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2020 DIGILAW 1289 (MAD)

Arumuga Nadar (died) v. Chinnadurai (died)

2020-08-18

RMT.TEEKAA RAMAN

body2020
JUDGMENT : (Prayer in S.A.No.1694 of 1995: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, against the decree and Judgment in A.S.No.190 of 1989 dated 11.01.1995, on the file of the Sub Court, Thoothukudi, reversing the Judgment and Decree in O.S.No.507 of 1982, dated 30.08.1989 on the file of the District Munsif Court, Srivaigundam. S.A.No.58 of 1996: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, against the decree and Judgment in A.S.No.191 of 1989 dated 11.01.1995, on the file of the Sub Court, Thoothukudi, reversing the Judgment and Decree in O.S.No.481 of 1982, dated 30.08.1989 on the file of the District Munsif Court, Srivaigundam.) 1. Since the suit schedule property in question and the parties are one and the same, these two second appeals are taken up together and disposed of by way of a common judgment. The defendant in the suit in O.S.No.481 of 1982 on the file of the District Munsif Court, Srivaigundam, is the appellant herein. Though the defendant issued the legal notice in prior point of time, the respondents herein have filed the suit in O.S.No.481 of 1982 before the District Munsif Court, Srivaigundam, for declaration of title and for permanent injunction. Thereafter, the defendant in the said suit has filed O.S.No.507 of 1982 for similar relief of declaration of title and for consequential permanent injunction. The suit property in earlier suit viz., O.S.No.481 of 1982 is smaller extent while in the latter suit, the extent of the land is larger and also comprised of the suit property in O.S.No.481 of 1982 and hence, on memo filed by both the parties, joint trial was conducted and evidence was recorded in O.S.No.481 of 1982. 2. Before commencement of the trial, in O.S.No.481 of 1982, necessary issues have been framed to the effect that whether the plaintiffs are entitled for declaration as prayed for; whether the plaintiffs are entitled for the relief of permanent injunction against the defendant and formal issues have also been framed. 3. For the sake of convenience, the parties are referred to as per the ranking in O.S.No.481 of 1982. 4. 3. For the sake of convenience, the parties are referred to as per the ranking in O.S.No.481 of 1982. 4. In O.S.No.507 of 1982, as many as five issues have been framed including the issue whether the plaintiff is entitled for declaration of title in respect of the entire property, whether the defendants in the suit have perfected the title by adverse possession or whether the plaintiff is entitled for permanent injunction as prayed for. 5. During the trial, the fifth plaintiff in O.S.No.481 of 1982 examined himself as P.W.1 and another Vaigundapazha Nadar was examined as P.W.2 and Exs.A1 to A6 were marked. On behalf of the defendant, original defendant Arumuga Nadar was examined as D.W.1 and Exs.B1 to B21 were marked. 6. The respondents/plaintiffs relied upon Ex.A.1 in support of their relief of declaration and permanent injunction and as per the pleadings, one Isakki Pazham and Parvathi Ammal have executed a sale deed under Ex.A2, dated 02.02.1970 to minor Vaigundapathi and thereafter, who in turn had sold the property to the original plaintiff Chinnadurai under Ex.A1. 7. On the contrary, the defendant in O.S.No.481 of 1982 (plaintiff in O.S.No.507 of 1982) relied upon the sale deed dated 18.08.1965 Ex.A21 and also Ex.B20 dated 13.05.1965 and Ex.B19-Court certificate, dated 26.09.1985 and revenue records marked as Exs.B1 to B18. 8. The trial Court has accepted the case of the defendant in O.S.No.481 of 1982, who is the plaintiff in O.S.No.507 of 1982 on the ground that the predecessor in title and his title derivation upon the plaintiff was not proved beyond 1970 and what was filed is only a certified copy and the mother document was not filed and the documents to show the title of the predecessor in title of the plaintiff are not marked by the plaintiff. 9. On the contrary, the trial Court has also held that the defendant in O.S.No.481 of 1982 has demonstrated his title by virtue of Exs.B20, B21 coupled with Ex.B19 and hence, dismissed the suit in O.S.No.481 of 1982 and decreed the suit in O.S.No.507 of 1982. 10. Aggrieved against the judgment and decree passed in both the suits, the defeated plaintiffs have preferred A.S.Nos.190 and 191 of 1989 on the file of the Sub-Court, Thoothukudi. 11. 10. Aggrieved against the judgment and decree passed in both the suits, the defeated plaintiffs have preferred A.S.Nos.190 and 191 of 1989 on the file of the Sub-Court, Thoothukudi. 