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2015 DIGILAW 3714 (MAD)

Erulapillai v. Kandasamy Pillai

2015-12-04

P.R.SHIVAKUMAR

body2015
JUDGMENT : P.R. Shivakumar, J. 1. The defendants in the Original Suit are the appellants in the Second Appeal. The respondents 1 and 2 herein/plaintiffs filed the suit in O.S.No.39 of 2006 on the file of the District Munsif Court, Kulithalai against the appellants herein/defendants for the relief of declaration that the plaint 'A' schedule property belonged to them and for recovery of possession of the same after removal of the super structures put up by the appellants herein/defendants. 2. The learned trial Judge decreed the suit and granted the reliefs as sought for by the respondents herein/plaintiffs by a judgment and decree dated 23.07.2009. Challenging the said decree, the appellants herein/defendants preferred an appeal on the file of the learned Subordinate Judge, Kulithalai in A.S.No.15 of 2010. The learned lower Appellate Judge concurred with the finding of the trial Court and dismissed the appeal by a judgment and decree dated 23.12.2010 confirming the decree of the trial Court. As such, the appellants herein/defendants are before this Court challenging the above said decree of the lower Appellate Court dated 23.12.2010 on various grounds set out in the memorandum of grounds of Second Appeal. 3. The case of the respondents herein/plaintiffs is as follows:- The property described in plaint 'A' schedule originally belonged to the family of one Somasundaram. The said properties and other properties were divided in a family partition and the plaint 'A' schedule property came to the share of S.Mathavan, S/o. Somasundaram. Thereafter, he was in absolute and exclusive possession and enjoyment of the same. The said S.Mathavan, under a sale deed dated 28.06.1985, sold a part of the property to the first respondent herein/first plaintiff for a sum of Rs.6,000/- and thereafter, the first respondent herein/first plaintiff continued to be in possession and enjoyment of the same. The extent of the property purchased by the first respondent herein/first plaintiff measuring an extent of 0.06 acres out of 'A' schedule property forming western part of the same is shown as CDEF in the plaint plan and described as 'B' schedule property in the plaint. One Karuppapillai S/o. Maruthapillai of Lalapettai purchased another part of plaint 'A' schedule property through a sale deed dated 28.06.1985. The second respondent herein/the second plaintiff purchased the same under a sale deed dated 31.03.1997 and right from the date of purchase, she was in possession and enjoyment of the same. One Karuppapillai S/o. Maruthapillai of Lalapettai purchased another part of plaint 'A' schedule property through a sale deed dated 28.06.1985. The second respondent herein/the second plaintiff purchased the same under a sale deed dated 31.03.1997 and right from the date of purchase, she was in possession and enjoyment of the same. The said property purchased by Vellaiammal which forms part of the plaint 'A' schedule property is described in plaint 'C' schedule property and it is shown as ABFE in the plaint plan. Though patta came to be issued in favour of the respondents herein/plaintiffs, the revenue records have been wrongly noted as if 'B' schedule property belongs to the second respondent herein/second plaintiff and 'C' schedule property belonged to the first respondent herein/first plaintiff. Even then there is no dispute between the first respondent herein/first plaintiff and the second respondent herein/second plaintiff and they were in possession and enjoyment of the respective properties purchased by them. To be precise, the second respondent herein/second plaintiff is in possession of the plaint 'C' schedule property. A portion of the plaint 'B' schedule property shown as CDHG in the plaint plan came to be encroached upon by the appellants herein/defendants who owned the residential house 100 feet away from the suit properties. They did so taking advantage of the absence of the respondents herein/plaintiffs. The plaint 'D' schedule property is part and parcel of plaint 'B' schedule property and the remaining part of 'B' schedule property is in exclusive possession of the first respondent herein/first plaintiff. The efforts made by the respondents herein/ plaintiffs to prevent the appellants herein/defendants who have made encroachment by putting up basement in the plaint 'B' schedule property to remove the construction and effect delivery of possession of the encroached portion proved ineffective. Hence, the respondents herein/plaintiffs are entitled to a decree declaring that the first respondent herein/first plaintiff is the owner of the suit 'D' schedule property and directing the appellants herein/defendants to deliver vacant possession of the same to the first plaintiff after removal of super structure put up by them and also for costs. 4. Hence, the respondents herein/plaintiffs are entitled to a decree declaring that the first respondent herein/first plaintiff is the owner of the suit 'D' schedule property and directing the appellants herein/defendants to deliver vacant possession of the same to the first plaintiff after removal of super structure put up by them and also for costs. 