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2022 DIGILAW 106 (MAD)

Ramakrishnan (Died) v. Govindasami Gounder

2022-01-11

R.PONGIAPPAN

body2022
JUDGMENT : Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 30.07.2009 made in A.S.No.11 of 2007 on the file of the Sub Court, Cheyyar, in confirming the judgment and decree dated 29.12.2006 made in O.S.No.183 of 2003 on the file of the Additional District Munsif Court, Vandavasi. 1. This appeal is focused as against the judgment and decree dated 30.07.2009 made in A.S.No.11 of 2007 on the file of the learned Subordinate Judge, Cheyyar, confirming the judgment and decree dated 29.12.2006 made in O.S.No.183 of 2003 on the file of the learned Additional District Munsif, Vandavasi. 2. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court. 3. The laconic averments made in the plaint, are as follows: [i] The plaintiff was the owner, he has right and title over the suit property. The defendant is the neighbouring land owner. The plaintiff had purchased the suit property on 25.05.1996 and thereafter, he had been enjoying the suit property, without any hindrance from others. He had been enjoying the suit property 20 years prior to the sale. The defendant has no right or title over the suit property. He owns a land situated on the eastern side of the suit property. On 05.12.2002, the defendant had cut the trees, which was situated on the western ridge of the plaintiff's land and it was duly complained to the Police. Now, he has further attempted to interfere with the plaintiff's peaceful possession. Hence, the suit. 4. The case of the defendant, as averred in the written statement, is as follows: [i] It is false to state that the plaintiff had been enjoying the suit property for more than 25 years. Under the U.D.R. Scheme, the plaintiff's name had been wrongly entered in the patta. Based on the patta, the plaintiff cannot claim any right over the suit property. The defendant had purchased 1.04-¼ acres of land from the total extent of 1.39 acres. The property purchased by the defendant was surrounded on the South by lake, on the North by the plaintiff's land, on the East by Ramakrishnan and Adhimoolam lands and on the West by Krishnan's land. [ii] The defendant has purchased his land vide Sale Deed dated 11.12.1995. The plaintiff's vendor has also attested the defendant's Sale Deed. The property purchased by the defendant was surrounded on the South by lake, on the North by the plaintiff's land, on the East by Ramakrishnan and Adhimoolam lands and on the West by Krishnan's land. [ii] The defendant has purchased his land vide Sale Deed dated 11.12.1995. The plaintiff's vendor has also attested the defendant's Sale Deed. The defendant's vendor had been enjoying the said land for a number of years and thereby, the defendant has right and title over the same. Neither the plaintiff nor his vendor had enjoyed the suit property. The plaintiff's vendor had been enjoying only the land measuring an extent of 0.34-¼ cents, which was situated on the western side of the defendant's land by cutting mulveli trees and other trees. The defendant alone cultivated the land measuring an extent of 1.04-¼ acres and therefore, the plaintiff is not entitled to any relief as prayed for in the plaint. Hence, the suit filed by the plaintiff is liable for dismissal with compensatory costs. 5. From the above averments, the learned Additional District Munsif, Vandavasi, framed necessary issues and tried the suit. In support of the plaintiff's case, 4 witnesses were examined as P.W.1 to P.W.4 and 24 exhibits were marked as Ex.A.1 to Ex.A.24. Similarly, on the side of the defendant, 4 witnesses were examined as D.W.1 to D.W.4 and 4 exhibits were marked, as Ex.B.1 to Ex.B.4. 6. Having considered the materials placed before him, the learned Additional District Munsif, Vandavasi, by judgment and decree dated 29.12.2006, came to the conclusion that the plaintiff has not proved his case and ultimately, dismissed the suit filed by the plaintiff. In the appeal preferred by the plaintiff in A.S.No.11 of 2007, the learned Subordinate Judge, Cheyyar, had confirmed the findings arrived at by the trial Court and thereby, dismissed the appeal. 7. Feeling aggrieved over the findings arrived at by the lower appellate Court, the plaintiff, is before this Court with the present Second Appeal. The Second Appeal was admitted on file, after formulating the following substantial questions of law; “1. 7. Feeling aggrieved over the findings arrived at by the lower appellate Court, the plaintiff, is before this Court with the present Second Appeal. The Second Appeal was admitted on file, after formulating the following substantial questions of law; “1. Whether the Courts below erred in law in relying upon the oral evidence of the plaintiff's vendor with respect to the boundaries and the properties purchased by the plaintiff and the defendant contrary to the boundary recitals stated in Ex.A6 sale deed when according to Section 92 of The Indian Evidence Act no evidence shall be admitted to contradict the terms of the proved document ? 