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2018 DIGILAW 2266 (MAD)

Andivel Chettiar v. Murugesan

2018-07-26

S.BASKARAN

body2018
JUDGMENT : S. Baskaran, J. 1. This Second Appeal arises out of the Judgment and Decree dated 7.2.2014 passed by the learned District Judge, Dindigul, in A.S. No. 46 of 2011, reversing the Judgment and Decree dated 25.7.2011 passed by the learned Sub-Judge, Palani, in O.S. No. 30 of 2008. 2. Brief facts of the case is as follows: The Suit property originally belonged to the grand mother of the Plaintiffs by name Rangammal. The said Rangammal along with his brothers Rangasamy Chettiar and Gurusamy Chettiar have purchased the Suit property and other properties on 2.9.1957. During their life time, the grand mother of the Plaintiffs, namely, Rangammal partitioned her 1/3rd share and she was in possession and enjoyment of the property. The said Rangammal died on 1.11.1971 leaving behind her Legal Heirs, namely, the mother of the Plaintiffs one Nachammal and her brother, the First Defendant herein. After that the said Nachammal, the mother of the Plaintiffs and the First Defendant jointly enjoyed the property. The mother of the Plaintiffs died on 10.3.2007 leaving behind her Legal Heirs. After the death of his mother, the Plaintiffs demanded Partition with the First Defendant. At that time, the Plaintiffs came to know that the First Defendant executed the Settlement Deed in favour of his wife the Second Defendant on 25.5.2004. Again, the Second Defendant, on 29.11.2007 sold the Suit property to the Defendants 3 & 4. Hence, the Plaintiffs came forward with the Suit for Partition, for Permanent Injunction, for cancellation of Sale Deed executed by the 2nd Defendant in favour of the Defendants 3 & 4 and also for Costs. 3. The Defendants 1 & 2 denied the rights of the Plaintiffs and stated that the First Defendant executed the Settlement Deed in favour of the Second Defendant and the Second Defendant executed the Sale Deed in favour of the Defendants 3 & 4. The Suit property was originally purchased by mother of the First Defendant and her brother and subsequently in the Oral Partition between Rangammal, Gurusamy Chettiar and mother of the First Defendant, the Suit property allotted to the family of the First Defendant. The First Defendant was in possession and enjoyment of the property even during the life time of Nachammal. The said Nachammal was never in possession and enjoyment of the Suit property. The First Defendant was in possession and enjoyment of the property even during the life time of Nachammal. The said Nachammal was never in possession and enjoyment of the Suit property. On 29.6.1972, the First Defendant obtained Loan from the father of the Plaintiffs one Arumugam Chettiar by mortgaging the Suit property as his own property. The First Defendant has also constructed a building in the Suit property and obtained Patta and paid Kist payable to the Panchayat. Then, he settled the same in favour of his wife, the Second Defendant herein and in turn, the Second Defendant sold portion of the property to the Defendants 3 & 4. Hence, the Plaintiffs are not entitled to Partition. Thus, the Defendants 1 & 2 prays for dismissal of the Suit. 4. The Defendants 3 & 4 filed separate Written Statement and stated that they purchased the portion of the Suit property for valuable consideration in good faith that the property belongs to 1 & 2 Defendants. The Defendants 1 & 2 are having properties other than the property sold to them. Hence, if the Court comes to the conclusion that the Plaintiffs have got right of partition, the properties purchased by them have to be allotted in the share of the Defendants 1 & 2. Thus, the 3rd & 4th Defendants sought for dismissal of the Suit. 5. After contest, the Trial Court dismissed the Suit. Aggrieved upon that the Plaintiffs preferred the First Appeal before the Lower Appellate Court and after contest, the Lower Appellate Court by allowing the Appeal set aside the Decree and Judgment of the Trial Court and Decreed the Suit as prayed for. Aggrieved upon that, the Defendants 1 & 2 preferred this Second Appeal. 6. At the time of admission, the following Substantial Question of Law are raised by this Court in the Second Appeal for consideration: (1) Whether the Lower Appellate Court is right in reversing the Judgment and Decree of the Trial Court as the Respondents 1 to 3 and not discharged their burden that they are the co-shares of the Suit property by way of oral and documentary evidence as contemplated under Section 101 of the Indian Evidence Act? (2) Whether the Lower Appellate Court is right in reversing the Judgment and Decree of the Trial Court even though the right and exclusive possession and enjoyment of the Suit property are proved by the Appellants by way of Exs. B1 to B6 documents? 