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2018 DIGILAW 4164 (MAD)

Selvaraju v. M. Elumalai

2018-11-09

T.RAVINDRAN

body2018
JUDGMENT : 1. Challenge in this second appeal is made to the Judgement and Decree dated 24.03.2015 passed in A.S.No.20 of 2012 on the file of the Principal Subordinate Court, Tindivanam, reversing the Judgment and Decree dated 11.01.2012 passed in O.S.No.374 of 2009 on the file of the Principal District Munsif Court, Tindivanam. 2. The parties are referred to as per their rankings in the trial Court. 3. Suit for declaration, possession and mense profit. 4. The case of the plaintiff, in brief, is that the suit properties and the other properties belong to the plaintiff and the suit properties belonged to the plaintiff's father Manicka Gounder as his separate properties and accordingly, they had been enjoyed by the plaintiff and his father as the joint family properties and the patta stood in the name of the plaintiff in respect of the suit properties and other properties in patta No.560 and accordingly, the suit properties had been in the possession and enjoyment of the plaintiff by payment of kists etc., and even during the New Updating Registry Scheme, the patta No.57 in respect of the suit properties had been issued in favour of the plaintiff and accordingly, the plaintiff has been in continuous possession and enjoyment of the suit properties and by way of his long and continuous possession and enjoyment, he had also prescribed title to the suit properties by way of adverse possession. The defendants have other lands adjacent to the suit properties and accordingly, with a view to grab the suit properties, the defendants had been attempting to encroach into the suit properties and resultantly, during the end of 2007, unlawfully, they had encroached into the suit properties and put up a poultry shed and despite the resistance of the plaintiff, the defendants claim that joint patta had been issued in respect of the suit properties in their favour also, however the defendants have no right whatsoever in respect of the suit properties and claim that the issuance of the joint patta in favour of the defendants in respect of the suit properties is not true and even if any joint patta is issued, the same had not been legally issued in favour of the defendants and based on the same, the defendants are not entitled to claim any title to the suit properties and as the defendants had failed to entrust the possession of the suit properties to the plaintiff, which they had unlawfully encroached, according to the plaintiff, he has been necessitated to lay the suit for appropriate relief’s. 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. It is false to state that the suit properties belonged to the plaintiff's father Manicka gounder and the patta had been issued in favour of the plaintiff in respect of the suit properties and it is false to state that the suit properties had been in the possession and enjoyment of the plaintiff and his father and on the other hand, based on the re-survey patta, the plaintiff is laying a false claim to the suit properties and never enjoyed the suit properties at any point of time and the patta projected by the plaintiff cannot be construed as a document of title for upholding the plaintiff's claim of title to the suit properties. The suit properties are lying in a survey No.111 measuring total total extent of 5 Acres and 99 cents and in the same, 2 acres belonged to Arunachala Gounder and Ponnusamy Gounder and accordingly, Arunachala gounder had alienated his 1 acre in the suit survey in different moieties as 0.50 cents, 0.25 cents and 0.25 cents in favour of Chinnammal by way of a registered sale deed dated 29.03.1956 and Chinnammal is the wife of Ponnusamy gounder and accordingly, the legal heirs of Chinnammal had alienated two acres of lands belonging to Ponnusamy gounder and Chinnammal, as abovenoted, in favour of the first defendant and his brother by way of a registered sale deed dated 04.12.1985 and accordingly, the first defendant and his brother are in the possession and enjoyment of the 2 acres of lands in the suit survey number and as regards the remaining extent of 3 acres 99 cents, Lakshmi ammal, the wife of the first defendant's brother Elumalai, had purchased 0.50 cents within the specific boundaries from the sons of Govinda Gounder and 0.94 cents in the suit properties ancestrally belonged to Veerappa Gounder and others. The first defendant had purchased the same from the legal heirs of Veerappa Goudner by way of the sale deed dated 12.08.2009 and enjoying the same and accordingly, the entire extent of the suit survey number has been in the possession and enjoyment of the defendants and their predecessors in interest and neither the plaintiff nor his predecessor in interest has any right and possession of the same at any point of time and the plaintiff, taking advantage of his influence by obtaining patta in respect of the suit properties without any authority and falsely, claiming title to the suit properties. Excluding 3 acres 44 cents in the suit properties belonging to the defendants 1 & 2 out of 5 acres and 99 cents, remaining 1 acre 66 cents belonged to Pachaiya gounder and Arumuga gounder and others by way of purchase from Lakshmi ammal W/o.Pavadai Nattar under the sale deed dated 09.08.1972 and the remaining extent had been purchased by Devadoss and Abdul Raseed and therefore, the plaintiff is not entitled to any extent in the said survey and the defendants had been enjoying the suit properties putting a poultry shed several years ago and therefore, the claim of the plaintiff that the defendants had recently trespassed into the suit properties and put up a poultry shed is false and the plaintiff by projecting the kist receipts in respect of other properties, has put forth a wrong claim to the suit properties and hence, the plaintiff has no cause of action to lay the suit and therefore, the suit is liable to be dismissed. 