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2015 DIGILAW 1456 (MAD)

Jeelani Begum v. Subbanna Gounder (Died)

2015-03-16

PUSHPA SATHYANARAYANA

body2015
Judgment 1. The plaintiffs are the appellants, who had filed the suit for declaration, removal of the superstructure, recovery of possession and permanent injunction. 2. The case of the plaintiffs is that the suit property was purchased by them on 17/7/1963. Originally, in S.No.847/A2, there was an extent of 2.66 cents, out of which, the plaintiffs claimed to have purchased 1.53 cents from one Abdul Salam. It is the case of the plaintiffs that prior to their purchase, the vendor was in possession of the property and from the date of purchase, they have been in possession. After the sale in favour of the plaintiffs, the survey number was further sub-divided and the suit property was assigned as S.No.847/2C. Now, the property in dispute is an extent of 5 cents which according to the plaintiffs was given to the defendant as permissive occupation. The defendant was allowed to park his horse carriage in the suit property. There was also a hut in the said property. It is the case of the plaintiffs that for the permissive occupation, the defendant was paying a sum of Rs.5/- p.m., till 1988 and thereafter, he stopped paying any rent. During May 1989, when the plaintiffs was not in town, the defendant tried to put up a construction which resulted in the Police complaint. As the defendant continued to claim ownership in the property, the plaintiffs were constrained to file the suit for declaration of title and recovery of possession. 3. The suit was resisted by the defendant on several grounds contending interalia that in S.No.847/A 2, there was a total extent of 2.66 cents out of which, the plaintiffs claim for purchase of 1.53 cents. The above fact itself is denied by the defendant. 4. The defendant further denied the allegations of sub-division of the property permissive occupation and construction in the suit property. The defendant claim that he had purchased a vacant site of an extent of 5 cents on 23/8/1974 and has been in possession of the property by putting up a hut and paying house tax. Presently, he had removed the hut and put up a tiled house. Even earlier, when the plaintiffs father had given a complaint against the defendant before the Police, they were unable to establish their title. Presently, he had removed the hut and put up a tiled house. Even earlier, when the plaintiffs father had given a complaint against the defendant before the Police, they were unable to establish their title. Therefore, the defendant contended that the suit is liable to be dismissed as the plaintiffs have got no right or title over the suit property. 5. Before the trial Court/Principal District Munsif, Karur, on the side of the plaintiffs, P.Ws.1 and 2 had been examined and Exs.P.1 to P.19 had been marked. On the side of the defendant, D.W.1 had been examined and Exs.B.1 to B.13 had been marked. 6. After hearing both the parties, the the trial Court decreed the suit. Aggrieved by the same, A.S.No.210 of 1991 was filed on the file of the Sub-Court, Karur along with an application to receive additional documents under Order 41 Rule 27 of the Code of Civil Procedure by both the parties. The Sub-Court, Karur, reversed the judgment of the trial Court and dismissed the suit. Aggrieved by the same, the above Second Appeal has been filed. Before the learned Subordinate Judge, Karur, on the side of the appellant, Exs.20 and 21 had been marked and on the side of the respondents therein, Exs.14 and 15 had been marked. 7. At the time of admission, the following substantial questions of law were framed:- “1. Whether the lower Appellate Court followed the mandatory requirements of Order 41 Rule 27 while admitting the additional evidence before it? and 2. Whether the lower Appellate Court considered the evidence before it in a proper perspective? 8. Heard the learned counsel for the appellants and the learned counsel for the respondents 2 to 7. 9. The learned counsel for the appellants contended that the mandatory provisions under Order 41 Rule 27 of the Code of Civil Procedure was not followed by the lower Appellate Court while allowing the application for receiving the additional evidence. 10. A perusal of Ex.A.1 under which the plaintiffs had purchased the property from one Abdul Salam, it is evident that he had purchased the share that was allotted to the said Abdul Salam in a partition dated 14/1/1953. The said partition deed was not produced by the plaintiffs. However, the defendant had marked it as Ex.B.1. The said Abdul Salam, the vendor of the plaintiff was allotted only 50 cents under Ex.B.1. The said partition deed was not produced by the plaintiffs. However, the defendant had marked it as Ex.B.1. The said Abdul Salam, the vendor of the plaintiff was allotted only 50 cents under Ex.B.1. While so, it is ununderstandable as to how the plaintiffs could purchase more than what his vendor himself was entitled to. The said fact was also admitted by P.W.1 in his cross-examination that he had purchased the purchased the property from Abdul Salam only pursuant to the share he got under Ex.B.1 partition. 