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2018 DIGILAW 3417 (MAD)

G. Sundarajan v. G. Rajendran

2018-10-01

T.RAVINDRAN

body2018
JUDGMENT 1. Challenge in this Second Appeal is made to the judgment and decree dated 19.09.2014 passed in A.S. No. 60 of 2003 on the file of subordinate Court, Arni confirming the judgment and decree dated 29.08.2003 passed in O.S. No. 28 of 2001 on the file of the Court of Additional District Munsif, Arni. 2. The second appeal has been admitted on the following substantial questions of law. "(a) Whether the Courts below were right in not dismissing the suit for non-impleading the Government as a party, when it is an admitted case that the Government is the absolute owner of the property? (b) Whether the findings of the courts below were right in simply discarding Ex.B12 which relates to the suit property showing possession on the part of the 1st defendant? And (c) Whether the courts below were right in decreeing the suit simply based on the House Tax Receipts and one 'B' Memo alone? 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. The materials placed on record go to show that the suit property is the proramboku property belonging to the Government. Thus, it is found that the plaintiff, claiming the possession and enjoyment of the suit property and accordingly seeking that she is entitled to obtain the grant of patta in her favour in respect of the suit property, accordingly had laid the suit against the defendants for the appropriate reliefs. Later, it is found that as regards the relief sought for by the plaintiff against the defendant 6 and 7 for the issuance of the grant of patta in her favour in respect of the suit property, the said relief has not come to be pressed by the plaintiff and accordingly it is seen that the suit as against the defendants 6 and 7, namely, the Tahsildar, Arni and the Sub Collector, Cheyyar has come to be dismissed. 5. The plaintiff is the wife of Chandrasekaran. 5. The plaintiff is the wife of Chandrasekaran. Now, according to the plaintiff, Gajan and her husband chandrasekaran are brothers and it is they, who had encroached the suit property belonging to the Government and put up a hut therein and enjoying the same and according to the plaintiff Gajan died and thereafter it is only her husband who had been enjoying the suit property by paying necessary encroachment taxes to the Government and it is also the case of the plaintiff that her husband parted with Rs. 20,000/- to the legal heirs of Gajan, namely, the defendants as such and obtained the document dated 22.05.1992 from them in his favour and thereby demolished the old hut put up therein and installed a new foundation/super-structure in the suit property by putting up a compound wall, etc. and accordingly it is stated that her husband and thereby the plaintiff, is in the possession and enjoyment of the suit property and inasmuch as the defendants attempted to interfere with their possession and enjoyment, according to the plaintiff, she had been necessiated to lay the suit for relief of permanent injunction against the defendants 1 to 5. 6. The defendants 1 to 5 resisted the plaintiff's suit disputing the claim of the payment of Rs. 20,000/- by the plaintiff's husband to the legal heirs of Gajan for giving up the suit property in his favour and also the execution of a document dated 22.05.1992 in his favour as alleged in the plaint and according to the defendants, they continue to remain in the occupation of the suit property right from the days of their predecessor in interest, namely, Gajan by paying necessary house tax in respect of the super-structure put up therein and enjoying the same and accordingly contended that the plaintiff is not in the possession and enjoyment of the suit property and also put forth the case that the plaintiff, taking advantage of her husband's position, who is a retired police officer, on that basis attempted to exclude the defendants from the enjoyment of the suit property illegally and thereby created certain documents and accordingly contended that that plaintiff is not entitled to obtain the relief sought for against them. 7. As above noted, the suit property belongs to the Government. 7. As above noted, the suit property belongs to the Government. Being a poramboku property, as admitted by the plaintiff, her husband Chandrasekaran and his brother Gajan had encroached into the suit property and put up a hut therein and living there. Thus, it is found that the plaintiff, on her own, has admitted that her husband as well as the predecessor in interest of the defendants 1 to 5, namely, Gajan, had originally encroached into the suit property and enjoying the same by putting up a hut therein and also by paying necessary encroachment taxes to the Government with reference to the same. Thereafter the plaintiff has claimed exclusive and absolute possession of the suit property on the footing that her husband had paid Rs. 20,000/- to the legal heirs of Gajan and obtained the document from them on 22.05.1992 in his favour and thereby it is the case of the plaintiff that her husband and thereby she, has been in the exclusive possession and enjoyment of the suit property by putting a new super-structure therein and enjoying the same by paying the taxes, etc. However, the abovesaid case of the payment of Rs. 20,000/- to the legal heirs of Gajan and the execution of a document in favour of the plaintiff's husband with reference to the suit property has been strongly repudiated by the defendants in the written statement. 