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2018 DIGILAW 2330 (MAD)

Krishna Reddy v. R. Perumalswami (Deceased)

2018-08-01

T.RAVINDRAN

body2018
JUDGMENT : T. RAVINDRAN, J. 1. In this second appeal, challenge is made to the Judgment and Decree dated 19.04.2004 passed in A.S. No. 129 of 2001 on the file of the Additional District Judge, Fast Track Court No. V, Tiruvallur, reversing the Judgment and Decree dated 30.11.2000 passed in O.S. No. 893 of 1989 on the file of the District Munsif Court, Tiruttani. 2. The second appeal has been admitted on the following substantial questions of law: (1) Whether the judgment of the court below that the suit is maintainable under Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act as stated in paragraph 16 of the judgment is correct? (2) Whether the observations made by the Court below in the beginning of paragraph 6 of the judgment are not in conflict with the allegations in the written statement and if so whether it vitiates the entire judgment? (3) When the learned District Munsif has found that the appellants have established their title and possession by producing Muchalikas and house tax receipts whether the reasoning and the conclusion of the court below that they are not conclusive and thereby concluding against the appellants is sustainable in law? 3. Considering the scope of the issues between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has come to be laid by the plaintiff for the reliefs of declaration and permanent injunction. 5. Contending that the plaintiff, R. Perumalsamy, President of Swamy Vivekananda Bramha Vidya Peetam, had obtained the suit properties by way of the settlement deed dated 14.11.1989 and the settlors in turn had acquired title to the suit properties as the legal heirs of Narasimhulu Naidu and Rengasamy Naidu, who had purchased the suit properties by way of a registered sale deed dated 25.02.1942 and accordingly, alleging that the defendants, without any right or interest, attempted to interfere with the plaintiff's possession and enjoyment of the suit properties, hence it is stated that the plaintiff has been necessitated to lay the suit for appropriate reliefs. 6. 6. The defendants, in their written statement, challenged the claim of title to the suit properties by the plaintiff as projected in the plaint and accordingly, in toto disputed the claim of title projected by the plaintiff and also set up title on themselves by giving their own version and accordingly, it is found that the Courts below proceeded with the matter on the basis of the materials placed on record by the respective parties. 7. In this connection, the plaintiff, in support of his case, has examined PWs. 1 to 7 and marked Exs.A1 to A12. On the side of the defendants, DWs. 1 to 7 were examined and Exs.B1 to B18 were marked. Exs.C1 & C2 were also marked. 8. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to dismiss the plaintiff's suit. However, the first appellate Court, on an appreciation of the materials placed on record, found acceptance with the plaintiff's case and accordingly, by setting aside the judgment and decree of the trial Court, decreed the suit as prayed for. Impugning the same, the present second appeal has been preferred. 9. Materials placed on record go to show that the plaintiff claims title to the suit properties based on Ex.A1 settlement deed and the abovesaid settlement deed is found to be executed by Chinnathambi Naidu, Duraisamy Naidu, sons of Abbu Naidu and Narasimhan son of Annamalai Naidu. It is found that the suit properties were admittedly acquired by Narasimhulu Naidu and Rangasamy Naidu from Venkatrama Naidu on 25.02.1942 and with reference to the same, the original sale deed abovestated has been marked as Ex.B3 and the copy of the same has been marked as Ex.A2. Thus, it is found that at the best, only the purchasers of Ex.B3/A2 sale deed or if they had died, their legal representatives would be entitled to settle the suit properties, if at all, in favour of the plaintiff under Ex.A1 document. However, it is found that even as per the determination of the first appellate Court, of the two purchasers viz. Narasimhulu Naidu and Rangasamy Naidu of Ex.B3/A2, Narasimhulu Naidu died intestate leaving behind his son Annamalai Naidu, who had also died intestate leaving behind his sons Veeraraghavan and Narasimhulu Naidu. However, it is found that even as per the determination of the first appellate Court, of the two purchasers viz. Narasimhulu Naidu and Rangasamy Naidu of Ex.B3/A2, Narasimhulu Naidu died intestate leaving behind his son Annamalai Naidu, who had also died intestate leaving behind his sons Veeraraghavan and Narasimhulu Naidu. The other purchaser Rangasamy Naidu died leaving behind his daughter Adiammal and his brothers Abbu Naidu and Govindasamy Naidu, who had inherited the properties and among them, it is found that Abbu Naidu died leaving behind his sons Chinnathambi Naidu and Duraisamy Naidu. In the light of the abovesaid line of