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2020 DIGILAW 254 (MAD)

Jailani v. Valliammal

2020-02-06

J.NISHA BANU

body2020
JUDGMENT : J. NISHA BANU, J. 1. The concurrent judgments and decrees passed in O.S. No. 161 of 1999 by the learned Additional District Munsif, Tuticorin and in A.S. No. 34 of 2003 by the learned Principal District Judge, Tuticorin are being challenged in these second appeals. 2. The appellant as well as 2nd respondent as plaintiffs had instituted O.S. No. 161 of 1999 on the file of the trial Court for the reliefs of declaration and permanent injunction in respect of the suit properties, wherein the respondents 1 and 3 have been shown as defendants. 3. For better appreciation and understanding, the parties are referred to as per their ranking in the suit. 4. According to the plaintiffs, the suit schedule properties ancestrally belonged to the father of the plaintiffs, namely, Mohamed Serammali Maraicayar and the patta also stood in his name. On 30.04.1987, they effected partition in respect of their family properties including the suit properties, in which, the 1st schedule property was allotted to the share of the 1st plaintiff and the 2nd schedule property was allotted to the share of the 2nd plaintiff. After partition, they are in enjoyment of their respective shares. Since the 1st plaintiff is in Muscut, his wife is enjoying the property. The plaintiffs, their father and his ancestors have been enjoying the suit properties over a period of 50 years and perfected title by adverse possession. The father of the plaintiffs died two years back. On 26.04.1999, the defendants, who are the adjacent owners of the property, started cutting the trees in their properties and they high-handedly tried to cut the trees in the suit properties, which was prevented by the plaintiffs and the plaintiffs made a complaint to the police. The value of the velikaruvai trees standing in the suit properties is worth about Rs. 5,000/-. Since, the defendants are threatening to cut and remove the trees standing in the suit properties, the plaintiffs filed the suit for the reliefs of declaration and permanent injunction. 5. Denying the facts averred in the plaint, the defendants had resisted the suit contending that the property situate in S. No. 305 originally belonged to the great-grandfather of the plaintiffs by name Chinna Pitchai Maraicayar. He had three sons namely, Kamsa Maraikayar, Peer Kannu Maraicayar and Samsu Maraicayar. 5. Denying the facts averred in the plaint, the defendants had resisted the suit contending that the property situate in S. No. 305 originally belonged to the great-grandfather of the plaintiffs by name Chinna Pitchai Maraicayar. He had three sons namely, Kamsa Maraikayar, Peer Kannu Maraicayar and Samsu Maraicayar. In the partition which took place between the three sons in respect of S. No. 305, eastern portion was allotted to Samsu Maraicayar, the adjacent wester position was allotted to Kamsa Maraicayar and the further western portion was allotted to Peer Kannu Maraicayar. Thereafter, the said properties were sub-divided, in which, S. No. 305/1E and 305/2C were allotted to Samsu Maraicayar, S. No. 305/1B, 305/1D and 305/2B were allotted to Kamsa Maraicayar and S. No. 305/1A, 305/1C and 305/2A were allotted to Peer Kannu Maraicayar. Since Samsu Maraicayar had gone to foreign country and died as bachelor, the shares of Samsu Maraicyaar were enjoyed by Kamsa Maraicayar and Peer Kannu Maraicayar. Peer Kannu Maraicayar sold some of the properties including the suit property to one Kandasamy Naicker on 02.12.1938, who in turn, executed a gift deed in favour of the 1st defendant on 02.11.1961. After subdivisions, S. No. 305/1E and 305/2C lands were allotted to 1st defendant in lieu of that the lands in S. No. 206/1 was given to Seramalli Maraicayar. The 1st defendant was granted patta and she is also paying kist. Since she is in enjoyment of the suit properties, for the past 25 years, she perfected title by adverse possession. The plaintiffs have no right, title and possession over the suit properties. Thus, they prayed to dismiss the suits. 6. Before the trial Court, O.S. No. 161 of 1999, was taken up along with the connected suit in O.S. No. 225 of 1999. On the side of the plaintiffs, 2nd plaintiff was examined as PW-1 and one Sikkandar Mohideen was examined as PW-2 and Exs.A1 to A19 were marked and on the side of the defendants, three witnesses were examined as DW-1 to DW-3 and Ex.D.1 and D.17 were marked. 7. The Trial Court has dismissed the suit. Aggrieved by the same, the second plaintiff in the suit filed A.S. No. 34 of 2003. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, dismissed the appeal confirming the Judgment and decree passed by the trial Court. 7. The Trial Court has dismissed the suit. Aggrieved by the same, the second plaintiff in the suit filed A.S. No. 34 of 2003. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, dismissed the appeal confirming the Judgment and decree passed by the trial Court. Challenging the concurrent judgments and decrees passed by the Courts below, the second plaintiff has filed the present second appeal. 