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2025 DIGILAW 9 (MAD)

Rajamma v. Murugesan

2025-01-02

R.SAKTHIVEL

body2025
JUDGMENT : (R. Sakthivel, J.) (PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated March 26, 2019 made in A.S.No.26 of 2016 by the learned Subordinate Judge, Krishnagiri confirming the Judgment and Decree dated March 30, 2016 made in O.S.No.151 of 2013 by the learned District Munsif, Krishnagiri.) This Second Appeal is directed against the Judgment and Decree dated March 26, 2019 passed in A.S.No.26 of 2016 by the 'Principal Subordinate Court, Krishnagiri' ['First Appellate Court' for brevity], whereby the Judgment and Decree dated March 30, 2016 passed in O.S.No. 151 of 2013 by the 'District Munsif Court, Krishnagiri' ['Trial Court' for brevity] was partly modified. 2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit. PLAINTIFF'S CASE 3. In the plaint it is averred that the defendant is the elder sister of the plaintiff. The Suit Property is the plaintiff’s absolute property which he purchased on February 11, 1987 for Rs.10,000/- from one Jollan of Balinayanapalli Taraf. Possession was handed over on the same day and the plaintiff has been in absolute possession and enjoyment since then. Patta No.292 was issued in his favour. Based on documents, house loan was provided by the Housing Society, Krishnagiri to the plaintiff and the same was duly discharged by him. On March 15, 2013, the defendant, who has no right or interest, attempted to trespass into the Suit Property and disturbed the plaintiff’s peaceful possession and enjoyment. Hence the Suit for declaration, permanent injunction and other reliefs. DEFENDANT'S CASE 4. Sum and substance of the written statement filed by the defendant is that all the plaint averments, except the relationship between the parties, are wrong. The Suit Property was originally a Natham Poromboke occupied by one Jollan who later sold it to the defendant. The defendant removed the thatched shed therein and constructed a RCC house therein. She has been in continuous possession and enjoyment of the Suit Property. As the plaintiff, being her brother, demanded a separate room, the defendant obtained a loan in his name and the same was discharged by the defendant through the plaintiff. Further, while the defendant had already obtained service connection in S.C.No.23100, the plaintiff obtained another in his name. She has been in continuous possession and enjoyment of the Suit Property. As the plaintiff, being her brother, demanded a separate room, the defendant obtained a loan in his name and the same was discharged by the defendant through the plaintiff. Further, while the defendant had already obtained service connection in S.C.No.23100, the plaintiff obtained another in his name. The Suit description of property is wrong and the Suit valuation is wrong. Accordingly, the defendant sought for dismissal of the Suit. TRIAL COURT 5. At trial, plaintiff examined himself as P.W.1, one Chinnaraj was examined as P.W.2, and Ex-A.1 to Ex-A.7 were marked on the side of the plaintiff. On the side of the defendants, the defendant – Rajamma was examined as D.W.1, two other witnesses were examined as D.W.2 and D.W.3 and Ex-B.1 and Ex-B.2 were marked. 5.1. Upon hearing both sides and considering the evidence available on record, the Trial Court concluded that two houses are there in the Suit Property, in which, the plaintiff is residing in one house by paying house tax and also obtained Electricity Service Connection in his name for the same. Considering the relationship between the plaintiff and the defendant viz., brother and sister as well as the admission made by the plaintiff during the trial proceedings that he has no objection to give one house to the defendant, the Trial Court decreed the Suit except qua the thatched house in the Suit Property. The Trial Court concluded that the thatched small house in the Suit Property belongs to the defendant and the rest belongs to the plaintiff. Accordingly, declaration of title and injunction was granted in favour of the plaintiff except qua the thatched house. FIRST APPELLATE COURT 6. Feeling aggrieved, the defendant preferred an appeal before the First Appellate Court, which after hearing both sides and perusing the documents available on record, concluded that the plaintiff alone is in possession and enjoyment of the Suit Property. The Trial Court erred in arriving at a conclusion that small thatched house belong to the defendant. Accordingly, the First Appellate Court dismissed the appeal and set aside the Trial Court’s Judgment and Decree to the extent that the thatched house belong to the defendant. In short, the First Appellate Court decreed the Suit as prayed for. ARGUMENTS 7. The Trial Court erred in arriving at a conclusion that small thatched house belong to the defendant. Accordingly, the First Appellate Court dismissed the appeal and set aside the Trial Court’s Judgment and Decree to the extent that the thatched house belong to the defendant. In short, the First Appellate Court decreed the Suit as prayed for. ARGUMENTS 7. M/s. V.Nicholas, learned Counsel for the appellant/ defendant would argue that originally the Suit Property is a Natham poramboke. The plaintiff and the defendant are brother and sister and are residing in the Suit Property. Thereafter, the plaintiff and defendant in their joint efforts and exertions constructed a mould house and another small thatched house in the Suit Property. Thereafter, the defendant is residing in the thatched house portion of the Suit Property. The Trial Court rightly granted declaration with regard to only the portion in which the plaintiff is residing. The First Appellate Court, without appreciating the fact that the plaintiff and defendant are brother and sister, and both are residing in the Suit Property, dismissed the appeal and modified the Trial Court's Judgment and Decree by granting Decree as prayed for in respect of entire Suit Property including the portion in which the defendant is residing. The same is erroneous. Accordingly, she would pray to allow the Second Appeal. 