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2017 DIGILAW 3574 (MAD)

Ponniah v. Mayandi Thevar

2017-11-03

RMT.TEEKAA RAMAN

body2017
JUDGMENT : The defeated defendants are the appellants herein. 2. The respondents 1 and 2 herein have filed the suit, in O.S.No.775 of 1983, before the learned District Munsif, Thirumangalam, seeking for the relief of declaration of title and permanent injunction restraining the defendants from interfering with the suit property. 3. After contest, the learned District Munsif, Thirumangalam, by Judgment and Decree, dated 30.03.1990, dismissed the suit. 4. Aggrieved by the Judgment and Decree passed by the learned District Munsif, Thirumangalam, the plaintiffs have preferred an appeal, in A.S.No.49 of 1990, before the III Additional Sub Court, Madurai. 5. After contest, the learned III Additional Sub Judge, Madurai, by Judgment and Decree, dated 13.10.2004, allowed the appeal and set aside the Judgment and Decree passed by the learned Trial Judge. 6. Challenging the correctness of the Judgment and Decree passed by the learned III Additional Sub Judge, Madurai, the defeated defendants have preferred the present second appeal. 7. The plaint proceeds on the basis that the suit property measuring an extent of 0.79 cents out of 1.34 acres in Survey No.157/1, is situated at A. Kokkulam Village, Tirumangalam Taluk. According to the plaintiffs, the first plaintiff Mayandi Thevar had purchased an extent of 0.13.3/4 cents in S.No.157/1 through a registered Sale Deed dated 16.05.1978 from one Sundaram Chettiyar and others, an extent of 0.27.1/2 cents in S.No.157/1 through a registered Sale Deed dated 18.05.1978 from one Kayambu Thevar and others, an extent of 0.13.3/4 cents in S.No.157/1 through a registered Sale Deed dated 06.01.1979 from one Mani Thevar and another extent of 0.08 cents through a registered Sale Deed dated 15.03.1980 from one Mokka Maya Thevar. In toto, the first plaintiff had purchased an extent of 0.63 cents out of 1.34 acres in S.No.157/1. 8. According to the plaintiffs, the second plaintiff Muthu had purchased an extent of 0.16 cents in S.No.157/1 through a registered Sale Deed dated 22.04.1978 from one Mokka Maya Thevar and others, thereby the plaintiffs 1 and 2 have derived right to an extent of 0.79 cents in S.No.157/1. The remaining 0.55 cents in S.No.157/1 belongs to one Raju Thevar. 8. According to the plaintiffs, the second plaintiff Muthu had purchased an extent of 0.16 cents in S.No.157/1 through a registered Sale Deed dated 22.04.1978 from one Mokka Maya Thevar and others, thereby the plaintiffs 1 and 2 have derived right to an extent of 0.79 cents in S.No.157/1. The remaining 0.55 cents in S.No.157/1 belongs to one Raju Thevar. Though the property of Raju Thevar situated in the middle portion, the plaintiffs have orally exchanged their possession according to their convenience, thereby, the Northern side 0.55 cents in S.No.157/1 was possessed by the said Raju Thevar and the same was sub-divided in S.No.157/1A, the South Western 0.63 cents in S.No.157/1 was possessed by the first plaintiff and the same was sub-divided in S.No.157/1B and the remaining Eastern side 0.16 cents in S.No.157/1 was possessed by the second plaintiff and the same was sub-divided in S.No.157/1C. According to the sub-division, the mutation was effected in the revenue records which would reflect in the UDR Patta. 9. The defendants have denied the various averments by filing written statement inter alia contended that the land measuring 0.45 cents in S.No.157/1 devolves upon them through the ancestors by name (1) Subbiah Thevar, (2) Ayyaru Thevar and (3) Nallu Thevar. In short, in respect of 0.45 cents in S.No.157/1, the defendants have set up an independent title by claiming through different vendor and also relying upon two mortgage deeds dated 26.02.1943 and 09.03.1971. According to the defendants, 0.45 cents on the Northern portion of the said S.No.157/1 belongs to them. 10. The point of dispute being whether the 0.55 cents on the Northern portion of S.No.157/1 belongs to the plaintiffs or to the defendants?. 11. Before the trial Court, the second plaintiff was examined as P.W.1 and the first plaintiff was examined as P.W.2 and one independent witness was examined as P.W.3 and Exs.A.1 to A.26 were marked and on behalf of the defendants, the first defendant was examined as D.W.1 and one Raju Thevar was examined as D.W.2 and Murugan was examined as D.W.3 and mortgage deeds Exs.X.1 and X.2 were marked. 12. On consideration of both oral and documentary evidence, the trial Court has come to the conclusion that in respect of 0.55 cents on the Northern portion of the said survey number was not proved in favour of the plaintiffs' title and accordingly, dismissed the suit in entirety. 13. 12. On consideration of both oral and documentary evidence, the trial Court has come to the conclusion that in respect of 0.55 cents on the Northern portion of the said survey number was not proved in favour of the plaintiffs' title and accordingly, dismissed the suit in entirety. 