successors, admittedly, it is found that Govindasamy Naidu, the brother of Rangasamy Naidu or his legal heirs and Veeraraghavan Naidu, one of the sons of Annamalai Naidu or his legal heirs are not parties to Ex.A1 settlement deed. Pointing to the same, the contention has been raised by the defendants that the plaintiff cannot seek absolute title to the suit properties on the strength of Ex.A1 settlement deed as all the rightful owners of the suit properties had not joined in the execution of the said deed. Even though the first appellate Court had accepted the abovesaid geneology or the trace of title to the suit properties from the purchasers under Ex.B3/A2 sale deed viz. Narasimhulu Naidu and Rangasamy Naidu, still, when there no plausible reason has been placed by the plaintiff as to how he could derive absolute title to the suit properties on the strength of Ex.A1 settlement deed, when all the legal owners had not participated in the execution of the same, still, the first appellate Court proceeded to uphold the plaintiff's claim of title to the suit properties on the footing that the left out owners had not challenged the plaintiff's title. Further, the other reasonings given by the first appellate Court for accepting the claim of title to the plaintiff is that the defendants being strangers to the suit properties, are not entitled to question the settlement deed Ex.A1 and accordingly, proceeded to uphold the validity of Ex.A1 settlement deed and thereby, accepted the plaintiff's case. 10. Further, the other reasonings given by the first appellate Court for accepting the claim of title to the plaintiff is that the defendants being strangers to the suit properties, are not entitled to question the settlement deed Ex.A1 and accordingly, proceeded to uphold the validity of Ex.A1 settlement deed and thereby, accepted the plaintiff's case. 10. Pointing to the abovesaid glaring discrepancies in the appreciation of the materials by the first appellate Court, the defendants' counsel contended that the plaintiff having come forward with the suit seeking the relief of declaration, at the foremost, he should establish his claim of title to the suit properties for seeking the reliefs sought for. When the materials placed on record go to show that the plaintiff had not established the validity of Ex.A1 settlement deed, the title deed upon which, he relies solely for claiming title to the suit properties and on the other hand, when it is found that all the other owners of the suit properties had not joined in the execution of Ex.A1 settlement deed, it is found that the plaintiff cannot be allowed to seek the claim of title to the suit properties absolutely as put forth in the plaint. When the defendants have challenged the claim of title to the suit properties as claimed by the plaintiff by putting forth various contentions including setting up title on themselves and even assuming for the sake of arguments that the defendants are unable to establish their claim of title as put forth by them, still, the plaintiff having laid the suit, he should establish his claim of title for seeking the reliefs sought for. When it is abundantly made clear that Ex.A1 settlement deed had not been executed by all the legal representatives of the original owners as abovenoted, it is found that the first appellate Court has simply discarded the abovesaid defence projected by the defendants on the footing that the other left out owners having not challenged Ex.A1 settlement deed and the defendants being strangers to the suit properties, accordingly, holding that the defendants are not entitled to challenge the title of the plaintiff in respect of the suit properties, on that basis erroneously proceeded to uphold the plaintiff's claim of title to the suit properties. 11. 11. It is to be noted at this juncture, that even in the plaint, the plaintiff has not established as to how the executants of Ex.A1 settlement deed had traced their title to the suit properties from the original purchasers under Ex.B3/A2 sale deed and in such view of the matter, it is found that even the plaintiff is not sure as to how the executants of Ex.A1 settlement deed had derived title to the suit properties. Accordingly, the plaintiff is unable to establish or offer plausible reasons as to why the settlement deed Ex.A1 had not come to be executed by all the lawful owners of the suit properties as above pointed out and the same would only go to expose that the plaintiff has not derived title to the suit properties from all the original owners. 12. Further, the plaintiff has not endeavoured to implead the left out owners in the suit, who had not joined the execution of Ex.A1, or their legal representatives to point out that they are no more interested in the suit properties and not posing a challenge to the claim of title put forth by the plaintiff to the suit properties on the basis of Ex.A1. 