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2019 DIGILAW 1178 (MAD)

K. Ariyal v. R. Raman

2019-04-16

R.THARANI

body2019
JUDGMENT : R. Tharani, J. 1. Heard Mr. P. Thilak Kumar, learned counsel appearing for the appellants and Mr. A.K. Manickam, learned counsel appearing for the respondent. 2. This appeal is filed against the Judgment and Decree passed in A.S. No. 14 of 2006 dated 24.08.2006 on the file of the learned Sub ordinate Judge, Devakkottai reversing the Judgment and Decree in O.S. No. 357 of 2004 dated 31.08.2005 on the file of the learned Additional District Munsif, Karaikudi. 3. The appellants herein are the defendants and the respondent herein is the plaintiff in the suit. The respondent herein has filed a suit in O.S. No. 357 of 2004 before the learned Additional District Munsif, Karaikudi seeking a prayer of declaration and for injunction. After trial, the trial Court dismissed the suit. Against the Judgment and Decree, the respondent has preferred an appeal in A.S. No. 14 of 2006 before the learned Sub Judge, Devakkottai and the appeal was allowed by the learned Sub Judge. Against which, the appellants have filed this second appeal. 4. The case of the plaintiff is that though the property in survey no. 179/24 belonged to the plaintiff's father Peri Raman and he was in possession and after the death of Peri Raman, as the legal heir the plaintiff is enjoying the suit property by cutting the Karuvela Trees but the patta was in the name of the plaintiff's father Ramasamy and that without issuing notice, the patta was transferred to the first defendant's husband Kasi. When the plaintiff filed a petition for sub-division of the property on 25.06.2004, he came to know about the issuance of patta in the name of Kasi. The plaintiff filed a petition before the Revenue Divisional Officer objecting the patta transfer and the plaintiff filed this suit for declaration and for injunction. 5. The case of the defendants is that the plaintiff failed to mention how the property belonged to his father and who are the legal heirs of Raman and the suit is bared for non joinder of necessary parties. The suit property and the property on the northern side of the suit property belonged to Kasi son of Selvam and after the death of Kasi, the defendants are in enjoyment of the property and the plaintiff tried to interfere with the possession of the defendants. The property belonged to the defendants by adverse possession also. The suit property and the property on the northern side of the suit property belonged to Kasi son of Selvam and after the death of Kasi, the defendants are in enjoyment of the property and the plaintiff tried to interfere with the possession of the defendants. The property belonged to the defendants by adverse possession also. The defendants are growing tamarind trees, palm trees, vagai trees and ucilai trees. The plaintiff failed to mention the boundaries and extent of the suit property and the patta issued in the name of Kasi is proper and prayed the suit to be dismissed. 6. After trial, the trial Court dismissed the suit. The plaintiff has filed an appeal in A.S. No. 14 of 2006 and the appeal is allowed by the first Appellate Court. At the time of admission, the following substantial question of law were framed: "1. Whether the learned Subordinate Judge is justified in placing the burden of proof on the appellants herein who are only defendants and whether the learned Subordinate Judge, Devakottai, is justified in granting decree of declaration and injunction in favour of the respondent by holding that the appellants have not prove their case 2. Whether granting of decree by the learned Subordinate Judge for declaration and injunction in favour of the respondent by holding that the suit property was allotted to him in partition, when there was no pleading and the pleading was to the effect that the respondent became entitled to the property subsequent to the demise of his father as his self? 3. Whether the Judgment of the learned Subordinate Judge without framing proper points for consideration as contemplated under Order 41, Rule 31 C.P.C., is sustainable? 4. Whether non-framing of points for consideration regarding the plea of adverse possession by the appellants is proper and sustainable?" Issue No. 1: 7. On the side of the appellants, it is stated that in the plaint filed by the respondent in the schedule of the property Column, only patta number is stated and that the extent of the land and the boundaries are not stated and though the case of the plaintiff is that the suit survey number is already sub divided, the sub division number is not stated in the schedule of properties. It is stated that only settlement patta no. 468 is mentioned in the plaint and that nothing is stated about survey no. It is stated that only settlement patta no. 468 is mentioned in the plaint and that nothing is stated about survey no. 179/24A and that how the plaintiff's predecessor in title obtained the property is not stated in the plaint. 8. On the side of the appellants, it is stated that the property is an ancestral property of the defendants and that the defendants/appellants obtained patta and that in the legal notice Ex.B7 the survey number is stated as 179/11 which is not the suit property and that the case of the plaintiff is that one Chinnakaruppan and the plaintiff got joint patta but that Chinnakaruppan is not impleaded as a party and that the plaintiff has claimed that the patta was granted in the name of his father and that he has deposed that his father was having two wives and that he is not aware of the name of the first wife and that there is a son named Chinnakaruppan and a sister named Aachi kannu and that they are not impleaded in the suit. It is further stated that the claim of the plaintiff is that when the father was alive, there was a family partition and that in that family partition, the plaintiff got the property when he was 2 ½ years old and he did not know what are the properties allotted to his share and he has released his right over the property in S. No. 179/11 and that Chinnakaruppan has sold some of the lands and that Ganesan was managing the property and that these persons are not impleaded in the suit and that the trial Court has rightly dismissed the suit. It is further stated that the plaintiff has admitted the possession of the defendants for the past 40 years and he cannot claim injunction but the first Appellate Court has wrongly come to the conclusion that the burden is upon the defendants to disprove the case of the plaintiff whereas, it is the duty of the plaintiff to prove his case. 9. 