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2019 DIGILAW 968 (MAD)

Anjammal v. Varadharajan (Deceased)

2019-04-05

T.RAVINDRAN

body2019
JUDGMENT : T. RAVINDRAN, J. 1. Challenge in this second appeal is made to the judgment and decree dated 21.12.2004 passed in A.S. No. 36 of 2004 on the file of the Additional Subordinate Court, Mayiladuthurai reversing the judgment and decree dated 11.08.2003 passed in O.S. No. 154 of 2000 on the file of the Additional District Munsif Court, Mayiladuthurai. 2. The second appeal has been admitted on the following substantial question of law. "1. Whether the lower appellate court is justified in relying on documents marked in some other suit without proper proof in the manner known to law? 2. Whether the lower appellate court is erred in not framing proper points arising for consideration as mandated by order 41 rule 31 of CPC? 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. Suit for permanent injunction. The case of the plaintiff, in brief, is that she had purchased the suit property from one Balasubramania Iyer and enjoying the same for more than 20 years by paying kists, etc. and the plaintiff is a widow and the defendant is her brother. The plaintiff had been permitting the defendant to pluck usufructs of the trees lying in the suit property now and then and on the other hand, the defendant on its own, by attempting to tresspass into the suit property, had endeavoured to enjoy the usufructs of the trees in the suit property and the same had been prevented by the plaintiff. However, inasmuch as the defendant continued in persisting his unlawful action and thereby disturbed the plaintiff's possession and enjoyment of the suit property, it is stated that the plaintiff has been necessitated to lay the suit for appropriate relief. 6. The defendant resisted the plaintiff's suit contending that the suit property has not been properly described, particularly, the boundaries to the suit property. 6. The defendant resisted the plaintiff's suit contending that the suit property has not been properly described, particularly, the boundaries to the suit property. To the north of the suit property, the land belonging to the defendant's wife Mariammal, measuring 11 ½ cent lie and only to the north of the same kalam lies and suppressing the same, the plaintiff has come forward with the suit inclusive of the property belonging to the defendant's wife. Even the extent of the suit property has not been correctly given. It should be only 54 kulies and the suit property is stated to be measuring 56 kulies and the suit property is inclusive of the defendant's wife's property as abovestated. Even the commissioner, who had been appointed in the matter, had noted the physical features obtaining in the suit property and therefore, the suit property is not in the possession and enjoyment of the plaintiff as put forth in the plaint and hence the suit is liable to be dismissed. 7. In support of the plaintiff's case PWs. 1 and 2 were examined and Exs.A1 to A8 were marked. On the side of the defendant, DWs. 1 and 2 were examined and Ex.B1 was marked. Exs.C1 and C2 were also marked. 8. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to decree the suit in favour of the plaintiff as prayed for. The first appellate court, on an appreciation of the materials placed on record, partly allowed the appeal by determining that the plaintiff is entitled to the relief of permanent injunction in respect of the house bearing door No. 5/61 lying in the suit property and in other aspects, dismissed the plaintiff's suit and accordingly disposed of the appeal preferred by the defendant. Impugning the same, the plaintiff has come forward with the second appeal. 9. From the materials placed on record, it is found that the plaintiff claims title to the suit property based on the sale deed dated 12.09.2000 marked as Ex.A7. Impugning the same, the plaintiff has come forward with the second appeal. 9. From the materials placed on record, it is found that the plaintiff claims title to the suit property based on the sale deed dated 12.09.2000 marked as Ex.A7. The suit property is described as lying in the suit village in survey No. 329/1A consisting of a house bearing door No. 5/61 with backyard portion measuring an extent of 56 kulies lying to the east of road, west of Kannaiyan's land, south of kalam and north of the house and backyard of Krishnamurthy with backyard and trees thereon. Claiming that the abovesaid property, as described in the plaint, is in the possession and enjoyment of the plaintiff, the plaintiff has come forward with the suit alleging that the defendant, without any entitlement to the same, is disturbing her possession and enjoyment. On a perusal of the sale deed dated 12.09.2000 projected by the plaintiff for claiming title to the suit property from the erstwhile owner, the copy of the sale deed has been marked as Ex.A7 whereunder, it is seen that the plaintiff has acquired only an extent of 9 cents in survey No. 329/1A of the suit village and the abovesaid property is described as lying to the south of kalam, east of Anjammal's house, north of Krishnamurthy's punjai and west of Kannaiyan's nanjai and the abovesaid property has been described as a vacant site in Ex.A7. By way of the abovesaid sale transaction, it is found that the plaintiff has acquired only a portion of the suit property, as described in the plaint, of an extent of 9 cents out of 56 kulies as shown in the plaint schedule. Even the extent of 56 kulies is not admitted by the defendant and according to the defendant, the extent is only 54 kulies. Be that as it may, by virtue of Ex.A7 sale transaction, at the most, the plaintiff would be entitled to claim title to an extent of 9 cents only and thereby, it is found that the claim of the plaintiff that she has acquired title to the suit property on the basis of Ex.A7 sale transaction, as such, cannot be accepted in any manner. 10. 