4. Besides disputing the plaint averments based on which the respondents herein/ plaintiffs claimed title to the suit 'D' schedule property and the other averments, the appellants herein/defendants took the following stand: The second respondent herein/second plaintiff does not have any right over the property descried in plaint 'D' schedule property and they are not entitled to get possession of the same. In any event, the entries made in the revenue records having been made in the name of the first respondent herein/first plaintiff in respect of the plaint 'D' schedule property will not clothe him with any right or title. The plaint 'C' schedule property is not in the possession of the second respondent herein/second plaintiff and the description of the properties in the plaint is totally misleading. Survey No. 43/2 consists of larger extent measuring more than 9 cents. The respondents herein/plaintiffs, taking undue advantage of the pattas allegedly obtained by them, are making attempts to dispossess the appellants herein/defendants from the property described in 'D' schedule. In fact, the appellants herein/defendants are in possession and enjoyment of the plaint 'D' schedule property openly, peacefully and continuously for more than the statutory period of limitation and thereby they perfected their title by adverse possession. The property abutting plaint 'D' schedule property belongs to the first respondent herein/first plaintiff and he has constructed a house in the said property which he had purchased. The said property, along with the plaint 'C' schedule property, is in possession and enjoyment of the first respondent herein/first plaintiff. The appellants herein/defendants are having a cattle shed in the plaint 'D' schedule property. In fact, the entire 'B' schedule property is in possession of the appellants herein/defendants. The alleged encroachment and construction of the basement in October 2005 is also false. In fact, the first appellant herein/first defendant had been in possession and enjoyment of the entire Samudayam Pangu situated on the east of the property belonging to him ancestrally. Therefore, the prayer made in the plaint cannot be sustained and the suit should be dismissed with costs. 5. In fact, the first appellant herein/first defendant had been in possession and enjoyment of the entire Samudayam Pangu situated on the east of the property belonging to him ancestrally. Therefore, the prayer made in the plaint cannot be sustained and the suit should be dismissed with costs. 5. The following issues were framed by the trial Court: "(i) Whether the plaintiffs are entitled to the declaration regarding the plaint 'D' schedule property? (ii) Whether the plaintiffs are entitled to the consequential relief of recovery of possession? (iii) To what other reliefs? 6. After framing of the issues, a trial was conducted in which four witnesses were examined as P.Ws. 1 to 4 and 13 documents were marked as Exs. A1 to A13 on the side of the respondents herein/plaintiffs. One witness was examined as D.W.1 and 7 documents were marked as Exs. B1 to B7 on the side of the appellants herein/defendants. The Commissioner's report and plan were marked as Court documents and were designated as Exs. C1 to C3. 7. The learned trial Judge, on appreciation of evidence, came to the conclusion that the respondents herein/plaintiffs had proved that the plaint 'D' schedule formed part of the plaint 'B' schedule property which was purchased by the first respondent herein/first plaintiff; that the plaint 'C' schedule property belonged to the second respondent herein/second plaintiff and that the appellants herein/defendants besides disputing title of the first respondent herein/first plaintiff in respect of the plaint 'D' schedule property, encroached upon the same and put up a basement. Based on the said finding, the learned trial Judge held that the respondents herein/plaintiffs were entitled to a declaration that the suit 'D' schedule property belonged to the first respondent herein/first plaintiff and for the relief of recovery of possession after removal of the super structure put up by the appellants herein/defendants. On appeal, the learned lower Appellate Judge also concurred with the findings of the trial Court in all respects and accordingly, dismissed the appeal confirming the decree passed by the trial Court. It is as against the said decree of the lower Appellate Court, dated 23.12.2010, the present Second Appeal came to be filed. 8. The Second Appeal was admitted on 22.08.2011 on the following substantial questions of law involved in the Second Appeal. It is as against the said decree of the lower Appellate Court, dated 23.12.2010, the present Second Appeal came to be filed. 8. The Second Appeal was admitted on 22.08.2011 on the following substantial questions of law involved in the Second Appeal. "(i) Whether the Courts below are correct in law in granting the relief of declaration in favour of the plaintiffs by placing the entire burden on the defendants and also by relying on the alleged weakness of the defendant's case. (ii) Whether the Courts below are correct in law in granting the relief of declaration in favour of the plaintiffs especially when the presumption is in favour of the defendants under Section 110 of the Indian Evidence Act?" 9. The arguments advanced by Mr. S. Parthasarathy, learned counsel for the appellants and by Ms.J.Maria Roseline, learned counsel for the respondents were heard. The judgments of the Courts below and the materials available on record sent for from the Courts below were perused and were also taken into consideration. 