8. At the time of admission, the following substantial questions of law were framed for consideration: “1. Whether the Courts below are right in law in thinking that the appellant has not proved title to the suit properties by tracing the title from his ancestor when the admitted case of the parties is that the suit properties originally belonged to the ancestor of the appellant? 2. Whether the Courts below erred in law in not adverting that the onus of proving the genealogy and title to the suit properties is shifted on the respondents in view of the admission of the respondents that the ancestor of the appellant/plaintiffs was the original owner of the suit property? 9. Despite notice being served on the respondents 2 and 3 and their names are being printed in the cause list, there is no representation on behalf of them either in person or through counsel. 10. The learned counsel appearing for the appellant/2nd plaintiff submitted that the suit properties are originally belonged to the forefathers of the plaintiffs. Even according to the defendants, the plaintiffs great-grandfather viz. Chinna Pitchai Marakayar is the owner and after his death Survey No. 305/2C was allotted to the share of Samsu Marakayar, who died as a bachelor and his property was inherited by his brothers, Peerkannu Marakayar and Kamsa Marakayar and therefore, Peerkannu Marakayar is not the owner of the entire 52 cents in Survey No. 305/2C. Therefore, even according to the defendants, the plaintiffs are entitled to 26 cents in Survey No. 305/2C. The son of the 1st defendant was examined as DW-1 and 1st defendant deliberately avoided to enter into the witness box. It is admitted on the side of the defendants that only undivided property was alienated under Exs.A.7 and A.9. He would rely on the Judgments of the Hon'ble Apex Court in Rajendra Tiwary vs. Basudeo Prasad and Another, AIR 2002 SC 136 and United India Insurance Co. It is admitted on the side of the defendants that only undivided property was alienated under Exs.A.7 and A.9. He would rely on the Judgments of the Hon'ble Apex Court in Rajendra Tiwary vs. Basudeo Prasad and Another, AIR 2002 SC 136 and United India Insurance Co. Ltd. vs. Samir Chandra Chaudhary, (2005) 5 SCC 784 . Thus, he prayed to set aside the concurrent judgment and decree passed by the Courts below and allow the suit. 11. The learned counsel for the 1st respondent/1st defendant would submit that in a suit for declaration and permanent injunction, the plaintiff has to prove his pleadings and he cannot rely upon any weakness in the defendant's case. PW-1 in his evidence has admitted that he does not know about how his father got the suit properties and no document is available to substantiate the same and Peer Kannu Marakayar sold his property to Kandasamy Naicker, who in turn, sold the same to 1st defendant. The said fact is substantiated through Ex.B1 and Ex.B.15. The Courts below after considering the same, have rightly dismissed the suit. Thus, he prayed to dismiss the appeal. 12. The respondents 4 and 5 filed C.M.P. (MD) No. 451 of 2017 contending that they are the subsequent purchasers of the portions of the suit property from the 2nd respondent/1st plaintiff and on 02.02.2018, the same was allowed and they were impleaded as respondents 4 and 5. 13. Heard the learned counsel appearing for the appellant as well as respondents 1, 4 and 5 and perused the records carefully. 14. It is an admitted fact that the suit properties are originally belonged to the forefathers of the plaintiff. Even according to the defendants, the plaintiffs great-grandfather viz. Chinna Pitchai Maraicayar is the owner and after his death Survey No. 305/2C was allotted to the share of Samsu Maraicayar, who died as a bachelor and therefore, his shares were enjoyed by Kamsa Maraicayar and Peer Kannu Maraicayar. Peer Kannu Maraicayar sold some of the properties including the suit properties to one Kandasamy Naicker on 02.12.1938, who in turn, executed a gift deed in favour of the 1st defendant on 02.11.1961, which is substantiated through Ex.B.1 and Ex.B.2. 15. Peer Kannu Maraicayar sold some of the properties including the suit properties to one Kandasamy Naicker on 02.12.1938, who in turn, executed a gift deed in favour of the 1st defendant on 02.11.1961, which is substantiated through Ex.B.1 and Ex.B.2. 15. The plaintiffs pleaded that there is only one branch of their family through their forefather Chinna Pitchai Maraicayar, who has three sons namely, Kamsa Maraicayar, Peer Kannu Maraicayar and Samsu Maraicayar and PW-1 and PW-2 admitted the said genealogy. Among them, Samsu Maraicayar died as a bachelor. The plaintiffs admitted that S. No. 305 belonged to the three brothers. The plaintiffs have also admitted the prior title deeds of the defendants and the sale, gift, etc. PW-1 himself admitted that the suit properties belonged to his grandfather and Samsu Maraicayar. But, he denied the allotment of properties to Peer Kannu Maraicayar. Since PW-1 admits that he has no objection with regard to the sale by Peer Kannu Maraicayar and the suit properties includes the sale by Peer Kannu Maraicayar, the case of the plaintiffs cannot be accepted. PW-1 also admits that he does not know how S. No. 305 belongs to his father. Therefore, it is clear that PW-1 does not know about the suit properties. PW-2 admits that the sale