.1 and 2 of the plaint schedule under Ex.A-1 (a registered Sale Deed) and thereafter under Ex.A-3, patta was duly issued in his name. Further, it is also proved that under Ex.A-8, he had paid kist to the Revenue Department. Therefore, he has found that the plaintiff is the absolute owner of the suit properties described in item Nos.1 and 2 of the plaint schedule. However, in so far as the possession is concerned, he has found, that based on Exhibits B-1, B-2 and B-11, the defendant is in possession. 31. As aforestated, the plaintiff has preferred the cross-objection in respect of the dismissed portion of the suit relating to the relief of injunction. Notwithstanding this fact, the settled proposition of law is that when the ownership is proved and found in favour of the plaintiff, even if the defendant is found to be in possession, her possession shall have to be construed as a wrongful one, as she is having no better title than the plaintiff. 32. From the available materials, it is found that the defendant has been making a claim to the suit properties only on the basis of patta, which according to the plaintiff, it was wrongly issued by the concerned Authorities and in this connection, an enquiry is obviously pending on the file of the Revenue Authorities. The defendant has also admitted the possession of plaintiff in her written statement as well as in the earlier notices issued by her. 33. The Trial Court has also found, after having satisfied, that a prima facie case was made out by the plaintiff and therefore, granted interim injunction in the application in I.A.No.673 of 1995. 34. The defendant has also admitted the possession of plaintiff in her written statement as well as in the earlier notices issued by her. 33. The Trial Court has also found, after having satisfied, that a prima facie case was made out by the plaintiff and therefore, granted interim injunction in the application in I.A.No.673 of 1995. 34. As it appear from Ex.B-7 notice dated 24.1.1995, the defendant had stated that the plaintiff had been gradually extending the school and trespassed into her land and put up hut and that the plaintiff was then constructing a pucca building in Survey Nos.197/8B, 202/6B and 202/7A. 35. In her evidence also, she has admitted that it was true that the thatched hut was removed by the plaintiff from the suit property. Even the Commissioner's Report has also disclosed the fact that the suit land was barren in the sense that it was vacant. 36. On appreciation of the evidences, both oral and documentary, this Court is able to find that the defendant has miserably failed to show that she is in actual and physical possession of the suit property. As has been found by this Court, the defendant has also failed to establish her title or actual physical possession in respect of the suit property. 37. This Court is answering the substantial question of law in the following manner:- 38. It is revealed from the records that the earlier patta granted in respect of the defendant was set aside by the concerned Authority and on enquiry, the appeal preferred by the defendant was also dismissed. Therefore, the defendant cannot maintain the claim of possession, merely on the basis of revenue records, as no other satisfactory evidence is available to substantiate her possession. 39. Under this circumstance, the rejection of the suit by the First Appellate Court in respect of the prayer injunction is absolutely wrong and liable to be set aside. 40. In the result, the Second Appeal is dismissed, the Cross-Objection filed by the plaintiff is allowed and the judgment and decree in respect of rejection of the prayer of injunction passed by the First Appellate Court are set aside and the suit in its entirety is decreed as prayed for. There shall be no order as to costs. The documentary title would prevail over the possessory title.