Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 1706 (MAD)

Solomen (Deceased) v. Kanakaraj(Deceased)

2018-06-04

T.RAVINDRAN

body2018
JUDGMENT : The plaintiff Solomen in O.S.No.125/95 is the appellant in S.A.Nos.368 and 369 of 2003. The plaintiff Kanakaraj in O.S.No.129/95 is the appellant in S.A.No. 513/2003. The defendant Ramalingam in O.S.No.125/95 is the appellant in S.A.No.514/2003. 2. O.S.No.125/95 has been laid by Solomen for declaration, permanent injunction or in the alternative for recovery of possession and mesne profits. The case of Solomen, in brief, is that the suit property belongs to Balakrishnan son of Chockalingam ancestrally and Balakrishnan enjoyed suit property by putting up a thatched shed and the said thatched shed later got dilapidated and Balakrishnan's ancestors had been enjoying the suit property by keeping cattle etc., in the suit property and accordingly, on account of the long and continuous possession of the suit property by Balakrishnan and his ancestors, they had prescribed title to the suit property by way of adverse possession and the defendant, accepting the title of Balakrishnan in respect of the suit property, had also obtained a mortgage in respect of the suit property from Balakrishnan and the said mortgage had been discharged later and accordingly, the plaintiff Solomen had purchased the suit property from Balakrishnan by way of a sale deed dated 05.09.88 and on that basis, endeavoured to put up a new construction in the suit property and while so, the defendant, without any authority, attempted to interfere with the plaintiff's possession and enjoyment of the suit property and hence, the suit for appropriate reliefs. 3. The case of the defendant Ramalingam, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is false to state that the suit property belonged to Balakrishnan son of Chockalingam and that he had enjoyed the suit property by putting up a thatched shed etc., and it is false to state that Balakrishnan's ancestors enjoyed the suit property by keeping cattle etc., and it is false to state that on account of long, continuous possession and enjoyment, Balakrishnan and his ancestors had prescribed title to the suit property by way of adverse possession. Further, it is false to state that the suit property had been acquired by the plaintiff from Balakrishnan by way of a sale deed dated 05.09.88 and that the plaintiff has endeavoured to put up a construction in the suit property. Further, it is false to state that the suit property had been acquired by the plaintiff from Balakrishnan by way of a sale deed dated 05.09.88 and that the plaintiff has endeavoured to put up a construction in the suit property. The suit property does not belong to Balakrishnan and his ancestors as put forth in the plaint and therefore, the claim of title to the suit property by the plaintiff on the basis of the sale effected by Balakrishnan in his favour is false and not binding upon the defendant and on the other hand, the suit property belongs to Narayanasamy Chettiar ancestrally and after his demise, his son Dhanapal chettiar was enjoying the suit property and after Dhanapal chettiar, his son Govindasamy and wife Kamalammal acquired the suit property and enjoying the same and thereafter, they sold the suit property to one Kanakaraj and thus, the suit property does not belong to the plaintiff and therefore, the plaintiff cannot lay any claim of interest or right in respect of the suit property and on the other hand, inasmuch as the plaintiff without any authority attempted to put up construction to an extent of 10 feet in the common battai situated to the west of the suit property, the defendant and others prevented the same. Balakrishnan secured loan from the defendant by mortgaging the property and the defendant, without verifying the contents of the mortgage deed, based on the confidence reposed on Balakrishnan, accepted the mortgage deed and tendered the amount under the mortgage deed and the boundaries given in the mortgage deed are not correct and the property comprised in the mortgage deed does not belong to Balakrishnan and the suit is liable to be dismissed. 4. O.S.No.129/95 has been laid by Kanakaraj for declaration, possession and mesne profits. 5. 4. O.S.No.129/95 has been laid by Kanakaraj for declaration, possession and mesne profits. 