7. The Learned Counsel appearing for the Appellants/Defendants 1 & 2 would submit that the Plaintiffs claimed right over the Suit property as the co-sharer, but having not proved, they right to seek Partition. As per Section 101 of the Evidence Act, the burden of proof lies upon the Plaintiffs. Further more, on the side of the Defendants 1 & 2, they have produced Ex. B1 to Ex. B6 to prove the plea of the ouster and to prove their possession and enjoyment of the Suit property as absolute Owner. But, the First Appellate Court without considering these aspects came to a wrong conclusion that the First Defendant failed to prove the case and reversed the findings of the Trial Court. Therefore, the Defendants sought for the Second Appeal to be allowed. 8. Per contra, the learned Counsel appearing for the Respondents 1 to 3/Plaintiffs would submit that the Defendants 1 & 2 admitted the origin of the Suit property. The Defendants 1 & 2 them selves claimed that there was Partition between the mother of the First Defendant and her brother Rangasamy Chettiar and Gurusamy Chettiar and the Suit property was allotted to the share of the First Defendant's family. To prove the same, on the side of the First Defendant no documents, is produced. Further, the Defendants 1 & 2 claimed that the Suit properties are absolute property of the First Defendant and the rights of the mother of the Plaintiffs in the Suit property is ousted. For which, the documents relied by the First Defendant i.e., Ex. B1 to Ex. B6 are not sufficient. Hence, the First Appellate Court rightly reversed the findings of the Trial Court and there is no infirmity in the finding of the First Appellate Court. As there is no Substantial Question of Law involved in this Appeal, the Respondents prays for dismissal of the Second Appeal. 9. I have heard the rival contentions and perused the materials available on record. 10. As there is no Substantial Question of Law involved in this Appeal, the Respondents prays for dismissal of the Second Appeal. 9. I have heard the rival contentions and perused the materials available on record. 10. On perusal of the records available, it is clear that the Suit property originally belonged to one Rangammal, Rangasamy Chettiar and Gurusamy Chettiar by way of Sale Deed dated 2.9.1957. It is not disputed by either side. During the life time of the mother of the First Defendant-Rangammal, she asked partitioned her 1/3rd share with her brothers. From the date of Partition, she was in possession and enjoyment of the same. The said Rangammal got two children, namely, the First Defendant and mother of the Plaintiffs deceased Natchammal. It is also not disputed. However, the First Defendant specifically denied the joint enjoyment of the Suit property along with the mother of the Plaintiffs and contended that he alone was in possession and enjoyment of the property. He also stated that money to purchase the property was given by him only. 11. According to the Plaintiffs, the Suit property belongs to the Joint Family consisting of Plaintiff's mother Natchammal and the First Defendant. During the life time of the mother of the Plaintiffs, no Partition took place between Respondents and the First Defendant. After the death of the mother of the Plaintiffs, they have demanded Partition, for which, the First Defendant denied the rights of the Plaintiffs and settled portion of the Suit property in favour of his wife, the 2nd Defendant herein and in turn she sold the same to the Defendants 3 & 4. Further more, the Defendants 1 & 2 claimed absolute title over the Suit property against the Plaintiffs as well as their mother by way of ouster. Hence, the Plaintiff has came forward with the Suit. According to the First Defendant, the Suit property is his absolute property. Hence, the Plaintiffs have no right for Partition. It is contended by the Defendants that the rights of the mother of the Plaintiffs was also ousted. Before the Trial Court, the Plaintiffs contested the Suit by examining the First Plaintiff as P.W.1 and produced Ex. A1 to Ex. A13. On the side of the Defendants, the First Defendant examined himself as D.W.1 and another Witness by name Perumal was examined as D.W.2 and Defendant has produced Ex. B1 & Ex. B25. Before the Trial Court, the Plaintiffs contested the Suit by examining the First Plaintiff as P.W.1 and produced Ex. A1 to Ex. A13. On the side of the Defendants, the First Defendant examined himself as D.W.1 and another Witness by name Perumal was examined as D.W.2 and Defendant has produced Ex. B1 & Ex. B25. The Trial Court, after considering the evidence on record, came to the conclusion that the Plaintiffs failed to prove that the Suit property is the Joint Family property and negatived the claim of the Plaintiffs for Partition. The Plaintiffs preferred the Appeal before the First Appellate Court and after contest, the First Appellant Court reversed the findings of the Trial Court on the ground that the plea of ouster pleaded by the First Defendant is not proved. Hence, the Suit properties are Joint Family property of the Plaintiffs' mother and the First Defendant, reversed the findings of the Trial Court and Decreed the Suit as prayed for. Aggrieved over the same, the Defendants 1 & 2 preferred the Second Appeal and raised two Questions of Law, the First one with regard to Section 101 of the Evidence Act being not followed by the First Appellate Court and the Second one that the First Appellate Court failed to consider Ex. B1 to Ex. B6 appropriately as per law. 12. Before going to discuss the merits of the case, let as consider the rulings referred to on the side of the Plaintiffs. 