11. In Ex.B.1, it has been clearly stated in the partition deed (“Tamil”) 12. Though the plaintiffs counsel had contended that Ex.B.1 has got no connection to the suit property, it has been admitted in his cross- examination that the suit property is the one what was referred to in Ex.B.1. In Ex.A.1 sale deed, the property has been purchased by the plaintiffs within a specific boundaries. The boundaries in Exs.A.1 and B.1 are all the same. If that is so, the vendor of the plaintiffs could have had only 50 cents to his entitlement and he could not have sold over and above that. Hence the plaintiffs had not proved their title to the suit property. 13. The contention of the appellants that the respondents had taken the property on lease on a monthly rent of Rs.5/- p.m., is also not proved, excepting the interested testimony of the plaintiffs. However, the defendant had produced Ex.B.2 sale deed which was purchased by him on 23/8/1974 from one Pongiammal. Though the trial Court had disbelieved Ex.B.2 as there was a insertion in the schedule of property, the defendant had produced the certified copy of the same before the lower Appellate Court. In the certified copy which was marked as Ex.B.14, it has been clearly mentioned that Pugalur Village S.No.847/A 2. As there was a discrepancy in the sale deed filed by the defendant, the trial Court had decreed it in favour of the plaintiffs, but when the same is established by the defendant by filing the certified copy before the lower Appellate Court, the title of the defendant to the suit property is established. 14. The defendant also further contended that he had put up a hut originally and later, he had converted into a tiled house and he has been paying the house tax for the same. 14. The defendant also further contended that he had put up a hut originally and later, he had converted into a tiled house and he has been paying the house tax for the same. The defendant also had established his right, title and possession through Ex.A.3 which is an encumbrance certificate and the mortgage deed dated 28/5/1940. 15. The plaintiffs also placed reliance on the earlier suit in which he had obtained a decree which is marked as Ex.A.18. However, the defendant is not a party to the same and it is not binding on him. 16. The Commissioner was also appointed, who had filed a report stating that there was a pathway in between the plaintiffs and defendant property and the defendant's property is lying north of the pathway and the plaintiffs property is lying south of the pathway. The plaintiffs had not established that the suit property which is only 5 cents of land his part of 1.53 which he claims is purchased under Ex.A.1. Admittedly, he derived title from the deed of partition under which his vendor had claimed title. In the said partition, the plaintiffs vendor had allotted only 50 cents of land. Therefore, the plaintiffs cannot have title for more than 50 cents and they had not substantiated their right by filing any document. In the boundary description, the plaintiffs property is on the south of (“Tamil”). This is the finding of the report of the Commissioner. 17. From the above discussion, the plaintiffs had to fail or succeed only on his own case and he cannot pick holes in the case of the defendant. 18. In a case reported in 1987 (100) LAW WEEKLY - 894 {PRAVIN KUMAR Vs. P.RAJESWARAN & ORS}, in para 10, it has been held as follows:- “.... The plaintiff came to Court with a definite case that Jimmarammal was a Hindu. The burden is on him to prove the same. If he fails to do so, he cannot abandon his own case and turn round to adopt that of the defendant for claiming the relief (Vide Govindaraj V. Kandaswami Gounder (69 L.W – 977 = 1956 (2) MLJ - 578} and Subramania Mudaliar V. Ammapet Co-operative Weavers Production and Sales Society {73 L.W - 756 = 1960 (2) MLJ - 477}. 19. 19. In view of the above settled proposition, the plaintiffs had not established their title, whereas the defendant had categorically proved his title to the suit property. When the plaintiffs failed to correlate the suit 5 cents with Ex.A.1 purchase, the suit has to fail. Accordingly, the question of law is answered against the plaintiffs and the judgment and decree of the lower Court is confirmed. 20. In the result, the Second Appeal is dismissed and judgment and decree passed in A.S.No.210 of 1991 by the Subordinate Judge, Karur is confirmed. No costs. Consequently, the connected Miscellaneous are also dismissed.