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2017 DIGILAW 878 (MAD)

Marie Louise v. Ganesan

2017-04-04

N.SATHISH KUMAR

body2017
JUDGMENT : The above appeal is filed against the Judgment and Decree dated 24.09.2010 passed in O.S.No.15 of 1994 in a suit filed by the appellant herein for recovery of possession. 2. For the sake of convenience, the parties are referred to, as per their ranking before the trial Court. 3. The plaintiff filed a suit in O.S.No.15 of 1994, before the learned Additional District Judge, Puducherry at Karaikkal, for recovery of possession and for damages with costs. 4. After contest, the suit was dismissed. 5. The brief facts of the case of the plaintiff are as follows: The suit property originally belonged to one Palaniammal @ Lourdesmarie. During her life time, the said Palaniammal @ Lourdesmarie executed a last Will and testament on 08.4.1992 and the same was registered on 03.9.1993. As per the last Will and testament dated 08.4.1992, the plaintiff became the absolute owner of the suit property. The defendant herein during the time of the said Palaniammal @ Lourdesmarie came into possession of the suit property under an oral lease deed on a monthly rent of Rs.15/- and then put up a thatched hut of his own and is living there. Since the defendant attempted to put up a permanent structure in the suit property, the said Palaniammal @ Lourdesmarie, who is none other than the mother of the plaintiff issued a notice to the defendant preventing him from from making any construction. Since the defendant sent a reply denying the title, the plaintiff's mother sent a legal notice dated 26.7.1993 asking to vacate and surrender vacant possession. Again defendant sent a reply on 29.7.1993 denying the title. Hence, the suit. 6. The brief averments of the written statement filed by the defendant are as follows: (i) Denying the title, it is the contention of the defendant that the revenue assessment cannot be basis for deciding the title as the same is not made after due enquiry. According to the defendant, as the deceased Palaniammal @ Lourdesmarie herself did not have any right on the property, the plaintiff cannot claim right on the strength of the alleged Will. It is stated that the defendant is in possession of the property since 30 years ago by putting a house thereon and continues to be in possession of the property by exercising all the rights of ownership. It is stated that the defendant is in possession of the property since 30 years ago by putting a house thereon and continues to be in possession of the property by exercising all the rights of ownership. The defendant came to know about the revenue assessment only recently and the revenue records cannot be the proof of title. The plaintiff has to prove the alleged Will. (ii) According to the defendant, the description of property mentioned in the plaint is not correct. The suit property described by boundaries are not referring the property in occupation of the defendant. The plaintiff has admitted that the Paul Pacroni Ignas, the second husband of the plaintiff's mother had a first wife and issues through her. Ignoring all of them, the plaintiff's mother cannot bequeath her entire interest in favour of one daughter while the other daughters and sons are alive. Further, the eldest daughter of the said Palaniammal @ Lourdesmarie filed a suit for partition challenging the absolute rights under the Will of Palaniammal in O.S.No.53 of 1999 and the same was upheld and the settlement deed in favour of the present plaintiff was set aside. Therefore, the suit filed by the plaintiff is not maintainable. Hence, the defendant prayed for dismissal of the suit with costs. 7. Based on the above pleadings, the trial Court formulated as many as seven issues for consideration. They are: (1) Whether the plaintiffs mother Palaniammal @ Lourdesmarie was having valid and absolute title to the suit property? (2) Whether Palaniammal @ Lourdesmarie executed a valid Will on 08.4.1992 in favour of the plaintiff bequeathing the suit property to her? (3) Whether the plaintiff is the absolute owner of the suit property and entitled for declaration of her title to the same? (4) Whether the defendant entered possession of the suit property in 1980 on an oral lease from the plaintiff's mother Palaniammal @ Lourdesmarie? (5) Whether the plaintiff is entitled to vacate the defendant and receive possession of the suit property after recovery of the superstructure? (6) Whether the plaintiff is entitled to claim damages from the defendant for use and occupation at the rate of Rs.20/- p.m.? (7) To what relief is the plaintiff entitled? 