Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 2672 (MAD)

R. Raja v. R. Ramasamy

2019-10-01

R.PONGIAPPAN

body2019
JUDGMENT : (Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 03.08.2001 made in A.S.No.149 of 1999 on the file of the learned Principal Subordinate Judge, Dindigul, reversing the judgment and decree dated 06.11.1998 made in O.S.No.179 of 1994 on the file of the learned District Munsif, Nilakkottai.) 1. This Second Appeal has been preferred by the appellants/defendants, challenging the judgment and decree dated 03.08.2001 made in A.S.No.149 of 1999 on the file of the learned Principal Subordinate Judge, Dindigul, reversing the judgment and decree dated 06.11.1998 made in O.S.No.179 of 1994 on the file of the learned District Munsif, Nilakkottai. 2. The respondent/plaintiff herein has filed a suit in O.S.No.179 of 1994 on the file of the learned District Munsif, Nilakkottai, seeking for the relief of declaration, declaring that the respondent/plaintiff was the absolute owner of the suit property and for the relief of consequential injunction, restraining the appellants/defendants and their men from in any way interfering with plaintiff’s peaceful possession and enjoyment of the suit property. The learned District Munsif, Nilakkottai, in its judgment dated 06.11.1998, had dismissed the suit with respective cost. 3. Aggrieved over the said findings, the respondent herein has filed an appeal in A.S.No.149 of 1999 on the file of the learned Principal Subordinate Judge, Dindigul. By a judgment and decree dated 03.08.2001, the learned Principal Subordinate Judge, had allowed the said appeal by stating that the respondent/plaintiff was entitled to the relief of declaration and injunction. Feeling aggrieved by the same, the appellants/defendants are before this Court with the present Second Appeal. 4. For the sake of convenience, the parties are referred to herein, as per their ranking in the suit. 5. The averments made in the plaint filed by the plaintiff, in brief, are as follows: 5.1. Earlier one T.C.Ramasamy was the absolute owner of the suit schedule property. After his demise, his wife Subbammal and daughter Azhagammal, devolved the suit property by succession. On 29.10.1982, the plaintiff has purchased the suit property and from the date of purchase, he is in possession and enjoyment of the suit property. During the relevant period of sale, the suit schedule property is having Survey No.287/2. In the suit schedule property, there was a well and the same was obtained by the vendor of the plaintiff vide sale deed dated 22.10.1932. During the relevant period of sale, the suit schedule property is having Survey No.287/2. In the suit schedule property, there was a well and the same was obtained by the vendor of the plaintiff vide sale deed dated 22.10.1932. In fact, the said Subbammal was the owner of Survey No.286, however, patta to the suit property and the well stands in the names of T.C.R.Subbammal-1, Azhagammal-2, T.Subbammal-3. During the time of UDR proceedings, the suit schedule property was assigned as Survey Nos.287/2A and 287/2B. Further, separate patta was issued in the name of the plaintiff in respect to Survey No.287/2A in patta no.1812. Therefore, the defendants are not having any title and enjoyment over the suit schedule property. 5.2. Before filing of the suit, the plaintiff received a notice from the Tahsildar, Nilakkottai, for attending an enquiry to be held on 27.12.1993. While at the time of enquiry, the plaintiff came to know that the defendants had submitted a petition before the Revenue Authorities by claiming right over the suit schedule property. After enquiry, the Tahsildar, Nilakkottai, passed an order dated 21.04.1994, in which, he directed the plaintiff to include the names of the defendants in the patta, which pertains to the suit property. Thereafter, on 09.07.1994, the defendants are attempted to interfere with the plaintiff's possession. Hence, the suit. 6. The averments made in the written statement filed by the defendants, in brief, are as follows: 6.1. It is not correct to say that the plaintiff has purchased the suit property from one Subbammal. In fact, the suit property belongs to the predecessor of the defendants, namely, Venkatarama Naicker residing at Veralippatti. He had 2 sons, namely, Sandaiyur Ramasamy Naicker and Thirumalai Venkatasamy Naicker. The said Thirumalai Venkatasamy Naicker gave birth to V.T.Narasimma Naidu and V.T.Ramasamy Naidu. On the other hand, another son, V.T.Ramasamy Naidu, gave birth to V.T.R.Raja and V.T.R.Chinna Raja, who are the defendants herein. The above referred Sandaiyur Ramasamy Naidu purchased the property comprised in Survey No.286 measuring an extent of 3 acres 9 cents along with a well, further he purchased the property measuring an extent of 66 cents in Survey No.287/A and a property measuring an extent of 1 acre 20 cents in Survey No.283/A. 6.2. In the oral partition made between Sandaiyur Ramasamy Naicker and his brother Thirumalai Venkatasamy Naicker, the land in Survey No.287/B was allotted in favour of Thirumalai Venkatasamy Naicker. In the oral partition made between Sandaiyur Ramasamy Naicker and his brother Thirumalai Venkatasamy Naicker, the land in Survey No.287/B was allotted in favour of Thirumalai Venkatasamy Naicker. On 28.01.1925, the well situated in Survey No.287/B was purchased by Thirumalai Venkatasamy Naicker from Sandaiyur Ramasamy Naicker. After the demise of the said Thirumalai Venkatasamy Naicker, his sons, namely, V.T.Narasimma Naidu, V.T.Ramasamy Naidu are enjoyed the said property. After the demise of the said V.T.Ramasamy Naidu, only the defendants are enjoying the suit property. 