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2017 DIGILAW 6 (MAD)

Pattusamy gounder (deceased) v. Pushpavathi ammal

2017-01-02

G.JAYACHANDRAN

body2017
JUDGMENT : The appellants are the legal representatives of the deceased plaintiff. This appeal is directed against the concurrent findings of the courts below dismissing the suit for declaration of title and delivery of possession. 2. The parties are described as per their rank and status shown in the original suit. 3. The facts leading to the second appeal are as follows: The case of the plaintiff is that, he purchased the first item of property mentioned in the 'A' schedule from one Jayammal through sale deed dated 13.02.1974. The second item of the property mentioned in the 'A' schedule is situated on the North of the first item of the property. This property belongs to his father Krishnasamy Reddiar. During his life time, Krishnasamy Reddiar sold the second item of the property orally to the plaintiff. To the East of the second item of the property in the 'A' schedule, the ancestral property is situated with a house and garden. In the year 1965, the plaintiff remodeled his ancestral house. Krishnasamy Reddiar had a concubine by name Ammachi Ammal. Defendants 1 and 2 are the daughters of the said Ammachi Ammal. Krishnasamy Reddiar bequeathed a portion of his property at Alagramam to Ammachi Ammal and her daughters by way of a Will. They have no right over the other properties of Krishnasamy Reddiar. The plaintiff constructed a hut in the second item of the property, which is the 'B' schedule property. The plaintiff permitted defendants 1 and 2 to reside in the 'B' schedule property on the undertaking from defendants 1 and 2 to vacate it as and when the plaintiff requires it. When the plaintiff demanded 'B' schedule property, defendants 1 and 2 are making untenable claim over the property. Hence, the suit for declaration of title and delivery of possession. 4. Defendants 1 and 2 denying the plaint averments contended that, their mother Ammachi Ammal is the legally wedded wife of Krishnasamy Reddiar. They are the children of Krishnasamy Reddiar born through his second wife Ammachi Ammal. Krishnasamy Reddiar, during his life time, gave away items 1 and 2 of the suit 'A' schedule properties to Ammachi Ammal for her enjoyment absolutely. The 'B' schedule hut in the second item of the 'A' schedule was constructed by Krishnasamy Reddiar and he made his wife Ammachi Ammal and her daughters to reside in it. Krishnasamy Reddiar, during his life time, gave away items 1 and 2 of the suit 'A' schedule properties to Ammachi Ammal for her enjoyment absolutely. The 'B' schedule hut in the second item of the 'A' schedule was constructed by Krishnasamy Reddiar and he made his wife Ammachi Ammal and her daughters to reside in it. Admittedly, from 1972, they are residing in the 'B' schedule property, so, the suit is barred by limitation. After the death of Krishnasamy Reddiar, the entire 'A' schedule property devolved upon the defendants 1 and 2 absolutely. They are continuously in enjoyment and possession, thereby, prescribed title over the property. They have annexed the poramboke land lying on south of the suit property in S.No.145/2 and they are enjoying that portion also. Therefore, the plaintiff has no right over the strip of poramboke land or the suit schedule properties. 5. The 3rd defendant is first wife of Krishnasamy Reddiar and the mother of the plaintiff. Defendants 4 and 5 are the daughters of the 3rd defendant. In their written statement, defendants 3 to 5 have supported the case of the plaintiff and had recorded their 'no objection' to pass the decree in favour of the plaintiff, without cost. 6. After considering the plaint, written statements, additional written statements and reply statements, the trial Court, framed 11 issues and 8 additional issues; marked 54 documents as Exs.A1 to A54; examined 2 witnesses on the side of plaintiff as P.W.1 and P.W.2; marked 17 documents as Exs.B1 to B17; examined 5 witnesses on the side of the defendants as D.W.1 to D.W.5; and marked 2 documents on the side of the Court as Exs.C1 and C2. After considering the oral and documentary evidence, the trial Court dismissed the suit against the plaintiff. Aggrieved by that judgment, the plaintiff preferred appeal and the first appellate Court dismissed the appeal by confirming the judgment of the trial Court. 7. Aggrieved by the concurrent finding, the plaintiff has preferred the second appeal. At the time of admission, this Court has formulated the following Substantial Question of Law for consideration:- “(1) Are the Courts below justified in brushing aside the sale deed Ex A-1, under which the appellant purchased item 1 of plaint 'A' schedule property from one Jayammal, whose title is not disputed by the defendants ? At the time of admission, this Court has formulated the following Substantial Question of Law for consideration:- “(1) Are the Courts below justified in brushing aside the sale deed Ex A-1, under which the appellant purchased item 1 of plaint 'A' schedule property from one Jayammal, whose title is not disputed by the defendants ? (2) Whether the Court below, having found that defendants could not prove their title to the suit properties, are justified in dismissing the suit on the face of plaintiff's documents of title to the suit properties ?” 