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2018 DIGILAW 2633 (MAD)

Kappil alias Kesavan v. Vaiyapuri

2018-08-27

T.RAVINDRAN

body2018
JUDGMENT : In this second appeal, challenge is made to the Judgment and Decree dated 31.12.2004 passed in A.S.No.96 of 2003 on the file of the I Additional Subordinate Court, Villupuram, reversing the Judgment and Decree dated 08.02.2002 passed in O.S.No.261 of 1999 on the file of the Principal District Munsif, Ulundurpet. 2. The second appeal has been admitted on the following substantial questions of law: “(i). Whether in the facts and circumstances of the case, the judgment and decree of the lower appellate Court is correct in holding that the respondent/plaintiff is the absolute owner and in possession of the suit schedule property only basing on the Form-I notice issued by the Natham Tahsildar? (ii). Whether the judgment and decree of the lower appellate Court is Perverse, unreasonable and suffer from infirmity while declaring the suit schedule property and granting permanent injunction in favour of the respondent/plaintiff based on the documents which are not related to the suit schedule property especially when the respondent/plaintiff did not produce any document of title or entry of his name in the revenue records? 3. Considering the scope of the issues involved between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. 3. Considering the scope of the issues involved between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. Suffice to state that the plaintiff has laid the suit for the reliefs of declaration and permanent injunction on the footing that the suit property is a Village Natham land and belonged to the Government and it is stated that the plaintiff's father had encroached upon the suit property and put up a thatched house and also been paying penal tax in respect of the same and thereafter, it is the case of the plaintiff that the Government of Tamil Nadu has assigned the suit property in his favour, however, the assignment order could not be received by the plaintiff and the plaintiff, following the same, has been enjoying the suit property by paying tax in respect of the superstructure put up thereon for the past 69 years and thereby, on account of long, continuous and uninterrupted possession and enjoyment of the suit property by the plaintiff, it is his case that he has also prescribed title to the suit property by way of adverse possession and inasmuch as the defendants, taking an hostile attitude, started claiming right in respect of the suit property, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 5. The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. 5. The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. The suit property has not been properly described with correct boundaries and the suit property is a village Natham site and it does not belong to the Government as claimed in the plaint and therefore, the case of the plaintiff that his father had encroached into the suit property and put up a thatched house thereon and paying the penal tax in respect of the suit property to the Government as such are incorrect and the suit property had not been assigned in favour of the plaintiff as claimed in the plaint and on the other hand, it is stated that the suit property originally belonged to Kesava Gounder and he had alienated the suit property in favour of the first defendant's son Mayava Gounder by way of a sale deed dated 17.02.1947 for a valid consideration and while alienating the same, in the second schedule of the said sale deed, the first defendant's vacant site on the northern side has also been included along with the suit property and also the extent of the property has been incorrectly stated and accordingly, Mayava Gounder and the first defendant had been enjoying the suit property as well as the site on the northern side jointly without effecting any partition and on account of their continuous enjoyment, they had also prescribed title to the suit property by way of adverse possession. Mayava Gounder is a necessary party to the suit and the suit laid by the plaintiff without impleading him is bad in law and hence, the suit laid by the plaintiff is liable to be dismissed. 6. On the side of the plaintiff, PWs 1 to 3 were examined and Exs.A1 to A11 were marked. On the side of the Defendants, DWs 1 & 2 were examined and Exs.B1 to B4 were marked and further, Ex.X1 was also marked. 7. The trial Court, on an analysis of the same, was pleased to dismiss the suit laid by the plaintiff. On the side of the Defendants, DWs 1 & 2 were examined and Exs.B1 to B4 were marked and further, Ex.X1 was also marked. 7. The trial Court, on an analysis of the same, was pleased to dismiss the suit laid by the plaintiff. On appeal by the plaintiff, it is found that in the first appellate Court, the plaintiff had preferred two applications viz., I.A.No.48/2004 for appointment of an Advocate Commissioner and also another application in I.A.No.588 of 2009 to receive additional evidence in support of his case i.e. sketch and adangal and the first appellate Court, on a consideration of the application filed for the reception of the additional evidence, has accepted the said documents and accordingly, further noting that it is nothing but the copy of the adangal already exhibited in the matter, accordingly, without marking the additional evidence, proceeded to dispose of the appeal, however, placing reliance mainly upon the projected additional evidence, the first appellate Court, consequently, found it unnecessary to appoint an advocate commissioner to inspect the suit property and thereby, dismissed the application filed with reference to the same. The first appellate Court, accordingly, on the basis of the analysis of the materials placed on record, particularly, the projected additional evidence as abovenoted, was pleased to set aside the judgment and decree of the trial Court and thereby, decreed the suit as prayed for in favour of the plaintiff. Impugning the same, the present second appeal has been preferred. 