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2018 DIGILAW 4461 (MAD)

S. Irudayaraj v. S. Simon Vetham

2018-12-07

T.RAVINDRAN

body2018
JUDGMENT : Challenge in this second appeal is made to the Judgment and Decree, dated 08.09.2014, passed in A.S.No.4 of 2012, on the file of the Subordinate Court, Sivagangai, confirming the Judgment and Decree, dated 12.11.2011, passed in O.S.No.2 of 2009, on the file of the District Munsif Court, Sivagangai. 2. The second appeal has been admitted on the following substantial questions of law: “i. Whether the first Appellate Court has committed an error in disbelieving the additional evidence and finding that the appellant/plaintiff is not entitled to the suit property on the basis of the same? ii. Whether the Courts below failed to find that the document of a third party filed and proved as per the Indian Evidence Act would clearly prove the title of the appellant/plaintiff in addition to his document of title? iii. Whether the Courts below have committed an error in ignoring the admission of D.W.1 in his examination relating to possession and enjoyment of the suit property as on date of institution of the suit? iv. Whether the order of the first Appellate Court dismissing the application for reception of additional evidence is supported by law relating to the reception of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, 1908?” 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 parties are referred to as per the rankings in the Trial Court for the sake of convenience. 5. The suit had been laid by the plaintiff for the reliefs of declaration and permanent injunction. In brief, according to the plaintiff, the suit property originally belonged to one Fathima Mari alias Mari ancestrally and accordingly, she had been granted Patta during the Updated Revenue Registry Scheme recognizing her continuous possession and enjoyment of the suit property and the plaintiff had purchased the suit property from the said Fathima Mari alias Mari, by way of a registered sale deed, dated 12.06.2006 and had also effected Patta transferred in his name and accordingly, been paying the kist to the suit property and enjoying the suit property along with other properties. Furthermore, according to the plaintiff, on account of the long and continuous possession and enjoyment of the suit property beyond the statutory period, he has also got prescriptive title by way of adverse possession. The defendants, without any manner of right or title over the suit property, had moved the District Revenue Officer, Sivagangai, seeking for cancellation of the Patta issued in the name of the plaintiff and thereby, attempting to interfere with the plaintiff's possession and enjoyment of the suit property and hence, it is stated by the plaintiff that he has been necessitated to institute the suit for appropriate reliefs. 6. 6. The case of the defendants, in brief, is that the suit property originally belonged to the grandfather of the first defendant and great grandfather of the second defendant, by name, Michael and the said Michael had one son, by name, Simiyon, who had two sons, namely, the first defendant and one Michael, who is the father of the second defendant and it is stated that Patta had been issued in the name of Michael, who is the grandfather of the first defendant and great grandfather of the second defendant, during the settlement and A-Register also stood in his name and the Patta Pass Book had been issued in the name of the first defendant's father Simiyon and in the partition effected amongst the said Simiyon and his two sons, namely, the first defendant herein and the father of the second defendant, in respect of the suit property and other properties, by way of a registered partition deed, dated 04.11.1977, it is stated that in the said partition, the suit property had been allotted to Simiyon, described as 9th Item in the B-Schedule of the partition deed and the plaintiff's vendor does not hail from the suit Village and therefore, the plaintiff's case that his vendor had owned the suit property ancestrally falls to the ground and the plaintiff's vendor, namely, Fathima Mari or her husband Mariyaraj had no connection whatsoever with the defendants' family in any manner and in the oral partition effected, the suit property had been allotted to the share of the first defendant, after the demise of his father Simiyon and the plaintiff, taking advantage of the Patta issued in his vendor's name under the UDR Scheme wrongly, moved the District Revenue Officer, Sivagangai, for effecting the transfer of Patta in his name and it is stated that on enquiry, the District Revenue Officer, Sivagangai, had ordered to restore the Patta in the name of the defendants' ancestor Michael based upon the settlement register and the kist receipts filed by the plaintiff would not establish the possession and enjoyment of the suit property by the plaintiff and accordingly, inasmuch as the plaintiff has no title, possession and enjoyment of the suit property, according to the defendants, the suit laid by the plaintiff is liable to be dismissed. 7. 