6.3. During the time of UDR proceedings, the land in Survey No.287/A measuring an extent of 66 cents and the land in Survey No.287/B measuring an extent of 4 cents, are assigned as Survey No.287/2A. Till 1993, the defendants are enjoying the suit property and thereafter, the plaintiff fabricated some documents submitted before the Tahsildar, Nilakkottai and obtained patta in his name. The same was objected by the defendants by way of filing a petition dated 27.12.1993. After receiving the petition submitted by the defendants, individual patta stands in the name of the plaintiff has been cancelled and thereafter, the names of the defendants were included in the said patta. It is for the plaintiff to prove that the suit schedule property was classified into various survey numbers. The vendor, namely, Subbammal and her daughter Azhagammal was having right only the land in Survey No.287/2 measuring an extent of 1 acre 7 cents. Apart from that, she was having one well and 4 cents of land. The sale made in favour of the plaintiff is a void one. Hence, the suit filed by the plaintiff is liable to be dismissed. 7. Based on the above said pleadings, the learned District Munsif, Nilakkottai has framed necessary issues and tried the suit. 8. During the trial, on the side of the plaintiff, 3 witnesses have been examined as P.W.1 to P.W.3 and 26 documents were marked as Ex.A.1 to Ex.A.26. On the side of the defendants, 2 witnesses have been examined as D.W.1 and D.W.2 and 7 documents were marked as Ex.B.1 to Ex.B.7. 9. Having considered all the materials placed before the learned District Munsif, Nilakkottai, he dismissed the suit by saying that the plaintiff has not proved his case. In the appeal, the said finding was reversed by the learned Principal Subordinate Judge, Dindigul and ultimately, the decree has been granted in favour of the plaintiff. 9. Having considered all the materials placed before the learned District Munsif, Nilakkottai, he dismissed the suit by saying that the plaintiff has not proved his case. In the appeal, the said finding was reversed by the learned Principal Subordinate Judge, Dindigul and ultimately, the decree has been granted in favour of the plaintiff. Aggrieved over the same, the defendants are before this Court. 10. While at the time of admitting the Second Appeal, this Court has formulated the following substantial questions of law for deciding this appeal; “(a) Whether the Lower Appellate Court was right in decreeing the suit on the ground of adverse possession when the plaintiff was not able to prove his right through title? (b) Whether the Lower Appellate Court is right in holding that the defendants are not entitled to the suit property by mainly relying on Exhibits A3 & A24 pattas issued by the revenue authorities and relying on Exhibits A6 to A12 and A13 gist receipts?” 11. Heard Mr.R.Subramanian, learned counsel for the appellants/defendants and Mr.S.Madhavan, learned counsel for the respondent/plaintiff. I have also perused the materials available on record. Substantial questions of law (a) and (b): 12. The specific case of the plaintiff before the trial Court is that, on 29.10.1982, he had purchased the suit schedule property vide sale deed [Ex.A.2] from one Subbammal and from her daughter Azhagammal. In the said sale deed, dated 29.10.1982, the description of property found as follows; “TAMIL” 13. In the said occasion, since the title claimed by the plaintiff was denied on the side of the defendants, it is relevant to see the description of property found in the plaint, which reads as hereunder; “TAMIL” 14. Now, on comparing the description of property found in the plaint with sale deed [Ex.A.2], it seems that in the sale deed the suit property was described only with Survey Number (i.e.287/2) and otherwise without any details in respect to four boundaries. Before the trial Court, the further case of the plaintiff is that during the time of UDR proceedings, the new survey number, for example Survey No.287/2 was divided into Survey Nos.287/2A and 287/2B, in which, Survey No.287/2A is the property of the plaintiff. Further, patta number has also been changed as patta no.1812 instead of patta no.530. Before the trial Court, the further case of the plaintiff is that during the time of UDR proceedings, the new survey number, for example Survey No.287/2 was divided into Survey Nos.287/2A and 287/2B, in which, Survey No.287/2A is the property of the plaintiff. Further, patta number has also been changed as patta no.1812 instead of patta no.530. In fact after some time, from the date of purchase, a separate patta number has been assigned in the name of the plaintiff, however, since the same was objected by the defendants, the Tahsildar, Nilakkottai, on 21.04.1994 passed an order for including the names of the defendants in the patta stands in the name of the plaintiff. 