13. As stated supra, aggrieved by the Judgment and Decree of the learned District Munsif, Thirumangalam, in O.S.No.775 of 1983 dated 30.03.1990, the unsuccessful plaintiffs have preferred first appeal in A.S.No.49 of 1990, before the III Additional Sub Court, Madurai and the Lower Appellate Court, after forming point for determination and on re-appreciation of the evidence, has held that Exs.B.1 and B.2 does not stand in the way of plaintiffs' title and relied upon the plaintiffs' document and held that they are entitled for the relief of declaration of their title and injunction against the defendants. Accordingly, the Lower Appellate Court has allowed the appeal and decreed the suit in entirety. Aggrieved against the said judgment and decree, the defendants have preferred this second appeal before this Court. 14. At the time of admitting the second appeal, the following substantial questions of law were framed for consideration : "(i) Whether the oral exchange of immovable properties by two independent owners is valid and whether it will convey title to the exchanged properties? (ii) Whether the Sale Deed with a specific location and boundaries of a land purchased will convey title to a land of different location and boundaries? (iii) Whether the finding of the Court that the plaintiffs have title to different 5 locations with different boundaries totaling A.C.0.79 cents will enable the Court to declare title of the plaintiffs to A.C.0.79 cents in one place as one item with different location and boundary?" 15. Since all the substantial questions of law are inter related and inter connected, they are dealt with in common. 16. Since all the substantial questions of law are inter related and inter connected, they are dealt with in common. 16. The plaint proceeds on the basis that the plaintiffs 1 and 2 have purchased the suit property under Exs.A.1, A.6, A.9, A.10 and A.13, Sale Deeds and the predecessors-in-title of the plaintiffs namely, the vendors of the plaintiffs have obtained suit property under Sale Deed Exs.A.2, A.7 and A.8 and they have also filed revenue records Ex.A.14 and A.15-Patta, in support of their claim that mutation of records in the revenue records has been given effect to and marked Exs.A.5 and A.16 to A.24 for evidencing payment of kist to the Government and Chitta is marked as Ex.A.25 and Adangal extract is marked as Ex.A.26. 17. It is the specific case of the respondents/plaintiffs that they derived title to the suit property by virtue of the Sale Deed marked as Exs.A.1, A.6, A.9, A.10 and A.13. The defendants have not produced any contra evidence to disprove the contents of the above referred document. 18. It appears that only during the time of the final hearing of this Second Appeal, the defendants have filed miscellaneous petition in M.P.No.1 of 2015 to receive the documents as additional evidence at the appellate stage and the said petition was resisted by the respondents/plaintiffs on the ground that 33 years after the institution of the suit, the same has been filed and no diligence has been shown by the defendants to prove their title in respect of the disputed 0.55 cents on the Northern portion of the S.No.157/1. Since the said petition to receive the documents as additional evidence was filed 33 years after the institution of the suit, the same is liable to be dismissed and accordingly, it is dismissed. 19. Since the said petition to receive the documents as additional evidence was filed 33 years after the institution of the suit, the same is liable to be dismissed and accordingly, it is dismissed. 19. According to the respondents/plaintiffs, though the property of Raju Thevar situated in the middle portion, the plaintiffs have orally exchanged their possession according to their convenience thereby, the Northern side 0.55 cents in S.No.157/1, which was possessed by the said Raju Thevar, was sub-divided in S.No.157/1A, the South Western 0.63 cents in S.No.157/1 was possessed by the first plaintiff and the same was sub-divided in S.No.157/1B and the remaining Eastern side 0.16 cents in S.No.157/1 was possessed by the second plaintiff and the same was sub-divided in S.No.157/1C and accordingly, the sub divisions have been given effect to by mutation of revenue records which would reflect in the UDR patta. 20. At this juncture, it remains to be stated that the plea of oral exchange between the plaintiffs 1 and 2 with Raju Thevar was not proved in the manner known to law. Admittedly, the respondents/plaintiffs, who have purchased definite extent of the land with boundaries with definite location having come forward with specific plea of oral exchange with Raju Thevar, they have not adduced any evidence to prove the alleged oral exchange assumes significance. In respect of patta as referred above, on a perusal of Ex.A.3, it is dated 27.02.1987 while Ex.A.25-Chitta is dated 23.08.1983 and Ex.A.26-Adangal extract is also dated 23.08.1983. While the suit has been instituted on 26.08.1983 that is to say Exs.A.25 and A.26 are two days prior to the institution of the suit while Ex.A.3 is subsequent to the filing of the suit. 21. After going through the oral evidence of P.W.1 and P.W.2 and the documents of their title as referred above, this Court finds that the Sale Deeds in favour of the plaintiffs are with the specific location and boundaries of the land purchased to convey the land with specific definition and there is no document to show about the 0.55 cents on the Northern portion of the said survey number in favour of the plaintiffs herein assumes significance. However, the plaintiffs have come forward with specific plea that there was oral exchange of immovable property by two independent owners namely, plaintiffs on the one side and the said Raju Thevar on the other side. However, the plaintiffs have come forward with specific plea that there was oral exchange of immovable property by two independent owners namely, plaintiffs on the one side and the said Raju Thevar on the other side. At this juncture, it is pertinent to note that the said Raju Thevar was examined as D.W.2 and through him, Exs.X.1 and X.2 were marked. 