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2019 DIGILAW 1359 (MAD)

J. S. Farmanulla v. M. Durai

2019-04-29

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 19.08.2004 passed in A.S.No.32 of 2003 on the file of the Subordinate Court, Tirupattur, Vellore District, confirming the judgment and decree dated 29.01.2003 passed in O.S.No.53 of 1995 on the file of the District Munsif cum Judicial Magistrate, Vaniyambadi, Vellore District.) 1. In this second appeal, challenge is made to the Judgment and Decree dated 19.08.2004 passed in A.S.No.32 of 2003 on the file of the Subordinate Court, Tirupattur, Vellore District, confirming the judgment and decree dated 29.01.2003 passed in O.S.No.53 of 1995 on the file of the District Munsif cum Judicial Magistrate Court, Vaniyambadi, Vellore District. 2. The second appeal has been admitted on the following substantial question of law: “Whether the courts below are right in deciding the suit for declaration without even framing a question of law as to whether the appellant is entitled to seek a relief or not?” 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. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 5. Suffice to state that the suit has been laid by the plaintiff seeking the reliefs of declaration and possession. 6. As could be seen from the plaint averments, according to the plaintiff, he had acquired title to the suit property as described in the plaint by way of a registered sale deed dated 22.11.1983. Further, according to the plaintiff, his vendor Penna Mohammed Haneef had purchased the suit property by way of a registered sale deed dated 29.12.1980 from one Patel Nasira Begam. Furthermore, according to the plaintiff, Patel Nasira Begam had acquired title to the suit property from Ameena Haji Mohammed Ibrahim Sahib by way of a registered sale deed dated 21.08.1978. Further, according to the plaintiff, his vendor Penna Mohammed Haneef had purchased the suit property by way of a registered sale deed dated 29.12.1980 from one Patel Nasira Begam. Furthermore, according to the plaintiff, Patel Nasira Begam had acquired title to the suit property from Ameena Haji Mohammed Ibrahim Sahib by way of a registered sale deed dated 21.08.1978. It is stated by the plaintiff that the defendant, who is the owner of the property adjacent to the suit property, acquired an extent of 2210 sq.ft by way of a sale deed dated 20.04.1974 and had encroached into the suit property on the eastern side of an extent of approximately 675 sq.ft and planted coconut saplings etc., and inasmuch as the defendant is not entitled to encroach into the property of an extent of 675 sq.ft belonging to the plaintiff and as the defendant had failed to surrender the possession of the same, despite the issuance of notice, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 7. 7. The defendant resisted the plaintiff's suit contending that he had purchased an extent of 2210 sq.ft by way of a sale deed dated 20.04.1974 and according to him, the abovesaid property purchased by him was part of a cultivable wet land, which had been subsequently converted into a lay out of house sites and further, according to the defendant, on the west of the abovesaid land, there was a Government declared channel to irrigate the wet land and the said channel was about 15 feet in width and belonging to the Government and on the west of the said channel, the cultivable land belonging to Ameena Ibrahim and his family members was lying and immediately, after purchase, it is stated that the defendant had encroached into the abovesaid channel portion to a width of about 13 feet to the west of his land and put up stone pillar and barbed wire fence in 1974 and planted four coconut plants in the said portion and accordingly, been enjoying the same and there was no objection to the same at any point of time by any one including the plaintiff's vendor and neither the plaintiff nor his predecessors in interest had any right or title to the property encroached by the defendant and the same has been in his possession and enjoyment and the plaintiff and his predecessors in interest are fully aware of the encroachment of the defendant into the Government channel portion and in such view of the matter, the plaintiff has no locus standi to institute the suit against the defendant claiming the recovery of the possession of the encroached portion by projecting a false claim of title to the same and further, according to the defendant, the Government is a necessary party to the proceedings and disputed the claim of the plaintiff that he has sent a notice directing the defendant to surrender the possession of the property and hence, according to the defendant, the suit laid by the plaintiff is liable to be dismissed. 8. In support of the plaintiff's case, PWs 1 & 2 were examined and Exs.A1 to A11 were marked. On the side of the defendant's DWs 1 & 2 were examined and Exs.B1 to B4 were marked. Furthermore, Exs.C1 & C2 were marked. 9. 8. In support of the plaintiff's case, PWs 1 & 2 were examined and Exs.A1 to A11 were marked. On the side of the defendant's DWs 1 & 2 were examined and Exs.B1 to B4 were marked. Furthermore, Exs.C1 & C2 were marked. 9. Based on 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. In the first appellate Court, it is found that additional documents have come to be marked on the side of the plaintiff as Ex.A12 & A13 and also Exs.C3 & 4 have come to be marked. The first appellate Court, on a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, was pleased to confirm the judgment and decree of the trial Court and thereby, dismissed the appeal preferred by the plaintiff. Impugning the same, the present second appeal has been preferred. 