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2018 DIGILAW 3285 (MAD)

Ramalingam (Deceased) v. Kuppirusan (Deceased)

2018-09-26

R.HEMALATHA

body2018
JUDGMENT R. HEMALATHA, J. 1. This is a second appeal against the decree and judgment in A.S.77 of 1994 on the file of the Additional District Judge, Villupuram, which reversed the decree and judgment in O.S.No.956 of 1990 on the file of the District Munsif, Villupuram. 2. For the sake of convenience, all parties are referred to by their original positions in the O.S.No.956 of 1990. 3. The plaintiff and the father of the defendants Rangasamy are brothers and properties in Melpatti Village were purchased in the name of the latter, as he was elder. The plaintiff and his brother Rangasamy mortgaged the property to one Santhan on 17.08.1951 (Ex.A3). The said Rangasamy created an usufructuary mortgage on 17.04.1959 in favour of one Sanyasi Gounder on properties, including those belonging to the plaintiff (Ex.A4). Subsequently, another usufructuary mortgage on 14.11.1968 (Ex.A5) was executed by the plaintiff in favour of one Appadurai and the said Rangasamy was an attestor. Thereafter, the mortgage was assigned in favour of one Chinnaiyan in 1974 and the plaintiff had discharged the debt, thereby establishing his right as the absolute owner for the suit properties. When the defendants tried to trespass into his property, the plaintiff caused a legal notice dated 19.02.1990 (Ex.A1), for which a reply dated 20.03.1990 (Ex.A2) was issued by the defendants containing false allegations. In the reply notice, there was a mention about oral partition between the plaintiff and the defendants' father Rangasamy, in which the first item of the suit property i.e. northern side 0.07 cents and the entire extent mentioned as the second item were given to the defendants' father is far from true. Despite the legal notice in 1990, the defendants tired to trespass into his property and hence the suit for declaration and recovery of possession and for mesne profits as far as the suit properties are concerned. 4. The defendants on the other hand have resisted the suit by averring that the alleged facts narrated by the plaintiff are false. They have admitted that there was an oral partition of the 0.14 cents in S.No.7/8 (which is the 1st item of the suit property) and stated that the northern portion of 0.07 cent was given to the defendants' father Rangasamy and the southern portion of 0.07 cents to the plaintiff. The second item of 0.72 cents in S.No.89/26 was never a joint family property. The second item of 0.72 cents in S.No.89/26 was never a joint family property. They were purchased by Rangasamy and has been under the enjoyment and possession of the defendants, after the demise of Rangasamy and they are entitled as per adverse possession also. There was an oral partition of 0.72 cents between the first defendant and the 2nd defendant. According to the defendants, the mortgage deeds said to have been executed by the defendant's father and the plaintiff, in which the defendants' father was an attestor are all created for the purpose of this suit. Even assuming that the mortgage deed was true, their father being an illiterate was deceived into signing it, using his ignorance. The defendants have prayed for dismissal of the suit stating that the plaintiff has not approached the court with clean hands and has not been precise to take this claim. 5. The plaintiff marked Ex.A1 to Ex.A8 and examined PW1 and Pw2, while the defendants marked Ex.b1 to Ex.B14 and examined Dw1 to Dw3. 6. The trial court while deciding on this case, had gone into the following aspects. (a) The Ex.A3 being the mortgage deed executed by both the plaintiff and Rangasamy dated 17.08.1951 in favour of one Santhan, clearly mentioned that the property mortgaged belonged to the defendants' father Rangasamy. (b) The Ex.B5, the mortgage deed executed by the plaintiff in favour of Appadurai was attested by the plaintiff's brother Rangasamy (father of the defendants), has been disputed by the defendants on the ground that they were copies and not originals. Though the brother of the plaintiff was also a witness to the mortgage deed, he was not examined as a witness in the suit. The plaintiff defended stating that the documents were more than 30 years and copies were acceptable evidence legally and that no objection was made by the defendants at the first instance while marking the document. Both the attestors were already no more and therefore, could not be examined as witness. The trial court accepting the contention of the defendants, admit the genuineness of the signature of their father Rangasamy on Ex.A5, concluded that the plaintiff failed to substantiate that Ex.B5 was indeed true and germane notwithstanding the fact that it was only a copy and not original. The trial court accepting the contention of the defendants, admit the genuineness of the signature of their father Rangasamy on Ex.A5, concluded that the plaintiff failed to substantiate that Ex.B5 was indeed true and germane notwithstanding the fact that it was only a copy and not original. (c) The Ex.B1 being the joint patta shows only the first item of the suit property and not the 2nd item, Ex.B2 shows that 18 cents in S.No.89/26 were purchased in 1944 and Ex.B3 shows another 18 cents in S.No.89/26 were purchased in 1954. Ex.B4 is the sale deed for 36 cents in S.No.89/26 purchased in 1945, all in the name of Rangasamy. The plaintiff has not substantiated that all these were purchased from out of the joint family income. (d) The depositions of Dw2 and Dw3 also substantiate the fact that the 2nd item of 72 cents was never in the possession and enjoyment of the plaintiffs and that the defendants' father Rangasamy had purchased the same through 3 sale deeds and that only the first item of 14 cents was the joint family property, which was orally partitioned as 7 cents each. Dw3 is the owner of the neighbouring plot of land and has deposed based on his 45 years association with the defendants as co-cultivators. 