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2019 DIGILAW 768 (MAD)

Kannan @ Palani v. Mayilal @ Pappathi

2019-03-22

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 25.11.2002 made in A.S.No.59 of 2002 on the file of the Sub Court, Bhavani confirming the judgment and decree dated 28.06.2002 made in O.S.No.519 of 1999 on the file of the II Additional District Munsif Court, Bhavani.) 1. In this second appeal, challenge is made to the judgement and decree dated 25.11.2002 passed in A.S.No.59 of 2002 on the file of the Subordinate Court, Bhavani, confirming the judgment and decree dated 28.06.2002 passed in O.S.No.519 of 1999 on the file of the Second Additional District Munsif Court, Bhavani. 2. The second appeal has been admitted on the following substantial questions of law: 1. Whether a suit for declaration of title can be decreed in the absence of any documents filed by the plaintiff to prove title or possession? 2. In a suit for declaration of title whether the burden can be cast on the defendant to prove title? 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 the rankings in the trial court. 5. The suit has been laid by the plaintiff against the defendants for the reliefs of declaration and permanent injunction. The plaintiff claims title to the suit property, as averred in the original plaint, based upon the patta said to have been issued in her favour in the year 1981 under the patta No.22 and in the original plaint, the plaintiff described herself as Mylal @ Papathi, wife of Govindhan. The plaintiff claims title to the suit property, as averred in the original plaint, based upon the patta said to have been issued in her favour in the year 1981 under the patta No.22 and in the original plaint, the plaintiff described herself as Mylal @ Papathi, wife of Govindhan. On that basis, the plaintiff has sought for the abovesaid reliefs in respect of the suit property contending that it is only she, who has title to the suit property based upon the patta issued by the Government and the suit property is in her possession and enjoyment and inasmuch as, the fourth defendant in particular, attempted to interfere with her possession and enjoyment and the defendants 1 to 3 are endeavoring to issue a patta in favour of the fourth defendant in respect of the suit property without sending intimation or notice to her and obtaining her consent, according to the plaintiff, she has been necessitated to lay the suit against the defendants. 6. The plaintiff has been examined as P.W.1 and P.W.1 during the course of her evidence, has admitted in the cross examination that only after the defendants 1 to 3 had filed the written statement, later she had come forward to amend the plaint as describing her husband's name as Kittan @ Govindhan and accordingly, it is found that subsequent to the filing of the written statement on the part of the defendants, as such, the plaintiff has chosen to amend the original plaint and in the amended plaint, the plaintiff has described herself as Mylal @ Papathi, wife of Kittan @ Govindhan and furthermore, she has also amended the plaint that the patta had been issued in her favour by the Government in respect of the suit property in the year 1980 for the plot No.22 and accordingly on that premise proceeded to prosecute the suit further. 7. The defendants 1 to 3 resisted the plaintiff's case contending that in respect of the suit property comprised in patta No.22 in survey No.502/11 of Athaani village, Bhavani Taluk, the patta had been issued on 13.11.1980 in favour of Papathi, W/o Kittan. Therefore disputed the claim of the plaintiff that she had been issued the patta in respect of the suit property comprised in plot No.22 in the year 1980. Therefore disputed the claim of the plaintiff that she had been issued the patta in respect of the suit property comprised in plot No.22 in the year 1980. Furthermore, according to the defendants 1 to 3, no patta had been issued in respect of the suit property in favour of the fourth defendant and no endeavor had been made by them to transfer the patta to the fourth defendant fraudulently as alleged in the plaint and also disputed the claim of the plaintiff that she has been in the possession and enjoyment of the suit property following the patta said to have been issued in her favour by the Government in the year 1980 and accordingly, contended that the plaintiff is not entitled to seek the reliefs of declaration and permanent injunction as regards the suit property. 8. Similarly, the fourth defendant also resisted the plaintiff's suit and would however plead that the plaintiff had sold the suit property to him orally in the year 1990 and executed a document acknowledging the receipt of sale consideration on 07.08.1982 and based on the same, the patta had been granted to him on enquiry and it is he, who has been in the possession and enjoyment of the suit property and hence according to the fourth defendant, the plaintiff is not entitled to seek and obtain the reliefs prayed for in the suit. 9. In the light of the above rival pleas putforth by the respective parties, it is for the plaintiff to establish that she has a valid title to the suit property as putforth by her and that the same is in her possession and enjoyment. The patta said to have been issued in favour of the plaintiff in respect of the suit property has come to be marked a Ex.B1/B4. On a perusal of the same, it is found that in respect of the plot No.22, compromised in survey No.502/11 patta had been issued in favour of Papathi, W/o, Kittan. The patta said to have been issued in favour of the plaintiff