13. The learned Counsel appearing for the Respondents/Plaintiffs relied upon the ruling in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 , wherein it is held as follows: “It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title. Coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his Adverse Possession.” In another ruling in Darshan Singh and others v. Gujjar Singh (dead) by L.Rs. and others, 2002 (1) CTC 240 (SC) : AIR 2002 SC 606 , it is held as follows: “9. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his Adverse Possession.” In another ruling in Darshan Singh and others v. Gujjar Singh (dead) by L.Rs. and others, 2002 (1) CTC 240 (SC) : AIR 2002 SC 606 , it is held as follows: “9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other cosharers and mutation in the Revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-shares was denied.” The learned Counsel for the Respondents/Plaintiffs further relied upon the ruling in Md. Mohammed Ali (dead) by LRs. v. Jagadish Kalita and others, 2004 (1) SCC 271, wherein it is held as follows: “Long and continuous possession by itself, it is trite, would not constitute adverse possession, Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co sharer, as is well settled, becomes a construction trustee of other co-sharer and the right of the Appellant and/or his predecessors-in-interest would, thus, be deemed to be protected by the trustees. In another ruling in N. Padmamma and others v. S. Ramakrishna Reddy and others, 2015 (1) SCC 417 , where in it is held as follows: “It is fairly well-settled Principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A coheir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the Title of his other coheirs. Ouster of the other co-heirs must be evidence by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. (See Corea v. Appuhamy, 1912 AC 230 (PC). 14. Ouster of the other co-heirs must be evidence by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. (See Corea v. Appuhamy, 1912 AC 230 (PC). 14. Now, in the light of the above said contention put forth by both sides, let as consider the Substantiate Question of Law raised in this Appeal. 15. The First Substantial Question of Law raised with regard to the Section 101 of the Evidence Act. For the above said question of law, the answer is available in the first citation referred on the side of the Plaintiffs, which is in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 (cited supra), in which it was held that “The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.” Section 101 of the Evidence Act runs as follow: “101. Burden of proof.-- Whoever desires any Court to give Judgment as to any Legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” Section 101 of the Evidence Act clearly stated that the persons seeking relief from the Court must prove his case and he must succeed on his own strength. It is not disputed. Admittedly, the Suit property originally belonged one Rengammal grand mother of the Plaintiffs and mother of the First Defendant. So, the mother of the Plaintiffs and the First Defendant are joint Owners and co-sharers for the property of their mother Rangammal. It is not the case of the First Defendant that he himself with the deceased Natchammal partitioned the property of their mother. The said Rangammal admittedly have not left any Will or Settlement Deed in favour of the First Defendant. In such circumstances, legally, the First Defendant and the Mother of the Plaintiffs, Natchammal are the absolute Owners of the Suit properties. Against that right, the First Defendant claiming exclusive right of the Suit property by a legal plea of ouster. So, as per the P. Lakshmi Reddy's case, the Apex Court find burden of proof on the First Defendant herein who is claiming absolute right by way of plea of ouster. Against that right, the First Defendant claiming exclusive right of the Suit property by a legal plea of ouster. So, as per the P. Lakshmi Reddy's case, the Apex Court find burden of proof on the First Defendant herein who is claiming absolute right by way of plea of ouster. In the case on hand, the First Appellate Court has held likewise against the Defendants herein. Hence, the First Substantial Question of Law raised by the Defendants under Section 101 of the Evidence Act is not sustainable as per the law of the Land. 16. The Second Substantial Question of Law raised by the Defendants 1 & 2/Appellants is that the First Appellate Court has not properly appreciated the documentary evidence Ex. B1 to Ex. B6. The First Defendant claims the exclusive right over the Suit property by the plea of ouster and to prove the same, he has produced Ex. B1 to Ex. B6. Ex. B1 is the Mortgage Deed dated 29.6.1972. The