6. In support of the plaintiff's case, PW1 was examined and Exs.A1 to A22 were marked. On the side of the defendants, DWs1 to 4 were examined and Exs.B1 to B17 were marked. 7. 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. On appeal, the first appellate Court, on an appreciation of the materials placed on record, was pleased to set aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiff, decreed the suit as prayed for. Impugning the same, the second appeal has come to be laid. 8. At the time of the admission of the second appeal, the following substantial questions of law were formulated for consideration: “(a). Whether the 1st Appellate Court was right in treating patta as a document of title and granting declaration of title in favour of the respondent, when admittedly no proof has been produced as to when original patta was granted by subdividing the property comprised in S.No.111 of Alathur Village, Tinidivanam Taluk? (b). Whether the 1st Appellate Court was right in decreeing the suit of the respondent by finding holes in the defence raised by the appellants/defendants in the written statement and in Exhibit B-4 without testing the strength of pleading and proof produced by the plaintiff/respondent? (b). Whether the 1st Appellate Court was right in decreeing the suit of the respondent by finding holes in the defence raised by the appellants/defendants in the written statement and in Exhibit B-4 without testing the strength of pleading and proof produced by the plaintiff/respondent? (c). Whether the 1st Appellate Court was right in ignoring the contradictions in the pleading and proof of the respondent in producing Kisth receipts for the years 2008 and 2009, when admittedly the respondent/plaintiff pleads that they were dispossessed in 2007 and that appellants constructed a poultry shed in the suit schedule properties in 2007?” 9. The suit properties are described in the plaint as comprised of an extent of 0.22.0 Ares in survey No.106/9 (old Survey No.111/11-0.50cents) and an extent of 0.16.0 Ares in survey No.106/11 (old survey No.111/13 – 0.41 cents). Therefore, according to the plaintiff's case, it is seen that he claims title to an extent of 50 cents in old survey No.111/11 and an extent of 41 cents in old survey No.111/13. Materials placed on record go to show that the survey No.111 before the Sub division comprised of a total extent of 5.99 cents and out of the same, the plaintiff claims title to an extent of 91 cents, as above stated. However, the plaintiff has not described the two items of the properties set out in the plaint as to within which specific boundaries they are located. When it is seen that the old survey No.111 comprises of an extent of 5 acres 99 cents and out of the same, the plaintiff claims title to an extent of only 91 cents by showing in two items, it is for the plaintiff to detail the plaint schedule properties by setting out the boundaries, within which, the two items of the properties are located. However, the clear description of the properties had not been spelt out by the plaintiff in the plaint. 10. The specific plea of the plaintiff in the plaint is that the suit properties belonged to his father Manicka Gounder absolutely and accordingly, the suit properties had been enjoyed by his father and him as the joint family properties and resultantly, the patta had come to be issued in his favour in respect of the suit properties in old patta No.560 and the new patta No.57. Therefore, when it is found that the plaintiff has based his claim of title to the suit properties on the footing that the same are the separate and self acquired properties of his father, as rightly argued by the defendants, the plaintiff should have come forward with a clear case as to how his father had acquired the suit properties as claimed in the plaint. On the other hand, the document relied upon by the plaintiff for his father's title to the suit properties is the patta marked as Ex.A1 and on a perusal of Ex.A1, it is seen that the same stands in the name of Manicka Gounder and in the said document, various properties are mentioned in different survey numbers including survey No.111/8 and 111/13 and the various properties described in the document are shown to be acquired by inheritance and sale. However, there is no clear cut evidence on the part of the plaintiff as to, of the properties detailed in Ex.A1, which are the properties had been acquired by his father ancestrally and which are the properties had been acquired by him separately by way of his own acquisition and when according to the plaintiff, as averred in the plaint, the suit properties are the separate properties of his father, in such view of the matter, it is for the plaintiff to establish that his father had acquired the suit properties separately in the manner known to law. On the other hand, other than Ex.A1 patta, there is no other prior document placed on the part of the plaintiff evidencing his father's claim of title to the suit properties in particular. When Ex.A1 denote two way of acquisition of the suit properties and other properties as detailed therein and when as per the plaint averments, the suit properties are only the separate properties of his father Manicka Gounder, the plaintiff having failed