15. Per contra, the specific case of the defendants is that, the suit property is the ancestral property of the defendants. The ancestor of the defendant is one Venkataramana Naicker, who had two sons, namely, Sandaiyur Ramasamy Naicker and Thirumalai Venkatasamy Naicker. The said Thirumalai Venkatasamy Naicker gave birth to V.T.Narasimma Naidu and V.T.Ramasamy Naidu. On the other hand, another son, V.T.Ramasamy Naidu, gave birth to V.T.R.Raja and V.T.R.Chinna Raja. On 28.09.1909, Sandaiyur Ramasamy Naidu purchased the lands comprised in Survey No.286 measuring an extent of 3 acres 9 cents, in Survey No.287/A, measuring an extent of 66 cents, in Survey No.283/A measuring an extent of 1 acre 20 cents and one well in Survey No.287/B. The said purchase has been made by Sandaiyur Ramasamy Naicker from one Chinna Venkatasamy Naicker, S/o.Vellaiya Naicker @ Thirumalai Venkatasamy Naicker. Further, the said property was purchased by Sandaiyur Ramasamy Naicker as a common property to his family. 16. After the purchase, the said Sandaiyur Ramasamy Naicker and his brother Thirumalai Venkatasamy Naicker entered into an oral partition, in which, except the well situated in Survey No.287/B, the remaining properties were allotted in favour of Thirumalai Venkatasamy Naicker, who was the grandfather of the defendants. On 28.01.1925, the well found in Survey No.287/B was purchased by Thirumalai Venkatasamy Naicker from his brother Sandaiyur Ramasamy Naicker. After the demise of the said Thirumalai Venkatasamy Naicker, his sons, namely, V.T.Narasimma Naidu and V.T.Ramasamy Naidu commonly enjoyed the same. They also entered into oral partition, in which, the suit property and other properties were allotted in favour of V.T.Ramasamy Naidu, who was the father of the defendants. After the demise of the said Thirumalai Venkatasamy Naicker, his sons, namely, V.T.Narasimma Naidu and V.T.Ramasamy Naidu commonly enjoyed the same. They also entered into oral partition, in which, the suit property and other properties were allotted in favour of V.T.Ramasamy Naidu, who was the father of the defendants. Before two years from the date of filing of the suit, the said V.T.Ramasamy Naidu was died and thereafter, the defendants enjoyed the suit property. Based on the enjoyment, joint patta was issued to the defendants along with plaintiff's name in respect to 66 cents in Survey No.287/A and to 4 cents in Survey No.287/B. 17. After suppressing the entire happenings, the plaintiff submitted a petition before the Tahsildar, Nilakkottai and obtained separate patta. Only after knowing the same, the defendants made objection and thereafter, the patta obtained in favour of the plaintiff was cancelled and again on 27.06.1994, joint patta was issued. 18. The trial Court after recording evidence on either side came to the conclusion that the plaintiff has not proved the title and thereby, the plaintiff is not entitled to the relief of declaration and ultimately, dismissed the suit. 19. While at the time of disposing the appeal, the First Appellate Court has held that, since the alleged oral partition made between the defendants family has not proved by the defendants, the plaintiff was entitled to the relief as prayed for. 20. In this occasion, the learned counsel for the appellants/defendants would contend that for seeking the relief of declaration and injunction, the party, who prayed the said relief has to prove the title and possession, but here the plaintiff has not proved his title through relevant documents. However, the First Appellate Court by holding that only the defendants are having the duty to prove the oral partition and thereby, the plaintiff was entitled to the relief, which is erroneous in law. 21. On the other hand, the learned counsel for the respondent/plaintiff would contend that the documents relied on by the plaintiff i.e. Ex.A.1 to Ex.A.26, which will prove the title and possession, further he added that the First Appellate Court has correctly appreciated the evidence recorded by the trial Court and decreed the suit. 22. 21. On the other hand, the learned counsel for the respondent/plaintiff would contend that the documents relied on by the plaintiff i.e. Ex.A.1 to Ex.A.26, which will prove the title and possession, further he added that the First Appellate Court has correctly appreciated the evidence recorded by the trial Court and decreed the suit. 22. Now upon considering the arguments advanced by the learned counsel appearing on either side, the same will reveal the fact that the plaintiff claimed the property based on the two documents i.e. (i) sale deed dated 29.10.1982 and (ii) sale deed dated 22.10.1932, which were exhibited as Ex.A.2 and Ex.A.21 respectively. Secondly, the plaintiff has claimed the title by way of adverse possession. 23. It is the case of the plaintiff that during the time of UDR proceedings, Survey No.287/2 was divided into Survey Nos.287/2A and 287/2B and to prove the same, he produced various Registers maintained by the Revenue Department. Before the trial Court, apart from patta, the plaintiff has exhibited gist receipts as Ex.A.4 to Ex.A.13. He has also produced chitta as Ex.A.20. Now, on going through the said chitta, the same has been issued in favour of R.Subbammal (1), Azhagammal (2), T.Subbammal (3), R.Ramasamy (4). Further, the said chitta established the fact that the patta no.530 is in respect to Survey No.287/2 and the same is having an extent of 1.77 acres. 