8. Per contra, Ms.S.Uma Maheswari for M/s.C.Jagdish, learned Counsel for the respondent / plaintiff would argue that Ex-A.2 to Ex-A.7 would establish the fact that the plaintiff alone is in possession and enjoyment of the Suit Property. Merely because Ex-B.1 – House Tax Receipts and Ex-B.2 – Electricity Receipts stand in the name of the defendant, that alone would not confer any title in favour of the defendant. The defendant is a permissive occupant and cannot deny the title of the plaintiff. The First Appellate Court rightly decreed the Suit in respect of entire Suit Property as prayed for by dismissing the appeal. There is no warrant to interfere with the said finding. Accordingly, she prayed to dismiss the Second Appeal. SECOND APPEAL 9. The defendant is a permissive occupant and cannot deny the title of the plaintiff. The First Appellate Court rightly decreed the Suit in respect of entire Suit Property as prayed for by dismissing the appeal. There is no warrant to interfere with the said finding. Accordingly, she prayed to dismiss the Second Appeal. SECOND APPEAL 9. Feeling aggrieved, the defendant has preferred this Second Appeal, which was admitted on January 23, 2024 on the following Substantial Question of Law: "Whether the lower appellate Court is correct in reversing the judgment and decree of the trial Court allotting distinct shares to the parties on the basis of the consent of both the parties, especially when the same has not been challenged by the plaintiff ?" DISCUSSION: 10. This Court has heard on either side and perused the materials available on record in light of the Substantial Question of Law. 11. Admittedly, the plaintiff and the defendant are brother and sister. Originally, the Suit Property is a Natham poramboke. Considering the possession and enjoyment, Ex-A.2 - Rough Patta / Thoraya Patta was granted to the plaintiff. Ex-A.2 to Ex-A.7 documents proved that the plaintiff is in possession and enjoyment of the Suit Property. Ex-B.1 is a House Tax Receipt standing in the name of the defendant for the year 2005-2006. Ex-B.2 series contains 16 electricity consumption charges receipts for Service Connection No.190-053-140 which stands in the name of the defendant. Ex-B.2 series shows that the plaintiff is residing in the Suit Property since 2008. The witnesses examined by the defendant have categorically stated that the defendant is also in possession and enjoyment of a portion of the Suit Property by putting up thatched house for the past 25 years. 12. Though Ex-A.2 - Rough Patta / Thoraya Patta was granted in the name of the plaintiff, and the plaintiff had put up construction in a portion of the Suit Property, from Ex-B.1 and Ex-B.2 coupled with the oral evidence on the defendant’s side, it is discernible that the defendant is also residing in a portion of the Suit Property by putting up small thatched shed. Since the plaintiff and the defendant are siblings, the Revenue Authorities must have issued Ex-A.2 – Thoraya Patta solely in the name of the plaintiff, being the male member. Since the plaintiff and the defendant are siblings, the Revenue Authorities must have issued Ex-A.2 – Thoraya Patta solely in the name of the plaintiff, being the male member. It is quite natural in a patriarchal society for the revenue records to stand in the name of the male member. Merely because Ex-A.2 - Rough Patta stands in the name of the plaintiff, the plaintiff cannot claim exclusive title excluding his own sister who is residing in the Suit Property for more than 15 years by putting up a small thatched house. The Trial Court rightly appreciated and scrutinized the documents and evidence, and granted limited relief of declaration of title in respect of the portion of Suit Property in which the plaintiff put up a mould house. The First Appellate Court miserably failed to consider the relationship between the parties, the defendant’s documents i.e., Ex-B.1 - House Tax Receipt and Ex-B.2 – Receipts for Electricity Consumption Charges paid by the defendant and also the oral evidence adduced on the side of the defendant in the right perspective, and erred in granting the reliefs sought for in respect of entire Suit Property in favour of the respondent before it / plaintiff, who did not prefer any appeal over the Trial Court’s Judgment and Decree. The process of adjudication involves not only the application of laws but also the delivery of justice. Hence, in the interest of justice, this Court is of the considered view that the Judgment and Decree of the First Appellate Court is liable to be interfered with. Substantial Question of Law is answered accordingly. CONCLUSION: 13. In the result, the Second Appeal is allowed, the Judgment and Decree of the First Appellate Court is set aside and the Judgment and Decree of the Trial Court is confirmed. Considering the relationship between the parties, there shall be no order as to costs. Consequently, connected Civil Miscellaneous Petition is closed.