10. From the materials placed on record, it is found that the suit laid by the plaintiff was originally decreed by the trial Court. The defendant had preferred the first appeal and the first appellate Court had entertained the first appeal and remitted the matter back to the trial Court for a fresh consideration of the issues between the parties as regards the subject matter and also directed the parties to adduce further evidence as determined by it and also further, directed the appointment of commission to inspect the suit properties and thereafter, based on the evidence projected by the respective parties, it is seen that the suit laid by the plaintiff had come to be dismissed by the trial Court and as abovenoted, the first appellate Court had confirmed the dismissal of the plaintiff's suit. 11. The plaintiff having come forward with the suit seeking the reliefs of declaration and possession in respect of the property in dispute, at the foremost, the plaintiff should establish that he has a valid title to the property in dispute as put forth by him. The plaintiff claims title to the suit property based on the sale deed dated 22.11.1983, which document has come to be marked as Ex.A1. The plaintiff's vendor is stated to have claimed the property in dispute based on the sale deed dated 29.12.1980, which document has come to be marked as Ex.A3. The plaintiff claims title to the suit property based on the sale deed dated 22.11.1983, which document has come to be marked as Ex.A1. The plaintiff's vendor is stated to have claimed the property in dispute based on the sale deed dated 29.12.1980, which document has come to be marked as Ex.A3. The plaintiff's vendor is stated to have acquired the property in dispute from one Patel Nasira Begam and the document of title, under which Patel Nasira Begam had acquired the property in dispute is by way of the sale deed dated 21.08.1978, the certified copy of which sale deed has been marked as Ex.A4. In all, it is found that the plaintiff seeks title to the property in dispute based on the sale deeds marked as Exs.A1, A3 and A4. Ex.A2 is the plan attached to the sale deed marked as Ex.A1. As rightly found by the Courts below, on a perusal of Exs.A4 & A3, the anterior title deeds of the plaintiff, it is found that the property involved in the abovesaid sale deeds is found to be comprising only of an extent of 663 sq.ft. Therefore, it is found that the plaintiff's vendor would be entitled to convey only the extent of 663 sq.ft to the plaintiff by way of Ex.A1 sale deed. In Ex.A3 sale deed, it has been clearly averred that the property had been conveyed only after excluding the property already conveyed to Jaithoonbivi of an extent of 2413 sq.ft.. Therefore, it is found that the plaintiff's vendor would be entitled to convey only the extent of 663 sq.ft to the plaintiff by way of Ex.A1 sale deed. In Ex.A3 sale deed, it has been clearly averred that the property had been conveyed only after excluding the property already conveyed to Jaithoonbivi of an extent of 2413 sq.ft.. Thus, when the plaintiff's vendor is found to be entitled only to convey 663 sq.ft to the plaintiff by way of Ex.A1 sale deed, on the other hand, on a perusal of Ex.A1 sale deed, it is found that the plaintiff's vendor had endeavoured to convey more extent than what he is entitled to and though the sale deed Ex.A1 would recite that the area, within the boundaries recited therein, comprises of an extent of 663 sq.ft as reflected in the earlier title deeds, however, would further recite that as measured by the parties to the abovesaid sale deed and as reflected in the blue print plan enclosed along with the sale deed, it is stated that the total extent conveyed is 1155 sq.ft, and on that basis, it is found that the plaintiff has laid the suit complaining that the defendant had encroached the property in dispute of an extent of 675 sq.ft belonging to him by virtue of Ex.A1 sale deed. However, when the plaintiff 's vendor had acquired only an extent of 663 sq.ft under Ex.A3 and when the anterior sale deed marked as Ex.A4 also dealt with only the extent of 663 sq.ft and not more than that, it does not stand to reason as to how the plaintiff by way of Ex.A1 sale deed could claim an extent of 1155 sq.ft instead of 663 sq.ft. In this connection, it appears that the plaintiff mainly relies upon the plan attached with Ex.A1 sale deed for sustaining his title to the excess extent beyond 663 sq.ft. As abovenoted, according to the plaintiff, he had been conveyed the total extent of 1155 sq.ft by way of Ex.A1 sale deed. In Ex.A1, it recites that on measurement, the property is found to be measuring 1155 sq.ft. As abovenoted, according to the plaintiff, he had been conveyed the total extent of 1155 sq.ft by way of Ex.A1 sale deed. In Ex.A1, it recites that on measurement, the property is found to be measuring 1155 sq.ft. However, as to on what basis the said measurement had been taken, who were the parties to the same, from what point to what point the said measurement had been taken, whether the measurement taken and the extent determined had the approval of the authorities concerned and whether the measurement had been taken after giving notice to the neighbouring land owners etc., with reference to all the abovesaid facts absolutely, there is no reference in Ex.A1 other than mentioning vaguely that as per the measurement done at the time of the execution of the sale deed Ex.A1, the property was found to be comprising of an extent of 1155 sq.ft. In the plaint also, there are no clear pleas with reference to the same. In such view of the matter, when the so-called measurement stated to have been done as reflected in Ex.A1 has no backing or sanction of law and validly effected, it is found that the plaintiff cannot be allowed to claim title to more extent of land than that what his vendor is entitled to convey and in such view of the matter, as rightly determined by the Courts below, on the basis of Ex.A1 sale deed, it cannot be inferred or held that the plaintiff has acquired a valid title to an extent of 1155 sq.ft as claimed in the plaint. 