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2018 DIGILAW 2635 (MAD)

K. Arunagirinathan v. Dakshinamurthy

2018-08-27

T.RAVINDRAN

body2018
JUDGMENT : Second Appeal Nos. 240 and 241 of 2005 are directed against the judgment and decree passed in A.S.Nos.65 and 69 of 2002 dated 19.10.2004 on the file of Subordinate Court, Thiruvarur, confirming the judgment and decree passed in O.S. Nos.231 & 203 of 1998 dated 17.04.2002 on the file of District Munsif Court, Thiruvarur. 2. The second appeals have been admitted on the following substantial questions of law. "(1) Whether an exchange of property can be effected orally? (2) Whether O.S.No.231/1998 is maintainable without joining the co-sharer Baghyalakshmi as party? (3) Whether Ex.A2 patta will not be in prima facie proof of title and possession of the appellant?" 3. Considering the scope of the issues involved 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. Suffice to state that the appellant has laid the suit in O.S. No.203 of 1998 for the reliefs of declaration and permanent injunction by putting forth the case that he has purchased the suit property by way of a sale deed dated 05.09.1979 executed by Muthukumaraswamy and his heirs and since then, it is only the appellant who has been in the possession and enjoyment of the same and it is stated that the suit property forms part of R.S.No.300/2 totally consisting of 12 cents land and it is the case of the appellant that he has purchased 11 cents on the southern side inclusive of half right in the well situated in the northern side. Thus, it is the case of the appellant that he has been in the possession and enjoyment of the suit property and it is further stated that under the UDR scheme, the suit property has been sub divided as Survey No. 300/2B measuring 0.04.50 ares and further it is also the case of the appellant that he has perfect title to the suit property on account of uninterupted, continuous and open possession and enjoyment of the suit property right from the date of the sale deed and in as much as the respondents attempted to interfere with his possession, enjoyment of the suit property without any authority, according to him, he has been necessiated to lay the suit for the abovesaid reliefs. The abovesaid suit has been laid by the appellant against R.Dakshinamurthy and G.Ramalingam Pillai. 5. The abovesaid suit has been laid by the appellant against R.Dakshinamurthy and G.Ramalingam Pillai. 5. R.Dakshinamurthy is the son of Ramalingam Pillai. The respondent R.Dakshinamurthy has laid a suit in O.S.No.231 of 1998 against the appellant for partition by putting forth the case that R.S.No.300/2 consisting of a total extent of 12 cents, originally belonged to his great grand father Ramalingam Pillai and the said Ramalingam Pillai had two sons, namely, Govindasamy Pillai and Pakkirisamy Pillai and they owned the abovesaid property in R.S.No.300/2 and other properties and they enter into a registered partition on 18.06.1933 and by way of the same, it is stated that one cent in R.S.No.300/2 with half well and easementary rights on the northern side was alloted to the share of Govindasamy Pillai and the remaining 11 cents went to the share of Pakkirisamy Pillai and it is further stated that after the demise of Pakkirisamy Pillai, his legal heirs, namely, his widow Sivagami Ammal and two sons acquired the abovesaid property and sold the same including the half share in the well to one T.K.Siddivinayaga Mudaliar on 03.07.1964 and the further the case of the respondent is that after the purchase, Siddivinayagam Mudaliar has exchanged two cents of land in R.S.No.300/2 with Govindasamy Pillai and obtained two cents of land from Govindasamy Pillai in R.S.No.300/3 and accordingly, following the exchange, it is stated that the parties abovesaid had been enjoying the exchanged properties by retaining the same in their possession and enjoyment and it is further stated that in as much as the exchange of two cents was valued less than Rs.100/-, no written instrument was taken with reference to the same. It is the further case of the respondent that though after the demise of Siddivinayagam Mudaliar, his legal heirs effected the division of the properties belonging to them by way of registered instrument on 14.05.1975, it is his case that some properties belonging to them were left in common and not included in the partition deed and it is thus stated that 9 cents belonging to Siddivinayagam Mudaliar less the two cents of land given by way of exchange, was not included in the abovesaid partition deed and enjoyed by his legal heirs in common and it is further stated that the appellant taking advantage of the inebriated condition of Muthukumarasamy, one of the sons of Siddivinayaga Mudaliar, obtained the sale deed from him as if he is the owner of the suit property and however, the suit property as abovestated was left in common by the legal heirs of Siddivinayaga Mudaliar and not partitioned amongst themselves and accordingly it is the further case of the respondent that Muthukumarasamy as the legal heir of Siddivinayaga Mudaliar is entitled only for two cents and accordingly it is the case of the respondent that he had purchased 9 cents of land in R.S.No.300/2 from the other legal heirs of Siddivinayga Mudaliar and further according to the respondent, the abovesaid 9 cents land also includes the two cents already exchanged by Siddivinayaga Mudaliar with Govindasamy pillai in as much as the said exchange was not effected by way of a written instrument and accordingly, it is stated that in as much as the respondent by way of the abovesaid sale deed dated 31.07.1998 is entitled to 7 cents land excluding the two cents of land belonging to Muthukumarasamy and contending that as the purchaser, he is entitled to seek the division of his share in the suit survey number and accordingly laid the suit for partition and separate possession for alloting 7/9 share in the suit propoerty against the appellant. 