7. The trial court dismissed the suit for the reason that the plaintiff had failed to substantiate his claim for the suit property, especially his claim that the 2nd item of the suit property was a joint family property and that the defendants have encroached upon his property forcibly and unlawfully. 8. The first appellate court had made the following observations. (a) The oral partition between the plaintiff and his brother Rangasamy (father of defendants) were not substantiated by way of any evidence, by both sides, thereby making it not known regarding the date, year of partition and details of the properties. (b) The admissibility of the documents Ex.A3 to Ex.A5 was an important aspect. According to the first appellate court, the Ex.A4 to Ex.A5 were marked without any objection and that when documents more than 30 years old are not adduced in original and are also not objected to, while marking, the other factors have to be considered to add to their evidentiary value. According to the first appellate court, the Ex.A4 to Ex.A5 were marked without any objection and that when documents more than 30 years old are not adduced in original and are also not objected to, while marking, the other factors have to be considered to add to their evidentiary value. In the case of Ex.A4, the plaintiff was examined as Pw1 and in the case of Ex.A5, since both the attestors were dead, Ex.A6 and Ex.A7 which were the original made over document and the discharge of the dues by the plaintiff, are enough evidence for the veracity of Ex.A5. (c) The first appellate court also pointed out that Ex.A4 contained the sentence " properties in out possession and enjoyment" while referring to the 2nd item of the suit property meaning that it was a joint family property. (d) According to the first appellate court, Ex.A3 to Ex.A5 also proved that the item No.2 in S.No.89/26 of the suit property was a joint family property and was also subjected to the partition between the plaintiff and the father of the defendants, Rangasamy. Strangely, this is in contradiction to its earlier observation that the oral partition is not proved by both parties. (e) The first appellate court has also found inconsistence in the content of Ex.B6, the adangal extract and opined that the name of Chinnaiyan is found for Fasli 1396 and that of Chinnaiyan for Fasli 1397. Though Ex.B7, the ration card has been adduced by the defendants to prove that the first defendant had another name Chinnaiyan, first appellate court has harped on this aspect in the document and also on the admitted fact that no proper crop cultivation was found in the suit property and concluded that the claim of adverse possession by the defendants does not hold good. That the first defendant Ramalingam and Chinnaiyan were one and the same person was not accepted by the first appellate court. (f) The first appellate court finally concluded that the plaintiff had proved his title for the suit property and therefore, the decree of the trial court was liable to be set aside. 9. The first appellate court has chosen to remain silent on the contents of Ex.B1, the joint patta, which mentioned only the first item of the suit property about which there is no dispute. 9. The first appellate court has chosen to remain silent on the contents of Ex.B1, the joint patta, which mentioned only the first item of the suit property about which there is no dispute. That the first item was partitioned between the plaintiff and the defendants' father Rangasamy has been agreed by both parties. The 2nd item of the suit property does not find place in Ex.B1, the joint patta. The first appellate court has instead of giving importance to the vital aspect as to whether the plaintiff has satisfactorily proved his title, has ended in going with the plaintiff's possession. The onus to prove the title lies on the plaintiff and he cannot pick holes in the defendants' title is the well settled law and the plaintiff has neither produced kist receipt or for that matter any satisfactory evidence as to his ownership of the item No.2 of the suit property. Instead, he has relied on the innocuous aspects like the admissibility of the Ex.A3 to Ex.A5 not being adduced in originals. The signature of the defendants' father Rangasamy on the Ex.A5 has also not been satisfactorily substantiated. 10. The trial court had also rightly pointed out the deficiencies in the defendants case like the defendants have not adduced any documentary evidence for their father's possession or enjoyment of the suit properties, prior to 1984 and that the kist receipts adduced are pertaining to 1984-1993. There are also no satisfactory documentary or oral evidence for the partition of the 72 cent between the brothers viz. 1st defendant and 2nd defendant. But, despite these shortcomings, the plaintiff's onus to prove his title failed. It was also pointed out that the plaintiff ought to have proved that the signature as attestor in the Ex.A5 was Rangasamy's which they failed to do. 11. But the trial court had stood by the well settled principle of law that the plaintiff ought to have proved his title, which he has miserably failed to do so and hence, this court opines that the trial court was right in dismissing the suit. Therefore, the second appeal is liable to be dismissed. 12. In the result, (i) The second appeal is allowed. No costs. (ii) The decree and judgment dated 17.09.1997 passed in A.S.No.77 of 1994 by the Additional District Judge, Villupuram is set aside. Therefore, the second appeal is liable to be dismissed. 12. In the result, (i) The second appeal is allowed. No costs. (ii) The decree and judgment dated 17.09.1997 passed in A.S.No.77 of 1994 by the Additional District Judge, Villupuram is set aside. (ii) The decree and judgment dated 23.12.1993 passed in O.S.No.956 of 1990 by the Additional District Munsif is upheld.