12. In this connection, as rightly found by the Courts below, the plaintiff had been provided with an opportunity to establish the entitlement of his predecessors in title to the property in dispute by examining them as well as examining the attestors and the scribe of the anterior title deeds of the plaintiff. Despite the same, it is found that the plaintiff has not endeavoured to examine the abovesaid persons to sustain his claim of title to the property in dispute, after remand, other than marking the death certificates of certain persons and seeking the appointment of a commission. Despite the same, it is found that the plaintiff has not endeavoured to examine the abovesaid persons to sustain his claim of title to the property in dispute, after remand, other than marking the death certificates of certain persons and seeking the appointment of a commission. The plaintiff has not endeavoured to examine further witnesses to sustain his claim of title to the property in dispute, particularly to establish that his predecessor in title had a valid title to the property in dispute and had the competency to convey the same in favour of the plaintiff under Ex.A1 sale deed. In such view of the matter, when the plaintiff has failed to establish his valid claim of title to the extent of 1155 sq.ft by way of Ex.A1 sale deed, his further claim that the defendant had encroached into the extent of 675 sq.ft in the same, cannot at all be countenanced and the same is found to have been rightly rejected by the Courts below. 13. As rightly found by the Courts below, in this connection, the plaintiff mainly relied upon the commissioner's report and plan marked in the proceedings. According to the plaintiff, the defendant has claimed that the property in dispute and in his possession as belonging to the Government and classified as channel portion and as no such portion has been reflected as channel portion and belonging to the Government in Exs.C1 to C4, according to the plaintiff, the abovesaid claim of the defendant is false and on that footing, his case of title to the property in dispute should be accepted. However, as rightly found by the first appellate Court, considering the evidence adduced by the defendant, particularly, on the basis of the revenue map projected by the defendant as Ex.B1 and the oral evidence adduced by the defendant through him and his witness with reference to the same as well as the other documents projected by the defendant, it is found that the channel portion is found to be running in survey No.19 and accordingly, the same has been reflected in Ex.B1 map and in such view of the matter, accordingly, the first appellate Court has determined that the plea of the defendant that he had encroached the channel portion and enjoying the same cannot be easily brushed aside, merely on the footing that Exs.C1 to C4 do not reflect the existence of the Government channel in the suit survey number. 14. As rightly found by the Courts below, the plaintiff having come forward with the suit seeking the reliefs of declaration and possession with reference to the property in dispute and when the plaintiff has miserably failed to establish his vendor's claim of title to the property in dispute and when it is seen that the plaintiff's vendor/predecessor in interest had the entitlement only to the extent of 663 sq.ft and not more than that, in such view of the matter, merely on certain stray and unreliable recitals contained in Ex.A1 deed, the plaintiff cannot be allowed to claim title to the property in dispute. Furthermore, as rightly found by the first appellate Court, normally the vendors would be endeavouring to clear the encumbrance in respect of the property conveyed and such assurance is usually reflected in the conveyance executed. Furthermore, as rightly found by the first appellate Court, normally the vendors would be endeavouring to clear the encumbrance in respect of the property conveyed and such assurance is usually reflected in the conveyance executed. On the other hand, strangely, in Ex.A1 sale deed, the purchaser viz., the plaintiff has undertaken to clear the encumbrance bearing his own expenses in case of any encumbrance in respect of the property conveyed and accordingly, it is seen that the plaintiff knowing fully well that the vendor has no entitlement more than 663 sq.ft, however, for some reasons or the other endeavoured to acquire more extent of land under Ex.A1 sale deed and accordingly, the vendor had not undertaken to clear the encumbrance in respect of the property conveyed on his own, per contra, the plaintiff/purchaser himself had volunteered to clear the encumbrance, if any, in respect of the property conveyed on his own and as abovenoted, when the plaintiff has miserably failed to establish his vendor's entitlement to convey more than 663 sq.ft, in my considered opinion, it is found that the plaintiff has only purchased the litigation under Ex.A1 sale deed and not the extent of 1155 sq.ft as reflected in the said document. Accordingly, it is seen that the plaintiff is unable to establish his vendor/predecessor in title's, right or interest in respect of the property in dispute and in such view of the matter, it is seen that the plaintiff is not entitled to seek and obtain the reliefs prayed for in the suit as determined by the Courts below. 15. The Courts below had rightly appreciated the materials placed on record, both oral and documentary, in the correct perspective and concluded that the plaintiff has failed to establish his claim of title to the property in dispute and resultantly, non-suited the plaintiff by dismissing his suit. I do not find any valid reason to interfere with the determination of the Courts below in rejecting the plaintiff's suit. Hence, in my considered opinion, no substantial question of law is involved in the second appeal. Be that as it may, the substantial question of law formulated in the second appeal is accordingly, answered against the plaintiff and in favour of the defendant. In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.