in respect of the suit property has come to be marked a Ex.B1/B4. On a perusal of the same, it is found that in respect of the plot No.22, compromised in survey No.502/11 patta had been issued in favour of Papathi, W/o, Kittan. As abovenoted, the plaintiff has described herself as Mylal @ Papathi and laid the suit only claiming herself to be the wife of Govindhan, and later on the basis of the written pleas put forth by the defendants, chose to amend the plaint by describing her husband's name as Kittan @ Govindhan, clearly, it is obvious that, the abovesaid amendment had been made by the plaintiff only to claim somehow or the other, the title to the suit property based upon Ex.B1/B4 patta as projected by the defendants. In Ex.B1/B4, the name of the patta holder is not described as Mylal @ Papathi. It has been only described as Papathi, W/o Kittan and as abovenoted, the defendants 1 to 3 in particular had resisted the plaintiff's suit contending that no patta had been issued in the name of the plaintiff in respect of the suit property as claimed in the plaint and according to them, in specific, the patta had been issued only in favour of Papathi, W/o Kittan. Therefore, to substantiate that Ex.B1/B4 patta had been actually issued in favour of the plaintiff, it is for the plaintiff to establish her case by placing acceptable and reliable materials. However, the plaintiff to sustain her case has not produced any document whatsoever to uphold her claim of title to the suit property. The alleged patta said to have been issued in her favour in respect of the suit property has not been produced by the plaintiff. Conveniently the plaintiff would state that the original patta, which had been issued in her favour has been lost and however would claim that it is only she, who has been in the possession and enjoyment of the suit property. If really the original patta issued in favour of the plaintiff had been lost, nothing prevented the plaintiff to approach the concerned authorities for issuing a duplicate patta in her favour in respect of the suit property as per law. If really the original patta issued in favour of the plaintiff had been lost, nothing prevented the plaintiff to approach the concerned authorities for issuing a duplicate patta in her favour in respect of the suit property as per law. The plaintiff would claim that she had put up a thatched house in the suit property in the year 1981 by demolishing the old thatched house located therein and enjoying the same. If really, the plaintiff had been assigned the patta in respect of the suit property with the thatched superstructure thereon, the patta document projected in the matter marked as Ex.B1/B4 would disclose that the property comprised of a superstructure. On the other hand, the document Ex.B1/B4 recites as if the property comprised therein is only a vacant house site. Furthermore, the plaintiff would also aver in the plaint that she has been in the possession and enjoyment of the suit property by residing therein from the year 1978. If really the plaintiff had been residing in the suit property from the year 1978, there should have been a superstructure in the suit property and the same would have been reflected in Ex.B1/B4 patta, but as abovenoted, Ex.B1/B4 only relates to a vacant site. The claim of the plaintiff that she has subsequently constructed a new house in the year 1981 by demolishing the existing old thatched house is not supported by any material. If really the plaintiff had put up the new thatched house in the suit property based on the patta said to have been issued in her favour, the house would have been assessed in the name of the plaintiff and to evidence her enjoyment of the same, the plaintiff would have produced the tax receipts. However, conveniently the plaintiff would plead that the thatched house put up by her has not been assessed by the local panchayat, but the abovesaid case of the plaintiff cannot be readily countenanced. It is thus found that the plaintiff has falsely projected the case that she is in the possession and enjoyment of the suit property by residing therein, however unable to substantiate the same with acceptable materials. It is evidently found that the plaintiff has falsely putforth the case that the thatched superstructure put up in the suit property has not been assessed by the panchayath concerned. It is evidently found that the plaintiff has falsely putforth the case that the thatched superstructure put up in the suit property has not been assessed by the panchayath concerned. With reference to the abovesaid plea, there is no proof whatsoever on the part of the plaintiff. 10. As abovenoted, the plaintiff has not placed the patta issued in her favour in the matter for upholding her claim of title to the suit property. As abovenoted, it is pleaded that the original patta had been lost by her. Be that as it may, the plaintiff should have endeavored to secure a fresh patta or the duplicate patta from the Government in her favour. At the foremost, the plaintiff has failed to establish that her name is Mylal @ Papathi, and in this connection, the plaintiff during the course of cross examination has admitted that she has not filed any document to show her name is Mylal @ Papathi. However, she had admitted that in the ration card and in the voters list her name is shown only as Mylal. Furthermore, she has also admitted that in the ration card and the voters list, her husband's name has been mentioned only as Govindhan. Therefore, when as per the admitted case of the plaintiff that her name is described only as Mylal and her husband's