7. In support of the plaintiff's case, P.Ws.1 to 4 were examined and Exs.A1 to A19 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B10 were marked. 8. The Trial Court, on a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, was pleased to dismiss the suit laid by the plaintiff. 9. Aggrieved over the same, it is seen that the plaintiff had preferred the first appeal. Furthermore, it is also noted that the plaintiff, at the stage of the first appeal, moved an application, in I.A.No.55 of 2014, for the reception of the additional evidence in respect of his claim and the said application having been resisted by the respondents/defendants, the First Appellate Court, on a consideration of the rival contentions putforth by the respective parties as regards the same, was pleased to dismiss the abovesaid application for the reception of the additional evidence and the First Appellate Court, also on a consideration of the materials placed on record by the respective parties and the submissions made, was pleased to confirm the Judgment and Decree of the Trial Court and thereby, dismissed the first appeal preferred by the plaintiff. Aggrieved over the same, the present second appeal has been laid by the plaintiff. 10. The plaintiff claims title to the suit property based on the sale deed, dated 12.06.2006, marked as Ex.A5. According to the case of the plaintiff, as averred in the plaint, the suit property belonged to one Fathima Mari alias Mari ancestrally and accordingly, Fathima Mari alias Mari was granted Patta in respect of the suit property recognizing her possession and enjoyment of the same and by way of Ex.A5 – Sale Deed, the plaintiff has obtained title to the suit property from the said Fathima Mari alias Mari and accordingly, obtained Patta also transferred in his name and it is stated by the plaintiff that inasmuch as the defendants, without any authority or claim of title to the suit property, attempted to interfere with his possession and enjoyment of the suit property, he has been constrained to lay the suit for the necessary reliefs. 11. 11. The defendants, in their written statement, have in toto disputed the plaintiff's vendor's title to the suit property as well as her possession and enjoyment of the suit property as putforth in the plaint. Further, according to the defendants, the Patta had been wrongly issued in the name of the plaintiff's vendor under the UDR Scheme and on the application moved in connection with the same before the District Revenue Officer, Sivagangai, the Authority concerned, based on the records placed by the respective parties noting that the A-Register in respect of the suit property stands in the name of the defendants' ancestor, namely, Michael, accordingly, had directed the restoration of the Patta in the name of Michael and therefore, the defendants pleaded that the plaintiff's claim of title to the suit property based upon Ex.A5 – Sale Deed from Fathima Mari alias Mari does not merit acceptance, inasmuch as the plaintiff's vendor herself is not having any title to the suit property and furthermore, according to the defendants, it is only their ancestor Michael, who had owned the suit property ancestrally and after him, the suit property was inherited by his son Simiyon and in the partition effected amongst Simiyon and his two sons, namely, the first defendant and the second defendant's father, dated 04.11.1977, which document had come to be marked as Ex.B10, the suit property had been allotted to the share of Simiyon and after his demise, in the oral partition effected, the suit property had been allotted to the first defendant and thus, it is contended by the defendants that the plaintiff has no title, possession and enjoyment of the suit property and on the other hand, it is only, the defendants, who are in the possession and enjoyment of the suit property and hence, the suit laid by the plaintiff is liable to be dismissed. 12. As abovenoted, the plaintiff claims title to the suit property on the premise that the same belongs to his vendor Fathima Mari alias Mari ancestrally, however, in the plaint, the plaintiff has not averred clearly on what basis, the said Fathima Mari alias Mari had obtained title to the suit property ancestrally, particularly, the plaintiff has not given the details of his vendor's ancestors for safely determining that the plaintiff's vendor had traced her title to the suit property through her ancestors. On the other hand, very vaguely, it has been averred in the plaint that the plaintiff's vendor owned the suit property ancestrally. As abovenoted, the defendants have disputed the title of the plaintiff's vendor to the suit property as putforth in the plaint. In such view of the matter, as rightly putforth by the defendants' counsel, the best person to speak about the title of the plaintiff's vendor to the suit property would be only the plaintiff's vendor. However, for the reasons best known to the plaintiff, he has not chosen to examine his vendor to sustain his case that his vendor had title to the suit property as belonging to her ancestrally. The husband of the plaintiff's