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2022 DIGILAW 1458 (MAD)

S. Rajammal (Died) v. Tirupathi (Died)

2022-06-16

R.THARANI

body2022
JUDGMENT (Prayer: This Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree, dated 05.10.1998 made in A.S.No. 51 of 1998, on the file of the Sub Judge, Sivagangai, in confirming the judgment and decree, dated 24.03.1998, made in O.S.No.566 of 1993, on the file of the District Munsif, Manamadurai.) 1. This second appeal has been filed against the judgment and decree, dated 05.10.1998 made in A.S.No. 51 of 1998, on the file of the Sub Judge, Sivagangai, in confirming the judgment and decree, dated 24.03.1998, made in O.S.No.566 of 1993, on the file of the District Munsif, Manamadurai. The appellants 1 and 2 herein are the defendants in the original suit, the appellants 3 to 6 are the LRs of the deceased first appellant. The first respondent herein is the plaintiff in the original suit and the respondents 2 to 8 herein are the LRs of the deceased first respondent. The plaintiff / first respondent herein filed the original suit for a prayer of declaration, recovery of possessing and mean profits. 2. Brief substance of the plaint, in O.S.No.566 of 1993, is as follows:- The suit property is a punja land in Survey No.250/1C2 with an extend of 0.16.0 ares. The suit property and the northern side property belonged to the plaintiff and the first defendants' father, viz., Late. Alagan. Both of them purchased the property on 24.09.1962. After the death of Alagan, the plaintiff and the plaintiff's brother Alagar were enjoying the property and they divided the suit property in the year 1969. The suit property was allotted to the share of the plaintiff. The northern side portion was allotted to the share of the brother of the plaintiff, by name, Late.Alagan. The first defendant is the sister of the plaintiff. During the year 1983, due to ill health, the plaintiff permitted the first defendant to cultivate the property. When the plaintiff demanded the defendant to return the property, the defendant is refusing the same, claiming ownership. When the plaintiff approached the Tahsildar, to cancel the patta wrongly issued in the name of the defendant, the revenue authorities directed the plaintiff to approach the Civil court. The female members of Late. Alagan were not having any right in the suit property or in the property on the northern side of the suit property. The second defendant has no right over the suit property. The female members of Late. Alagan were not having any right in the suit property or in the property on the northern side of the suit property. The second defendant has no right over the suit property. It is stated that the property was alienated to the second defendant. Hence, the second defendant is impleaded as the party to the case. 3. Brief substance of the written statement filed by the first defendant in O.S.No.566 of 1993, is as follows:- It is wrong to state that the suit property and the northern side of the property were purchased by Alagar through a sale deed, dated 14.09.1993. It is wrong to state that the plaintiff and his brother entered into a partition during the year 1969. The suit property was never in the possession of the plaintiff. The suit property was divided as Survey No. 261/3B, during the UDR, the suit property was sub-divided as Survey No. 260/1C2. The suit property belonged to the father of the plaintiff. During the year 1966, at the time of marriage of the first defendant, the father orally gifted the property as “Sridhana” for the first defendant. The first defendant is enjoying the property and paying Kist. During UDR, patta was granted in the name of the first defendant. The first defendant gifted the property to her daughter-second defendant/Rajkumar and the second defendant is in possession of the property for more than statutory period and the defendant is having adverse possession. The suit is to be dismissed. 4. On the above said pleadings, the trial Court framed the following issues:- (i) Whether the sale deed, dated 24.09.1962 is valid and effective? (ii) Whether the oral partition during the year 1969 is genuine? (iii) Whether the plaintiff was in possession of the suit property? (iv) Whether the plaintiff is entitled to possession? (v) Whether the plaintiff is entitled for declaration and for mean profits? (vi) Whether the defendant is having possessionary right? (vii) Whether the property was given as “Sridhana” to the first defendant in the year 1966? (viii) Whether the defendant is having adverse possession? (ix) What are the other reliefs available to the plaintiff?] 5. On the side of the plaintiff, 2 witnesses were examined and 8 documents were marked. On the side of the defendants, 5 witnesses were examined and 3 documents were marked. (viii) Whether the defendant is having adverse possession? (ix) What are the other reliefs available to the plaintiff?] 5. On the side of the plaintiff, 2 witnesses were examined and 8 documents were marked. On the side of the defendants, 5 witnesses were examined and 3 documents were marked. After considering the pleadings and evidence, the trial Court decreed the suit. 6. Against the judgment and decree, the defendants preferred an appeal in A.S.No.51 of 1998 on the file of the Sub Court, Sivagangai. The First Appellate Court framed the following issues:- “(i) Whether the suit property belonged to the appellants? (ii) Whether the respondents are entitled for declaration and injunction? (iii) What are the other reliefs available to the appellants? 7. After hearing both sides, the first appellate Court has dismissed the appeal in A.S.No. 51 of 1998. Against which, the defendants/ appellants herein have come forward with this Second Appeal, on the following grounds:- The Courts below failed to appreciate the relationship between the parties, viz., the first appellant and the first respondent are brother and sister. Admittedly, the property belonged to Alagar, who is the father of the first respondent and the appellant, he died intestate. A suit for recovery of possession against the co-owner is not permissible. It is for the plaintiff to prove his exclusive title. There is no plea of ouster of the defendants. The first appellant was admittedly in possession. The burden is on the plaintiff to establish permissive occupation. The appellants are having prescribed title by efflux of a prescriptive period. Ex.A3 is a concocted document. The document was not mentioned in the pleadings. Revenue records are insufficient to prove title. Ex.A2 came into existence after Ex.A3. The order of the Sub Judge, Sivagangai, is illegal, incompetent and without jurisdiction and is liable to be set aside. 