13. Pointing to the abovesaid error committed by the first appellate Court, the defendants' counsel contended that when the plaintiff has come forward with the suit seeking the relief of declaration of title to the suit properties, it is for the plaintiff to establish his claim and the plaintiff cannot be allowed to pick holes in the defendants' version and thereby, endeavour to seek title to the suit properties. In this connection, he placed reliance upon the decision of the apex Court reported in Union of India and Others vs. Vasavi Co-op. In this connection, he placed reliance upon the decision of the apex Court reported in Union of India and Others vs. Vasavi Co-op. Housing Society Ltd. and Others, 2014 (4) CTC 471 wherein, the principles of law as regards the burden of proof on whom lies in a suit for declaration of title had been outlined by the apex Court in the following manner: "Specific Relief Act, 1963 (47 of 1963), Section 34 Evidence Act, 1872 (1 of 1872), Sections 3, 101 to 104 Suit for Declaration title Whether proved by Plaintiff In suit for declaration, Plaintiff to prove title by adducing evidence Title of Defendant even if not proved, Plaintiff would be non-suited, if he fails to establish his own title Held, loopholes in Defendant's title would not automatically establish plaintiff's title In instant case, mere production of Family Settlement Deed by plaintiff in which Suit property was not even mentioned, held, would not establish title of Plaintiff Mere issuance of Patta in favour of predecessor in interest of plaintiff, would not confer title on plaintiff Approach of Lower Courts in finding weaknesses in Defendant's case to confer title in favour of plaintiffs, erroneous Courts ought to have examined genuineness of plaintiff's case As title not established by Plaintiff successfully, suit of declaration and possession, dismissed Order of Lower Courts decreeing suit, set aside Appeal allowed." 14. In the light of the principles of law enunciated by the supreme Court, it is found that the plaintiff having laid the suit for declaration, he could succeed only on the strength of proving his claim of title by adducing acceptable evidence and other than that, the plaintiffs title to the property in dispute cannot be upheld merely on the footing that the defendants have failed to establish their claim of title to the suit properties as put forth by them. 15. 15. Accordingly, it is noted that when as per the abovesaid materials alone, it is found that the plaintiff has failed to establish his title to the suit properties based on Ex.A1 settlement deed, which admittedly has not been executed by all the original owners of the suit properties and in addition to that, when there is no acceptable and reliable document placed by the plaintiff to show that pursuant to Ex.A1, it is only the plaintiff, who has been in the possession and enjoyment of the suit properties as claimed by him and when the documents projected do not evidence the factum of the possession of the suit properties by the plaintiff as projected by him, it is found that the relief of permanent injunction sought for by the plaintiff also cannot be granted and accordingly, it is seen that the first appellate Court has erred in upholding the plaintiff's case without appreciating the materials placed on record in the proper perspective. No doubt, the Muchalika and the house tax receipts projected by the defendants by themselves would not automatically confer title of the suit properties in favour of the defendants. Still, as abovenoted, the failure of the defendants in establishing their claim of title, would not automatically lead to the conclusion that it is only the plaintiff, who has title to the disputed properties. 16. In the light of the above discussions, the plaintiff having failed to establish his claim of title to the suit properties as projected and also failed to establish his claim of possession and enjoyment of the suit properties as put forth in the plaint and though the defendants had failed to establish their claim of title to the suit properties, in the light of the abovesaid apex Court decision and the reasons aforestated, the plaintiff cannot be granted the reliefs as prayed for and accordingly, the suit laid by the plaintiff is liable to be dismissed. The substantial questions of law formulated in the second appeal are accordingly answered. 17. For the reasons aforestated, the Judgment and Decree dated 19.04.2004 passed in A.S. No. 129 of 2001 on the file of the Additional District Judge, Fast Track Court No. V, Tiruvallur are set aside and the Judgment and Decree dated 30.11.2000 passed in O.S. No. 893 of 1989 on the file of the District Munsif Court, Tiruttani, are confirmed. 17. For the reasons aforestated, the Judgment and Decree dated 19.04.2004 passed in A.S. No. 129 of 2001 on the file of the Additional District Judge, Fast Track Court No. V, Tiruvallur are set aside and the Judgment and Decree dated 30.11.2000 passed in O.S. No. 893 of 1989 on the file of the District Munsif Court, Tiruttani, are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.