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2020 DIGILAW 128 (MAD)

Kasturi Rengan v. Kaayambu (died)

2020-01-13

N.SATHISH KUMAR

body2020
JUDGMENT : N. SATHISH KUMAR, J. Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree made in A.S. No. 138 of 1992 on the file of the District Court, Thanjavur, dated 24.08.1993, confirming the judgment and decree of the Sub Court, Thanjavur, passed in O.S. No. 165 of 1988, dated 28.01.1992. 1. Aggrieved over the concurrent finding of the Courts below, decreeing the suit for declaration and permanent injunction, the present Second Appeal came to be filed. 2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court. 3. The brief facts of the plaintiff's case are as follows: The suit property originally belonged to Hariyal Field Labourers Co-operative Society. Item No. 1 of the suit property was allotted in favour of the father of the plaintiff one Murugan S/o Koothan, who was a member in the Society. Similarly, Item Nos. 2 and 3 of the suit property were allotted in favour of the plaintiff. The Society also executed a deed of conveyance in favour of the respective parties. The plaintiff was originally born in Ceylon, when his father was working there as Estate Labourer. The plaintiff and his father returned to India in and around 1933 and they were in India upto 1940. Only at that time, assignment was given to the plaintiff and his father. After staying here for sometime, the plaintiff and his father went to Ceylon for eking out their livelihood. In Ceylon itself, the father of the plaintiff died leaving behind his two sons, namely the plaintiff and one Sannasi. During the absence of the plaintiff and his father, the suit property was looking after by his paternal uncle one Periannan till his life time and after him by one Thangavelu S/o Appavoo. During the absence of the plaintiff and his father, one Rakkappan @ Rajappa S/o Sundaram and Abimanyu S/o Arjunan, who are close relatives of the plaintiff, have created a document in favour of the defendants 1 and 2 as if they have sold the suit properties. The said Rakkappan @ Rajappa and Abimanyu, have no right whatsoever to deal with the property. The plaintiff was working as Estate Labourer in Ceylon till 1983 and subsequently, due to ethnic problem in Ceylon, the plaintiff could not continue his living in Ceylon. The said Rakkappan @ Rajappa and Abimanyu, have no right whatsoever to deal with the property. The plaintiff was working as Estate Labourer in Ceylon till 1983 and subsequently, due to ethnic problem in Ceylon, the plaintiff could not continue his living in Ceylon. Hence, he and his family members returned to India in the month of November, 1983. Only on coming to India, he came to know that the documents were created in favour of the defendants 1 and 2. Immediately, he applied encumbrance certificate and came to know that Rakkappan @ Rajappa and Abimanyu have sold the suit property and some other properties to the first defendant, vide a registered sale deed dated 24.01.1971. The first defendant, in turn, sold some of the suit properties to the second defendant on 13.09.1972. Those documents did not convey any title to the defendants. In fact, even after the dates of document, revenue patta still stands in the name of the plaintiff. Even, during re-survey, patta has been granted to the plaintiff. Possession was all along with the plaintiff. In his absence, one Thangavelu was looking after the property. Hence, the suit for declaration and injunction. 4. The second defendant filed a written statement contending that he is a bona fide purchaser and he has purchased the property in Survey No. 47/3 having an extent of 23 cents in the year 1972. From the date of purchase, he is in possession and enjoyment of the property. The ownership of the plaintiff is also denied. Even assuming that the plaintiff has a right, the same is lost, because of the open continuous and hostile right or title of this defendant. This defendant has prescribed right or title to the item purchased by him by adverse possession and he has also obtained a legal opinion in respect of the property and got the property. The plaintiff has nothing to do with the property. It appears that the plaintiff is making impersonation or misrepresentation. This defendant also denied that the plaintiff's father was one Murugan and he is the legal heir or son born to him and the allotment of the property in favour of the plaintiff or his father was also denied. Admittedly, the plaintiff's father died in Ceylon. Therefore, there could not have been any allotment or assignment in favour of the plaintiff's father. Admittedly, the plaintiff's father died in Ceylon. Therefore, there could not have been any allotment or assignment in favour of the plaintiff's father. It is also denied that the plaintiff returned to India in 1983. Hence, he prayed for dismissal of the suit. 5. The Trial Court has framed the following six issues: (i) Whether the plaintiff has a title to the property? (ii) Whether the second defendant has a title to the first item of the suit properties? (iii) Whether the second defendant has prescribed title to the first item of the suit properties? (iv) Whether the plaintiff is in possession of the property? (v) Whether the plaintiff is entitled to declaration and permanent injunction? (vi) To what relief, the plaintiff is entitled? 6. On the side of the plaintiff, PW-1 to PW-3 were examined and Ex.A.1 to A.17 were marked. On the side of the defendants, DW-1 and DW-2 were examined and Exs.B.1 to B.9 were marked. 