11. By a common judgment dated 11.01.1995, the lower Appellate Court has allowed A.S.Nos.190 and 191 of 1989 holding that in the suit filed by the defendant, he has not given the linear measurement and hence, the suit is bad in law. Accordingly, reversed the judgment and decree. Aggrieved against the said judgment and decree, these two second appeals have been filed and after the death of the respective parties, the legal representatives were impleaded. 12. At the time of admission of these two cases, the following Substantial Questions of Law have been framed for consideration. In S.A.No.58 of 1996: “1. Whether the lower Appellate Court approached the issues framed in the cases in the proper perspective having regard to established principles of law? In S.A.No.1694 of 1995: 1. When the claim of the respondents in O.S.No.481 of 1982 are only a portion of the property covered in O.S.No.507 of 1982, whether the Lower Appellate Court is dismissing the suit in O.S.No.507 of 1982 in entirity, especially, when the fourth respondent admits the claim of the Appellant in cross-examination, while he was examined as P.W.1? 2. Whether the Lower Appellate Court is correct in rejecting the claim of the Appellant especially after the admission of fourth respondent in cross-examination while he was examined as P.W.1 about the possession and enjoyment of the appellant in respect of the suit property?” 13. Heard the rival submissions of both the counsels and also perused the documents. 14. It is relevant to state certain admissions made by PW.1 and PW.2 in the cross-examination that will throw more light on the stand of the parties on material facts especially the schedule of the property. 15. As stated supra, the PW.2, who is the vendor of the respondent / plaintiff has admitted in the cross-examination that he along is the co-brother of Poomani Nadar having married his sister and Poomani Nadar is the father of the first defendant and PW.2 also admitted in the cross-examination that Vadivammal is the grandmother of the defendant. After the death of the said Vadivammal, the defendant had enjoying the property and the same is also admitted by the PW.1 in the cross-examination. After the death of the said Vadivammal, the defendant had enjoying the property and the same is also admitted by the PW.1 in the cross-examination. Further more, with respect to schedule of the property, the respondents/plaintiffs have admitted in the cross-examination that the suit property in O.S.No.481 of 1982 is part and parcel of the schedule of the property in O.S.No.507 of 1982. 16. In other words, the schedule of the suit property in the suit filed by the respondents/plaintiffs is a smaller extent and forming part and parcel of the schedule of the property in O.S.No.507 of 1982. When that being the case, the lower Appellate Court has committed an error in overlooking the admission made by the parties in the witness box. 17. By a summary rejection, the lower Appellate Court has observed that measurement of the schedule of the property was not given in S.A.No. 1694 of 1995 (O.S.No.507/1982) filed by the plaintiff/appellant herein. However, on perusal of the plaint and the schedule of the property in the decree copy of the suit, the four boundaries are clearly mentioned with the linear measurement. Mere non-mentioning of the total extent does not affect the identification of the suit property in any manner. Linear measurement on the four sides were given and four boundaries were given and hence the observation made by the lower Appellate Court is erroneous on the face of the records and hence the said finding of the lower Appellate Court being error apparent on the face of it is liable to be vacated. Accordingly, the same shall stand vacated. 18. It is seen from the oral evidence of cross-examination of PW.1 and PW.2 coupled with documentary evidence in Exs.B19, B20 and B21 that the suit property having Door No.16 and 16A in the O.S.No.481 of 1982 (S.A.No.58/1996) is part of the suit property in O.S.No.507 of 1982 (S.A.No.1694/1995) and the grandfather of the defendant, Arumuga Nadar originally owned this property. It is seen from the oral evidence of cross-examination of PW.1 and PW.2 coupled with documentary evidence in Exs.B19, B20 and B21 that the suit property having Door No.16 and 16A in the O.S.No.481 of 1982 (S.A.No.58/1996) is part of the suit property in O.S.No.507 of 1982 (S.A.No.1694/1995) and the grandfather of the defendant, Arumuga Nadar originally owned this property. Thereafter, the father of the defendant, namely, Poomani Nadar was enjoying the property by succession-ship and he had borrowed some amount from Subramanian Iyyar and mortgaged the property and as the Poomani Nadar has not discharged the property, the same was subject matter of the suit and the property was sold in Court auction in the execution proceedings as could be seen from the Court auction certificate issued from the competent Civil Court under Ex.B19, in which under Ex.B20, Pandara Nadar has purchased the property. 