5. The case of Kanakaraj, the plaintiff in O.S. No. 129/95, in brief, is that the suit property originally belonged to Narayanasamy Chettiar by way of a sale deed dated 23.10.34 and since then, it is only Narayanasamy Chettiar, who has been in possession and enjoyment of the suit property and Narayanasamy chettiar accordingly also been in possession and enjoyment of the extent of 10 feet east west on the western side along with the property purchased by him under the sale deed dated 23.10.34, by putting up a cattle shed and keeping hayrack etc., and after his demise, his son, namely, Dhanapal chettiar was enjoying the suit property and thereafter, after the demise of Dhanapal chettiar, his wife Kamalammal and son Govindasamy chettiar had alienated the suit property in favour of the plaintiff for a valid consideration by way of a sale deed dated 27.9.90 and since then, it is only the plaintiff, who has been in possession and enjoyment of the suit property. While so, the defendant without any authority attempted put up construction in the common battai on the western side of the suit property and the same had been prevented and in this connection, the defendant has laid a suit against one Ramalingam in O.S. No.125/95 and while so, the defendant taking advantage of the absence of the plaintiff, illegally with the help of the men power trespassed into the suit property and put up construction and the action of the defendant abovestated is against law and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 6. 6. The case of the defendant Solomen, in brief, is that the suit laid by the plaintiff Kanakaraj is not maintainable either in law or on facts and after denying the source of title traced by Kanakaraj with reference to the suit property as put forth in the plaint, according to the defendant, it is stated that the suit property originally belonged to Narayanasamy chettiar and Narayanasamy chettiar had orally gifted the suit property in favour of his eldest daughter Periammal and her husband Chockalingam chettiar and since then, it is Chockalingam chettiar and Periammal, who have been in possession and enjoyment of the suit property and after their demise, the suit property was acquired by their sons Kaliaperumal and Balakrishnan and in the partition effected amongst themselves, the suit property was allotted to Balakrishnan and Balakrishnan had enjoyed the suit property and also mortgaged the same to Ramalingam, the plaintiff's brother under the mortgage deed dated 06.01.82 and thereafter, he had alienated the suit property in favour of the defendant by way of a sale deed dated 05.09.88 and since then, it is the defendant, who has been in possession and enjoyment of the suit property by putting up a new construction and the plaintiff is not entitled to lay any claim of title to the suit property and the defendant and his predecessors in interest, on account of their long and continuous enjoyment had prescribed title to the suit property by way of adverse possession and there is no cause of action for the suit and the suit is liable to be dismissed. 7. Both suits were jointly tried and accordingly, it is found that the common evidence had been recorded in both suits. The evidence has come to be recorded in O.S.No.125/95. In support of the plaintiff's case PWs 1 to 5 were examined, Exs.A1 to A12 were marked. On the side of the defendant, DWs 1 to 4 were examined, Exs.B1 to B6 were marked. 8. The trial Court, on an appreciation of the materials placed on record, both oral and documentary and the submissions made, was pleased to dismiss the suit laid by Kanakaraj in O.S. No.129/95 and decree the suit laid by Solomen in O.S. No.125/95. On the side of the defendant, DWs 1 to 4 were examined, Exs.B1 to B6 were marked. 8. The trial Court, on an appreciation of the materials placed on record, both oral and documentary and the submissions made, was pleased to dismiss the suit laid by Kanakaraj in O.S. No.129/95 and decree the suit laid by Solomen in O.S. No.125/95. On appeals by Kanakaraj and Ramalingam challenging the judgment and decree of the trial Court in the suits abovementioned, the first appellate Court, on an appreciation of the materials placed on record and the submissions made, was pleased to declare that the plaintiff Kanakaraj is entitled to an extent of 18 = feet east west and 44 feet north south in the suit property and accordingly, granted the reliefs in favour of the plaintiff Kanakaraj and on that basis, entertained the appeal preferred by Kanakaraj in A.S.No.12/2002 and accordingly, granted the appropriate reliefs in the suit laid by Kanakaraj in O.S. No.129/95. Consequently, the first appellate Court, upholding that the plaintiff Solomen has no title to the suit property, dismissed the suit laid by Solomen in O.S. No.125/95 and also dismissed the first appeal preferred by Ramalingam holding that he has failed to establish the alleged encroachment put up by the plaintiff Solomen as projected by him and accordingly, disposed of the first appeals. Accordingly, the parties aggrieved over the same have come forward with the present four second appeals. 9. At the time of admission of the Second Appeal Nos.368 & 369 of 2003, the following substantial questions of law were formulated for consideration: “a. When there is no dispute as to the identity of the suit property, whether the Appellate Court is legally right in invoking Section 32 of the Indian Evidence Act? b. Is not the respondent in this Appeal is estopped from questioning the title of a person with whom he had entered into a mortgage in respect of the suit property?” 