10. Though the plaint contains four schedules designated as A, B, C, D, the properties described in plaint 'B' and 'C' schedules together constitute the property described in plaint 'A' schedule. But the property described in plaint 'D' schedule is part of the property described in plaint 'B' schedule and it forms the western part of the plaint 'B' schedule property. The total extent of plaint 'A' schedule property is 9 cents. The first respondent herein/first plaintiff claims to have purchased 6 cents out of 9 cents forming western portion of plaint 'A' schedule property, whereas the second respondent herein/second plaintiff claims to have purchased 3 cents of land described in plaint 'C' schedule property, forming the eastern part of the plaint 'A' schedule property. The first respondent herein/first plaintiff claims to have purchased 6 cents out of 9 cents forming western portion of plaint 'A' schedule property, whereas the second respondent herein/second plaintiff claims to have purchased 3 cents of land described in plaint 'C' schedule property, forming the eastern part of the plaint 'A' schedule property. In fact, the case of the respondents herein/plaintiffs is that though the western part of plaint 'A' schedule property measuring 6 cents shown as plaint 'B' schedule property and the eastern part of plaint 'A' schedule property measuring 3 cents shown as plaint 'C' schedule property, were purchased by the first respondent herein/first plaintiff and second respondent herein/second plaintiff respectively and they were in possession and enjoyment of the same, while effecting sub-division patta, came to be issued wrongly in the name of the second respondent herein/second plaintiff in respect of the western portion of plaint 'B' schedule property which is shown as 'D' schedule property and the plaint 'C' schedule property was wrongly tagged with the eastern portion of the plaint 'B' schedule property and patta came to be issued in the name of the first respondent herein/first plaintiff. It is their further case that though such a mistake crept-in issuing patta, there is no dispute between the first and second respondents regarding the fact that the second respondent herein/second plaintiff is the owner of plaint 'C' schedule property and the first respondent herein/first plaintiff is the owner of the entire 'B' schedule property constituting also the property described in the plaint 'D' schedule. 11. A perusal of evidence, both oral and documentary, will make it clear that the case of the respondents herein/plaintiffs is probable. According to the case of the respondents herein/plaintiffs, originally the plaint 'A' schedule property belonged to the family of S. Mathavan and in a partition the same as it fell to his share. From the said S. Mathavan, the first respondent herein/first plaintiff has purchased six cents of land under a sale deed dated 28.06.1985 marked as Ex.A2. Except the eastern boundary, the boundaries on all other 3 sides have been properly described and there is no dispute over it. While describing the eastern boundary, a mistake crept-in and it has been inappropriately described to be Pitchai's house site and the east-west street. Except the eastern boundary, the boundaries on all other 3 sides have been properly described and there is no dispute over it. While describing the eastern boundary, a mistake crept-in and it has been inappropriately described to be Pitchai's house site and the east-west street. It is an admitted fact that the east west street runs on the north of Pitchai's house and it also runs on the north of plaint 'C' schedule property. Hence, it is quite obvious that the description of the eastern boundary was inappropriate. The same will be clear if the description of the property found in Ex.A3 sale deed executed by S. Mathavan in favour of Karuppapillai, from whom the second respondent herein/second plaintiff purchased the same under Ex.A.4. The property purchased by the first respondent herein/first plaintiff from S. Mathavan on 28.06.1985 is found described as follows as in the sale deed marked as Ex.A2:- xxx xxx xxx xxx xxx 12. The western boundary of the property sold under Ex.A. 2 to the first respondent herein/first plaintiff is none other than the property of the appellants herein/defendants. There is also no dispute regarding the correctness of the northern and southern boundaries. So far as the eastern boundary is concerned, it has been stated as the property belonging to Pitchai and the street (ghij). It is not the case of anyone that a street or lane was in existence between the property of the vendor under Ex.A.2 and the property (house) of Pitchai. On the other hand, the admitted fact is that there is a street running east west on the north of Pitchai's house and also on the north of a part of the property owned by the vendor under Ex.A.2 - sale deed. The same is quite obvious from the description of property and the boundaries if they are considered in the light of the plaint plan marked as Ex.A1, the correctness of which has not been disputed. According to the respondents herein/plaintiffs, the entire area marked as ABCD measures 9 cents and the property sold under Ex.A.2 measuring 6 cents is the property shown as CDEF in the plaint plan. The eastern boundary line of the 'B' schedule property has been marked as EF in the Ex.A1 - plaint plan. According to the respondents herein/plaintiffs, the entire area marked as ABCD measures 9 cents and the property sold under Ex.A.2 measuring 6 cents is the property shown as CDEF in the plaint plan. The eastern boundary line of the 'B' schedule property has been marked as EF in the Ex.A1 - plaint plan. It is obvious that it is in alignment with the abrupt end of