6. Considering the scope of the issues involved in both the suits, being one and the same, it is found that both the suits were jointly tried and accordingly in support of the appellant's case, PW1 was examined and Exs.A1 to A7 were marked and on the side of the respondents Dws1 and 2 were examined, Exs.B1 to B11 were marked. Exs.C1 and C2 were also marked. 7. Exs.C1 and C2 were also marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the courts below were pleased to dismiss the appellant's suit and decreed the suit laid by the respondent. Impugning the same, the present second appeals have been preferred. 8. The materials placed on record would go to show and also not in dispute that the 12 cents of land in R.S.No.300/2 involved in the suit originally belonged to Ramalingam Pillai, great grand father of the respondent. It is further seen that the two sons of Ramalingam Pillai, namely, Govindasamy Pillai and Pakkirisami Pillai had effected partition of the properties belonging to them including the abovesaid property by way of a registered partition deed on 18.06.1933, which document has come to be marked as Ex.B7 and it is seen that by way of the same, one cent on the northern side with half well right was alloted to the share of Govindasami pillai in addition to the other properties and the remaining 11 cents i.e. lying on the southern side with half right in the well fell to the share of Pakkirisami Pillai. The abovesaid fact is not in issue. It is further seen that after the demise of Pakkirisami Pillai, his legal heirs inherited the abovesaid property in the suit survey number and they had sold the same in favour of Siddiviniayaga Mudaliar by way of sale deed dated 03.07.1964, marked as Ex.B8. It is thus found that Siddivinayaga Mudaliar had acquired 11 cents land in the suit survey number by way of Ex.B8 sale deed. 9. The dispute arose between the parties following the claim of title by the appellant to the abovesaid 11 cents on the strength of the sale deed dated 05.09.1979 marked as Ex.A1. Now, according to the appellant, he has purchased the suit property i.e. 11 cents from Muthukumaraswamy, one of the sons of Siddivinayaga Pillai under Ex.A1 sale deed and thus he has title to the same. Now, according to the appellant, he has purchased the suit property i.e. 11 cents from Muthukumaraswamy, one of the sons of Siddivinayaga Pillai under Ex.A1 sale deed and thus he has title to the same. Per contra, according to the respondent, Siddivinayaga Mudaliar had six sons and therefore it is stated that when the 11 cents comprised in suit survey number was not the subject matter of partition deed effected amongst the legal heirs of Siddivinayaga Pillai, which document has come to be marked as Ex.B5, accordingly, it is stated that the suit property had not been divided amongst the legal heirs of Siddivinayaga Pillai and therefore it is the case of the respondent that the appellant cannot lay any claim of exclusive title to the suit property on the strength of his claim of purchase of the same from one of the sons of Siddivinayaga Pillai, namely Muthukumarasamy under Ex.A1 sale deed. 10. In as much as the respondent had disputed the claim of title of the appellant to the suit property as put forth by him i.e. when the appellant claims title to the suit property on the strength of purchase of the same under Ex.A1 from Muthukumarasamy, when the respondent has disputed the claim of the appellant's vendor, in toto, it is for the appellant to establish that his vendor had a valid claim of title to the suit property so as to enable him to validly effect the alienation of the same in favour of the appellant under Ex.A1. With reference to the claim of title of his vendor to the suit property, the appellant has not projected any acceptable case. What he would state is that the suit property had been alloted to his vendor in the family arrangement effected amongst the legal heirs of Siddivinayaga Mudaliar. However, when the alleged family arrangement put forth by the appellant is being contested by the respondent, the onus is on the appellant to establish the same. What he would state is that the suit property had been alloted to his vendor in the family arrangement effected amongst the legal heirs of Siddivinayaga Mudaliar. However, when the alleged family arrangement put forth by the appellant is being contested by the respondent, the onus is on the appellant to establish the same. However, the appellant has not placed any acceptable and reliable material to hold that as to when the alleged family arrangement amongst the legal heirs of Siddivinayaga Mudaliar took place and what were the properties which were subjected to division under the said family arrangement and whether the suit property was also included in the family arrangement and to whom the suit property