7. The learned Trial Judge, after analysing the oral and documentary evidence and particularly, considering Exs.A.13 and A.14, conveyance executed by the Co-operative Society in favour of the plaintiff's father and the plaintiff and also the revenue records issued in the name of the plaintiff, has granted a decree and held that the defendants did not prove their title to the property. The first Appellate Court has also confirmed the findings, as against which, the present Second Appeal came to be filed. 8. At the time of admission of the Second Appeal, the following substantial questions of law were framed by this Court for consideration: “(i) Whether the Courts below were right in declaring the title of the plaintiff to the suit first item on the basis of the sale deed, Ex.A.14 dated 09.08.1937 which was an unregistered one and inadmissible in law? (ii) Whether the findings of the lower appellate Court on the question of adverse possession is not opposed to the oral and documentary evidence on record and unsustainable in law? (ii) Whether the findings of the lower appellate Court on the question of adverse possession is not opposed to the oral and documentary evidence on record and unsustainable in law? (iii) Was the suit filed by the plaintiff maintainable in view of his admission that the estate of his father was succeeded also by his brother and sister and as they were entitled to specific share in the property and as they were tenants in common in law and the plaintiff having no right to represent them and the suit having been not filed in a representative capacity to benefit them?” 9. The learned counsel appearing for the appellant/second defendant fairly submitted that the first question of law framed by this Court is not necessary. Since the document-Ex.A.14 is the conveyance executed by the Co-operative Society, registration is not required. Only in respect of other two questions of law, he placed his argument. 10. It is the main contention of the learned counsel that the Trial Court and the first Appellate Court have not properly analysed the evidence. The very conveyance in favour of the plaintiff's father has not been proved. Whether Murugan referred in Ex.A.14 is the father of the plaintiff has not been established. It is his contention that Ex.A.17 filed by the plaintiff itself clearly indicated that the father's name of the plaintiff is shown as ‘Murugan Vadivale’ and the plaintiff is said to have been born in the year 1916. Therefore, the question of executing conveyance in favour of the plaintiff in the year 1933 is highly improbable, since he was a minor. Therefore, his contention is that the plaintiff has, in fact, created a litigation, taking advantage of some documents, when his father's name itself has not been established. Whereas, the second defendant has purchased the property under Ex.B.1 on 13.09.1972 from the first defendant. The first defendant has, in fact, purchased the property from one Rakkappan @ Rajappa and Abimanyu. The recitals in Ex.B.2 clearly shows that the property belonged to the vendors ancestrally and the patta stood in the name of Kaayambu Ammal. Only the legal heirs of Kaayambu Ammal have sold the property to the first defendant and the first defendant has sold item No. 1 of the property under Ex.B.1 to the second defendant. It is his contention that Ex.B.1 is of the year 1972. Only the legal heirs of Kaayambu Ammal have sold the property to the first defendant and the first defendant has sold item No. 1 of the property under Ex.B.1 to the second defendant. It is his contention that Ex.B.1 is of the year 1972. Admittedly, the plaintiff, as per his own case, left India and he came back only in the year 1983. Such being the position, in view of the continuous possession of the second defendant, the suit is barred by limitation and the second defendant has perfected adverse possession. It is his further contention that the revenue records were also created only for the purpose of case. Hence, it is his contention that Ex.B.7-legal opinion is also obtained by the second defendant, thereby, clearly expressed his animus to enjoy the property as his own. Therefore, the Trial Court and the first Appellate Court have not considered these facts and simply decreed the suit. The impersonation was also pleaded in the written statement. The plaintiff has not proved his father's name. Whether Murugan was his father or not has not been established. Passport of the plaintiff has not been filed. Hence, it is submitted that both the Courts have failed to appreciate the evidence properly in this regard. In support of his submissions, he has also relied upon the judgment reported in Velayudham Pillai vs. Sandhosa Nadar, 1973 (1) MLJ 44 . 11. Whereas, the learned counsel appearing for the respondents 6 and 7 would contend that the defendants taking a plea of adverse possession itself indicated that they have admitted the title of the plaintiff and further, to show that they have purchased the property from the lawful owners, no evidence available except Ex.B.1. The person, who conveyed the property, did not have any title to convey the property to the second defendant's purchaser, namely the first defendant and the first defendant has not contested the suit. Exs.A.13 and A.14 clearly established the fact that the suit property has been conveyed by the Co-operative Society and the Trial Court has also clearly found that the defendants have no right in holding the property. Therefore, it is contended that both the Courts have factually found that the plaintiff is the owner of the property. Hence, he prayed for dismissal of the appeal. 