22. Learned counsel appearing for the appellants after demonstrating the various physical features and to localize the properties purchased by the respondents/plaintiffs by a separate map drawn the attention of this Court to the schedule of the property in Exs.X.1 and X.2 and emphasized that D.W.2-Raju Thevar and his father were enjoying the property and subjected the property to mortgage to Singa Thevar in the year 1943 and to the second plaintiff-Muthu Thevar in the year 1971 wherein the schedule of the property have categorically stated that 0.55 cents on the Northern portion of the disputed survey number. During the cross-examination of D.W.2, he had categorically admitted that 0.55 cents out of 1.34 acres located at the centre and the plaintiffs have purchased on the East and West of the said survey number and for the suggestion that for the shake of convenient enjoyment, there was oral exchange between the parties has been specifically denied. Further, he has specifically denied the suggestion during the course of trial that Northern portion was taken by him while the Southern portion was taken by the plaintiffs. The Lower Appellate Court appears to have been decreed the suit on the weakness of the defendants, which is against the established principles of law. The plaintiffs have to succeed on their own strength not on the weakness of the defendants. Though the defendants have not produced any document of title as pleaded in the written statement, they have specifically contended that the Northern portion measuring 45 cents of land which the plaintiffs pleaded that they had oral exchange with Raju Thevar, while the said Raju Thevar, who was examined as D.W.2 has specifically denied the alleged oral exchange between him and the plaintiffs. Further, the said Raju Thevar as D.W.2 has also asserted that he had exercised his right of ownership in respect of that extent of land by mortgaging the property in favour of the second plaintiff, which has been discharged in the year 1980 assumes significance. Further, the said Raju Thevar as D.W.2 has also asserted that he had exercised his right of ownership in respect of that extent of land by mortgaging the property in favour of the second plaintiff, which has been discharged in the year 1980 assumes significance. In view of the specific evidence of D.W.2-Raju Thevar which is against the pleading of the plaintiffs regarding alleged oral exchange of immovable properties, the lower Appellate Court has committed an error in accepting the oral exchange of the plaintiffs when there is a overwhelming evidence both oral and documentary by way of D.W.2 and Exs.X.1 and X.2, the Lower Appellate Court has erred in accepting the case of the plaintiffs. 23. Considering the evidence of D.W.2 and the specific denial of Raju Thevar with whom the plaintiffs have projected as if they had oral exchange on the Northern side of the property in that survey number measuring 57 cents and also his act of ownership, as stated supra, the trial Court has properly appreciated the evidence of D.W.2 and the documentary evidence Exs.X.1 and X.2 and negatived the claim of the plaintiffs in respect of that portions, found to be correct and the contra finding recorded by the Lower Appellate Court is erroneous. Accordingly, if all, there shall be a decree only in respect of lands covered under the Sale Deed in favour of the plaintiffs and there cannot be a decree in favour of the plaintiffs in respect of the lands not covered under the Sale Deed, however, in the plaint schedule, there is no separate schedule with specified boundaries are mentioned. It is described as a entire property as enblock in single piece, out of which, for 55 cents, the plaintiffs have not proved their title and hence, prayer as such for the entire property including the lands of Raju Thevar cannot be granted as a whole, since the plaintiffs have failed to prove their plea of oral exchange of land measuring 0.55 cents on the Northern side of the said survey number. In this view of the matter, all the substantial questions of law raised in this appeal are held in affirmation in favour of the appellants herein and the contra finding given by the Lower Appellate Court is hereby vacated and the similar finding, as that of this Court as stated above, by the trial Court is restored. 24. In this view of the matter, all the substantial questions of law raised in this appeal are held in affirmation in favour of the appellants herein and the contra finding given by the Lower Appellate Court is hereby vacated and the similar finding, as that of this Court as stated above, by the trial Court is restored. 24. Accordingly, the Second Appeal is allowed and the judgment and decree of the Lower Appellate Court/III Additional Sub Court, Madurai, reversing the judgment and decree of the trial Court/District Munsif, Thirumangalam, is hereby set aside. Consequently, O.S.No.775 of 1983 on the file of the District Munsif, Thirumangalam, is dismissed. There shall be no order as to costs.