8. Despite the above defence of the defendants, when the plaintiff has admitted that her husband along with his brother encroached into the suit property and enjoying the same and subsequently put forth exclusive claim of possession and enjoyment of the suit property by her husband and thereafter by her, based on the execution of a document dated 22.05.1992 in favour of her husband by the legal heirs of Gajan, one would have expected the plaintiff to produce the said document in the matter for sustaining her case. However, the alleged document dated 22.05.1992 said to have been executed by the legal heirs of Gajan in favour of her husband Chandrasekaran has not been placed before the court for consideration. However, the alleged document dated 22.05.1992 said to have been executed by the legal heirs of Gajan in favour of her husband Chandrasekaran has not been placed before the court for consideration. Thus, it is found that the abovesaid plea projected by the plaintiff, has no element of truth in the same and accordingly inasmuch as the legal heirs of Gajan had not parted with their possession and enjoyment of the suit property in favour of her husband as claimed by the plaintiff, it is found that the plaintiff has not endeavoured to place the abovesaid document for consideration. Despite the same, the courts below seem to have accepted the payment of Rs. 20,000/- to the legal heirs of Gajan in respect of the execution of the alleged document in favour of the plaintiff's husband based on the evidence of PW4. However, when the document in question dated 22.05.1992 had not even been produced before the courts below, it is unable to be understood as to how the courts below had proceeded to uphold the case of the plaintiff that her husband had paid a sum of Rs. 20,000/- in favour of the legal heirs of Gajan with reference to the alleged execution of the document in his favour in respect of the suit property. Therefore, the acceptance of the abovesaid plaintiff's case by the courts below based on the unreliable evidence of PW-4 is found to be totally erroneous and unacceptable. 9. Materials placed on record go to show that the only 'B' memo marked in the case as Ex.A1 stands in the name of the plaintiff's husband and Gajan. To claim the possession and enjoyment of the suit property, the plaintiff is found to have marked the house tax receipts as Exs.A2 to A13. To establish that the defendants are in the possession and enjoyment of the suit property, the defendants have also produced the adangal extracts of various faslies commencing from 1394 marked as Exs. B1 to B11 ending with falsi 1403 as well as also produced the house tax extract of the year 1998 marked as Ex.B12 and the demand notice extracts marked as Exs.B13 to B18, as well as the house tax receipts marked as Exs.B19 to B22, the voter's card as Ex.B23 and the family card as Ex.B24. B1 to B11 ending with falsi 1403 as well as also produced the house tax extract of the year 1998 marked as Ex.B12 and the demand notice extracts marked as Exs.B13 to B18, as well as the house tax receipts marked as Exs.B19 to B22, the voter's card as Ex.B23 and the family card as Ex.B24. The trial court, on discussing the abovesaid documents projected by the plaintiff as well as the defendants, had come to the conclusion that the documents projected by the defendants also pertains to the suit property, however, on the premise that the defendants have not placed any document to show that they are in the possession and enjoyment of the suit property after 1992, on that premise, proceeded to uphold the plaintiff's case as such. However, as rightly put forth by the defendants' counsel, when the suit property is only the poramboku property belonging to the Government and when originally the suit property had been encroached by both Gajan and Chandrasekaran as admitted by the plaintiff and when the 'B' memo marked as Ex.A1 stands in their name, both parties have produced documents of possession evidencing their claim of possession to the suit property, the acceptance of the plaintiff's case by the courts below based on the evidence of PWs. 3 and 4, as such, cannot be rightly countenanced. As above noted, insofar as the evidence of PW-4, when the document dated 22.05.1992 said to have been executed by the legal heirs of Gajan has not been cared to be produced by the plaintiff for sustaining her case, it is found that the evidence of PW-4, cannot at all, be relied upon for any purpose much less for upholding the plaintiff's claim of the possession of the suit property as put forth by them. Similarly, as rightly contended by the defendants' counsel, when PW-3 claims to be the supplier of bricks and also claimed that he had been appointed as the watchman by the plaintiff's husband for a particular period of time, his evidence, as such, cannot be safely relied upon for upholding that the plaintiff and her husband has been in the possession and enjoyment of the suit property as put forth by them. 10. 