12. I have also perused the entire evidence and the pleadings of both sides. 13. Therefore, it is contended that both the Courts have factually found that the plaintiff is the owner of the property. Hence, he prayed for dismissal of the appeal. 12. I have also perused the entire evidence and the pleadings of both sides. 13. It is the specific case of the plaintiff that item No. 1 of the suit property was conveyed by the Co-operative Society to the father of the plaintiff. Item Nos.2 and 3 were assigned to the plaintiff in the year 1933. The plaintiff's father went to Sri Lanka in the year 1940 to work in the estate. The plaintiff was also accompanied by his father. The plaintiff's paternal uncle Periyannan was looking after the property. Thereafter, one Thangavelu was managing the property on behalf of the plaintiff. In the year 1983, the plaintiff came back to India due to ethnic problem in Sri Lanka, at that time, he came to know that one Rakkappan @ Rajappa and Abimanyu have created sale deed in favour of the first defendant and the first defendant, in turn, sold the first item of the suit property to the second defendant. Therefore, the plaintiff has applied Encumbrance Certificate and thereafter, filed the suit. But, it is the case of the second defendant that he was in possession of the property. The alleged conveyance is also denied. Further, it is the contention that the plaintiff appears to be impersonating himself. Though the said defence is taken, in the evidence adduced on the defendants' side, there is no material whatsoever produced by the defendants. When the defendants assert that there was an impersonation, the burden is on them to establish the same. 14. Admittedly, it is the only contention of the defendants that the name of Murugan shown in Ex.A.14 in whose favour assignment was granted in respect of the suit property was not the father of the plaintiff. It is to be noted that PW-1 to PW-3 asserted in their oral evidence that only Murugan was the father of the plaintiff. Ex.A.13 and Ex.A.14, when carefully seen, conveyance deeds were executed by the Co-operative Society not only in respect of Murugan but also in favour of the plaintiff. It is argued at the appellate stage that Ex.A.17 shows that the plaintiff's father is ‘Murugan Vadivale’ hence, the name referred in the assignment did not relate to the plaintiff's father. Ex.A.13 and Ex.A.14, when carefully seen, conveyance deeds were executed by the Co-operative Society not only in respect of Murugan but also in favour of the plaintiff. It is argued at the appellate stage that Ex.A.17 shows that the plaintiff's father is ‘Murugan Vadivale’ hence, the name referred in the assignment did not relate to the plaintiff's father. It is to be noted that this is the first time, it is argued before this Court and no attempt whatsoever made before the Trial Court to confront the evidence in this regard. It is relevant to note that Ex.A.17 was filed by the plaintiff to prove his date of birth at Sri Lanka. The birth registration card indicates that the father's name of the plaintiff is shown as ‘Murugan Vadivale’ and the plaintiff's name is also mentioned as “Kayamboo Thangavel.” Merely because the additional name is not referred in Exs.A.13 and A.14, it cannot be said that the person referred in Exs.A.13 and A.14 is not the plaintiff or his father. Such question is never put to the witnesses during trial. If really such questions are put to PW-1 with regard to the difference in the name, he could have opportunity to explain the same. Without challenging the same in the evidence, now, it cannot be canvassed in the second appeal that the name is differed. Even assuming that Vadivale is not mentioned in Ex.A.14, it is to be noted that Murugan name is very well found in Ex.A.14. It is common in the Society that only first name be referred in all the documents. Therefore, merely because the name has not continuously mentioned in the said document, it cannot be said that Murugan is no way connected to the plaintiff and he is not his father. No questions whatsoever put to the witness in this regard. Further, it is too late for the defendants to take such stand before this Court. It is also to be noted that Exs.A.13 and A.14 were filed by the plaintiff. If really the conveyance was not executed by the Society in favour of the plaintiff and his father, there was no possibility for the plaintiff to file those documents and if those documents have been executed in favour of any third party, the plaintiff filing such documents is not at all possible. These facts also cannot be ignored altogether. 15. If really the conveyance was not executed by the Society in favour of the plaintiff and his father, there was no possibility for the plaintiff to file those documents and if those documents have been executed in favour of any third party, the plaintiff filing such documents is not at all possible. These facts also cannot be ignored altogether. 