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2022 DIGILAW 1399 (MAD)

S. T. Rathinam Ammal v. P. Muthiah

2022-06-14

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Subordinate Court, Periakulam, dated 22.12.1994 and passed in A.S.No.15 of 1990 confirming the judgment and decree of the District Munsif Court, Uthamapalayam, dated 27.10.1989 and passed in O.S.No.4 of 1986.) 1. The plaintiffs are the appellants herein. 2. The plaintiffs had filed O.S.No.4 of 1986 before the District Munsif Court, Uthamapalayam for the relief of declaration of title, permanent injunction and mandatory injunction and for consequential reliefs. The suit was dismissed by the trial Court. The plaintiffs filed A.S.No.15 of 1990 before the Sub Court, Periyakulam. The learned Subordinate Judge was pleased to concur with the findings of the trial Court and dismissed the appeal. As against the concurrent findings, the present Second Appeal has been filed. 3. The plaintiffs have contended that the suit schedule properties originally belonged to three persons namely, Velayutham Pillai, Arunachalam Pillai and Sankaralingam Pillai who are all the sons of one Adhinarayana Pillai. Each one of the brothers were entitled to 1/3rd share and the Eastern portion belonged to Sankaralingam Pillai. After his death, it devolved upon his daughter Adhilakshmi Ammal. Thereafter, it devolved upon the son of Adhilakshmi Ammal, namely, Ponnusamy Pillai. Since Ponnusamy Pillai had died issueless in the year 1947, it devolved upon the junior uncle of Ponnusamy Pillai, namely, Thirumalai Pillai who is the husband of the first plaintiff. The said Thirumalai Pillai had passed away in the year 1952 and thereafter, it devolved upon first plaintiff being the wife and the second plaintiff being the son. The defendants who are adjacent owners have encroached a portion of the property in January 1985. Hence, the present suit for declaration of title, permanent injunction and mandatory injunction for removal of a wall put up by the defendants. 4. The defendants filed a written statement disputing the entire genealogy pleaded by the plaintiffs. The defendants also disputed the title as traced by the plaintiffs. The defendants have contended that the suit schedule property is the ancestral property of the defendants' family and they are residing in the said property. The defendants disputed the fact that they are encroachers of the suit schedule property. The defendants further contended that some of the necessary parties have not been impleaded and hence, the suit is bad for non-joinder of necessary parties. 5. The defendants disputed the fact that they are encroachers of the suit schedule property. The defendants further contended that some of the necessary parties have not been impleaded and hence, the suit is bad for non-joinder of necessary parties. 5. The trial Court after consideration of oral and documentary evidence, arrived at a conclusion that there is no proof whatsoever to establish the genealogy pleaded by the plaintiffs. Except the deposition of P.W.1 that the suit schedule properties originally belonged to one Adhinarayana Pillai, absolutely there was no documentary or oral evidence to establish the sale. Since the date of death of the parties mentioned in the genealogy have not been mentioned, the applicability of the relevant provisions of the Succession Act could not be established. The trial Court further found that the Advocate Commissioner's report has established that it is a vacant site. Hence, the house tax receipts relied upon by the plaintiffs under Exhibits A8 to A18 and A22 to A27 have nothing to do with the suit schedule property. The trial Court further found that the mortgage deed marked by the plaintiffs as Exhibit A21 does not have any boundary recitals to support the case of the plaintiff. Based upon the said findings, the trial Court dismissed the suit. 6. The First Appellate Court concurred with all the findings of the trial Court and held that the plaintiffs are not established their title to the suit schedule property by tracing their title to Adhinarayana Pillai. The First Appellate Court further found that the property dealt with under Exhibit A3 has nothing to do with the present suit schedule property. That apart, the present defendants were not parties to the said suit. Hence, any genealogy that was referred to under Exhibit A3 judgment cannot be relied upon in the present suit. Based upon the said findings, the trial Court dismissed the appeal. 7. The above Second Appeal was admitted on the following substantial question of law: "Whether Exhibit A3 concludes the rights of the parties in this case?" 8. The learned Counsel for the appellants had contended that under Exhibit A3, a decree has been granted in favour of the plaintiffs' predecessor in title and hence, there cannot be any dispute with regard to the title of the present plaintiffs. He further contended that the plaintiffs have properly traced their title from Adhinarayana Pillai. The learned Counsel for the appellants had contended that under Exhibit A3, a decree has been granted in favour of the plaintiffs' predecessor in title and hence, there cannot be any dispute with regard to the title of the present plaintiffs. He further contended that the plaintiffs have properly traced their title from Adhinarayana Pillai. The plaintiffs have given the complete genealogy starting from Adhinarayana Pillai up to plaintiffs. The defendants being strangers to the plaintiffs' family have no right or title to the suit schedule properties. The plaintiffs have filed Exhibits A1 and A2 which are the genealogy for the plaintiff's husband's family and Sankaralingam Pillai's family respectively. The plaintiffs further contended that just because the suit schedule property and the defendants in the present suit and Exhibit A3 judgment are different, the genealogy that was mentioned under Exhibit A3 cannot be said to be not binding upon the parties. He further contended that under Exhibit A21 one Mr.Muthukumara Pillai's property has been shown as the Western boundary and hence, the said boundary recitals would prove the case of the plaintiff. He further contended that the trial Court as well as the Appellate Court have not properly appreciated Exhibits A1 to A3 and arrived at an erroneous finding that the plaintiff has not established his title and possession over the suit schedule properties. 