was alloted and what are the properties alloted to the other members of Siddivinayaga Mudaliar's family. With reference to all the abovesaid facts, there is absolutely no material on the part of the appellant. Thus, it is found that the appellant has not placed any material worth acceptance to hold that a family arrangement had taken place amongst the family members of Siddivinayaga Mudaliar and in the said family arrangement, the suit property had been alloted to Muthukumarasamy. Such being the position, when it is found that by way of Ex.B5 partition deed, only certain properties have come to be divided amongst the legal heirs of Siddivinayaga Mudaliar and when under the said partition deed, it is evident that the suit property was not included, as rightly put forth by the respondent, accordingly, it could be seen that the suit property was left in common to be enjoyed by all the legal heirs of Siddivinayaga Mudaliar. It is further seen that not only the suit property, but also some other properties belonging to the family of Siddivinayaga Mudaliar were not included in Ex.B5 partition deed. It is thus found that all the properties of Siddivinayaga Mudaliar were not divided by his legal heirs under Ex.B5. It is further seen that not only the suit property, but also some other properties belonging to the family of Siddivinayaga Mudaliar were not included in Ex.B5 partition deed. It is thus found that all the properties of Siddivinayaga Mudaliar were not divided by his legal heirs under Ex.B5. The position being above and when there is no material placed by the appellant to hold that other than Ex.B5 there had been a family arrangement amongst the legal heirs of Siddivinayaga Mudualiar and in the said family arrangement, the suit property had been alloted to Muthukumarasamy, it is found that the claim of title to the suit property by the appellant by way of the sale deed obtained from Muthukumarasamy, cannot be accepted in any manner in as much he has failed to establish the alleged claim of title of his vendor to the suit property. There is no material placed by the appellant as to when the alleged family arrangement took place under which the suit property had been alloted to the share of Muthukumarasamy. In addition to that, there is no material placed by the appellant to evidence that since the said family arrangement, it is only Muthukumarasamy who had been in the exclusive possession and enjoyment of the suit property as the full owner there of. Thus, it is found by the courts below rightly that the appellant having failed to establish his vendor's title to the suit property, the only conclusion that could be arrived is that the appellant's vendor has no competency to alienate the same in favour of the appellant and in such view of the matter, the courts below are justified in holding that the Ex.A1 sale deed would not convey a legal title to the suit property in favour of the appellant. 11. Accordingly, the appellant knowing fully well that he has no valid claim of title to the suit property on the strength of Ex.A1, also put forth the claim to the suit property that he had prescribed title to the same by way of adverse possession on account of his long and continuous possession and enjoyment right from Ex.A1 sale deed. However, as rightly put forth by the respondent's counsel, on the basis of the principles of law outlined in the decisions reported in 2005(2) CTC 58 (Neelavathi Vs. Shanmugam and another) and (2009) 6 MLJ 489 (S.Ganesan Vs. However, as rightly put forth by the respondent's counsel, on the basis of the principles of law outlined in the decisions reported in 2005(2) CTC 58 (Neelavathi Vs. Shanmugam and another) and (2009) 6 MLJ 489 (S.Ganesan Vs. Bharathirajan), a party relying upon claim of title based upon a document cannot be allowed to claim title to the suit property by adverse possession or prescriptive title as the plea based upon title and adverse possession cannot go together and in such view of the matter, it is found that the claim of title to the suit property put forth by the appellant by way of adverse possession also cannot be accepted legally. Be that as it may, to establish the claim of title to the suit property by adverse possession, as rightly determined by the courts below, the documents projected by the appellant do not advance the said case. For establishing his claim of possession to the suit property, the appellant has marked only the patta, which document has come to be marked as Ex.A2 dated 28.02.1991. Other than the said document, there is no other material placed on the part of the appellant to evidence his possession and enjoyment of the suit property. Thus, it is found that on the basis of Ex.A2 patta alone, we cannot construe that the appellant has prescribed title to the suit property by way of prescription. The patta document, on its own and in isolation, would not confer any title to the suit property in favour of the appellant. When it is found that the patta is not a document of title and at the most, it could only be construed as a document pointing to the possession, one way or the other and when from Ex.A2, in isolation, we cannot uphold the plea of adverse possession put forth by the appellant for claiming the title to the suit property and when the appellant seeks the title to the suit property on the plea of adverse possession, the burden is only on the appellant to establish the same, accordingly, it is found that the appellant having failed to establish the said plea by placing acceptable and reliable materials, the courts below had rightly declined the above plea of the appellant for sustaining his claim of title to the suit property on the plea of adverse title. 