10. At the time of admission of the Second Appeal No. 513 of 2003, the following substantial questions of law were formulated for consideration: “a. Whether the lower appellate court is right in granting a decree for a lesser extent than claimed in the suit in the absence of any pleadings or evidence on the side of the respondent? At the time of admission of the Second Appeal No. 513 of 2003, the following substantial questions of law were formulated for consideration: “a. Whether the lower appellate court is right in granting a decree for a lesser extent than claimed in the suit in the absence of any pleadings or evidence on the side of the respondent? b. Whether the findings of the lower appellate Court are vitiated in so far as it is against the appellant by erroneously reading of Ex.B2, B3, B4 and B6 and the evidence on the side of the appellant? c. Whether the courts below is right in not granting the relief of mesne profits having granted the decree for possession?” 11. At the time of admission of the Second Appeal No.514 of 2003, the following substantial questions of law were formulated for consideration: “a. Whether the lower appellate Court is right in dismissing the appeal after having found that the respondent failed to establish the title? b. Whether the lower appellate Court is right in not dismissing the suit by allowing the appeal having regard to the findings rendered in A.S.No.12/2002?” 12. From the materials placed on record, it is found that both Solomen and Kanakaraj have admitted that the suit property originally belonged to Narayanasamy chettiar. It is found that Narayanasamy chettiar had acquired the suit property by way of a sale deed dated 23.10.34, which document has come to be marked as Ex.B6. Now, it is the case of the plaintiff Solomen that Narayanasamy chettiar had orally gifted the suit property in favour of his elder daughter Periammal and son in law Chockalingam chettiar and after their demise, the suit property had been acquired by their sons Balakrishnan and Kaliaperumal and in the partition effected amongst themselves, the suit property had come to be allotted to Balakrishnan and it is the further case of Solomen that he had purchased the suit property from Balakrishnan, by way of a sale deed dated 05.09.88, which document has come to be marked as Ex.A4. However, as rightly determined by the first appellate Court, the oral gift alleged to have been effected by Narayanasamy chettiar in favour of Periammal and Chockalingam chettiar cannot be accepted as per law and further, the plaintiff Solomen has not stated as to when the oral gift had been effected and further, the plaintiff Solomen has not placed any acceptable and reliable materials to hold that pursuant to the said oral gift, Periammal and Chockalingam chettiar had been in possession and enjoyment of the suit property as put forth. That apart, there is no material placed to hold that after the demise of Periammal and Chockalingam chettiar, their sons Kaliaperumal and Balakrishnan had enjoyed the suit property. Further, the plaintiff Solomen has not whispered as to when Kaliaperumal and Balakrishnan had effected partition in respect of the properties belonging to them and not pleaded whether the said partition had been effected orally or by way of a written instrument. There is no material to hold that in the alleged partition, the suit property had come to be allotted to Balakrishnan as such. Thus, it is seen that the claim of title to the suit property by the plaintiff Solomen is found to be not established as per law and the oral gift alleged to have been effected by Narayasamy chettiar, is found to be invalid in the eyes of law and cannot be accepted and hence the further case of the plaintiff Solomen that his vendor had thereby become entitled to the suit property, as such, cannot be accepted in any manner. Thus, it is seen that the first appellate Court, on the basis of the appreciation of the materials placed on record, rightly disbelieved the case of the plaintiff Solomen as regards the gift projected by him said to have been effected by Narayanasamy chettiar in favour of Periammal and Chockalingam chettiar in respect of the suit property. 13. As above seen, both the parties have admitted that the suit property originally belonged to Narayanasamy chettiar by way of Ex.B6. 13. As above seen, both the parties have admitted that the suit property originally belonged to Narayanasamy chettiar by way of Ex.B6. As rightly found by the first appellate Court, on a perusal of Ex.B6, it is found that by way of the said document, Narayanasamy chetttiar had purchased only an extent of 18 = feet east west and 44 feet north south only and therefore, apart from the abovesaid extent of the property, neither the plaintiff Solomen nor the plaintiff Kanakaraj can claim to acquire title to the other extent of the property projected in the present litigation. Thus, it is seen that the original title holder himself is found to have acquired only a lesser extent by way of Ex.B6 and hence the case of both the plaintiff Solomen as well as the plaintiff Kanakaraj in respect of the suit property comprising of a larger extent, as such, cannot be countenanced. 