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2019 DIGILAW 1807 (MAD)

Periyaayya v. R. Pitchaimuthu

2019-07-04

R.THARANI

body2019
JUDGMENT : (Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 27.04.2009 passed in A.S.No.172 of 2005 on the file of the I Additional Sub-Judge, Trichy by reversing the judgment and decree dated 15.12.2003 passed in O.S.No. 266 of 2002 on the file of the I Additional District Munsif, Trichy.) 1. This Second Appeal is filed against the judgment and decree dated 27.04.2009 made in A.S.No.172 of 2005 by the learned I Additional Sub-Judge, Trichy by reversing the judgment and decree dated 15.12.2003 made in O.S.No.266 of 2002 by the learned I Additional District Munsif, Trichy. 2. The appellants are the legal representatives of the first defendant in the suit and the respondent is the plaintiff in the suit. The respondent/plaintiff filed a suit in O.S.No.266 of 2002 before the learned I Additional District Munsif, Trichy, for a prayer of permanent injunction. The learned I Additional District Munsif, Trichy, has dismissed the suit. Against which, the respondent/plaintiff filed an appeal in A.S.No.172 of 2005 before the learned I Additional Sub-Judge, Trichy. The first Appellate Court allowed the appeal. Against which, the appellants/defendants filed this Second Appeal. 3. The case of the plaintiff is that the suit property belongs to the plaintiff. The plaintiff has purchased the property from one Karalan in the year 1975 by way of a registered sale deed. He is in possession and enjoyment of the property from the date of purchase. The defendants have no right over the property, they tried to disturb the possession of the plaintiff and hence, the suit, for bare injunction, is filed by the plaintiff. 4. The case of the defendants is that they are in enjoyment of the property for 30 - 40 years, neither the plaintiff nor his vendor is ever in possession of the property. The defendants obtained a loan from Somarasampettai Co-operative Societies by mortgaging the suit property and the defendants are in enjoyment of the suit property. 5. On the above pleadings, the trial Court framed the following issues: (i) whether the plaintiff is entitled for permanent injunction? (ii) whether the plaintiff is in possession of the property? (iii) what are the reliefs are available for the plaintiff? 6. On the side of the plaintiff two witnesses were examined as P.W.1 and P.W.2 and seventeen documents were marked as Exs.A.1 to A.17. (ii) whether the plaintiff is in possession of the property? (iii) what are the reliefs are available for the plaintiff? 6. On the side of the plaintiff two witnesses were examined as P.W.1 and P.W.2 and seventeen documents were marked as Exs.A.1 to A.17. On the side of the defendants, two witnesses were examined as D.W.1 and D.W.2 and four documents were marked as Exs.B.1 to B.4. After considering the oral and documentary evidence, the trial Court has dismissed the suit. 7. Against which, the plaintiff filed an appeal before the learned I Additional Sub-Judge, Trichy in A.S.No.172 of 2005. In the first appeal the plaintiff filed a petition in I.A.No.62 of 2009 for permitting the plaintiff to mark some additional documents. The first Appellate Court framed the following issues: (i) whether the I.A.62 of 2009 is to be allowed? (ii) whether the appeal is to be allowed? 8. The said petition in I.A.No.62 of 2009 was allowed by the first Appellate Court and the said documents were marked as Exs.A.18 to A.25 in the First Appeal. After considering those documents and considering the facts and circumstances of the case, the First Appellate Court has allowed the First Appeal. Against the said judgment, the appellants/defendants have filed the present Second Appeal. 9. On the side of the appellants, in the grounds of appeal, it is stated that the First Appellate Court has failed to consider the principles of law under Order 41 Rule 27 of the Code of Civil Procedure, while allowing the petition for adducing additional evidence. The First Appellate Court failed to consider the fact that the defendants have raised paddy and brinjal with the help of a Well and Oil Engine Motor for more than 35 years. The First Appellate Court failed to consider the fact that Exs.B1 to B3 disclose the possession of the defendants and the defendants had mortgaged the suit property with Somarasampettai Cooperative Loan Society. The First Appellate Court failed to consider that the defendants are in possession of the suit property and the plaintiff neither proved title nor possession of the suit property and the First Appellate Court failed to consider that the property is a portion of the joint family property, consisting of the first defendant and his brothers. 10. The First Appellate Court failed to consider that the defendants are in possession of the suit property and the plaintiff neither proved title nor possession of the suit property and the First Appellate Court failed to consider that the property is a portion of the joint family property, consisting of the first defendant and his brothers. 