name is described only as Govindhan in the ration card and voters list, her present name as projected in the plaint as Mylal @ Papathi and her husband's name as Kittan @ Govindhan cannot be accepted without any proof or material pointing to the same. Thus, it is found that only after the defendants had putforth the written pleas that the patta had been issued in favour of Papathi, W/o, Kittan, it is found that the plaintiff has chosen to amend the plaint describing her husband's name as Kittan @ Govindhan. Though the plaintiff had instituted the suit describing her name as Mylal @ Papathi, when as per the clear admission of the plaintiff that her name is reflected only as Mylal in the ration card and the voters list and when there is no proof placed on the part of the plaintiff to hold that her name is Mylal @ Papathi, in such view of the matter, the claim of the plaintiff that she is named as Mylal @ Papathi, as such, cannot be accepted. Similarly, when her husband's name has been described as Govindhan in the voters list and ration card, her claim that her husband's name is also Kittan @ Govindhan sans any material pointing to the same also cannot be accepted in any manner. 11. If really, the patta had been issued in favour of the plaintiff namely Mylal @ Papathi, wife of Kittan @ Govindhan, particulars with reference to the same would have been reflected in the patta document said to have been issued in her faovur. But conveniently the plaintiff would come forward with the case as if the patta issued in her favour has been lost. If that be so, as a prudent person, the plaintiff would have endeavored to secure a fresh patta or a duplicate patta in her favour from the Government as per law. On the other hand, the plaintiff is found to have developed her case step by step based on the written pleas putforth by the defendants. The plot number in respect of which the plaintiff had been issued the patta has not been furnished by the plaintiff in the original plaint. Only by way of amendment, she had chosen to claim that the patta had been issued in her favour in respect of the plot No.22. As abovenoted, her claim that she has been enjoying the suit property by putting up a thatched house etc., is not borne out by acceptable and reliable material. No proof has been put forth by the plaintiff to evidence her claim of the possession and enjoyment of the suit property by putting up a thatched house etc., as pleaded in the plaint. 12. The plaintiff during the course of cross examination has admitted that if the patta had been lost, the duplicate copy of the patta could be obtained. When she had been questioned as to why she had not endeavored to obtain the duplicate patta in her favour, the plaintiff has clearly admitted that she had obtained the duplicate patta and the same is in her possession and according to her, the said document is available in her residence and she has not produced the same in the court. Though she had admitted that she would produce the same in the court, for the reasons best known to her, she has not placed the same for the consideration of the court one way or the other. Though she had admitted that she would produce the same in the court, for the reasons best known to her, she has not placed the same for the consideration of the court one way or the other. Despite the suggestion put to her by the defendants that her husband's name is not Kittan @ Govindhan and that she had not been issued the patta in respect of the suit property and when the defendants had put forth the specific case that the patta had been issued only in favour of Papathi, W/o Kittan, despite the above position, the plaintiff having laid the suit for seeking the relief of declaration and permanent injunction, has not placed any document whatsoever, for sustaining the reliefs claimed in the suit and in such view of the matter, the case projected by the plaintiff for claiming the reliefs of declaration and permanent injunction in respect of the suit property, at the foremost, not establishing that it is she who had been granted the patta and without placing any material whatsoever to evidence that she has been in the possession and enjoyment of the suit property after the assignment of the patta or even prior to the same as claimed by her and when she has admitted that she had obtained the duplicate copy of patta and having the same in her custody but not endeavored to produce the same for consideration, in all, would only go to expose that, as rightly putforth by the defendants 1 to 3, in particular, inasmuch as the plaintiff, as such, had not been granted the patta by the Government, she is unable to place any document whatsoever in support of her case. 13. The plaintiff has examined one Palani as P.W.2 in support of her case. Palani during the course of his evidence would state that the plaintiff had been granted the patta in respect of the suit property. During the course of cross examination, he has admitted that he does not know as to what further steps had been taken by the plaintiff after the issuance of the patta and admitted that the plaintiff had been issued the ration card and seen by him and also would claim that the plaintiff had been residing in the suit property by putting up a thatched superstructure. However, when as above seen, the plaintiff has been not endeavored to produce the said patta said to have been issued in her favour and also not placed material evidencing her case of possession and enjoyment of the suit property as putforth in the plaint, in such view of the matter, merely on the basis of the unreliable evidence