vendor, namely, Mariyaraj has been examined as P.W.2. P.W.2, during the course of his cross-examination, has admitted that there is no document available to evidence that the suit property belongs to his wife ancestrally and also admitted that at the time of effecting the sale deed in favour of the plaintiff, his wife had not entrusted any document to the plaintiff in connection with the suit property. Furthermore, he has also admitted that there is no Sagupadi Adangal Extract in their favour for evidencing their claim of possession and enjoyment of the suit property. When such being the evidence of P.W.2, as rightly determined by the Courts below, the case of the plaintiff that the suit property belongs to his vendor ancestrally, without tracing his vendor's title to the suit property and also not placing any proof evidencing his vendor's claim of title to the suit property ancestrally, as such, cannot be countenanced readily, in such circumstances, the Courts below are wholly justified in rejecting the plaintiff's case. 13. The plaintiff seeks title to the suit property based on Ex.A5 – Sale Deed. 13. The plaintiff seeks title to the suit property based on Ex.A5 – Sale Deed. When the suit property is claimed to be the ancestral property of the plaintiff's vendor, one would expect that the plaintiff's vendor would have executed the sale deed marked as Ex.A5 in favour of the plaintiff and on the other hand, as rightly determined by the Courts below, on a perusal of the Ex.A5, it is found that three persons are the executants of the abovesaid sale deed and the three persons had claimed the suit property as belonging to them ancestrally and that one of them, without naming as to who is that person, is in the possession of the suit property, proceeded to execute the sale deed in respect of the suit property in favour of the plaintiff. As noted by the Courts below, one Kandasamy, son of Karuppiah Udaiyar, one Selvaraj, son of the deceased Alagar Udaiyar and one Fathima Mari, wife of Mariyaraj, all three, claiming the suit property as their ancestral property is found to have executed the Ex.A5 – Sale Deed in favour of the plaintiff. When according to the plaintiff, the suit property belongs to Fathima Mari alias Mari ancestrally, there is no proper explanation on the part of the plaintiff as to how could the abovesaid three executants had chosen to execute the sale deed in his favour claiming the suit property as their ancestral property. It is not the case of the plaintiff that the other executants of Ex.A5 – Sale Deed had relinquished their rights in favour of Fathima Mari alias Mari and thereby, she had acquired independent title to the suit property. As above noted, to clarify the above position, the plaintiff had not chosen to examine his vendor Fathima Mari alias Mari. It is not the case of the plaintiff that the other executants of Ex.A5 – Sale Deed had relinquished their rights in favour of Fathima Mari alias Mari and thereby, she had acquired independent title to the suit property. As above noted, to clarify the above position, the plaintiff had not chosen to examine his vendor Fathima Mari alias Mari. Therefore, when the document of title projected by the plaintiff marked as Ex.A5 is not concurring with the plea putforth by the plaintiff in the plaint and on the other hand, the title of the suit property is described as being owned by the abovesaid three persons ancestrally and when there is no material to trace any connection amongst the abovesaid three executants or to the fact that as to how they claim title to the suit property as belonging to them ancestrally, as rightly determined by the Courts below, the document marked as Ex.A5 – Sale Deed in respect of the plaintiff's claim of title to the suit property not supporting his case as putforth in the plaint, it is seen that no safe credence could be attached to Ex.A5 – Sale Deed for upholding his claim of title to the suit property as projected. 14. According to the plaintiff, recognizing his vendor's possession of the suit property, Patta had been granted in her favour and based on the same, the kists had been paid in the name of the plaintiff's vendor. In this connection, the plaintiff placed reliance upon Exs.A1 to A4. Now, according to the defendants, the Patta had been effected in the name of the plaintiff's vendor wrongly under the UDR Scheme and the same had been ordered to be cancelled and ordered to be restored in the name of the defendants' ancestor Michael as per the settlement register effected in respect of the suit property and the abovesaid position could be gathered from the order of the District Revenue Officer, Sivagangai, dated 27.01.2009 marked as Ex.A9. In this connection, the plaintiff examined as P.W.1, during the course of his cross-examination, has admitted that claiming that the Patta had been wrongly issued in the name of his vendor Fathima Mari, the first defendant had moved the District Revenue Officer, Sivagangai, for cancelling the same and also admitted that the order had been passed by the District Revenue Officer, Sivagangai, marked as Ex.A9 and accordingly, it