19. Further more, on his death, his wife, by virtue of the sale deed under Ex.B21, dated 18.08.1965, the property was purchased by the defendant and they are in possession and enjoyment of the suit property. 20. Thus, this Court finds that while the respondents/plaintiffs claimed title over the property by virtue of Exs.A2 and A1 of the year 1970 and 1975, they are not produced any document of title beyond the year 1970 and they are not even produced the original copy of the Ex.A2 and in the absence of any explanation for non-production of the original, the trial Court has correctly inferred that in the absence of any document of title or possession, the plaintiffs in O.S.No.481 of 1982 cannot succeed. 21. On the contrary, the defendant has established title by virtue of Exs.B19, B20 and B21 and also the possession by Exs.B1 to B18 from the year 1966 and hence, a clear and categorical finding rendered by the trial Court is well-founded and well-merited and the lower Appellate Court has committed an error, as pointed out supra in reversing the well-considered judgment of the trial Court. 22. It remains to be stated that the appellant in S.A.No.1694 of 1995 (plaintiff in O.S.No.507/82), who is the defendant in O.S.No.481 of 1982 (S.A.No.58/1996) has categorically demonstrated before the Court his title under Exs.B19, B20 and B21 coupled with the admission of the PW.2 as to the relationship under the derivative title of the defendant based under Exs.B18 to B21. It remains to be stated that the appellant in S.A.No.1694 of 1995 (plaintiff in O.S.No.507/82), who is the defendant in O.S.No.481 of 1982 (S.A.No.58/1996) has categorically demonstrated before the Court his title under Exs.B19, B20 and B21 coupled with the admission of the PW.2 as to the relationship under the derivative title of the defendant based under Exs.B18 to B21. Further more, in order to substantiate his possession, he has also filed Exs.B1 to B18 and hence, the lower Appellate Court has clearly overlooked to the admission of PW.2 and PW.1 and also overlooked the documentary evidence of Exs.B19 to B21. Further more, the title and possession of the defendant in O.S.No.481 of 1982 (S.A.No.58/1996), he clearly established in respect of larger extent of the suit property as covered in O.S.No.507 of 1982 (S.A.1694/1995). 23. On comparison of schedule of the property in the documentary evidence of Exs.B19 to B21 is that of the plaint schedule property, this Court finds that the schedule of the property is clearly identifiable with linear measurement as stated therein. 24. Yet another point is that the plaintiffs in O.S.No.481 of 1982 have not produced any documents other than Exs.A1 and A2. Original of the Ex.A2 was not produced and no document was produced by them to establish how the predecessor title have derived title to the suit property and the plaintiffs in O.S.No.481 of 1982 have not filed any document to prove their possession over the suit property and hence, the lower Appellate Court has failed to consider these two aspects and erroneously allowed the appeal and decreed the suit and hence, the judgment and decree passed in O.S.No.481 of 1982 as modified in A.S.No.191 of 1989 is liable to be set aside. Accordingly, the suit in O.S.No.481 of 1982 filed by the respondents is also liable to be dismissed. 25. Accordingly, the suit in O.S.No.481 of 1982 filed by the respondents is also liable to be dismissed. 25. With regard to the suit in O.S.No.507 of 1982 (S.A.No. 1694/1995) in view of the discussion in the preceding paragraphs touching upon the admission of the PWs.1 and 2 with regard to the identification of the property in their suit in O.S.No.481 of 1982 with that of O.S.No.507 of 1982 and also admission of the PW.2 in the cross-examination regarding the relationship of the PW.2 (vendor of the PW.1) and tracing of the title of the defendant through Exs.B18, B19, B20 and B21, this Court is of the considered view that the appellant in A.S.No.1694 of 1995 has established title and the possession over the suit property in O.S.No.507 of 1982, which includes the small house with Door Nos.16 and 16A, which is the subject matter of the suit in O.S.No.481 of 1982. 26. In view of the above discussion, all the Substantial Questions of Law framed in the above Second Appeals are answered in affirmative in favour of the appellant herein. 27. In the result, (i) S.A.No.1694 of 1995 is allowed. The judgment and decree in A.S. 109 of 1989 is set aside and decree in O.S.No.507 of 1982 dated 30.08.1989 shall stand restored. (ii) S.A.No.58 of 1996 is allowed. The decree and judgment in A.S.No.191 of 1989, dated 11.01.1995, is set aside and decree and judgment granted in O.S.No.481 of 1982, is restored and the suit in O.S.No.481 of 1982 shall stand dismissed. (iii) Both the Second Appeals are allowed with cost of Rs.1000/- each. (iv) Consequently, connected C.M.P.No.18863 of 1995 is closed.