14. As rightly determined by the first appellate Court, by way of Ex.A4, it is found that Solomen had acquired the property measuring an extent of East west 30 feet, south west 63 feet within the specific boundaries and it is found that the said property is described to be located to the east of common battai. Thus, it is seen that the property alleged to be owned and alienated by Balakrishnan in favour of the plaintiff Solomen is located to the east of the common battai. Now, it is the case of Solomen that Balakrishnan had enjoyed the abovesaid property as having acquired the same in the partition and through his parents and accordingly, it is pleaded that Balakrishnan had mortgaged the said property to the defendant Ramalingam by way of a mortgage deed dated 06.01.82, which document has come to be marked as Ex.A1. However, on a perusal of Ex.A1, it is found that the property described thereunder is stated to be situated to the east of Kaliaperumal chettiar's site and to the north of Kamalammal's site whereas in Ex.A4, the property as found earlier is stated to be located to the east of common battai and to the north of the site belonging to Dhanapal chettiar. Thus, it is found that the western boundary does not tally in the documents marked as Exs.A1 and A4. Thus, it is found that the western boundary does not tally in the documents marked as Exs.A1 and A4. With reference to the same, there is no proper explanation offered by the plaintiff Solomen, who has been examined as PW1. Accordingly, it is noted by the first appellate Court that Balakrishnan, the alleged vendor of the plaintiff Solomen, had endeavoured to mortgage the property not belonging to him by giving a wrong description of the property and accordingly, it is seen that the plaintiff Solomen cannot contend that the defendant Ramalingam had admitted the title of Balakrishnan by taking the mortgage made under Ex.A1. In so far as this case is concerned, the defendant Ramalingam is not laying any independent claim of title to the suit property. All that he would claim is that the plaintiff Solomen is not entitled to put up any construction in the common battai located to the west of the suit property. Accordingly, it is found that as per Ex.A1 mortgage deed, the property comprised therein is not shown to be located to the east of common battai. On the other hand, shown to be located to the east of the site belonging to Kaliaperumal chettiar. Very clearly it is seen that Balakrishnan has wrongly described the property in the mortgage deed and on that basis, it is found that the plaintiff Solomen cannot take advantage by contending that Ramalingam had admitted the title of Balakrishnan in respect of the suit property. The vendor Balakrishnan examined as PW2 is also unable to throw a clear picture as to the abovesaid misdescription of the property given in the mortgage deed Ex.A1 and accordingly, it is found that the plaintiff Solomen is not entitled to contend that the defendant Ramalingam had admitted the title of Balakrishnan in respect of the suit property and therefore, the purchase of the suit property from Balakrishnan by the plaintiff Solomen is valid in law. When as aboveseen, the plaintiff Solomen is unable to establish the title of Balakrishnan in respect of the suit property, merely on the basis of the so called mortgage deed marked as Ex.A1, particularly, when as aboveseen, the said mortgage deed has not depicted the correct description of the property which Balakrishnan is really entitled to, accordingly, it is found that the first appellate Court is justified in not placing reliance upon Ex.A1 mortgage deed for upholding the case of the plaintiff Solomen. 15. Likewise, the first appellate Court has also not found acceptance with the case of the defendant Ramalingam that the plaintiff Solomen attempted to put up construction in the common battai located on the western side, and as rightly found, the defendant Ramalingam has not placed any material, as such, to safely conclude that the plaintiff Solomen had put up construction in the common battai and in this connection, as rightly determined by the first appellate Court, the defendant Ramalingam has not endeavoured to prove his case by taking out a commission to evidence that the construction put up by the plaintiff Solomen had been erected in the common battai area. As above seen, the defendant Ramalingam has not projected any independent claim of title to the suit property. On the other hand his endeavour is only that the plaintiff Solomen is attempting to put up construction in the common battai and it is his further case that it is only Kanakaraj, who has acquired title to the suit property by way of purchase of the same by way of a document dated 27.09.90 marked as Ex.B5. Accordingly, the first appellate Court is found to have not accepted the case of Ramalingam in the appeal preferred by him challenging the judgment and decree of the trial Court upholding the case of the plaintiff Solomen in O.S.No.125/95. 