12. 12. On the whole, it is found that the appellant has failed to establish his title to the suit property both on the basis of Ex.A1 title deed as well as on the basis of his plea of adverse possession. The appellant has also failed to establish his possession and enjoyment of the suit property. It is thus found that the courts below are fully justified in negativing the suit laid by the appellant in O.S.No.203 of 1998 and the same do not warrant any interference in this second appeal. 13. As above noted, the suit property belonged to Siddivinayaga Mudaliar by way of Ex.B8. After the demise of Siddivinayaga Mudaliar, it is his legal heirs, who are entitled to the suit property. By way of Ex.B8, it is found that Siddivinayaga Mudaliar had acquired 11 cents of land including half right in the well in suit survey No. 300/2. The respondent has taken a plea that for the convenient enjoyment, Siddivinayaga Mudaliar and Govindasami Pillai exchanged two cents of land vice versa and thereby it is stated that Siddivinayaga Mudaliar had given two cents of land in the suit survey No. 300/2 to Govindasamy Pillai and in turn obtained two cents of land from Govindasamy Pillai lying in R.S.No.300/3. The abovesaid oral exchange plea put forth by the respondent is being contested by the appellant. Now according to the appellant, the oral exchange plea projected by the respondent is not valid in the eyes of law and according to him, the oral exchange of the immovable properties can be effected only by way of a registered instrument and accordingly, it is his case that the plea of oral exchange projected by the respondent should be thrown out. Though the claim has been put forth by the respondent that the value of the land exchanged is less than Rs.100/-, to evidence the same, there is no material placed. Accordingly, it is found that the oral exchange plea projected by the respondent, as such, cannot be accepted and the courts below is found to have erred in upholding the plea of oral exchange projected by the respondent without any basis. Accordingly, it is found that the oral exchange plea projected by the respondent, as such, cannot be accepted and the courts below is found to have erred in upholding the plea of oral exchange projected by the respondent without any basis. Be that as it may, even as per the case of the respondent in as much as the oral exchange had not been effected by a written and registered instrument, he has taken a plea that 9 cents of land purchased by him from the other legal heirs of Siddivinayaga Pillai by way of Ex.B6, it is stated that the said 9 cents also include the two cents of land said to have been exchanged by Siddivinayaga Mudaliar in favour of Govindasamy Pilli for the two cents of land in R.S.No.300/3. Though a specific reference about the same is not available in Ex.B6, it is found that on a perusal of Ex.B6, the respondent is found to have purchased 9 cents of land from the other legal heirs of Siddivinayaga Mudaliar. 14. We have already held that the oral exchange projected by the respondent is unacceptable and legally not sustainable. Accordingly it is found that by way of Ex.B8, Siddivinayaga Mudaliar has title to the suit property measuring 11 cents of land. Admittedly, Siddivinayaga Mudaliar has six sons, accordingly, it is the case of the respondent that the other five sons, after alloting two cents of land to the share of Muthukumarasamy, one of the sons of Siddivinayaga Mudaliar, sold the remaining 9 cents of land to him by way of Ex.B6 and accordingly claiming partition in respect of the property to which he is entitled to in the suit survey number, according to the respondent he has been necessiated to lay the suit for partition. When it is found that Siddivinayaga Mudaliar had six sons and of them, each son would be entitled to 1.8 cents approximately, accordingly it is seen that the vendors of the respondent after alloting two cents of land to Muthukumarasamy, had chosen to alienate 9 cents of land to the respondent under Ex.B6. When it is found that Siddivinayaga Mudaliar had six sons and of them, each son would be entitled to 1.8 cents approximately, accordingly it is seen that the vendors of the respondent after alloting two cents of land to Muthukumarasamy, had chosen to alienate 9 cents of land to the respondent under Ex.B6. However, the respondent putting forth the case that the abovesaid 9 cents land purchased by him under Ex.B6 also comprised of the land exchanged by Siddivinayaga Mudaliar, on that footing, though he had purchased 9 cents of land under Ex.B6, on the premise that Muthukumarasamy would be entitled to two cents of land in the same, sought for partition and separate portion of 7 cents of 9 cents in the partition suit laid by him. Looked at any angle, when it is found that Muthukumarasamy would be entitled, at the most, to an extent of approximately two cents in the suit survey number and not more than that, when the respondent had admitted the said claim of Muthukumarasamy and accordingly when it is found that the respondent had purchased the shares of the other legal heirs of Siddivinayaga Mudaliar under Ex.B6, as rightly determined by the courts below, the respondent would be entitled to 7/9 share in the suit property towards his share of claim in the partition suit laid by him. In such view of the matter, it is found that the courts below are justified in upholding the plea of partition and separate possession of 7/9 share in the suit survey number and the determination of the same in favour of the respondent by the courts below accordingly do not warrant any interference. 