of P.W.2, we cannot safely accept the plaintiff's case for granting the reliefs claimed in the suit. 14. The Courts below seem to have accepted the plaintiff's case mainly on the footing that D.W.1 examined on behalf of the defendants 1 to 3 at one stage, during the course of his evidence has admitted that Ex.B1 patta is issued in favour of the plaintiff. However, considering the evidence of D.W.1 in toto as well as the written pleas of the defendants 1 to 3 in entirety, it is found that the case of the defendants 1 to 3 is that no patta has been issued to the plaintiff in respect of the suit property describing the plaintiff's name as Mylal @ Papathi, W/o Kittan @ Govindhan. In such view of the matter, merely from the above said isolated evidence of D.W.1 made during the course of cross examination, by ignoring his other evidence as well as the written pleas of the defendants 1 to 3, we cannot accept the plaintiff's case, particularly, when the plaintiff has not endeavoured to place any material whatsoever for upholding her claim of title, possession and enjoyment of the suit property as putforth in the plaint, despite having materials to sustain her claim. 15. The fourth defendant has taken the plea that he has purchased the suit property orally from the plaintiff and based on the same, he had been granted the patta in respect of the suit property and enjoying the same. However to sustain the abovesaid case of the fourth defendant, no acceptable and reliable material is forthcoming. 15. The fourth defendant has taken the plea that he has purchased the suit property orally from the plaintiff and based on the same, he had been granted the patta in respect of the suit property and enjoying the same. However to sustain the abovesaid case of the fourth defendant, no acceptable and reliable material is forthcoming. Though the fourth defendant examined as D.W.2 has admitted that it is only the plaintiff, who is Mylal @ Papathi, wife of Kittan and the patta had been issued in her favour, however when the authority, who had issued the alleged patta, has disputed the claim of the plaintiff in the obtainment of the patta as putforth by her, in my considered opinion, no reliance could be attached to the evidence of D.W.2 for accepting the plaintiff's case. Similarly, merely on the projection of the case by the fourth defendant that he had purchased the suit property from the plaintiff orally, we cannot presume that it is only the plaintiff, who had been issued the patta by the Government in respect of the suit property. Somehow or the other, it is seen that the plaintiff and the fourth defendant, at the first instance, seem to have acted in collusion one way or the other in the matter and accordingly endeavored to project evidence in such a fashion with a view to enable the plaintiff to secure the reliefs claimed in the suit. Somehow or the other, it is seen that the plaintiff and the fourth defendant, at the first instance, seem to have acted in collusion one way or the other in the matter and accordingly endeavored to project evidence in such a fashion with a view to enable the plaintiff to secure the reliefs claimed in the suit. However, when the plaintiff has miserably failed to establish her case to hold that she is Mylal @ Papathi, W/o, Kittan @ Govindhan and when her specific case is that she is only described as Mylal and her husband's name is described as Govindhan in the voters list, ration card and despite having admitted that she is having the duplicate copy of the patta, the plaintiff not endeavoring to produce the original patta or duplicate patta to evidence that it is only she, who has been issued the patta in respect of the suit property, merely on certain admissions of the defendants' witnesses and the pleas putforth by the fourth defendant, we cannot accept the plaintiff's case straightway and in such view of the matter, in my considered opinion, the judgment and decree of the Courts below accepting the plaintiff's case sans any proof whatsoever placed on the part of the plaintiff for upholding her claim of title, possession and enjoyment of the suit property and having failed to appreciate the evidence of the defendants witnesses as well as the pleas putforth by them to resist the plaintiff's suit cumulatively, they are found to have misdirected themselves and hence the judgment and decree of the Courts below could only be described as perverse, illogical and irrational as being founded upon improper and erroneous appreciation of the materials placed on record and against the provisions of law pertaining to the same and in such view of the matter, the judgment and decree of the Courts below are liable to be setaside. The Courts below seem to have shifted the burden upon the defendants for upholding the plaintiff's case and thereby on the basis of certain stray admissions on the part of the defendants, during the course of evidence, endeavored to grant the reliefs in favour of the plaintiff which cannot be legally sustained. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendants. 16. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendants. 16. In the light of the above discussions, the judgment and decree dated 25.11.2002 passed in A.S.No.59 of 2002 on the file of the Subordinate Court, Bhavani, confirming the judgment and decree dated 28.06.2002 passed in O.S.No.519 of 1999 on the file of the Second Additional District Munsif Court, Bhavani are setaside and resultantly, the suit laid by the plaintiff in O.S.No.519 of 1999 is dismissed with costs. Consequently, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.