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2016 DIGILAW 2869 (MAD)

Kannayira Desikar v. Chellamani

2016-08-16

R.MALA

body2016
JUDGMENT : R. MALA, J. 1. The first defendant, who lost the legal battle before both the Courts below, has come forward with this second appeal against the judgment and decree dated 25.1.99 in A.S. No. 1154 of 1998 on the file of the Principal District Judge, Sivagangai. Confirming the judgment and decree dated 19.06.1998 in O.S. No. 78 of 1991 on the file of the District Munsif Court, Sivaganga. 2. The respondents 1 to 8, as plaintiffs, filed a suit for declaration that the suit property is belonging to the plaintiffs 1, 3 to 8 and the second defendant and consequential injunction, restraining the defendants not to interfere with the peaceful possession and enjoyment of the suit property stating that the suit property has been purchased by the father of the 1st plaintiff and till his death, he was enjoying the same as his own. Tax has been paid by the brother of the 1st plaintiff viz., Chockalingam Chettiar. After his death, the first plaintiff and his brother succeeded the property. In the partition, the suit property was allotted to 1st plaintiff and he was in possession and enjoyment of the same. The building in the property was damaged condition. It was kept in as vacant. He executed power of attorney deed in favour of the second plaintiff on 07.01.1991. From that date onwards, the second plaintiff put up a thatched shed and enjoying the same. Since the suit property was enjoyed by the plaintiff, he prescribed title by adverse possession. Except the plaintiffs, no one has right over the property. Since the plaintiffs refused to sell the property to the defendants, they attempted to interfere with the peaceful possession of the plaintiffs and hence, the plaintiffs have constrained to file the suit, for the relief stated above. 3. Resisting the same, the first defendant filed a detailed written statement stating that the suit property was not properly described and it is a government natham. The first defendant has put up a thatched house and residing there. He also maintaining the garden on the backside and planted various trees like guava, mango, lemon and plantain etc. and using as cattle shed and storing wastage. He also running a timber shop in the name and style of Vijayalakshmi Timber shop after obtaining necessary license. He also paid fees to the Kundrakudi Panchayat and the property has also been assessed. and using as cattle shed and storing wastage. He also running a timber shop in the name and style of Vijayalakshmi Timber shop after obtaining necessary license. He also paid fees to the Kundrakudi Panchayat and the property has also been assessed. Accordingly, he paid house tax in Door No. 3/129 A. The second plaintiff has not constructed any house and resided there. The first defendant got electricity connection both the house in the suit property and the house situated in the eastern side of the property and paid electricity charges also. The 1st plaintiff is residing at Seravayal, which is away from the suit property and the 2nd plaintiff residing in his own house in a distant of 2 furlong from the suit property. The 1st defendant prescribed title by adverse possession and hence, he prayed for the dismissal of the suit. 4. At the time of admission, the following substantial questions of law have been framed for consideration of the second appeal:- 1. Whether the Courts below are right in decreeing the suit of the plaintiff for declaration and title and consequential permanent injunction on the supposed weakness of the defendant's case? 2. Whether Ex.A19 sale deed could be looked into by the Courts below in the absence of any plea with regard thereto in the plaint? 3. Whether the suit could be decreed on the strength of Ex.A19 when the boundaries therein have not been co-related with the boundaries of the suit property and when no witness has been examined by the plaintiff for co-relation? 4. Whether the Courts below erred in admitting Ex.A22 and A26 and in placing reliance on them when admittedly the parties to the said document are not been examined? Substantial Questions of Law 1 to 4: 5. The learned counsel appearing for the appellant would submit that the suit property neither belongs to Saththappa Chettiyar nor his father Valliyappa Chettiyar. The defendant alone is in possession and enjoyment of the same. He put up thatched house and running timber shop and raised various trees and enjoying the property. The documents filed by the respondents viz., Exs.A11, A19 to A22 have not been proved in accordance with law and that factum was not considered by the trial Court and hence he prayed for setting aside the judgment and decree of both the Courts below. 