8. Even as per the case of the plaintiff, the suit property is a Village Grama Natham Site and according to the plaintiff, the suit property belonged to the Tamil Nadu Government. Per contra, it is the contention of the defendants that the suit property being a Grama Natham Site, the Tamil Nadu Government does not have any ownership over the same and accordingly, dispute the abovesaid case of the plaintiff. The suit property has been described as the site within the specific boundaries in survey No.522/20 of Kunnathur Village of an extent of 0.00.37 ares (377 sq.ft) and the thatched house put up thereon. The suit property has been described as the site within the specific boundaries in survey No.522/20 of Kunnathur Village of an extent of 0.00.37 ares (377 sq.ft) and the thatched house put up thereon. Now, according to the plaintiff, his father had encroached into the abovesaid suit property and put up the thatched shed and accordingly, inasmuch as his possession had been recognised by the Government, he had been paying the penal tax in respect of the suit property to the Government and on that basis, marked the demand notices said to have been issued by the Government in favour of his father as Exs.A1 to 3. As rightly determined by the trial Court, on the basis of Exs.A1 to 3, we cannot safely conclude that the property described therein pertains to the suit property as described in the plaint. At the foremost, the plaintiff has to establish prima facie that the suit property being a Village Natham Site, belonged to the Government. With reference to the same, the plaintiff has not summoned any records from the Government to establish his version. The plaintiff mainly relied upon Exs.A1 to A3, the demand notices sent to his father as Exs.A1 to A3. However, when Exs.A1 to A3 are not shown to be related to the suit property as described in the plaint, merely from the abovesaid documents, we cannot safely conclude that the same pertain to the suit property. 9. The plaintiff mainly basis his case that the Government had assigned the suit property in his favour recognising his possession and enjoyment of the same. Following the same, it is his case that he was unable to receive the assignment order from the Government. Thus, it is found that though the claim of the plaintiff to the suit property is based on the assignment said to have been granted by the Government in his favour, the said assignment order has not been marked. On the other hand, the plaintiff has marked only Ex.A4, a notice sent to him under the Natham Land Tax Scheme and from the same, it cannot be held that the plaintiff had been granted the assignment in respect of the suit property by the Government. As rightly argued by the defendants, the plaintiff has not established that the Government is competent to issue any notice to him marked as Ex.A4 under the Natham Land Tax Scheme. As rightly argued by the defendants, the plaintiff has not established that the Government is competent to issue any notice to him marked as Ex.A4 under the Natham Land Tax Scheme. In such view of the matter, on the basis of Ex.A4, we cannot hold that the Government is the owner of the suit property and that it had recognised the possession and enjoyment of the same by the plaintiff as claimed in the plaint. If that be so, there is no reason offered by the plaintiff as to why he had not endeavoured to obtain the assignment order said to have been issued in his favour by the Government, other than stating very vaguely that he had been unable to obtain the assignment order from the Government. Even for the sake arguments that at one stage of the matter, the plaintiff was unable to obtain the assignment order from the Government, if really, the plaintiff had been in the possession and enjoyment of the suit property as claimed by the plaintiff, at least, thereafter, the plaintiff would have approached the Government and endeavoured to obtain the assignment order from the Government in respect of the suit property. On the other hand, as rightly put froth by the defendants, inasmuch as the suit property does not belong to the Government as such, the plaintiff is unable to place any material to uphold the ownership of the Government in respect of the suit property and also his claim that the Government had issued the assignment order in his favour in respect of the suit property. Therefore, the plaintiff's case cannot be accepted on the basis of Ex.A4 notice sent to him under the Natham Land Tax Scheme and following the same, when the plaintiff has not established that the order of assignment had been issued in his favour by the Government, the trial Court has rightly disbelieved Ex.A4 for upholding the plaintiff's claim of title to the suit property. 10. The plaintiff further relies upon the tax receipts marked as Exs.A5 to A11 to contend that it is he, who has been paying the tax in respect of the thatched house put up in the suit property. 10. The plaintiff further relies upon the tax receipts marked as Exs.A5 to A11 to contend that it is he, who has been paying the tax in respect of the thatched house put up in the suit property. However, considering the document marked as Ex.X1 exhibited through DW3 and when it is found that the assessment of tax had not been done by the Government properly in seriatim, a doubt arises whether at all the plaintiff would have been assessed to tax in respect of the alleged thatched shed put up in the suit property. In such view of the matter, particularly, when in the plaint schedule though the plaintiff would describe the suit property as consisting of a thatched house thereon, the plaintiff had not given the Door number assigned to the same and in such view of the matter, from the tax receipts marked as Exs.A5 to 10, we cannot safely conclude that the same pertain to the thatched house alleged to have been put up by the plaintiff in the suit property. When Exs.A5 to 10 are not shown to be co related to the thatched house put up on the suit property, the trial Court has rightly not placed reliance upon the said tax receipts for accepting the plaintiff's case. Similarly Ex.A11 document also would not in any manner be helpful to sustain the plaintiff's case. 11. The trial Court, accordingly, on an analysis of the materials placed on record, finding that the plaintiff has miserably failed to establish his claim of title to the suit property and the possession and enjoyment of the same as put forth in the plaint, it is found that the plaintiff's case had not been readily accepted by the trial Court. Accordingly, it is seen that inasmuch as the plaintiff knew very well that he has no pucca title to the suit property as put forth by him i.e. he had derived title to the suit property by way of the grant of assignment in his favour by the Government accordingly, he has also taken the plea that he has perfected title to the suit property on the plea of adverse possession on account of his long and continuous enjoyment beyond the statutory period. However, when with reference to the said case of the plaintiff, the plaintiff has not placed any acceptable and reliable materials and when the documents placed by the plaintiff and as above discussed, are not shown to be related to the suit property and also not advancing his claim to the suit property on the plea of adverse title, the trial Court has rightly discountenanced the said case of the plaintiff for claiming title to the suit property on the plea of adverse title. 