is noted that when on the basis of Ex.A9 order passed by the District Revenue Officer, Sivagangai, the Patta had been ordered to be restored in the name of Michael, the ancestor of the defendants, based on the settlement register effected, the obvious conclusion that could be derived is that inasmuch as the plaintiff's vendor, or as the case may be, the plaintiff is unable to sustain their case of the title of the plaintiff's vendor to the suit property as belonging to her ancestrally and equally, unable to sustain their case that the plaintiff's vendor had been in possession and enjoyment of the suit property prior to the UDR Scheme, left with no other alternative, it is found that the District Revenue Officer, Sivagangai, based on the settlement register effected in respect of the suit property standing in the name of the defendants' ancestor Michael, had proceed to order the restoration of the Patta in the name of Michael and thus, it is seen that as rightly determined by the Courts below, the documents of possession and enjoyment projected by the plaintiff would not in any manner serve his case particularly when the said order of granting Patta in his vendor's name had been ordered to be cancelled subsequently by the appropriate Revenue Authority by way of Ex.A9. 15. 15. In the light of the above position, the other documents of possession projected by the plaintiff marked as Ex.A6-Patta transfer order as well as the kist receipt marked as Ex.A7, all are based on the sale deed marked as Ex.A5 and when as above discussed, the plaintiff has failed to establish his vendor's title to the suit property and the recitals contained in Ex.A5 are found to be totally inconsistent and varying with the case projected in the plaint and when there is no material placed by the plaintiff to trace his vendor's title to the suit property prior to the UDR Scheme, as rightly determined by the Courts below, the plaintiff has miserably failed to establish his claim of possession and enjoyment of the suit property. 16. As per the order of the District Revenue Officer, Sivagangai, marked as Ex.A9, it is seen that on the basis of the settlement register standing in the name of Michael, the defendants' predecessor, the Patta issued in the name of the plaintiff's vendor had been cancelled and ordered to be restored in Michael's name. 16. As per the order of the District Revenue Officer, Sivagangai, marked as Ex.A9, it is seen that on the basis of the settlement register standing in the name of Michael, the defendants' predecessor, the Patta issued in the name of the plaintiff's vendor had been cancelled and ordered to be restored in Michael's name. Now, according to the defendants, the suit property belonged to one Michael ancestrally and accordingly, he has been in the possession and enjoyment of the same and in this connection, the defendants have also produced the certified copy of the settlement A-Register marked as Ex.B1, Patta Pass Book marked as – Ex.B3 and the Sagupadi Adangal Extract marked as Ex.B4 and it is also the case of the defendants that in the partition effected on 04.11.1977, the suit property had come to be allotted to the first defendant's father and after the demise of his father Simiyon, the suit property had been allotted to the first defendant in the oral partition and the said document having been marked as Ex.B10, accordingly, based on the abovesaid documents, the Courts below are found to have accepted the defendants' claim of title, possession and enjoyment of the suit property and when the plaintiff has failed to establish his claim of title to the suit property as putforth in the plaint and on the other hand, the documents projected by the defendants clearly point out their claim of title, possession and enjoyment of the suit property, no interference is called for in the Judgments and Decrees of the Courts below negativing the plaintiff's title and upholding the defendants' title to the suit property. 17. The plaintiff claims title to the suit property based on Ex.A5 – Sale Deed. As above pointed out, the plaintiff has failed to establish his vendor's title to the suit property as averred in the plaint and inconsistent to the abovesaid pleadings, the plaintiff had also taken the plea of adverse possession to the suit property. According to the plaintiff, on account of his long and continuous possession and enjoyment of the suit property, he has also perfected his title to the suit property by way of adverse possession. It has not explained as to how the plaintiff as the suitor would be entitled to seek the declaration of title to the suit property based on the adverse possession. It has not explained as to how the plaintiff as the suitor would be entitled to seek the declaration of title to the suit property based on the adverse possession. Furthermore, he having taken the claim of title to the suit property based on Ex.A5 – Sale Deed, cannot be allowed to take an inconsistent plea of seeking title to the suit property by way of adverse possession. If the abovesaid plea of the plaintiff is taken on face value, impliedly, by way of the