9. On the side of the respondent, it is stated that the plaintiff is the legal heir of Raman and that as the legal heir of Raman, the plaintiff got the property and is enjoying the same and that in the written statement, the first defendant claims title and that subsequently the defendants claim adverse possession and that by claiming adverse possession, the defendants have admitted the ownership of the plaintiff. It is further stated that Survey No. 179/24 is in the name of Raman and not in the name of Peri Raman and that the patta number is 444 and that the settlement proceedings express the title and only on the basis of URL patta, the defendants are claiming title and that the patta was transferred to the name of the defendants without the knowledge of the plaintiff. It is stated that Exs.B2 and B3 are not related to the suit property and Adangal cannot overcome the settlement proceedings and that earlier patta will prevail over the subsequent patta and that the plaintiff got settlement patta and that the defendant got only an UDR patta and that the trial Court has failed to consider this aspect and has given a wrong finding by dismissing the suit and that when the entire extent of the property was claimed by the plaintiff, there is no necessity to mention the extent in the schedule of the properties and that the suit was not filed for partition and that there is no necessity to implead the legal heir of Raman and that the property belonged to the family of the plaintiff and Exs.A1 and A2 reveals the title of Raman and that D.W.1 has deposed that the father of the plaintiff is Raman son of Periya Karuppan and that the defendants failed to mark documents prior to Ex.D1 and that the defendants failed to mark any document of title to show their possession and that all the documents filed by the defendants are after the UDR and that Ex.B7 is not related to the suit property and that the first Appellate Court has rightly concluded the case in favour of the plaintiff and that the pleadings of the defendants is inadequate and that a person who claim title has to establish the case. 10. 10. On the side of the appellants, it is stated that the patta in the name of Raman is not produced and only patta no. 444 is produced and that Ex.A1 is mere notice, no document is filed to show the possession and that the defendants have already questioned the extent and boundaries which are not stated in the schedule of properties. 11. It is seen that the plaintiff has filed a document, Ex.A1 regarding the settlement enquiry. Ex.A2 is the copy of the settlement register pertaining to survey no. 179. Ex.A3 is the patta in the name of the defendants. Ex.A4 are the appeals filed by the plaintiff. 12. On the side of the appellants, UDR patta in the name of the defendants is marked as Ex.B1 and patta dated 17.02.1994 is marked as Ex.A2 and the property tax dated 08.03.2002 is marked as Ex.B3. The patta in the name of the defendants is marked Ex.B8. Adangal is marked as Ex.B6. 13. A perusal of the records reveals that the first Appellate Court in paragraph no. 13 of the Judgment has given a findings that the defendants failed to prove their possession. The first Appellate Court has come to the conclusion in paragraph no. 12 that "the plaintiff is out of station for the past 40 years and the defendants utilised the opportunity and got the patta. The fact that the plaintiff is residing outside the area is not denied by the defendants. The defendants have to prove that the suit property is not different by way of sale deed or by way of any other means and the defendants failed to file documents regarding the possession for the past 30 years." 14. It is a settled position of law that "it is the duty of the plaintiff to prove the case" but the first Appellate Court has wrongly concluded that it is the duty of the defendants to disprove the pleadings of the plaintiff and the entire decision of the first Appellate Court is based on the point that the defendants failed to prove his title and possession. Though the first Appellate Court has given a finding that the plaintiff is out of station for past 40 years, the first Appellate Court has passed an order of injunction. Though the first Appellate Court has given a finding that the plaintiff is out of station for past 40 years, the first Appellate Court has passed an order of injunction. In the above circumstances, it is decided that the Sub Judge is not justified in granting a decree of declaration and injunction in the favour of the respondent/plaintiff, holding that the defendant have not proved their case. It is the duty of the plaintiff to prove the case and the defendants need not prove their case or disprove the case of the plaintiff. Hence, the question of law raised by the appellant is acceptable. Issue No. 2: 15. On the side of the appellants, it is stated that the first Appellate Court has given a finding that the suit property was allotted to the share of the plaintiff in the partition. When there is no such pleadings in the plaint, the first Appellate Court in paragraph no. 13 has given a finding that Though there is no pleadings in the plaint only on the basis of oral evidence of P.W.1, the first Appellate Court has come to the conclusion that the property was allotted to the share of the plaintiff. 16. The first Appellate Court has given a finding that in Ex.B7 it is not stated that the property belonged to the plaintiff. The first Appellate Court has given a findings that the plaintiff got the property in the family partition when there is no such pleading. The findings of the first Appellate Court is wrong as the parties to the suit cannot go beyond the pleadings. Hence, this question raised by the appellants is sustainable. Issue Nos. 3 & 4: 17. On the side of the appellants, it is stated that the first Appellate Court has failed to frame points for consideration as contemplated Order 41 Rule 31 of C.P.C. On the side of the appellants, it is stated that the first Appellate Court has failed to frame an issue regarding the adverse possession claimed by the appellants. 18. A perusal of the first Appellate Court's Judgment reveals that the first Appellate Court framed only one point for consideration that is whether the appeal is to be allowed. The first Appellate Court has failed to frame points for consideration as contemplated under Order 41 Rule 31 of C.P.C. 19. 18. A perusal of the first Appellate Court's Judgment reveals that the first Appellate Court framed only one point for consideration that is whether the appeal is to be allowed. The first Appellate Court has failed to frame points for consideration as contemplated under Order 41 Rule 31 of C.P.C. 19. As per discussions above, it is clear that the Judgment and decree of the first Appellate Court is to be set aside. Hence, this Second appeal is allowed by setting aside the Judgment and decree passed in A.S. No. 14 of 2006 dated 24.08.2006 on the file of the learned Sub ordinate Judge, Devakkottai and the Judgment and decree passed in O.S. No. 357 of 2004 dated 31.08.2005 on the file of the learned Additional District Munsif, Karaikudi is hereby confirmed. No Costs.