16. Finding that the case projected by him that Balakrishnan had title to the suit property has no legs to stand, the plaintiff Solomen is found to have placed reliance upon the documents marked as Exs.A10 to A11 for claiming title to the suit property. 16. Finding that the case projected by him that Balakrishnan had title to the suit property has no legs to stand, the plaintiff Solomen is found to have placed reliance upon the documents marked as Exs.A10 to A11 for claiming title to the suit property. However, as rightly determined by the first appellate Court, Ex.A10 sale deed is found have been executed in favour of one Chindhadhiriammal by Govindammal and her sister Valliammal and in the said document no doubt, it is shown that the property comprised therein is situated to the east of the site enjoyed by Balakrishnan and on the basis of the said boundary recital found in Ex.A10, it is contended by the plaintiff Solomen that Balakrishnan had been enjoying the suit property and accordingly, his property has been shown as one of the boundaries in the document marked as Ex.B10. However, as rightly determined by the first appellate Court, when as per Ex.B1 settlement deed dated 05.08.1980, Balakrishnan had settled an extent of east west 30 feet in favour of his brother Kaliaperumal chettiar and when the original title holder Narayanasamy chettiar had purchased the property measuring east west 18 = feet only, it does not stand to reason as to how thereafter Balakrishnan would be entitled to claim title to the suit property measuring an extent of east west 30 feet, particularly after Balakrishnan himself had settled the property measuring an extent of 30 feet east west in favour of his brother Kaliaperumal. Thus the boundary recitals found in Ex.A10 by itself would not lead to the conclusion that Balakrishnan still owned the property as projected by the plaintiff Solomen. That apart, as rightly found by the first appellate Court, the original title holder Narayanasamy's son Dhanapal chettiar having been found to have expired during 1975 and accordingly, it is found that taking advantage of the same in the document marked as Ex.A10 instead of reciting that the property comprised therein is situated to the east of Dhanapal chettiar's property, the parties thereto had endeavoured to describe the property as situated to the east of Balakrishan's property. Accordingly, the first appellate Court placing reliance upon Exs.B3 dated 30.06.69, which is a document executed in favour of the legal heirs of Dhanapal chettiar by one Govindasamy and his brother Arunachalam held that while describing the property in the said document, the vendor had described the property as situated to the east of the property belonging to Dhanapal chettiar. The prior title deed to Ex.B3, namely the document dated 23.08.67, marked as Ex.B4 also shows the property being situated to the east of the property belonging to Dhanapal chettiar. When as per Exs.B4 and B3 the property comprised therein is stated to be located to the east of Dhanapal chettiar's property, it does not stand to reason as to how in Ex.A10 the property has come to be described as located to the east of Balakrishnan's property. When it is found that only the property dealt with in Exs.B3 and B4 had been acquired by Chindhadhiriammal, by way of Ex.A10 sale deed, when the earlier title deeds show the property as being located to the east of Dhanapal chettiar's property, in Ex.A10, without any basis, the same property is shown to be located to the east of Balakrishnan's property and thus, as rightly determined by the first appellate Court, the boundary recitals found in Ex.A10 do not throw a correct picture and on that basis, it cannot be held that Balakrishnan had title to the suit property, particularly, when as above seen, Balakrishnan having settled the property in favour of his brother Kaliaperumal measuring an extent of east west 30 feet, it has to be held that Balakrishnan would not be owning any property thereafter, particularly, measuring east west 30 feet. Accordingly, the first appellate Court rightly did not place reliance upon Ex.A10 for upholding the case of the plaintiff Solomen that his vendor had title to the suit property. As regards the boundary recitals found in Ex.B3 and B4, the first appellate Court has rightly placed reliance upon the evidence of Arunachalam examined as DW2, who is one of the parties to the abovesaid sale transactions and accordingly, rightly accepted the boundary recitals found in Ex.B3 and B4 and did not accept the boundary recitals found in Ex.A10. As above seen, Ex.A10 has come to be effected in respect of the property comprised in Exs.B3 and B4. As above seen, Ex.A10 has come to be effected in respect of the property comprised in Exs.B3 and B4. Thus, it is found that by way of Ex.A10 transaction, the plaintiff Solomen cannot be allowed to project a case as if his vendor Balakrishnan had title to the suit property. 