9. Though the respondents have been served and they have entered appearance through the Counsel, there was no representation on the side of the respondents. 10. I have given a careful consideration to the submissions made by the learned Counsel for the appellants. 11. The settled position of law is that wherever the plaintiff prays for declaration of title, the entire burden is upon the plaintiff. In the present case, the plaintiffs have contended that the suit schedule properties originally belonged to three sons of Adhinarayana Pillai. The plaintiff has also filed two genealogies under Exhibits A1 and A2 to trace the title up to the plaintiffs. The plaintiffs have also filed Exhibit A3 judgment in which there is a reference about the genealogy and tracing of title. The said Exhibit A3 judgment has been rejected by both the Courts below on the ground that the present defendants were not parties to the said suit and the suit schedule properties were completely different from that of the present suit. 12. The said Exhibit A3 judgment has been rejected by both the Courts below on the ground that the present defendants were not parties to the said suit and the suit schedule properties were completely different from that of the present suit. 12. Except genealogies under Exhibits A1 to A4, boundary recitals in Exhibits A6 and A7, tax receipts from Exhibits A8 to A18 and Exhibits A22 to A27, no document of title or any other revenue record has been produced on the side of the plaintiffs. 13. Though the plaintiffs have contended that some constructions are there in the suit schedule properties and attempted to relate those constructions with the house tax receipts, the Commissioner's report clearly establishes the fact that the suit schedule property is a vacant site. Hence, I cannot find any illegality in the finding of the Courts below that these house tax receipts do not relate to the suit schedule property. 14. That apart, the boundary recitals sought to be projected under Exhibits A6, A7 and A21 do not refer to any one of the family members of the plaintiffs whose names are found in the genealogical tree. Viewed from any angle, the plaintiffs have not established their title over the suit schedule properties. The learned Counsel for the appellants had contended that the genealogical tree filed by the plaintiffs in the present suit as Exhibits A1 and A2 and the genealogical tree filed by the plaintiffs in Exhibit A3 suit have got evidentiary value and they should be considered in order to decide upon the title of the plaintiffs. The Hon'ble Supreme Court in a judgment reported in 1983 (3) SCC page 118 (State of Bihar Vs. Radha Krishna Singh and Ors) in paragraph No.19 has laid down the principles covering the cases of genealogy projected by the parties to a suit. The same is extracted as follows: "19. The principles governing such cases may be summarised thus: (1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies: (a) Source of the genealogy and its dependability. (b) Admissibility of the genealogy under the Evidence Act. (b) Admissibility of the genealogy under the Evidence Act. (c) A proper use of the said genealogies in decisions or judgments on which reliance is placed. (d) Age of genealogies. (e) Litigations where such genealogies have been accepted or rejected. (2) On the question of admissibility the following tests must be adopted: (a) The genealogies of the families concerned must fall within the four-corners of Section 32(5) or Section 13 of the Evidence Act. (b) They must not be hit by the doctrine of post litem motam. (c) The genealogies or the claim cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible. (d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of know ledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved." 15. In the present case, the genealogy projected by the plaintiff is not admitted by the defendants. Though the plaintiffs have contended that after the death of Sankaralingam Pillai, the suit schedule properties have devolved upon his daughter Adhilakshmi. The plaintiff has not explained what happened to the other legal heirs of Sankaralingam Pillai. Moreover, it is contended that, after the death of Aadhilakshmi, it had devolved upon her son Ponnusamy Pillai and thereafter, it had devolved upon the junior uncle of Ponnusamy Pillai, namely, Thirumalai Pillai. It is also not explained what happened to the brother of Thirumalai Pillai namely, Venkatachalam Pillai. Hence, even as per the genealogy projected by the plaintiff, the tracing of title is not in sequence and it jumps according to the whims and fancies of the plaintiffs. Hence, no sanctity could be attached to the genealogy trees projected under Exhibits A1 to A4. When the genealogies are rejected, there is no other registered document to establish the connection of the plaintiffs with the suit schedule properties. There is no patta either in the name of the plaintiffs or their ancestors in title. The house tax receipts produced by the plaintiffs do not relate to the suit schedule property. Hence, viewed from any angle, the plaintiffs have not established their title to the suit schedule properties. 16. There is no patta either in the name of the plaintiffs or their ancestors in title. The house tax receipts produced by the plaintiffs do not relate to the suit schedule property. Hence, viewed from any angle, the plaintiffs have not established their title to the suit schedule properties. 16. The trial Court as well as the Appellate Court have concurrently arrived at a finding that the plaintiffs have not established their title over the suit schedule properties, I do not find any illegality or infirmity in the judgment and decree of the Courts below. The substantial question of law is answered as against the appellants. The Second Appeal stands dismissed. No costs.