8. The learned counsel for the appellant/plaintiff submitted that, in the suit 'A' schedule property, the first item of the property is the absolute property of the plaintiff purchased through the sale deed marked as Ex A-1 from one Jayammal. Neither Krishnasamy Reddiar nor defendants 1 and 2 have right over the property. By oral sale, the second item of the property was sold away by Krishnasamy Reddiar in favour of the plaintiff. Even if the oral sale is not accepted, for the rest of the properties left by Krishnasamy Reddiar the plaintiff and defendants 3 to 5 alone are entitled to inherit. In the year 1990, defendants 3 to 5 have released their right in favour of the plaintiff. Therefore, defendants 1 and 2 have no right in the suit schedule properties. Krishnasamy Reddiar through the Will-Ex.A-47 has given certain properties to Ammachi Ammal describing her as “his abimana manavi”. Krishnasamy Reddiar as early as 1956 de-linked Ammachi Ammal, after bequeathing the properties in Alagramam Village. The properties in Avayarkuppam Village was given to his first wife and children born to her. The Courts below failed to appreciate all these documents properly. It not only rejected oral sale of 'A' schedule 2nd item of property by Krishnasamy Reddiar in favour of the plaintiff, but also rejected Ex.A-1 Registered sale deed executed in favour of the plaintiff by one Jayammal on a flimsy reason that, the vendor of the plaintiff has not traced her title to the property in the sale document Ex.A-1. 9. Per contra, the learned counsel appearing for the respondents submitted that, the Courts below have rightly considered the documents and oral evidence. The fact that the 'B' schedule property is in occupation and possession of the first and second defendant, has been proved through tax receipts and 'B' memo receipts. 9. Per contra, the learned counsel appearing for the respondents submitted that, the Courts below have rightly considered the documents and oral evidence. The fact that the 'B' schedule property is in occupation and possession of the first and second defendant, has been proved through tax receipts and 'B' memo receipts. These two defendants are children of Krishnasamy Reddiar and they cannot be deprived of their right over the property left by Krishnasamy Reddiar on the ground that they are children born through the second wife. 10. From the documents and exhibits, it could be seen that the total extend of old survey No. 145/2 is 0.45 cents. Vide Ex A-1 sale deed dated 03.01.1925, one Krishna Reddiar on his behalf and on behalf of his minor son Babu Reddiar has sold 43 cents out of 45 cents to one Kuppusami Reddiar. In the remaining 2 cents, a well and land around the well had been retained by Krishna Reddiar. Kuppusamy Reddiar is the father of Krishnasami Reddiar and grandfather of the plaintiff. It is a fact admitted by the plaintiff in his deposition that, Krishnasamy Reddiar during his life time sold 15 cents out of 43 cents to one Ayyakutti Gounder and 12 cents of land to one Varada Mastry. The remaining land held by Krishnasamy Reddiar is 16 cents, which is in dispute shown as 2nd item of the property in the 'A' schedule. It is the case of the plaintiff that since the value of 16 cents at the time of oral sale in the year 1960 was less than Rs.100/-, the sale deed was not reduced into writing. This could not be proved by the plaintiff. The preponderance of probablity is not held in favour of the plaintiff by both the Courts below. 11. In Maria Margarida Sequeria Fernandes and others -vs- Erosmo Jack de sequeria (dead) through Legal Representatives reported in AIR 2012 SC 1727 , the Supreme Court has discussed in detail how and when the relief of Mandatory Injunction and delivery of possession can be granted. The test to grant possessory relief is well laid in this judgment on the following terms:- “66. A title suit for possession has two parts- first, adjudication of tile, and second, adjudication of possession. The test to grant possessory relief is well laid in this judgment on the following terms:- “66. A title suit for possession has two parts- first, adjudication of tile, and second, adjudication of possession. If the title dispute is removed and the tile is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected. 67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. 69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession. 70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive. 70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive. (a) who is or are the owner or owners of the property; (b) title of the property; (c) who is in possession of the tile documents; (d) identity of the claimant or claimants to possession; (e) the date of entry in to possession; (f) how he came into possession-----whether he purchased the property or inherited or got the same in gift or by any other method; (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount; (h) If taken on rent, license fee or lease ---then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.; (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and (k) basis of his claim that not to deliver possession but continue in possession.” 