to establish the above said case on the basis of Ex.A1 patta document, it cannot be construed sans proof that the plaintiff's father had acquired the suit properties separately as put forth in the plaint. As rightly argued by the defendants, a mere entry in the revenue record as that of Ex.A1 would not confer or extinguish title in respect of the person in whose name the same stands and when the revenue record cannot at all be construed as a document of title, it is found that by way of Ex.A1 patta, we cannot conclude safely that the suit properties are the separate properties of Manicka Gounder. Furthermore, the plaintiff would also rely upon the patta marked as Ex.A2, which stands in the name of his father in patta No.57. There is also a reference about the old survey numbers of the suit properties as 111/11 and 111/13. Thus, it is found that unable to establish his father's claim of title to the suit properties, in particular, separately as pleaded in the plaint, the plaintiff seeks claim of title to the suit properties only based upon Ex.A2 patta for his claim of title to the suit properties. Similarly, the plaintiff has also placed the notice issued under the Survey and Boundaries Act to his father with reference to the suit properties and other properties marked as Ex.A3 and based on the same also, claim title to the suit properties. However, when Ex.A3 is found to be only a notice issued under The Survey and Boundaries Act, it is seen that Ex.A3 alone by itself would not in any manner to be useful to sustain the plaintiff's claim of title to the suit properties. The next document relied upon by the plaintiff for claiming title to the suit properties is Ex.A4 patta issued under the Updating Registry Scheme in favour of the plaintiff as well as in the name of the first defendant as well as another person in respect of the suit properties and other properties. The next document relied upon by the plaintiff for claiming title to the suit properties is Ex.A4 patta issued under the Updating Registry Scheme in favour of the plaintiff as well as in the name of the first defendant as well as another person in respect of the suit properties and other properties. Thus, it is found that in Ex.A4, not only the name of the plaintiff is mentioned, but even the name of the first defendant and the name of another person has been disclosed and as rightly putforth, when it is the claim of the defendants that they had also acquired certain extents in the old suit survey No.111 and when it is further seen that even prior to the issuance of Ex.A1 patta in the name of the plaintiff's father, Chinnammal, the defendants' predecessor in interest had acquired an extent of 1 acre of lands in the said survey number by way of the sale deed dated 29.03.1956 marked as Ex.B1, accordingly, it is seen that the joint patta only had been issued under Ex.A4 including the name of the defendant. Therefore, by way of Ex.A4 patta, it would not be safe to conclude that the patta for the suit properties had been exclusively and validly issued in favour of the plaintiff. Other than Exs.A1 to 4 pattas, the other documents projected by the plaintiff are only the kist receipts ranging from Exs.A5 to 22. In toto, it is found that the plaintiff, for claiming title to the suit properties, mainly relies upon the patta documents marked as Exs.A1 & A2 and as rightly putforth, when Exs.A1 and A2 documents, being the revenue records, cannot be read equivalent to the title documents and when the plaintiff has failed to establish his case projected in the plaint that the suit properties are the separate properties of his father and with reference to the same, there is no material forthcoming and when it is not the case of the plaintiff in the plaint that the suit properties are the ancestral properties of his father, in such view of the matter, on the basis of the patta documents projected by the plaintiff, the first appellate Court is found to have totally erred in upholding the plaintiff's claim of title to the suit properties. 11. 11. Furthermore, when admittedly as seen from the materials placed on record, the old survey No.111 comprised of an extent of 5.99 cents and the plaintiff seeks title in respect of only 91 cents, out of 5.99 cents, it is for the plaintiff to clearly detail and establish as to where the two items of the suit properties are located with reference to which he claims title. When the same has not been spelt out by the plaintiff either in the plaint or during the course of his evidence and when the patta documents projected by the plaintiff also do not in any manner give any indication as to where the above said two items of the properties are lying and in such view of the matter, the plaintiff's case based upon the patta documents cannot be accepted straightaway for granting the relief’s prayed for by the plaintiff. 