10. On the basis of the grounds of appeal, the following substantial questions of law have been framed: (I) whether the Lower Appellate Court is correct in decreeing the suit for bare injunction especially when the plaintiff has not proved possession on the date of the suit which is alone relevant in a suit for bare injunction? (II) whether the Lower Appellate Court is correct in allowing the application under Order 41 Rule 27 of C.P.C. without satisfying the ingredients as contemplated in the said provision? (III) whether the Lower Appellate Court failed to consider Ex.B2 and B.3, the mortgage deed executed by the first defendant in favour of Somarasampettai Co-operative Agricultural Loan Society and its cancellation in respect of suit properties which will prove possession of the defendants? Issue No.(I) and (III): 11. On the side of the appellants, it is stated that the plaintiff has not proved possession on the date of filing of the suit property and hence, he is not entitled to a decree of bare injunction. It is stated that the defendants are in possession of the property and they are cultivating paddy and brinjal crops in the suit property and that the plaintiff has raised only an apprehension of trespass by the defendants. In the written statement, the defendants had taken a specific stand that the plaintiff was not in possession and that Exs.A1 to A17 were fabricated documents. It is further stated that though the title of the property is in dispute, the plaintiff had not chosen to seek for a prayer of declaration of title. It is stated that the sale deed Ex.A.1, Patta as Ex.A.2 and A.3, Kist receipts Exs.A.10 to A.15, Adangal, Chitta extract Exs.A.4 to A.9 marked by the plaintiff did not prove possession and that the defendants were enjoying the property and the possession was proved by the mortgage with the Somarasampettai Co-operative Agricultural Loan Society. 12. It is stated that the sale deed Ex.A.1, Patta as Ex.A.2 and A.3, Kist receipts Exs.A.10 to A.15, Adangal, Chitta extract Exs.A.4 to A.9 marked by the plaintiff did not prove possession and that the defendants were enjoying the property and the possession was proved by the mortgage with the Somarasampettai Co-operative Agricultural Loan Society. 12. On the side of the appellants, it is stated that the lower Court has failed to consider that Ex.A.2, dated 07.11.1995, Ex.A.3, dated 09.10.2010 and Exs.A.10 to A.12 are not acceptable and that the lower Appellate Court has not considered that there is no cultivation and that P.W.2 has deposed that the suit property was not cultivated due to inadequacy of water, whereas, in Exs.A.2 to A.9 and A.13 and A.15, it is stated that paddy is cultivated and that this documents are not acceptable documents. 13. On the side of the appellants, it is stated that the trial Court has correctly considered Exs.B.1 to B.3, documents relating to the mortgage of the suit property with the Somarasampettai Co-operative Agricultural Loan Society and that the plaintiff failed to prove possession and the plaintiff sought for a prayer of injunction without a prayer for declaration of title and hence, the prayer for bare injunction is not maintainable. 14. On the side of the respondent, it is stated that Exs.A.1 is the title deed, dated 17.12.1975, executed by one Karalan. Karalan is the brother of the first defendant and in the title deed itself it is clearly stated that the property belonged to Karalan's ancesters and he obtained the suit property by way of oral partition, Ex.A.2, dated 07.11.1995 is a patta granted in the name of the plaintiff. Ex.A.3, is also a patta, in the name of the plaintiff. Exs.A.4 to A.9 are Chittas, Exs.A.10 to A.15 are tax receipts and they are prior to the date of the suit and that Ex.A.16 and A.17, are documents of police complaint, regarding the attempt of trespass by the defendants. 15. On the side of the respondent, it is stated that since the plaintiff is having title as there is no dispute regarding the question of title, there is no necessity for him to claim a declaration for title. 15. On the side of the respondent, it is stated that since the plaintiff is having title as there is no dispute regarding the question of title, there is no necessity for him to claim a declaration for title. Until the filing of the written statement, the defendants never claimed any title over the suit property and the defendants never disputed the title of the plaintiff, just because the defendants created some mortgaged deed on that flimsy ground, the trial Court decided that the plaintiff failed to file an E.C. and dismissed the suit and that in the First Appeal, the plaintiff filed additional documents as Exs.A.18 to A.25. and that E.C. was produced before the first Appellate Court and that the schedule of property in the sale deed clearly reveals that in the first item of the suit property the vendor is having only right over 70 cents and in second item of the property the vendor was having 7 cents and in the third item of the property the vendor was having only 20 cents and it is clearly revealed that as per Ex.A.1 the entire property was not sold in a particular Survey number. The defendants might have mortgaged the remaining area and that mortgaged deed cannot be taken as a title deed on the side of the defendants and that Exs.B.1 to B.3 did not deny the possession of the plaintiff. 