24. If really, the said entire extent (1.77 acres) has purchased by the plaintiff from one Subbammal and Azhagammal, there is no necessity to add one another name (i.e.) R.Subbammal as pattadhar in respect to Survey No.287/2. Therefore, the records maintained by the Revenue Department is not in accordance with the sale deed dated 29.10.1982 [Ex.A.2]. In otherwise, on going through Ex.A.23, which is also a chitta dated 12.07.1996, the same reflects the fact that the patta has been issued in respect to the Survey No.282/2A in favour of the plaintiff measuring an extent of 0.70.0 hectares in fact if the same was converted into acre, the same come around 1.74 acres and not as 1.77 acres. So in this aspect, the plaintiff fails to prove the fact that he has purchased the property measuring an extent of 1.77 acres in Survey No.287/2. 25. So in this aspect, the plaintiff fails to prove the fact that he has purchased the property measuring an extent of 1.77 acres in Survey No.287/2. 25. Secondly coming to the point of adverse possession, it is relevant to see the judgment of our Hon'ble Apex Court in DHARAMPAL vs. PUNJAB WAKF BOARD reported in (2018) 11 SCC 449 , wherein, it has held as follows; “28. In the first place, we find that this Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala (2014)1 SCC 669 has held in para 8 that a plea of adverse possession cannot be set up by the plaintiff to claim ownership over the suit property but such plea can be raised by the defendant by way of defence in his written statement in answer to the plaintiff's claim. We are bound by this view.” 26. So, it is settled position that the plaintiff cannot set up the plea of adverse possession for proving the title. Further, before the trial Court, the defendants claims that the suit property as their ancestral property but in order to prove the same, they have not filed genealogical tree, which is for showing the details of their ancestors. In this occasion, it is relevant to see the judgment of our Hon'ble Apex Court in STATE OF BIHAR vs. RADHA KRISHNA SINGH reported in AIR 1983 SC 684 , wherein it has observed as under; “Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. When a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved.” 27. So in this area, the defendants have not proved the title. However, the defendants claims the property as their ancestral property, which was allotted to them through their grandfather, but in order to prove the same, they have not examined any witness on their side. So in this area, the defendants have not proved the title. However, the defendants claims the property as their ancestral property, which was allotted to them through their grandfather, but in order to prove the same, they have not examined any witness on their side. In this aspect, it is relevant to see the judgment of this Court in PALANIVELU vs. MUNIAPPAN [S.A.No.666 of 2015 dated 13.11.2018], in which, it has held as follows; “15........... 2017 (2) MWN [Civil] 241 [Chithra Vs. Saroja and another] and the position of law has been culled out in the abovesaid decision as follows: HINDU LAW Oral partition proof of Suit for partition resisted by the defendants on ground that there was earlier partition, 25 years prior to Suit Burden lies on the defendants to prove that such Oral Partition took place Except interested testimony, no other evidence let in to prove Oral Partition Revenue records produced by Defendants Partition Suit cannot be decided on basis of Revenue records Defendants have not proved plea of Oral Partition Plaintiff entitled to Preliminary Decree for Partition Second Appeal Allowed.” 28. Therefore, culling out the entire circumstances let in by either side, it reveal the fact that the plaintiff has not proved the title by way of producing relevant documents in respect to the entire suit property, for which, he prayed the relief of declaration and injunction. Even though it is not necessary on the part of the defendants that they are not having the duty to prove their claim, in this case, the attempt made by the defendants have also failed, by means of non-proving the oral partition made between the family of the defendants. 29. In all these aspects, the First Appellate Court without considering the fact that only the plaintiff is having the duty to prove the title, shifted the burden on the defendants and thereby, allowed the appeal, which is erroneous in law. 30. In view of the above, the substantial questions of law (a) and (b) are answered affirmatively in favour of the appellants/defendants. 31. Accordingly, the Second Appeal is allowed and the judgment and decree dated 03.08.2001 made in A.S.No.149 of 1999 on the file of the learned Principal Subordinate Judge, Dindigul, reversing the judgment and decree dated 06.11.1998 made in O.S.No.179 of 1994 on the file of the learned District Munsif, Nilakkottai, is hereby set aside. No costs.