above said document was executed by the Aandivel Chettiar in favour of the father of Plaintiffs, Arumugam Chettiar for obtaining a Loan of Rs.7,000. For the above said Loan, the First Defendant executed Ex. B1 document as a simple Mortgage. In which, it has been stated that. The First Defendant has stated about the Mortgaged property as his mother's property and through her mother, the property came to him and he is in possession and enjoyment of the same. The First Defendant has not stated specifically about the absolute right in the property, which belonged to her mother and how he is entitled his mother's property in full and he has not stated anything. Thus, it is clear that Ex. B1 does not disclose exclusive right of the First Defendant over the property. Therefore, the First Appellate Court did not consider property mentioned in Ex. B 1 as an absolute property of the First Defendant. 17. To prove the plea of ouster, the Second document relied by the First Defendant in Ex. B2, the Settlement Deed, dated 25.5.2004 executed by the First Defendant in favour of his wife, the Second Defendant herein. The Settlement Deed was executed by the First Defendant in favour of his wife as his own property without the knowledge of the Plaintiffs mother and further more the mother of the Plaintiffs is not party to the document. B2, the Settlement Deed, dated 25.5.2004 executed by the First Defendant in favour of his wife, the Second Defendant herein. The Settlement Deed was executed by the First Defendant in favour of his wife as his own property without the knowledge of the Plaintiffs mother and further more the mother of the Plaintiffs is not party to the document. Hence, it will not bind the Plaintiffs mother or Plaintiffs. So, Ex. B2 is also no way useful to the strength the case of the First Defendant. The 3rd document Ex. B3 is the Patta and 4th document is Kist Receipts and 5th documents are Water Tax Receipts and Ex. B6 to Ex. B21 are the House Tax Receipts. The above said documents have not disclosed the absolute Ownership of the First Defendant and how for this documents are relevant to prove the absolute Ownership, for which there is clear answer in the Apex Court ruling which is AIR 2002 SC 6032 (cited supra). In Para 9 of the above said Judgment, it was held that “mutation in the Revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.” So, merely because the First Defendant name find place in Ex. B3 to Ex. B21 is not sufficient to prove the plea of ouster. Ex. B22 to Ex. B24 are the Legal Notice, acknowledgement and Returned Cover which are all in no way useful to prove the title of Defendants as absolute Owner. Ex. B25-Sale Deed dated 18.2.2008 executed by the Second Defendant in favour of the Defendants 3 & 4 with regard to the property comprised in Ex. B2. The above said Sale Deed was executed after the filing of this Suit. The Partition Suit was filed by the Plaintiffs on 8.2.2008. Ex. 25 was executed on 18.2.2008. So it is clearly proved that only after filing of the Suit for Partition, Ex. B2 was executed and no weightage can be given to the same and Ex. B25 will not strengthen the case of the Defendants that it is the absolute property of the First Defendant. Except for these documents, the First Defendant has not produced any proof for his plea of ouster. B2 was executed and no weightage can be given to the same and Ex. B25 will not strengthen the case of the Defendants that it is the absolute property of the First Defendant. Except for these documents, the First Defendant has not produced any proof for his plea of ouster. The latest Apex Court verdict N. Padmamma and others v. S. Ramakrishna Reddy and others, 2015 (1) SCC 417 (cited supra), held that the co-heir in possession cannot consider his possession adverse to other co-heir not in possession, merely by any secret cause hostile animus on his own part, in derogation of the title of his other co-heirs. The documents relied by the First Defendant were not executed with the knowledge of the mother of the Plaintiffs and further more it was behind her back. Hence, as per the above said Apex Court verdict, the documents relied by the Defendants are not sufficient to come to the conclusion that the First Defendant proved his plea of ouster and prescribed title by way of Adverse Possession. 18. Therefore, the First Appellate Court after elaborately discussing the oral and documentary evidence on record, contended that the First Defendant failed to prove the plea of ouster and reversed the findings of the Trial Court and decreed the Suit as prayed for. Therefore, this Court comes to a conclusion that there is no infirmity in the findings of the First Appellate Court and the question of law raised in this Appeal are answered against the Defendants. Thus, the Second Appeal is devoid of merits and the same has to fail. The point is answered accordingly. 19. In the result, the Second Appeal is dismissed. No Costs. The Decree and Judgment dated 7.2.2014 made in A.S. No. 46 of 2011 passed by the learned District Judge, Dindigul is hereby confirmed.