10. The other documents projected by the plaintiff for establishing her claim of possession and enjoyment of the suit property are the house tax receipts marked as Exs.A1 to A5 and the proceeding of the Tahsildar marked as Ex.A6 and the Encumbrance Certificate marked as Ex.A8. The suit has been laid by the plaintiff on 06.04.2000. Therefore, the proceeding of the Tahsildar dated 26.08.2000, projected by the plaintiff marked as Ex.A6, cannot, at all, be given credence to for upholding the plaintiff's case in any manner as such, as the said document has come into existence after the institution of the suit. From the materials placed on record, it is found that the defendant had admitted that the plaintiff is in the occupation of the house portion lying in the suit property. According to the defendant, on the basis of the permission granted by him, the plaintiff is in the occupation of the house property, in such view of the matter, when the plaintiff is admittedly found to be in the occupation of the house lying in the suit property and the house is said to be only lying in the corner of the suit property, the house tax receipts projected by the plaintiff marked as Exs.A1 to A5 by itself, would not, in any manner, be useful to sustain the plaintiff's claim of possession and enjoyment of the suit property as described in the plaint. Therefore, the trial court is found to have committed a total error in accepting the plaintiff's case based on the documents projected in the mater on the part of the plaintiff. The defendant has projected certain claim of title to the suit property on the footing that his wife Mariammal's property also form part of the suit property and according to the defendant, the plaintiff has laid the suit inclusive of his wife's property and on that basis, the defendant sought for the dismissal of the plaintiff's suit. In this connection, the sale deed, in the name of defendant's wife, dated 10.06.1974 has been marked as Ex.B1 on the part of the defendant. However, according to the plaintiff, the boundaries described in Ex.B1 does not, in any manner, tally with the suit property as described in the plaint schedule and therefore, on that basis, Ex.B1 cannot be relied upon for accepting the defence version put forth on the part of the defendant. However, according to the plaintiff, the boundaries described in Ex.B1 does not, in any manner, tally with the suit property as described in the plaint schedule and therefore, on that basis, Ex.B1 cannot be relied upon for accepting the defence version put forth on the part of the defendant. The defendant has only put forth the plea in the written statement that his wife's property is lying to the north of the suit property and to the north of the same, the kalam is lying. He would also state that the suit property belonged to Balasubramania Iyer and he has been in the occupation of the suit property as the cultivator and accordingly, Balasubramania Iyer handed over the suit property to him and on that basis, the defendant would also put forth the claim of title to the suit property. However, as regards the claim of title to the suit property from Balasubramania Iyer, the owner, absolutely there is no material forthcoming on the part of the defendant. The defendant having put forth the defence that the suit property belonged to Balasubramania Iyer cannot turn around and state that his wife had purchased a portion of the suit property and inclusive of his wife's property, the plaintiff has come forward with the suit. It is thus found that even the defendant is not sure as to where his wife's property lies. 11. Be that as it may, when the plaintiff has come forward with the relief of permanent injunction on the footing that the suit property, as described in the plaint, is in her possession and enjoyment and would rely upon Ex.A7 sale transaction for acquiring the portion of the suit property from the owner Balasubramania Iyer, however, by way of the abovesaid document in isolation, it could not be determined that the plaintiff is in the possession and enjoyment of the suit property in entirety as described in the plaint and when the other documents projected by the plaintiff, for sustaining her case, are not useful to hold that the suit property, as described in the plaint, is in her possession and enjoyment, in such view of the matter, in my considered opinion, the plaintiff cannot be granted the equitable relief of permanent injunction as prayed for in respect of the suit property. Furthermore, when the description of the suit property, as found in the plaint schedule and the description of the property as found in Ex.A7 sale transaction, do not tally with each other as such, in such view of the matter, on the basis of Ex.A7 alone, we cannot infer that the plaintiff is in the possession and enjoyment of the suit property in entirety. 12. The defendant himself has admitted in the written statement that it is only the plaintiff, who has been in the possession and enjoyment of the house portion lying in the suit property. According to the defendant, on his permission, the plaintiff is residing there. However, the same had been refuted by the plaintiff. Be that as it may, as admitted by the defendant, the plaintiff is found to be in the portion of the suit property, particularly, where the house is lying. 13. In the light of the abovesaid factors, it is found that the first appellate court by determining that the plaintiff has failed to establish her possession and enjoyment of the suit property in entirety as claimed by her and her possession of the house lying in the suit property has been admitted by the defendant, accordingly, to the abovesaid limited extent alone, had granted the relief of permanent injunction in favour of the plaintiff and dismissed the plaintiff's suit as regards the other aspects. 14. That apart, the parties had been vying with each other for claiming the title to the suit property one way or the other, in such view of the matter, particularly, when the defendant has laid the suit claiming the title to the suit property against the plaintiff in O.S. No. 161 of 2001, even thereafter, the plaintiff has not endeavoured to seek the relief of declaration of title to the suit property for sustaining her claim, on that score also, the first appellate court discountenanced the plaintiff's suit rightly. 15. 15. In the light of the abovesaid factors, the plaintiff having failed to establish her possession and enjoyment of the suit property as described in the plaint and in such view of the matter, the first appellate court is found to be justified in granting the relief of permanent injunction in favour of the plaintiff only in respect of the house portion lying in the suit property as determined by it and justified in dismissing the plaintiff's suit in other aspects, and in my considered opinion, no interference is called for with reference to the same. In such view of the matter, it is seen that no substantial question of law is found to be involved in the second appeal. Be that as it may, the substantial questions of law formulated in this second appeal are accordingly answered against the plaintiff and in favour of the defendant. 16. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is dismissed.