15. In the second appeals, the plea has been taken by the appellant that Siddivinayaga Mudaliar also had a daughter by name Bhagyalakshmi and she is also entitled to claim a share in the suit property and the suit laid by the respondent for partition without impleading Bhagyalakshmi is bad for non joinder of proper and necessary party and hence it is his contention that the suit laid by the respondent for partition should have been dis-countenanced by the courts below. However, as rightly put forth by the respondent's counsel, the appellant has not taken any plea in the written statement filed in O.S. No. 231 of 1998 that Bhagyalakshmi is a necessary and proper party and also has a share in the suit property as the legal heir of Siddivinayaga Mudaliar and therefore the suit laid by the respondent without impleading her is bad for non joinder of Bhagyalakshmi and on that footing, the suit is liable to be dismissed. When such a plea has not been taken by the appellant in the written statement and when acccording to the case of the respondent, the daughter of Siddivinayaga Mudaliar, namely, Bhagyalakshmi had been adequately provided in the partition effected amongst the legal heirs of Siddivinayaga Mudaliar and when the said fact has not been controverted by the appellant and accordingly the appellant had also not taken the plea that Bhagyalakshmi is also a necessary and proper party to the partition suit laid by the respondent on the footing that she is also a sharer in respect of the suit property, it is found that in such view of the matter, there is no need on the part of the respondent to implead Bhagyalakshmi as a party to the partition suit and in such view of the matter, at this stage of the second appeals, the appellant cannot be allowed to contend that the suit laid by the respondent for partition is bad for non joinder of Bhagyalakshmi. In this connection, the respondent's counsel placed reliance upon the decision of Supreme Court reported in AIR 1993 Supreme Court 1587 (Laxmishankar Harishankar Bhatt Vs.Yashram Vasta (dead) by L.Rs.,), wherein, it has been held that when there is no averment in the written statement as to who are co-owners and what rights they have in the subject matter of partition suit, the Apex Court has held that in such context, partition suit cannot be dismissed for non joinder on vague pleas. Accordingly, it is found that the appellant having not taken any plea of the suit being bad for non joinder of proper and necessary party i.e. Bhagyalakshmi and also not put forth any claim that Bhagyalsksmi is also entitled to the share in the suit property and not having controverted the case of the respondent that Bhagyalakshmi had been adequately provided for in the partion effected amongst the legal heirs of Siddivinayaga Mudaliar, on the whole, in the light of the above facts and circumstances of the case and considering the principles of law outlined by the Apex Court as above stated, the contention of the appellant's counsel that the respondent's suit is in bad for non joinder of Bhagyalakshmi, as such, cannot be accepted in any manner. 16. The appellant having laid the suit claiming exclusive title to the suit property and the appellant having failed to establish his case and prove his exclusive claim of title to the suit property as above discussed, when it is found that the appellant cannot succeed on the weakness of the defendant's case as outlined in the decision of the Apex court reported in AIR 2014 Supreme Court 937 (Union of India and others Vs. Vasavi Co.op. Housing Society Ltd., and others) and when it is found that the respondent has purchased the shares of the other sons of Siddivinayaga Mudaliar in the suit property and accordingly even in the sale deed of the respondent, the appellants vendor had been alloted two cents of land in the suit survey number, to which only he would be entitled to claim at the most as above discussed, accordingly it is found that the courts below are fully justified in upholding the suit for partition laid by the respondent. 17. In the light of the above discussion though the oral plea of exchange projected by the appellant cannot be accepted, it is found that the respondent's suit in O.S.No.231 of 1998 cannot be defeated on the plea of non joinder of Bhagyalakshmi as above discussed and considering the patta document projected by the appellant not being a document of title and also not establishing his claim of adverse title as above discussed, it is found that Ex.A2 patta, would not, in any manner, serve the case of the appellant. The substantial questions of law formulated in this second appeal are accordingly answered. 18. The substantial questions of law formulated in this second appeal are accordingly answered. 18. For the reasons aforestated, both the second appeals fail and are accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.