8. On the side of the plaintiff, the plaintiff himself was examined as P.W.1 and Exs. (6) Whether the plaintiff is entitled to claim damages from the defendant for use and occupation at the rate of Rs.20/- p.m.? (7) To what relief is the plaintiff entitled? 8. On the side of the plaintiff, the plaintiff himself was examined as P.W.1 and Exs. A1 to A16 were marked and P.W.2 to P.W6 were examined and Ex.X1 to X29 were marked. On the side of the defendant, the defendant himself was examined as DW1 and Exs. B1 and B2 were marked. 9. The learned counsel for the appellant/ plaintiff submitted that though the plaintiff has produced title deeds, i.e. Exs. A1, A3, A11 to A14, for proving his title, the learned trial Jude has not considered the same. Therefore, the learned counsel prayed for allowing the appeal. 10. I have heard the learned counsel for the respondent/ defendant on the submission made by the learned counsel for the appellant/plaintiff. 11. The only point that arises for consideration in this appeal is as to whether the plaintiff has established title to the suit property. 12. The suit itself is filed on the basis of declaration of title. The plaintiff has relied upon Exs. A1, A3, A11 to A14, title deeds, to establish her title. On a perusal of Ex.A1, release deed, it is clear that the same does not contain description of the properties. A11 is the sale deed dated 21.1.1983 executed in favour of one Mariadoss @ Ignace Paul by one Singaranathan @ Layon Michael. Ex.A11 refers to a property situate in Gnana Prakasam Street. The boundaries set out in the above sale deed do not correlate with the boundaries given in the plaint. As per the schedule in the plaint, the suit property lies at St.Francise Xavier Street. Evidence of P.W.1 itself would clearly show that the Gnanaprakasam street and St.Francise Xavier Streets are two different streets. 13. Similarly, Ex.A13 is the report said to have been given by the surveyor, by name, Lawrent Walter, at the request of one Saveriammalle, the widow of Savariamouttou. Absolutely, there is no evidence to show that the property mentioned in Ex.A12 was purchased from the said Savariamouttou and owned by ancestors of the plaintiff. Ex.A14 is another sale deed dated 13.10.1847, wherein it is mentioned that the property was purchased by one Anthonimuthu from one Jeganathan. Absolutely, there is no evidence to show that the property mentioned in Ex.A12 was purchased from the said Savariamouttou and owned by ancestors of the plaintiff. Ex.A14 is another sale deed dated 13.10.1847, wherein it is mentioned that the property was purchased by one Anthonimuthu from one Jeganathan. The said sale deed refers to a property at Paracheri Street near the paddy field of Karaikkal. The boundaries mentioned in the said sale deed also does not tally with the boundaries mentioned in the plaint. Further, absolutely there is no evidence to show that the above property was, infact, purchased by the plaintiff's ancestors. 14. From a perusal of the records available, this Court does not find any material to correlate the suit property with that of the aforesaid title deeds filed by the plaintiff. Therefore, except some revenue records filed under Ex.A3, no other documents, whatsoever, have been filed to show that the plaintiff has title to the property. The revenue records neither extinguish nor create any title to the suit properties. At the most, the same could be used only to prove possession. 15. That apart, the other documents relied upon by the plaintiff are also not helpful to prove his title to the suit property. Ex.X.28 shows that the property is a Government poromboke. Ex.A.29 also shows that one P. Lourumarie obtained Ryotwari patta and she was in possession and enjoyment of the said property. Admittedly, the properties are poromboke land. Cross examination on the side of the plaintiff does not show how the mutation was effected in the revenue records for obtaining Ryotwary Patta. As such, the finding of the learned trial Judge does not require any interference. This point is answered accordingly. In the result, the appeal is dismissed confirming the judgment and decree dated 24.09.2010 passed by the learned Additional District Judge, Puducherry at Karaikkal. However, there shall be no order as to costs.