10. The documents projected in the matter both on the plaintiff's side and on the side of the defendants would go to show that the family members of Gajan, namely, the defendants, were also residing in the suit property for several years and accordingly the defendants are able to produce the adangal extracts and the tax receipts over a period of time in this matter and accordingly it is seen that the defendants have also, prima facie, established their possession and enjoyment of the suit property right from the days of Gajan. The dispossession of the defendants from the suit property has been projected by the plaintiff only on the basis of the alleged document said to have been executed by them dated 22.05.1992. When that document has not seen the light of the day, on the other hand, when from the materials placed on record by both the parties, it is found that both are in the possession and enjoyment of the suit property and the trial court also having accepted the documents projected by the defendants, only on the premise that the defendants have failed to establish their possession and enjoyment of the suit property from 1992, on that untenable notion, proceeded to uphold the plaintiff's case. However, when the possession of the defendants' predecessors in interest of the suit property has been admitted by the plaintiff herself and accordingly, the defendants have also produced the documents of possession right from 1984 faslies, in such view of the matter, it is seen that the plaintiff not having established her exclusive claim of possession and enjoyment of the suit property and the suit property belonging to the Government as such and both parties are vying with each other for claiming the possession and enjoyment of the same and at one point of time their joint possession has been admitted by the plaintiff herself and the dispossession of the defendants, there from has not been established in any manner and thereafter, the parties had placed documents evidencing their respective possession, in such view of the matter, the courts below are found to be not justified in upholding the plaintiff's claim of exclusive possession and enjoyment of the suit property based on a few tax receipts projected by them marked as Exs.A2 to A13. By way of the same, it is found that the courts below, though, had found acceptance with the documents of possession projected by the defendants, however, on the footing that after a particular point of time, the defendants have failed to establish their possession and enjoyment of the suit property and the factual position being otherwise as above discussed, when it is seen that the dispossession of the defendants from the suit property as sought to be made out by the plaintiff, not having been established in the manner known to law, the joint possession and enjoyment of the suit property by the plaintiff as well as the defendants cannot be easily overlooked and therefore it is seen that the courts below are not justified in granting the relief of permanent injunction in favour of the plaintiff as if the plaintiff is in the exclusive possession and enjoyment of the suit property. 11. In the light of the above discussions, though the suit property is found to be belonging to the Government in as much as the parties are competing with each other as regards their claim of the suit property based on their alleged possession, in such view of the matter, it is seen that the non impleadement of the Government as a party, would not, in any manner, affect the plaintiff's case as such. When the defendants have placed adequate documents to evidence their claim of exclusive possession to the suit property, it is found that the courts below are not justified in discarding the same and upholding the plaintiff's claim of possession to the suit property based on certain house tax receipts in the name of the plaintiff. As rightly put forth by the defendants' counsel, the house tax receipts projected by the plaintiff seem to be based on the alleged document of title said to have been executed by the legal heirs of Gajan in favour of her husband Chandrasekaran on 22.05.1992. It is to be noted at this juncture that the plaintiff's husband is a retired police officer and the defence has been taken by the defendants that only on account of his influence, the plaintiff has created the documents, which plea cannot be easily ruled out, particularly, when the plaintiff's claim of exclusive possession of the suit property as sought to be made out in the plaint has not been established as above discussed. Accordingly, the joint possession of the brothers Gajan and Chandrasekaran of the suit property having been admitted and the dispossession of the legal heirs of Gajan having not been established and when both the plaintiff and the defendants have placed the documents evidencing their respective possession of the suit property one way or the other, in such view of the matter, the judgment and decree of the courts below granting the relief of permanent injunction in favour of the plaintiff are liable to be set aside. 12. The substantial questions of law formulated in this second appeal are accordingly answered against the plaintiff and in favour of the defendants. 13. In conclusion, the judgment and decree dated 19.09.2014 passed in A.S. No. 60 of 2003 on the file of subordinate Court, Arni confirming the judgment and decree dated 29.08.2003 passed in O.S. No. 28 of 2001 on the file of the Court of Additional District Munsif, Arni are set aside and resultantly, the suit laid by the plaintiff in O.S. No. 28 of 2001 is dismissed with costs. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.