8. This Court, by its order, dated 03.12.1998, has admitted the second appeal on the following substantial question of law:- "(1) Whether the Courts below are right in decreeing the suit when the plaintiff had failed to prove the exclusive ownership of the suit property? 8. This Court, by its order, dated 03.12.1998, has admitted the second appeal on the following substantial question of law:- "(1) Whether the Courts below are right in decreeing the suit when the plaintiff had failed to prove the exclusive ownership of the suit property? (2) Whether the lower Appellate Court is not in error in ignoring the relationship of the parties and having found that the father of the first defendant and the plaintiff is the owner of the property, should it not have held that on the intestacy of Alagar, the property devolves upon the first defendant and the appellant and consequently there cannot be an order of ejectment? (3) Whether the Courts below are not error in decreeing the suit and misplacing the burden of proof on the appellants? 9. On the side of the appellants, it is stated that the appellants have specifically denied that the suit property was not comprised in Ex.A1 and that the plaintiff has got no title. But, the plaintiff failed to prove Ex.A1, the sale deed of the year 1962. Attesting witnesses, who are their close relatives, were not examined. The alleged oral partition between the plaintiff's father and Alagar was not proved in the proper manner. The plaintiff did not file any document to show that he was in possession, Kist receipt, patta, chitta or Adangal in the name of the plaintiff were not filed, whereas, the defendant was able to prove that she was in possession and enjoyment of the property by producing Kist receipt, patta, chitta and Adangal. The defendant is in possession beyond the statutory period. Both the Courts below failed to consider the long and continuous enjoyment of the property by the defendant. The oral partition was not proved. Even if the defendant did not prove that the property was gifted to the first defendant in the year 1966, The Courts below ought to have upheld that the property was enjoyed by the first defendant beyond the statutory period. 10. On the side of the respondents, it is stated that the suit is for declaration and possession. A larger extend of the property was purchased through Ex.A1 by the father of the plaintiff. The male descendants of the father, that is the plaintiff and one Alagar divided the property by way of oral partition. That Alagar was not a party to the case. A larger extend of the property was purchased through Ex.A1 by the father of the plaintiff. The male descendants of the father, that is the plaintiff and one Alagar divided the property by way of oral partition. That Alagar was not a party to the case. Out of the four female descendants, the first defendant is the younger sister. During the pendency of the suit, she executed a gift deed, in favour of the second defendant. The respondent handed over the property to the first defendant to cultivate the property, but, the first defendant refused to return back the property. P.W.2, who is an elder sister of the plaintiff and the defendant has deposed that the property of the father was divided among the male descendants. D.W.1 has admitted that the northern side of the suit property belonged to another brother. Out of the total extend of 85 cents purchased by the father, the southern half of the property belonged to the plaintiff and northern half of the property belonged to another brother, by name, Alagar. When the first defendant admitted that the northern portion belonged to Alagar, she is not entitled to refuse the title of the plaintiff in the other portion of the same property. The appellant claimed the property by way of a gift by the father. No document was produced by the first defendant / first appellant. Under Section 123 of the Transfer of Property Act, a gift of immovable property has to be registered. Possession of Alagar in the northern portion was admitted. All the questions raised by the appellants are questions of facts and not questions of law and prayed the appeal to be dismissed. 11. Admittedly, the property belonged to the father of the plaintiff and the first defendant, by name, Alagan. The sale deed in favour of Alagan, dated 24.09.1962 was marked as Ex.A1. The appellants are claiming the property through Alagan and they cannot deny Ex.A1. 12. The case of the plaintiff is that there was an oral partition among the brothers, during the year 1969 and the southern portion of the property belonged to the plaintiff and the northern portion belonged to his brother Alagan. It is seen that the first defendant was examined as D.W.1, she has admitted that the northern portion is in possession of another brother, by name, Alagan. It is seen that the first defendant was examined as D.W.1, she has admitted that the northern portion is in possession of another brother, by name, Alagan. P.W.2 has deposed that there was an oral partition among the male descendants of her father and that the property was divided between the brothers. The case of the plaintiff is that plaintiff permitted the first defendant to cultivate the property. The case of the first defendant is that the property was given to the first defendant by way of “Sridhana”. No gift deed was filed on the side of the first defendant. There are four female descendants to the father of the first defendant. In such case, oral gift to the first defendant alone was unbelievable. The document filed on the side of the defendants are all revenue records. All the questions raised by the appellants are only a question of facts and not questions of law. Hence, these questions raised by the appellants are not sustainable. 13. There is no infirmity in the orders of the trial Court and in the order of the first appellate Court. Hence, this Second Appeal is dismissed, by confirming the order, dated 05.10.1998 made in A.S.No. 51 of 1998, on the file of the Sub Judge, Sivagangai, inturn, confirming the order, dated 24.03.1998, made in O.S.No.566 of 1993, on the file of the District Munsif, Manamadurai. No costs.