12. The first appellate Court seems to have mainly accepted the plaintiff's case on the basis of the projected additional evidence by the plaintiff through I.A.No.588 of 2004. Though the first appellate Court would state that the suit property has been described in the adangal projected in the additional evidence and accordingly, also noting that the said document has been already exhibited in the suit, however, proceeded to allow the said application but strangely chosen to not mark the said document in the matter. The above procedure adopted by the first appellate Court with reference to the reception of the additional evidence is found to be not in consonance with law. If the appellate Court deemed it fit that the additional documents projected by the plaintiff is entitled for acceptance and accordingly, having entertained the said application, should have proceeded further in the matter as to the providing of adequate opportunity to the parties to let in oral evidence with reference to the project additional evidence. On the other hand, even though the first appellate Court has entertained the petition for the reception of the additional evidence, still proceeded to hold that there is no need to give any separate exhibit number for the additional evidence and despite the same, on a reading of the judgment of the first appellate Court, it is found that the first appellate Court has canvassed the merits of the plaintiff's case only based upon the projected additional evidence and on that footing finding that the suit property has been described in the projected additional evidence, accordingly, held that the plaintiff has title to the suit property. But when the plaintiff claims title to the suit property, the first appellate Court finding that the claim of the plaintiff's title is based upon the assignment order said to have been issued in his favour by the Government, the plaintiff having not filed the same and also not endeavoured to summon the said record in the matter as to whether at all any such endeavour had been made by the Government to issue the assignment order in his favour and as above discussed, when the plaintiff has also failed to establish that the Government has the ownership of the suit property, which is a Grama Natham site, it is found that in toto the plaintiff has miserably failed to establish his claim of title, legal possession and enjoyment of the suit property and therefore, the first appellate Court seems to have gone out of the procedure contemplated under law by placing reliance upon the projected evidence without marking the same and also without providing an opportunity to the parties to adduce oral evidence with reference to the same and in such view of the matter, it is seen that the first appellate Court has erred in upholding the plaintiff's claim of title to the suit property and when the determination of the first appellate Court in upholding the plaintiff's case is found to be not based on the proper appreciation of the materials placed on record and when the materials placed on record by the plaintiff do not vouchsafe the claim of title to the suit property in favour of the plaintiff, the resultant conclusion that could be arrived is that the acceptance of the plaintiff's case by the first appellate Court is only wholly upon the reasonings and conclusions, which cannot be sustained in the eyes of law and could only be termed as perverse and illogical. 13. 13. The plaintiff having come forward with the plea seeking the reliefs of declaration and possession and having failed to establish the same and when from the materials placed on record, it is found that it is only the defendants, who are in the possession and enjoyment of the suit property as determined by the trial Court and the plaintiff having failed to establish his claim of possession and enjoyment of the suit property as described in the plaint, accordingly, it is found that the first appellate Court has erred in upholding the plaintiff's claim of title to the suit property based on Ex.A4 notice, which cannot be seen equivalent to the document of title and the acceptance of the plaintiff's case by the first appellate Court based on the reasons, which are perverse, illogical and unreasonable, accordingly, sans any material placed by the plaintiff pointing to the same, the Judgment and decree of the first appellate Court cannot be allowed to sustain any further and the substantial questions of law formulated in the second appeal are, accordingly, answered against the plaintiff and in favour of the defendants. 14. The principles of law outlined in the decisions relied upon by the defendants' counsel in support of his contentions reported in AIR 1971 SUPREME COURT 1865 (Sait Tarajee Khimchand and others Vs. Yelamarti satyam and others), AIR 1948 MADRAS 298 (R.M.Y.R.M.Palaniappa Chettiar and Ors Vs. Bombay Life Assurance Co., Ltd., through its Secretary at Bombay), and AIR 1986 MADRAS 341 (A.V.S.Perumal Vs. Vadivelu Asari) are taken into consideration and followed as applicable to the case at hand. For the reasons aforestated, the Judgment and Decree dated 31.12.2004 passed in A.S.No.96 of 2003 on the file of the I Additional Subordinate Court, Villupuram, are set aside and the Judgment and Decree dated 08.02.2002 passed in O.S.No.261 of 1999 on the file of the Principal District Munsif, Ulundurpet are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.