16. It is stated that the defendants in their cross examination, have admitted that they have no title over the suit property. The defendants sold another item of the property to one Pushpam, which fact was admitted by the defendants. There is a third brother, but, no suit for partition is filed by the defendants. It stated that D.W.1 has deposed that he has given up 30 cents to the widow of one of his brother Periyasamy and that he sold 72 cents near the well to his brother Periyasamy, but, he claimed that there was no partition and that the land belonged to their father and then it belong to him. It is stated that there was no dispute regarding the share of Karalan and that Exs.B.1 to B.3 are executed for getting a loan and the suit for bare injunction is maintainable. 17. It is stated that there was no dispute regarding the share of Karalan and that Exs.B.1 to B.3 are executed for getting a loan and the suit for bare injunction is maintainable. 17. It is stated that the trail Court dismissed the suit as E.C. was not produced that Exs.B1 to B3 reveals that there are Encumbrances in the suit property. Exs.B1 to B3 are registered mortgage deeds and on the basis of this mortgage deeds, the trial Court dismissed the claim of the plaintiff. The vendor of the plaintiff and the defendants are brothers. The defendants themselves have admitted that they have left 30 cents of land for the wife of their brother one Periyasamy. The plaintiff while filing I.A.No.62 of 2009 had filed a copy of the Encumbrance Certificate and has filed the documents in the name of the plaintiff. 18. Totally 25 documents were filed on the side of the plaintiff. Though patta is not a document of title, patta can be accepted as an evidence for possession. Exs.B10 and B11 are kist receipt, dated 28.03.1985 and 05.04.1986 and that Ex.B2, dated 12.03.1988, proved that payment of the kist shows that the property was in the possession of the plaintiff. Ex.B4 to B9, B13 to B19 are documents for proving possession of the plaintiff in the suit property and that except Exs.B.1 to B3, which are, mortgage deeds in favour of the Society no other document was filed on the side of the defendants to disprove the case of the plaintiff. Exs.B1 to B3 are not stated in the Encumbrance Certificate filed by the plaintiff. In the above circumstances, it is decided that Exs.B2 and B3 will not prove the possession of the defendants and the suit for bare injunction is maintainable. Issue No.(II): 19. On the side of the appellants, it is stated that the first Appellate Court has failed to follow the procedure contemplated under Order 41 Rule 27 of the Code of Civil Procedure while allowing the additional evidences. 20. The first defendant had deposed that he left 30 cents of land to the wife of his brother Periyasamy by name Pushpam. He has also accepted that his brother Periyasamy has sold 72 cents of land. But the contention of the defendants is that there was no partition in their family. 20. The first defendant had deposed that he left 30 cents of land to the wife of his brother Periyasamy by name Pushpam. He has also accepted that his brother Periyasamy has sold 72 cents of land. But the contention of the defendants is that there was no partition in their family. The first defendant has claimed the entire property as his own, after the death of his father. On the side of the appellants, it is stated that possession has to be proved by way of evidence and all the documents filed by the plaintiff in the Appeal are only certified copies and that there was no oral evidence to prove those documents. 21. Documents Exs.18 and 19 are Revenue Records, Exs.A20 to 24 are Encumbrance Certificates, Ex.A.25 is a document for cancellation of a loan and all these documents did not require oral evidence and hence, there is no discrepancy in the procedure followed under Order 41 Rule 27 of the Code of Civil Procedure. 22. The question raised by the Appellants are not pure questions of law. All the issues framed in this appeal are decided against the appellants. Hence, this Second Appeal is dismissed by confirming the judgment and decree, dated 27.04.2009 made in A.S.No.172 of 2005 on the file of the I Additional Sub-Judge, Trichy setting aside the judgment and decree, dated 15.12.2003 made in O.S.No.266 of 2002 on the file of the I Additional District Munsif, Trichy is set aside. No costs.