same, it is seen that when the plaintiff is attempting to seek the claim of title to the suit property by way of adverse possession against the defendants, thereby, it has to be held that the plaintiff is admitting the title of the defendants to the suit property one way or the other. Such being the position, when the plaintiff has failed to establish his claim of title to the suit property by way of adverse possession, by projecting acceptable and reliable materials and when the documents projected by him do not sustain his claim of title to the suit property by way of adverse possession evidencing his long and continuous possession and enjoyment of the suit property, the Courts below are justified in negativing the claim of the plaintiff's title to the suit property by way of adverse possession. 18. Lastly, it is putforth by the plaintiff's counsel that the First Appellate Court has erred in rejecting the additional evidence projected by the plaintiff and according to him, if the abovesaid additional evidence had been received by the First Appellate Court, the same would have provided an opportunity to the plaintiff to buttress his case and accordingly, it is his contention that the Judgment and Decree of the First Appellate Court should be reversed on the abovesaid sole ground. 19. Considering the materials placed on record, no doubt, it is found that the plaintiff has moved an application for the reception of the additional evidence. As regards the same, the plaintiff has averred in the application that the settlement deed standing in the name of Sengolam Ammal, dated 30.05.1953, would show that the suit property originally belonged to his vendor's ancestor, by name, Yacob Udaiyar and accordingly, sought for the reception of the abovesaid document as well as the other document detailed in the application. As regards the same, the plaintiff has averred in the application that the settlement deed standing in the name of Sengolam Ammal, dated 30.05.1953, would show that the suit property originally belonged to his vendor's ancestor, by name, Yacob Udaiyar and accordingly, sought for the reception of the abovesaid document as well as the other document detailed in the application. Nowhere, in the affidavit appended to the abovesaid application for the reception of the additional evidence, the plaintiff has averred that the additional evidence projected by him are not known to him or available during the pendency of the suit proceedings. It is also not his case that the abovesaid documents projected by way of additional evidence had come to his knowledge only during the course of the first appeal and thereby, he has been necessitated to produce the same at the appellate stage. Furthermore, when the plaintiff had not putforth his case that the suit property belonged to Yacob Udaiyar ancestrally and from whom, his vendor had traced her title to the suit property ancestrally, as rightly determined by the First Appellate Court, when with reference to the abovesaid case of the plaintiff projected through the additional evidence, there is no foundation in the plaint and also the projected documents would not in any manner be useful to sustain the plaintiff's claim of title to the suit property and in addition to that inasmuch as the plaintiff's application for reception of the additional evidence has not satisfied the parameters governing Order XLI Rule 27 of the Code of Civil Procedure, in all, it is found that the First Appellate Court has chosen to reject the said application. Considering the reasons given by the First Appellate Court for the rejection of the additional evidence, when the same are found to be not satisfying the principles of law governing the reception of the additional evidence and thereby, the First Appellate Court is found to have rejected the same, in my considered opinion, the order of the First Appellate Court rejecting the additional evidence do not warrant interference and therefore, the contention putforth by the plaintiff's counsel that if the additional evidence had been received, the plaintiff would have had an opportunity to establish his case, as such, cannot be countenanced in any manner. 20. 20. In the light of the above discussions, the First Appellate Court is found to have not committed any error in rejecting the additional evidence and particularly, when the application for the reception of the additional evidence has not satisfied the parameters of the principles of law adumberated under Order XLI Rule 27 C.P.C. 21. The Courts below are found to have assessed the materials placed by the parties in the right perspective and on an proper analysis of the same both factually as well as legally, are found to have rightly rejected the plaintiff's case and upheld the defendants version and in such view of the matter, the substantial questions of law formulated in this second appeal are, accordingly, answered against the plaintiff and in favour of the defendants. 22. For the reasons aforestated, the second appeal is found to be devoid of merits and the same is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition is closed.