12. It is seen from the evidence Ex.A-44 that on 05.01.1965, the plaintiff had purchased 2 cents of land from son and grandsons of one Vardha Mastry. On 13.02.1974 under Ex A-1, the plaintiff has purchased 2 cents of land from Jayammal, W/o Babu Reddiar. On 07.03.1974 under Ex.A-45, the plaintiff has purchased 5 cents of land from Janagambal W/o Rajagopal Reddiar. 13. As far as first item of the suit property is concerned, it is 0.02 cents of land in S.No.145/2 and the plaintiff has purchased it under a registered sale deed from one Jayammal, w/o Babu Reddiar. The Courts below have failed to properly co-related the title deeds of the documents exhibited before it. Ex A-1 is disbelieved by the Courts below, since the executor Jayammal or the attesting witness were not examined and the sale deed does not disclose the predecessors in title. The Courts below ought to have read Ex A-2 and Ex.A-1 together. Both the rival parties claim their right over S.No. 145/2 only through Krishnasamy Reddiar. Ex A-1 is disbelieved by the Courts below, since the executor Jayammal or the attesting witness were not examined and the sale deed does not disclose the predecessors in title. The Courts below ought to have read Ex A-2 and Ex.A-1 together. Both the rival parties claim their right over S.No. 145/2 only through Krishnasamy Reddiar. A conjoint reading of Ex A-1 and Ex A-2 establishes that the plaintiff has independent right and title over the 2 cents of land, out of 45 cents of land in S.No.145/2 under the sale deed Ex.A-1, which was excluded in the earlier sale under Ex.A2. 14. Ex.A-2 dated 03.01.1925 is the source document for the title of Krishnasamy Reddiar and he had purchased only 43 cents, out of 45 cents. The remaining 2 cents of land is in the first item of 'A' schedule property. Under Ex.A-2, Kuppusamy Reddiar had purchased 43 cents, out of 45 cents in S.No.145/2 from Krishna Reddiar and his minor son Babu Reddiar. The vendors have retained 2 cents with them. That 2 cents had been sold by Jayammal, the wife of Babu Reddiar under Ex.A-1 dated 13.02.1974. This 2 cents of land is nothing to do with the 43 cents of land held by Krishnasamy Reddiar, which devolved from his father Kuppusamy Reddiar. Therefore, even if there is no evidence to hold that the 2nd item of suit schedule property was sold to plaintiff by oral sale, in so far as the first item of the suit property, the plaintiff is the absolute owner of the property by purchase and he has the absolute title. Krishnasamy Reddiar was never the owner of this piece of land for the defendants to make a claim over it. 15. In none of the sale deeds exhibited in this case for S.No.145/2, the vendors have disclosed their source of title. While so, the Courts below ought not to have isolated Ex.A-1 alone and disbelieved it. More particularly, Ex A-2 which the parties rely to show the suit properties were inherited by Krishnasamy Reddiar through his father Kuppusamy Reddiar, is silent about the title of the vendor. Therefore, the Courts below ought not to have relied upon this omission to disbelieve the sale deed Ex.A-1. More particularly, Ex A-2 which the parties rely to show the suit properties were inherited by Krishnasamy Reddiar through his father Kuppusamy Reddiar, is silent about the title of the vendor. Therefore, the Courts below ought not to have relied upon this omission to disbelieve the sale deed Ex.A-1. More so, when the defendants could not produce any better document to claim title over that property, contrarily, the plaintiff could produce kist receipts and patta for the first item of the property. 16. Thus, in so far as item 1 of the 'A' schedule property, the plaintiff has title over that 2 cents of land. The possession is properly pleaded and proved through kist receipts. Per contra, the defendants, who claim right of continuous possession through their pleadings and documents, were able to prove their possession only in respect of 'B' schedule property and not over items 1 and 2 of the 'A' schedule properties. The Courts below, while rightly disbelived the oral sale in respect of 2nd item of 'A' schedule property and the alleged permissive occupation of 'B' schedule property, have wrongly extended that disbelief to the first item of the 'A' schedule property, despite the registered sale deed Ex A-1. Therefore, the Substantial Questions of Law in respect of Ex.A-1 is held in favour of the plaintiff/appellants. 17. In the result, this Second Appeal is partly allowed. Suit for declaration and possession is allowed in respect of item 1 of 'A' Schedule property. For the rest of the properties, the trial Court and appellate Court judgments are confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.