17. As above seen, it is admitted that Narayanasamy chettiar had acquired the property comprised in Ex.B6. Dhanapal chettiar is the son of Narayanasamy chettiar and accordingly, it is found that after the demise of Narayanasamy chettiar, it is only Dhanapal chettiar who had acquired title to the suit property and after his demise, his wife Kamalammal and son Govindasamy had acquired title to the suit property and the plaintiff Kanakaraj by acquiring title to the property from Kamalammal and Govindasamy, by way of Ex.B5 sale transaction, it is seen that the plaintiff Kanakaraj would be entitled to claim title to the property held by Narayanasamy under Ex.B6. Though, it is found that by way of Ex.B5 the plaintiff Kanakaraj is found to have purchased a larger extent of property, however when the original title holder is found to be having title only to an extent of 44 feet north south and 18 = feet east west, as rightly determined by the first appellate Court, the plaintiff Kanakaraj cannot be held to be owning the suit property as described in the plaint and on the other hand, he could be held to be owning a valid title to an extent of 44 feet north south and 18 = feet east west in the suit property and on that basis, it is seen that the first appellate Court has rightly granted the reliefs in favour of the plaintiff Kanakaraj and dismissed his suit in respect of the other extent of the suit property. 18. In the light of the above discussions, it is found that the plaintiff Solomen has failed to establish his vendor's title, possession and enjoyment of the suit property, as above discussed and in such view of the matter, it is found that the plaintiff Solomen cannot be allowed to claim title, possession and enjoyment of the suit property as determined by the trial Court and consequently, as rightly held by the first appellate Court, the plaintiff Solomen has no title to the suit property. Inasmuch as the plaintiff Kanakaraj has established his vendors' title to the suit property tracing the title from Narayanasamy Chettiar, accordingly as rightly found by the first appellate Court, the plaintiff Kanakaraj is found to be entitled to an extent of 44 feet north south and 18 = feet east west in the suit property and not entitled to the other extent of the suit property and accordingly, it is seen that the first appellate Court is justified in granting the appropriate reliefs in favour of the plaintiff Kanakaraj as regards the abovesaid extent only. Further, as rightly found by the first appellate Court, when there is no material holding that the plaintiff Solomen is entitled to the suit property as well as made attempts to put up construction encroaching the common battai portion, the first appellate Court is justified in dismissing the appeal preferred by the defendant Ramalingam with reference to the same. As rightly determined by the first appellate Court, in so far as this case is concerned, the parties had been endeavouring to claim title to the suit property based on the description of the properties comprised in their respective sale deeds and accordingly, seem to have projected rival claims in respect of the suit property. However, the first appellate Court, on a careful analysis of the documents projected in the matter, by thoroughly scrutinising all the boundary recitals contained in the said documents, on the basis of the title of the predecessors to the property in dispute, found acceptance with the case of the plaintiff Kanakaraj to a certain extent and did not accept the case of the plaintiff Solomen. On that basis, it is found that the first appellate Court did not endeavour to grant the relief of mesne profits in favour of the plaintiff Kanakaraj and I do not find any valid reason to interfere with the same as such. In view of the foregoing reasons, the substantial questions of law formulated in the second appeals are accordingly determined. 19. Resultantly, the common judgment and decree dated dated 19.09.2002 passed in A.S.Nos.12 & 13 of 2002 respectively, on the file of the Additional District Judge, Fast Track Court No.3, Vridhachalam are confirmed and consequently, the second appeal numbers 368, 369, 513 & 514 of 2003 are dismissed. Considering the facts and circumstances of the case, there is no order as to costs. Considering the facts and circumstances of the case, there is no order as to costs. Consequently, connected miscellaneous petition, if any, is closed.