panchayat east-west street running on the north of Pitchai's house and a portion of 'A' schedule property separately marked as ABFE and described as 'C' schedule property. It measures 3 cents. The said property is said to have been purchased from S. Mathavan by Karuppapillai, the vendor of the second respondent herein/second plaintiff. The original sale deed under which Karuppapillai purchased the said property is Ex.A3. The description of property found therein is as follows: xxx xxx xxx xxx xxx 13. It is pertinent to note that both the sale deeds Exs. A2 and A3 were executed on one and the same day. That is the reason why the property lying on the west of the property sold under Ex.A.3, is shown as the rest of the property owned by the vendor (ghij). So far as the other three boundaries are concerned, there is no dispute. Ex.A4 under which the second respondent herein/second plaintiff purchased the said property from Karupapillai contains the very same recital. While describing the 'C' schedule property under Ex.A.4, the western boundary is shown as Kanthan manai. There is no dispute that it refers to the property purchased by the first plaintiff/Kandasamy under Ex.A.2. 14. It is not the case of the appellants herein/defendants that the vendor under Exs.A.2 and A.3 did not have 9 cents of land in the said property within the boundaries described therein. If it is so, then the preponderance of probabilities will indicate that there was an inappropriate description of the eastern boundary under Ex.A2 as Pitchai's property and street. It is not the case of the appellants herein/defendants that the vendor under Exs.A.2 and A.3 did not have 9 cents of land in the said property within the boundaries described therein. If it is so, then the preponderance of probabilities will indicate that there was an inappropriate description of the eastern boundary under Ex.A2 as Pitchai's property and street. Instead of correctly describing that the properties sold under Ex.A2 lies on the west of the line in alignment of the abrupt end of the panchayat street which runs on the north of Pitchai's house and the rest of the property on the east from the line in alignment with the abrupt end of the street for being sold to Karuppapillai under Ex.A.3, the eastern boundary in Ex.A.2 has been inappropriately stated to be Pitchai's house and street (ghij). The said mistake has been found set right in Ex.A3 and also in Ex.A.4. The western boundary of the property purchased by the first plaintiff under Ex.A2 is shown to be the house site of Nayakkan, Irulan and Rengaraju. Irulan referred to therein is none other than the first defendant Irulappapillai. Hence, it is quite obvious that the western boundary of the property purchased by the first respondent herein/first plaintiff under Ex.A.2 is the house site of the appellants herein/defendants. It is not the case of the appellants herein/defendants that the suit 'D' schedule property shown as CDHG in the plaint plan belongs to them. On the other hand, it is the contention raised on behalf of the appellants herein/defendants that the 'D' schedule property abuts their house and they have put up a cattle shed and are using the same. 15. It is their further contention that the property does not belong to the first respondent herein/first plaintiff and it does not form part of the property purchased by him under Ex.A2. 15. It is their further contention that the property does not belong to the first respondent herein/first plaintiff and it does not form part of the property purchased by him under Ex.A2. When the case of the respondents herein/plaintiffs is so clear that the property purchased by the first respondent herein/first plaintiff is the 'B' schedule property shown as CDEF in the plaint plan and the property purchased by the second respondent herein/second plaintiff is the 'C' schedule property shown as ABFE in the plaint plan and they have also proved by an unimpeachable documentary evidence discussed above, the appellants herein/defendants have not come forward with a clear plea as to whether they are the owners of the suit 'D' schedule property and if not whether they claim perfection of title by adverse possession. In order to claim adverse possession, one should have knowledge that it belonged to the other person and defying his title, he should have possessed and enjoyed the property setting up an adverse claim/title in him for over the period of limitation. That is not the case of the appellants herein/defendants in this case. They contend that the property lying on the east of their house was a common property (samuthayam pangu) and that from 1978 the appellants herein/defendants had been in possession and enjoyment of the same. 16. It is pertinent to note that though it has been clearly stated in Ex.A.2 that the house site of the appellants herein/defendants lies on the west of property sold under Ex.A.2, the appellants herein/defendants came forward with a plea in paragraph 18 of the written statement denying that they have got property on the west of the 'B' schedule property. However, during the course of trial, they did admit that the property lying on the west of CD line as per Ex.A1 - plaint plan was their property. 17. However, during the course of trial, they did admit that the property lying on the west of CD line as per Ex.A1 - plaint plan was their property. 