15. It is also to be noted that Ex.A.2 is the chitta issued in the name of the plaintiff in the year 1971 in respect of the suit property. Ex.A.3 is the kist receipt issued to one Thangavelu on behalf of the plaintiff for the Fasli year 1386 (1977). Similarly, tax receipts filed on the side of the plaintiff clearly indicate that the kist has been paid in the name of the plaintiff by one Thangavelu, which is clearly probabilised the plaintiff's case that during their absence, Thagavelu was managing the property. Even, patta pass book is also issued in the name of the plaintiff. Ex.A.12-re-survey patta is also issued in the name of the plaintiff in the year 1986 and the same was issued in pursuant to the revenue records already existing in his name. Exs.A.13 and A.14 conveyance deeds make it very clear that proper conveyance has been executed in favour of the plaintiff and his father in the year 1933 and 1937 respectively, in respect of the entire suit property. The recitals clearly indicates that the conveyance deed was executed for certain consideration. These facts clearly proved that the plaintiff has acquired title in respect of the suit property. 16. It is the specific case of the plaintiff that in his absence, Exs.B.1 and B.2 were created subsequently. However, he returned to India in 1983 and immediately he took steps. On perusal of Exs.B.1 and B.2, one Rakkappan @ Rajappa and Abimanyu said to have sold the property to the first defendant, who, in turn, sold the first item of the suit property to the second defendant. The third defendant remained ex-parte in the suit. The first defendant has not filed a written statement. Only the second defendant, the present appellant, filed a written statement and the appeal was also not filed by the third defendant. It is the case of the second defendant that he has purchased the property. Therefore, he is in continuous possession from the year 1972. The first defendant has not filed a written statement. Only the second defendant, the present appellant, filed a written statement and the appeal was also not filed by the third defendant. It is the case of the second defendant that he has purchased the property. Therefore, he is in continuous possession from the year 1972. He has also perfected his title by adverse possession. It is to be noted that the second defendant has set up independent title. Though he claims to have purchased the property, how the predecessor had acquired title, absolutely, there is no evidence. Whereas, the documents Exs.A.13 and A.14 clearly indicate that the property was already conveyed in favour of the plaintiff and his father. Such being the position, by dealing with the same property by some person without any anterior title, the second defendant did not get any title. Though, the sale deed-Ex.B.2 refers that the patta was standing in the name of ‘Kaayambu Ammal’ that has also not been established and the revenue records were obtained by the second defendant only after his purchase. Therefore, merely on that basis, one cannot contend that he has perfected title by adverse possession. 17. It is also to be noted that when a person setting up adverse possession, he has to admit the title, he cannot claim independent right by adverse possession. At any event, on perusal of the entire evidence, particularly, the oral evidence of DW-1, the property is a vacant site and except obtaining the revenue records in his name, no overt act whatsoever proved. Ex.B.7 has been relied upon to show that he has obtained legal opinion. The property was purchased in the year 1972. Admittedly, the plaintiff's evidence clearly indicates that he returned to India only in the year 1983 and the suit has been filed immediately. Admittedly, the suit property is a vacant site. When the defendants did not get title to the property and the plaintiff has established title by conveyance by the Co-operative Society, it has to be presumed that possession follows title and the plaintiff is in possession of the property. Therefore, there cannot be any adverse possession. Both the Trial Court and the first Appellate Court considered the entire evidence in this regard. 18. Therefore, there cannot be any adverse possession. Both the Trial Court and the first Appellate Court considered the entire evidence in this regard. 18. It is also contended by the learned counsel appearing for the appellant/second defendant that when the plaintiff was minor, the conveyance in his favour is highly improbable. It is relevant to note that transfer of property in favour of the minor or assignment is not prohibited under law. Therefore, even assuming that as per Ex.A.17 in the year 1933, the plaintiff was a minor, that will not invalidate the conveyance executed by the Government authorities. Therefore, the same itself cannot be a ground to doubt the rights of the plaintiff. 19. Further, Exs.A.13 and A.14 are the unregistered conveyance deeds executed by the Co-operative Society. The same do not require any registration, as per Section 17(2) of the Registration Act, in respect of the grant by the Government. Therefore, both the Courts, on analysis of the factual aspects, have found that the plaintiff is entitled to declaration and permanent injunction. This Court is also, on perusal of the records, as discussed above, found that the second defendant has not proved his title and adverse possession is also not proved. 20. The judgment cited by the learned counsel for the appellant/second defendant in Velayudham Pillai's case cited supra, when carefully seen, this Court, in Paragraph No. 10 has held that mere grant of patta and the payment of kist will not prove the possession for more than 12 years prior to the suit. In the above case, this Court has found that factually the plaintiff is not in possession. 21. At any event, in this case, when the title has been established, possession follows title. Such view of the fact, the plaintiff has to necessarily succeed. Accordingly, both the substantial questions of law are answered against the appellant/second defendant. 22. In the result, the Second Appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.