2. Whether in law F.M.sketch, patta, chitta and adangal could be considered to decide the sub-division and separate enjoyment of the lands by the parties in the absence of sufficient oral and documentary evidence to prove the manner of partition of the lands put forward by the respective parties ? 3. Whether the defendant's vendor and the defendant can claim different property contrary to the sub-division effected and recorded in the year 1984, when they have failed to challenge the sub- division and allowed the same became final and did not raise any objection to the enjoyment of the lands as per the sub-division for more than 12 years ?” 8. Heard Mr.P.Mani, learned counsel appearing for the appellants and Mr.P.Sivamani, learned counsel appearing for the respondent and also perused the materials available on record. 9. Admittedly, the property owned by the plaintiff and the defendant measuring a total extent of 1.39 acres, is originally belongs to one Pasurama Gounder. The said Pasurama Gounder was blessed with 4 sons viz. (1) Subba Gounder, (2) Rama Gounder, (3) Gopal Gounder, and (4) Lakshmana Gounder. After the demise of Pasurama Gounder, his 4 sons derived the suit schedule property by succession. Afterwards, they orally partitioned the said property by each ¼ share and as of now, the defendant vide Sale Deed dated 11.12.1995 [Ex.B.1] purchased ¾ share from the legal representatives of Parasurama Gounder. Similarly, vide Sale Deed dated 28.05.1996 [Ex.A.6], the plaintiff has purchased ¼ share measuring an extent of 0.34-¾ cents from Krishnan [D.W.3]. In fact, the defendant has purchased his property on 11.12.1995 (Ex.B.1) prior to the purchase made by the plaintiff. Similarly, vide Sale Deed dated 28.05.1996 [Ex.A.6], the plaintiff has purchased ¼ share measuring an extent of 0.34-¾ cents from Krishnan [D.W.3]. In fact, the defendant has purchased his property on 11.12.1995 (Ex.B.1) prior to the purchase made by the plaintiff. In the said occasion, after made purchase, the Survey No.157/18, which pertains to the total extent was divided into Survey No.157/18A, 18B and 18C. 10. In the said occasion, the plaintiff has filed the present suit for the relief of declaration and injunction stating that, the suit schedule property is in the Survey No.157/18B. In order to substantiate the said contention, he has produced a copy of the F.M.Sketch as Ex.A.3. Further, he has produced patta and chitta stands in his name as Ex.A.7 and Ex.A.9 respectively. Apart from those documents, he has produced a copy of the F.M.Sketch issued by the Deputy Tahsildar, Vandavasi dated 03.04.2006 as Ex.A.8 and a copy of “A” Register extract as Ex.A.11. Further, the plaintiff has produced true copy of Adangal extract as Ex.A.12 to Ex.A.24. The contents of those documents would reveal the fact that the Survey No.157/18B stands in the name of the plaintiff. On the other hand, the said Survey Number was situated in between the Survey No.157/18A and C. 11. It is the case of the defendant that the plaintiff has purchased his property, which was situated on the western side of his property and it was purchased by him on 11.12.1995 vide Sale Deed [Ex.B.1]. In support of his case, the vendor of the plaintiff examined on the side of the defendant as D.W.3 and during such time, he gave evidence as the property, which is situated on the western side of the property, which was purchased by the defendant, was sold to the plaintiff. 12. On the other hand, the recitals found in the Sale Deed (Ex.A.6) stands in the name of the plaintiff, is in support of his case. In this aspect, it would necessary to see whether the schedule of property mentioned in the Sale Deed (Ex.A.6) is found correct or not. In this regard, the plaintiff himself admitted in his cross examination as before selling the suit schedule property, the same was allotted in favour of D.W.3 vide Settlement Deed [Ex.A.2]. 13. In this aspect, it would necessary to see whether the schedule of property mentioned in the Sale Deed (Ex.A.6) is found correct or not. In this regard, the plaintiff himself admitted in his cross examination as before selling the suit schedule property, the same was allotted in favour of D.W.3 vide Settlement Deed [Ex.A.2]. 