12. No doubt, as could be seen from the defence put forth by the defendants, they claim to have acquired various extent of lands in the suit survey numbers, in all, of an extent of 3.44 cents by way of Exs.B1 to B4. However, it is seen that as regards the suit properties, they claimed title by way of the sale deed dated 12.08.2009 marked as Ex.B4. However, it is seen that as regards the suit properties, they claimed title by way of the sale deed dated 12.08.2009 marked as Ex.B4. According to the defendants, as put forth in the written statement, they had purchased an extent of 94 cents in the suit survey number from the legal heirs of Veerappa Gounder and on a perusal of Ex.B4 sale deed, when it is seen that the alleged vendors of the defendants are found to have made a claim that they had purchased the above said extent of the properties in the said survey numbers by way of oral sale on 30.04.1998 and enjoying the same and with reference to the above said case, there is no material projected worth acceptance and when the oral sale of the above said extent has not been validly pleaded and proved and also their enjoyment has also not been proved in the manner known to law, it is seen that the defendants have failed to establish their vendors' claim of title to the extent of 94 cents in the suit survey and in such view of the matter, the claim of the defendants that they had acquired an extent of 94 cents by way of Ex.B4 sale deed has been rightly negatived by the first appellate Court. No doubt, the defendants have failed to establish their claim of title to the suit properties, in particular, on the strength of Ex.B4 sale deed. However, as abovepointed out, the plaintiff having come forward with the suit seeking particular reliefs based on a set of facts and when the abvoesaid facts projected by the plaintiff had been seriously challenged by the defendants, it is for the plaintiff to establish the same by acceptable and reliable materials. Merely because, the defendants have failed to establish their claim of title to the suit properties as projected by them, on that score alone, we cannot hold that the suit properties only belonged to the plaintiff. Merely because, the defendants have failed to establish their claim of title to the suit properties as projected by them, on that score alone, we cannot hold that the suit properties only belonged to the plaintiff. In such view of the matter, the approach of the first appellate Court that inasmuch as the defendants have failed to establish their claim of title to the suit properties on the strength of Ex.B4 sale deed and inasmuch as the patta for the suit properties stands in the name of the plaintiff's father vide Exs.A1 & A2 therefore, it is only the plaintiff, who is entitled to the suit properties, as such, cannot be readily countenanced. 13. When it is found that even prior to Ex.A1 document, the properties comprised in the suit survey number had been dealt with by the sale transactions effected by various persons and even thereafter, the other extents had been dealt with by various sale transactions as could be seen from the documents projected by the defendants marked as Exs.B1 to B3 & B5, accordingly, it is seen that the defendants had acquired an extent available in the suit survey number by way of various sale transactions as projected by them. No doubt, they are unable to establish their vendors' title to the suit properties, in particular, on the strength of Ex.B4 sale deed. But when the properties comprised in the said survey had been dealt with by independent sale transactions and when, according to the plaintiff himself, as projected in the plaint, his father had acquired the suit properties separately, however as to with reference to the same, there is no material or proof forthcoming other than the documents marked as Exs.A1 & A2 and when patta document cannot at all be construed as a document of title in law, it is seen that the plaintiff cannot be granted the relief’s prayed for on the strength of the patta documents. 14. No doubt, the plaintiff has filed various kist receipts ranging from Exs.A5 to A22. 14. No doubt, the plaintiff has filed various kist receipts ranging from Exs.A5 to A22. But, when it is seen that in respect of the above said patta numbers mentioned in the kist receipts, the plaintiff owns other lands as could be seen from the documents projected by him and when there is no clear indication contained in the kist receipts that they pertain only to the suit properties as described in the plaint, the kist receipts produced by the plaintiff would serve no purpose. 15. The plaintiff knowing fully well that his father or he had not acquired a valid title to the suit properties and able to secure only the patta with reference to the same, accordingly, is found to have projected the claim of title to the suit properties on the strength of adverse possession by putting forth that the suit properties are in his possession and enjoyment continuously and beyond the statutory period. By way of taking the above said plea, impliedly, it is seen that the plaintiff has admitted the defendants' claim of title to the suit properties. However, when with reference to the claim of adverse possession to the suit properties, there is no plea projected in the plaint as to when from the plea of adverse possession had commenced and when there is no reliable material placed on the part of the plaintiff that he has been exercising absolute ownership over the suit properties openly, continuously and uninterruptedly by exhibiting animus attitude against one and all including the defendants, it is seen that the plaintiff's claim of title to the suit properties based upon the adverse possession cannot be accepted in any manner. 16. The plaintiff would also rely upon the boundary recitals found in Ex.B2 sale deed dated 04.12.1985. However, as rightly putforth by the defendants' counsel, the boundary recitals of its own would not in any manner confer title to the suit properties on the plaintiff and when from the boundary recitals contained in Ex.B2, there is no indication, as to which extent of land, the same pertains to, the above said boundary recitals cannot be the basis for upholding the plaintiff's claim of title to the suit properties. In such view of the matter, it is seen that the above said factor on its own would not be useful to sustain the plaintiff's claim of title to the suit properties as described in the plaint. 