6. The documents filed by the respondents viz., Exs.A11, A19 to A22 have not been proved in accordance with law and that factum was not considered by the trial Court and hence he prayed for setting aside the judgment and decree of both the Courts below. 6. The learned counsel appearing for the respondent would submit that the suit properties owned by one Saththappa Chettiyar/1st plaintiff. He executed power of attorney deed in favour of the 2nd plaintiff on 07.01.1991 and possession has been given to him and he is enjoying the same. Originally, the property is owned by one Vallaiappa Chettiyar. He has two sons viz., Saththappa chettiyar and Chockalinga Chettiyar. Oral partition was taken place between Sathappa Chettiyar/1st plaintiff and Chockalinga Chettiyar and the suit property was given to the first plaintiff, who in turn, executed the power of attorney in favour of second plaintiff under Ex.A1. 7. Valliappa Chettiar has purchased the property under Ex.A19 on 12.05.1923. The property has been assessed to tax and tax has been paid in the name of Chockalingam and he is in possession. Ex.A2 to A10 are the house tax receipts. Ex.A11 has been filed to show that the suit property has been shown as one of the boundary. Exs.A19 to A21 also shown that the suit property is one of the boundary. Photographs are marked as Ex.A12 to A17 and that factum was not considered by the trial Court. Since the defendants attempted to interfere the possession and enjoyment of the plaintiffs, the plaintiffs constrained to file the suit for declaration and injunction and that factum was considered by the trial Court and hence, he prayed for dismissal of the second appeal. 8. The learned counsel for the respondent further submitted that Ex.A11, A19 to A22 has been proved in accordance with law. Once documents have been marked, it cannot be challenged at the time of second appeal. For the reason, he relied on by the decision reported in (2004) 7 SCC 107 Dayamathi Bai Vs. K.M. Shaffi. 9. 8. The learned counsel for the respondent further submitted that Ex.A11, A19 to A22 has been proved in accordance with law. Once documents have been marked, it cannot be challenged at the time of second appeal. For the reason, he relied on by the decision reported in (2004) 7 SCC 107 Dayamathi Bai Vs. K.M. Shaffi. 9. He has further relied on the decision reported in AIR 1968 SC 1083 Om Prabha v. Abnash Chand and submitted that evidence to be given only on a plea properly raised and not in contradiction of the plea and further submitted that both the Courts below have considered the same in proper perspective and came to the correct conclusion and hence, prayed for dismissal of the second appeal. 10. The admitted facts are that the identity of the property is not disputed. To prove the title to the property the respondents filed Ex.A19 dated 12.05.1923, in which, Valliappa Chettiyar has purchased the suit property i.e. item 1 and 2. The plaintiff has filed Ex.A19 to show that the suit property has been purchased under Ex.A19. Other documents viz., Exs.A11 and A20 to A22 have been filed to show that one of the boundary has been shown as Seravayal Chockalingam Chettiyar Mutt, which is the suit property. Commissioner has inspected the property and filed a report, which was marked as Exs.C1 to C3. Therefore, considering Ex.A11, A20 and A22 and also Exs.C1 to C3 along with Ex.A19, it is clear that the property purchased under Ex.A19 is the suit property. 11. The learned counsel for the appellant would submit that the appellant filed Ex.B1 showing that the suit property is grama natham and hence, he is in possession of the same and he obtained licence in the name of his wife for running firewood shops and hence, he is the owner of the property. But, the above argument does not hold good. 12. The learned counsel for the appellant has further submitted that to prove the documents Exs.A11, A20 to A22, the parties related to those documents have not been examined. But, the above argument does not hold good. Because, the documents have been filed only to prove the identity of the property and one of the boundary has been mentioned as Seravayal Chockalingam Chettiyar Mutt. But, the above argument does not hold good. Because, the documents have been filed only to prove the identity of the property and one of the boundary has been mentioned as Seravayal Chockalingam Chettiyar Mutt. It is pertinent to note that one Nagarajan was examined as D.W.2 and that has been fortified by Exs.C1 to C3. In such circumstances, I am of the view that the argument advanced by the learned counsel for the appellant that Ex.A11, A20 to A22 shall not be looked into does not merit acceptance. 13. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondents reported in (2004) 7 SCC 107 Dayamathi Bai Vs. K.M. Shaffi, wherein, it is stated that once the document has been marked without objection, it cannot be objected at the time of second appeal. The relevant portion of para 14 is extracted herein: “14. To the same effect is the judgment of the Privy Council in the case of Gopal Das V. Thakurji in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a court of appeal and then complaint for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 1st Edn., p.1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.” Admittedly, at the time of marking those documents, no objection has been raised. Furthermore, on the basis of those documents, the respondents are not claiming any title. To prove the boundary only, the documents have been filed. Furthermore, on the basis of those documents, the respondents are not claiming any title. To prove the boundary only, the documents have been filed. Hence, the argument advanced by the learned counsel for the appellant that the parties related to Ex.A11, A20 to A22 have not been examined does not merit acceptance. 14. It is true that the property is belonging to the first plaintiff's father and on oral partition, the property has been allotted to the first plaintiff and he has given power of attorney in favour of the second plaintiff. The learned counsel for the appellant would submit that the document, which was marked as Ex.A19 has not been pleaded and hence, it cannot be looked into. But, the above argument does not merit acceptance. On Ex.A19 only, the respondents are claiming title. To prove the title, they have filed the said document. 15. At this juncture, the learned counsel appearing for the respondent has relied upon the decision AIR 1960 SC 200 Bhagwan Datta V. Ram Ratanji, which was followed in AIR 1968 SC 1083 Om Prabha V. Abnash Chand and submitted that the ordinary rule of law is that evidence is to be given only on a plea property raised and not in contradiction of the plea. But, here, the document has been filed only to support the plea raised by the plaintiff. So, the argument advanced by the learned counsel for the appellant that the document Ex.A19 shall not be looked into does not merit acceptance. Therefore, I am of the view that both the Court below have rightly considered Ex.A19 and held that the property is belonging to the first plaintiff. In the Commissioner's Plan and report, it has been proved that one of the boundary has been mentioned in Ex.A11, and A20 to A22 and that property is in the possession of the respondents. Now, the appellant is attempted to interfere the possession of the respondents and hence, the respondents are entitled for declaration and injunction. 16. Furthermore, the appellant has filed the document Ex.B1, A Register to show that the suit property is grama natham. The suit property situated in Natham S. No. 163/3, which was purchased by the respondents' father Valliappa Chettiyar in 1923. 16. Furthermore, the appellant has filed the document Ex.B1, A Register to show that the suit property is grama natham. The suit property situated in Natham S. No. 163/3, which was purchased by the respondents' father Valliappa Chettiyar in 1923. In such circumstances, I am of the view that both the Courts below have rightly held that the respondents are entitled decree as prayed for in the plaint. Even though, in Ex.B1, it was stated that the suit property is Government Poramboke, Commissioner's report would show that the appellant is not in possession of suit property. Even though, the appellant has filed document to show that he is running fire wood shop in the name of his wife and that has been evidenced by Exs.B2 to B9, admittedly, the appellant is not in possession of the suit property and he is not having title over the property. So, both the Court below have considered all the aspects in proper perspective and granted decree as prayed for in the plaint. The substantial questions of law 1 to 4 are answered accordingly. Therefore, I am of the view that the decree and judgment of both the Courts below does not warrant any interference and the same is liable to be confirmed and the second appeal deserves to be dismissed. 17. Accordingly, the second appeal is dismissed. No costs. Consequently, connected M.P. (MD) No. 2 of 2015 is also dismissed.