13. Now, on going through the contents of the said document, it seems that D.W.3 allotted with property measuring an extent of 0.34-¾ cents from the total extent of 1.39 acres. In the said document, 4 boundaries in respect to the said 0.34-¾ cents had not been mentioned [Ex.A.2]. Being the reason that the revenue records, is not a document of title, to answer the substantial questions of law raised in this appeal, it would necessary to see the evidence given by P.W.1. In his cross examination, the plaintiff has stated as follows: 14. Now, on going through the said evidence given by P.W.1, it seems that before purchasing his property, the plaintiff knows the details of the property, which is in the hands of his vendor. Even assuming that the vendor of the plaintiff is allotted with share in 157/18B, the evidence given by the plaintiff would reveal that before he purchase the suit property, his vendor informed him about the land owned by him. Only after knowing the fact that the property owned by the vendor of the plaintiff, is situated on the western side of the defendant's property, the plaintiff herein purchased his property from his vendor Krishnan. The said Krishnan has also stated before the trial Court as D.W.3 in support of the defendant's case that he sold the property, which was situated on the western side of the defendant's property. Therefore, on culling out the evidence given by P.W.1 and D.W.3 which would narrate the fact that the plaintiff, after knowing the fact that the property situated on the western side of the defendant's property alone came for sale and after knowing the same, he has purchased his property. Accordingly, the plaintiff is estopped to contend as above. 15. Though it was contended on the side of the plaintiff that he cultivated the suit schedule property prior to 25 years from the date of purchase, he has admitted in his cross examination as the same has not been mentioned in the Sale Deed stands in his favour. Accordingly, the plaintiff is estopped to contend as above. 15. Though it was contended on the side of the plaintiff that he cultivated the suit schedule property prior to 25 years from the date of purchase, he has admitted in his cross examination as the same has not been mentioned in the Sale Deed stands in his favour. Therefore, in the absence of any relevant material accepting the case of the plaintiff as he has cultivated in Survey No.157/18B, cannot be accounted. 16. More than that, being the reason that the present suit has been filed for the relief of declaration, it would necessary to see the judgment in UNION OF INDIA vs. VASAVI COOPERATIVE HOUSING SOCIETY LIMITED reported in (2014) 2 SCC 269 wherein our Hon'ble Apex Court has held as follows; “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. 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. Even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiff’s own title, the plaintiff must be non-suited.” 17. Now, applying the principle set out in the above referred judgment, here, it is a case, the plaintiff has not proved his title, as claimed by him. The trial Court has also decided the issue in the same line and came to the conclusion that the plaintiff has not proved his case. Accordingly, the facts and circumstances found in and around the plaintiff's case, probabilise as he purchased the property to an extent of 0.34-¾ cents, which was situated on the western side of the property, defendant's property. 18. Apart from that, the present suit has been filed under Section 100 of C.P.C., as against the concurrent findings made by the Court below. 18. Apart from that, the present suit has been filed under Section 100 of C.P.C., as against the concurrent findings made by the Court below. In respect to the disposal of the Second Appeal filed against the concurrent findings, our Hon'ble Apex Court in the judgment of GURNAM SINGH vs. LEHNA SINGH reported in (2019) 7 SCC 641 wherein it has observed as follows; “Madamanchi Ramappa v. Muthaluru Bojjappa, AIR 1963 SC 1633 , relied on In a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being: (i) contrary to the mandatory provisions of the applicable law; or (ii) contrary to the law as pronounced by the Supreme Court; or (iii) based on inadmissible evidence or no evidence.” 19. Applying the principles set out in the above referred judgment, to the case on hand, here, it is a case, the pleadings set out in the plaint, is not in support of the evidence given by P.W.1. Further, both the Courts below by following the principles that the revenue records, is not a title document, came to the conclusion that the plaintiff has not proved his case. Therefore, interference in the findings arrived at by the Court below, is not necessary. Hence, in view of the above, the substantial questions of law, are all answered as above. 20. In fine, the Second Appeal is dismissed. The judgment and decree dated 30.07.2009 passed in A.S.No.11 of 2007 on the file of the learned Subordinate Judge, Cheyyar, is hereby confirmed. Consequently, connected Miscellaneous Petition is closed. However, there is no order as to costs.