17. The first appellate Court seems to have accepted the plaintiff's case, merely based upon the patta documents. However, when the plaintiff has failed to establish his valid claim of title to the suit properties other than patta documents and when the kist receipts projected by him are not shown to be pertaining to the suit properties as above discussed, when admittedly under the same patta, the plaintiff owns other properties in various survey numbers and when with reference to the claim of the suit properties as belonging to him based upon the sub divisions effected in the suit survey number, the plaintiff has not placed any material to show that the notice had been issued to all the stake holders having interest in the suit survey numbers before the sub division had been effected in the manner known to law, in such view of the matter, merely on the production of Exs.A1 & A2 patta, it is seen that the first appellate Court has totally erred in accepting the plaintiff's case by setting aside the well considered judgment of the trial Court. That apart, when from the evidence of DWs1 to 4, we are able to asses the continuous and long enjoyment of the suit properties by the defendants, the claim of the plaintiff that the defendants had encroached into the suit properties only at the end of 2007 by using force as such cannot be legally countenanced, when there is no material pointing to the same. In this matter, other than the plaintiff, no other witness has been examined to establish that the plaintiff had, at any point of time, been in the possession and enjoyment of the suit properties as put forth by him. If really, the plaintiff had been in the possession and enjoyment of the suit properties right from 1974 onwards or much prior to the same and continued to be in possession, till the alleged disposition, the plaintiff would have endeavoured to establish the same by examining the neighbouring land owners and other independent witnesses. If really, the plaintiff had been in the possession and enjoyment of the suit properties right from 1974 onwards or much prior to the same and continued to be in possession, till the alleged disposition, the plaintiff would have endeavoured to establish the same by examining the neighbouring land owners and other independent witnesses. However when the plaintiff has not placed any acceptable evidence through independent persons as regards his possession and enjoyment and when the documents projected by the plaintiff are not shown to be pertaining to the suit properties, in particular, as above discussed and when the suit properties had not been described by giving the boundaries within which they are located, merely on the factor that the defendants had failed to establish their claim of title to the suit properties, that by itself, would not be the basis for upholding the plaintiff's case. 18. In this connection, the principles of law outlined in the authority relied upon by the defendants' counsel reported in (2014) 2 Supreme Court Cases 269 (Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others) are taken into consideration and followed as applicable to the case at hand. 19. In the light of the above discussions, the first appellate Court had erred in treating the patta document projected by the plaitnff as a document of title for granting the declaration of title in favour of the plaintiff, when there is no material placed on the part of the plaintiff to show that the patta documents projected by him had been validly issued in his favour or in favour of his father by subdividing the suit survey numbers as per law and after issuing notice to all the stake holders of the suit survey number. The first appellate Court is also found to have erred in picking holes in the defence version on the footing that the defendants had failed to establish their vendors' title to the suit properties vis-a-vis Ex.B4 sale deed and failed to note that the onus of proving his case squarely rests only upon the plaintiff and not on the defendants. The first appellate Court is also found to have erred in picking holes in the defence version on the footing that the defendants had failed to establish their vendors' title to the suit properties vis-a-vis Ex.B4 sale deed and failed to note that the onus of proving his case squarely rests only upon the plaintiff and not on the defendants. The first appellate Court has failed to consider the evidence projected by the defendants through the documents projected by them as well as the oral evidence tendered through DWs1 to 4 and when there is no material placed on the part of the plaintiff that he had been dispossessed only during the end of 2007 and that thereafter only the defendants had put up the poultry shed, in such view of the matter, it is seen that alleged disposition of the plaintiff during the end of the 2007 having not been established by the plaintiff and his prior possession and enjoyment of the suit properties also having not been established by the plaintiff, in all, it is seen that the plaintiff has failed to establish a valid cause of action to institute the present suit. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendants. For the reasons afore stated, the Judgment and Decree dated 24.03.2015 passed in A.S.No.20 of 2012 on the file of the Principal Subordinate Court, Tindivanam are set aside and the Judgment and Decree dated 11.01.2012 passed in O.S.No.374 of 2009 on the file of the Principal District Munsif Court, Tindivanam are restored. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.