17. Upon proper appreciation of evidence, the trial Court and on proper re-appreciation of evidence, the lower appellate Court, arrived at a correct and concurrent conclusion that the property purchased by the vendor of the second respondent herein/second plaintiff under Ex.A3, which was again purchased by the second respondent herein/second plaintiff under Ex.A.4 is the property described in plaint 'C' schedule and shown as ABFE in Ex.A.1 - plaint plan and that the property purchased by the first respondent herein/first plaintiff under Ex.A2 is the one described in plaint 'B' schedule and shown as CDEF under Ex.A.1. The respondents herein/plaintiffs have also proved that a portion of the 'B' schedule property, which has been separately shown as 'D' schedule property and marked as CDHG in the plaint plan, is in possession of the appellants herein/defendants. By preponderance of probabilities the respondents herein/plaintiffs have proved the encroachment made by the appellants herein/defendants over the plaint 'D' schedule property. Accordingly, the Courts below rightly held that the respondents were entitled to a declaration that the first respondent is the owner of the plaint 'D' schedule property marked as CDHG in the plaint plan and that the respondents are entitled to a decree directing the appellants herein/defendants to hand over possession after removing the super structures put up by them in the plaint 'D' schedule property. In fact, due to a simple mistake committed in providing a description of property for the sale of plaint 'B' schedule property in referring to the eastern boundary and the consequential mistake committed by the revenue authorities in issuing patta in respect of 'D' schedule property in favour of the second respondent herein/second plaintiff instead of 'C' schedule property as per the documents, the appellants herein/defendants took advantage of such mistake encroached upon the 'D' schedule property and indulged in the litigation making unsustainable plea of defence. Of course, there are some minor discrepancies in the evidence of PW2. The said discrepancies caused due to the illiteracy, slip of tongue and the inability of rustic woman to give minute details regarding the revenue records, is unethically sought to be taken advantage of by the appellants herein/defendants. Of course, there are some minor discrepancies in the evidence of PW2. The said discrepancies caused due to the illiteracy, slip of tongue and the inability of rustic woman to give minute details regarding the revenue records, is unethically sought to be taken advantage of by the appellants herein/defendants. The same is the reason why the appellants herein/defendants unsuccessfully prosecuted the appeal before the lower appellate Court. Not stopping with that they have come to this Court with the present second appeal. 18. On a proper analysis of the pleadings and evidence and giving primacy to the documentary evidence rather than, oral evidence with some minor discrepancies, the Courts below have rendered justice by arriving at a correct conclusion that the case of the plaintiffs stood proved and that they were entitled to the reliefs sought for. The appellants have made fervent efforts to contend that Courts below granted the relief of declaration in favour of the respondents herein/plaintiffs by placing the entire burden of proving the defence case on the defendants and also relying on the weakness of the defendant's case without considering the strength of the case of the respondents herein/plaintiffs. Upon considering the judgments of the Courts below and also the materials available on record, this Court finds that it is not so. The burden of proving the title cast upon the respondents herein/plaintiffs have been discharged by adducing reliable evidence more particularly, the unimpeachable documentary evidence showing the property owned by the appellants herein/defendants to be the western boundary of the plaint 'B' schedule property. The appellants have also admitted that they are in possession of the 'D' schedule property. The contention of the appellants that the presumption under Section 110 of the Indian Evidence Act will be attracted in their favour to negative the claim of declaration by the respondents herein/plaintiffs is also on a wrong understanding of the provision, misinterpretation and misapplication of the pleadings and evidence. The real fact is that the appellants herein/defendants, who found out a discrepancy in Ex. A.2 in respect of the eastern boundary, which led to the mistake committed by the revenue authorities in wrongly issuing patta in respect of the 'D' schedule property in favour of the second respondent herein/second plaintiff instead of 'C' schedule property, have chosen to make an attempt to fish out of the troubled water. A.2 in respect of the eastern boundary, which led to the mistake committed by the revenue authorities in wrongly issuing patta in respect of the 'D' schedule property in favour of the second respondent herein/second plaintiff instead of 'C' schedule property, have chosen to make an attempt to fish out of the troubled water. Hence, both the questions formulated as substantial questions of law are bound to be answered against the appellants herein/defendants and in favour of the respondents herein/plaintiffs. This Court does not find any reasonable ground to interfere with the concurrent findings of the Courts below and on the other hand comes to the conclusion that there is no merit in the Second Appeal and the same deserves to be dismissed with costs. 19. In the result, the Second Appeal fails and the same is dismissed with costs. Consequently, M.P. (MD) Nos. 1 and 2 of 2011 are closed. Appeal dismissed.