executed by Peer Kannu Maraicayar is a valid document and he has share in S. No. 305. The documents produced on the side of the defendants would prove the possession of the suit properties by the defendants. But, no document was filed on the side of the plaintiffs to disprove the same. 16. In the plaint, the plaintiffs have not specifically stated as to how they have derived title to the properties. Though the plaintiffs have stated that their father obtained patta for the suit properties, they have not produced the patta standing in the name of their father. The plaintiffs only filed Ex.A.1, partition deed and claimed title through the same. But, they have not explained as to how they acquired title to the suit properties. Since the plaintiffs have not explained as to how the suit properties belonged to their father by way of producing oral and documentary evidence, the Court can very well come to a conclusion that they have not proved Ex.A.1, partition deed. Therefore, the claim made by the plaintiffs on the basis of Ex.A.1, partition deed is of no merit. 17. Since the plaintiffs have not explained as to how the suit properties belonged to their father by way of producing oral and documentary evidence, the Court can very well come to a conclusion that they have not proved Ex.A.1, partition deed. Therefore, the claim made by the plaintiffs on the basis of Ex.A.1, partition deed is of no merit. 17. It is contended on the side of the appellant that since the defendants admitted that the forefather of the plaintiffs is the original owner of the suit property, the onus of proof is shifted on the defendants. It is trite law that in a suit for declaration, the burden always lies on the plaintiff to prove his title. In Union of India and Others vs. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269 , the Hon'ble Apex Court has held as follows: “15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. 16. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabilises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration. 17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Maran Mar Basselios Catholicos vs. Thukalan Paulo Avira, AIR 1959 SC 31 observed that: “20....in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title.” 18. This Court in Maran Mar Basselios Catholicos vs. Thukalan Paulo Avira, AIR 1959 SC 31 observed that: “20....in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title.” 18. In Nagar Palika, Jind vs. Jagat Singh, (1995) 3 SCC 426, this Court held as under: “The onus to prove title to the property in question was on the plaintiff-respondent....In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.” 19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, plaintiff must be non-suited.” Since the plaintiffs have filed the suit on the basis of Ex.A.1, partition deed, it is their duty to prove their case and they cannot shift the burden of proving the facts upon the defendants. Therefore, the said contention is of no merit and the Judgments relied on by the plaintiffs are not applicable to the present second appeal. 18. It is also contended on the side of the appellant/1st plaintiff that the 1st defendant deliberately avoided to enter into the witness box. It is the duty of the plaintiffs to cross-examine the other witnesses and prove their case. Therefore, the said contention raised on the side of the plaintiffs is of no merit. 19. It is further contended on the side of the appellant/1st plaintiff that this Court can interfere with the perverse findings of the Courts below. Since, the plaintiffs did not prove their case through oral and documentary evidence, the said contention raised on the side of the appellant/1st plaintiff is of no merit. 20. 19. It is further contended on the side of the appellant/1st plaintiff that this Court can interfere with the perverse findings of the Courts below. Since, the plaintiffs did not prove their case through oral and documentary evidence, the said contention raised on the side of the appellant/1st plaintiff is of no merit. 20. The learned counsel for the appellant/1st plaintiff drawing the attention of this Court to the Judgment of the Hon'ble Supreme Court in Rajendra Tiwary vs. Basudeo Prasad and Another, AIR 2002 SC 136 , submitted that through a larger relief is prayed in the suit and if no case is made out, but the facts, as established, justify granting of a smaller relief, Order VII, Rule 7 permits granting of such relief to the parties. But, in this case, the plaintiffs did not prove their partition deed, Ex.A.1, which is the sheet anchor of their case. Therefore, the above Judgment is not applicable to the facts and circumstances of the present case. 21. In view of the above discussions, this Court does not find any reason to interfere with the concurrent judgment and decree passed by the Courts below and the substantial questions of law formulated in the second appeal are not at all relevant for the purpose of deciding the real issue involved in the present second appeal. In view of the above, this Court is inclined to dismiss this second appeal. 22. In the result, this second appeal fails and accordingly, the same is dismissed confirming the concurrent judgment and decree passed by the Courts below. No costs.