Madras High Court
Perumal Konar vs Esakki Alias Mookandi on 3 April, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 3/4/2014 CORAM THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA S.A.(MD) No.139 of 2009 Perumal Konar ... Appellant Vs Esakki alias Mookandi ... Respondent Prayer Petition filed under Section 100 of the Code of Civil Procedure against the judgment and decree passed in A.S.No.150 of 2005 on the file of the Sub-Court, Tuticorin dated 11/6/2008 confirming the judgment and decree in O.S.No.23 of 2004 on the file of the District Munsif Court, Srivaikundam dated 13/4/2004. !For Appellants ... Mr.S. Meenakshi Sundaram ^For Respondents ... Mr.M.C.Swamy - - - - - :JUDGMENT
The plaintiff who had lost in both the Courts have filed the above Second Appeal.
2. The case of the plaintiff is that the suit properties and other properties originally belonged to Pitchaiya and Mookaiah, who are the sons of one Somasundara Pillai. They had mortgaged the property in favour of one Mooka Konar, who is the father of the defendant under Ex.A.1. Later, one of the sons of Somasundara Pillai viz., Mookaiah, sold his share of the property subject to the mortgage to Mooka Konar on 7/6/1963 under Ex.A.2. The property demised under Ex.A.2 is the suit property. The said Mooka Konar, sold the property on 10/5/1985 under Ex.A.3 in favour of one Muthammal, W/o.Subbaiah. The said Muthammal had sold the property on 26/9/1992 under Ex.A.4 in favour of the plaintiff.
3. The further contention of the plaintiff is that even on the date of purchase, the defendant had been in possession of the property as a tenant and when the plaintiff requested him to vacate the premises, the defendant requested the plaintiff to permit him to continue in possession of the property. On the request of the defendant, he was permitted to continue in the property. As the defendant denied the title of the plaintiff, the plaintiff has filed the suit for declaration, recovery of possession and for mesne profits.
4. The suit was resisted by the defendant denying all the allegations set out in the plaint. According to the defendant, the document dated 10/5/1985 in favour of Muthammal is not true and the same is a forged document. Therefore, the subsequent purchase of the plaintiff from the said Muthammal is not valid.
5. The other allegation that the defendant is in permissive occupation of the suit property as alleged by the plaintiff is also denied. The defendant is in possession of the property in his own right as the son of Mooka Konar. The illiteracy of the defendant is taken advantage of by the plaintiff and the fraudulent transfers had been made. Therefore, the defendant prayed for the dismissal of the suit.
6. Before the trial Court, on the side of the plaintiff, Exs.A.1 to A.8 have been marked and P.Ws.1 to 3 had been examined and on the side of the defendants, D.W.1 had been examined.
7. The Courts below after elaborate consideration of the documents and evidence had dismissed the suit of the plaintiff. Aggrieved by the same, the above appeal has been filed by the plaintiff on the following substantial questions of law.
"1. Whether the First Appellate Court below is correct in fixing the burden of proof on the appellant when the respondent is claiming title on the basis of erroneous long possession?
2. Whether the Courts below are correct in taking into consideration a stray statement of an illiterate witness without going into the entire evidence of P.W.2?
3. Whether the Courts below are correct in believing adverse possession without proof of animus of exercising ownership against the real owner and without proving overt act of erring wrongful possession against real owner?"
8. The plaintiff has come up with the specific case that he is the owner of the property having purchased the same under Ex.A.3. The validity of Ex.A.3 would decide the claim of the plaintiff. It is not disputed by both the parties that the property originally belonged to Mooka Konar. The trial Court also had decided that based on Exs.A.1 and A.2, the suit property belonged to the said Mooka Konar. It is also not in dispute that the defendant is the son of the said Mooka Konar. The plaintiff is claiming under Ex.A.4 dated 26/9/2002 having purchased the suit property from one Muthammal and the said Muthammal claims to have purchased under Ex.A.3 dated 10/5/1985 from the father of the defendant Mooka Konar. The defendant denies the fact that his father Mooka Konar ever executed a sale in favour of Muthammal and the burden is on the said Muthammal to establish the same. Therefore, as stated earlier, the validity of Ex.A.3 will decide the right of the parties.
9. Admittedly, the suit property is situate in Karungulam village within the registration District of Srivaikuntam Taluk for which the registration office is situate in Seidhunganallur. The distance between Karungulam and Seidhunganallur is about 4 Kms. But Ex.A.3 is registered before the S.R.O Palayamkottai. The distance between Karungulam and Palayamkottai is about 20 Kms. There is no convincing reasons stated by the plaintiff to have registered the sale deed with Palayamkottai S.R.O which is far away from Seidhunganallur. In the absence of any convincing reason for registering it before S.R.O., Palayamkottai, who is not having the jurisdiction, the burden is on the plaintiff to prove the sale deed is executed and signed by the original vendor. Even regarding the consideration passed on to the vendor of Ex.A.3, P.W.2 has deposed in favour of the defendant only. Because, though originally he had deposed in the cross that he paid Rs.8,000/- to Mooka konar in the Registrar's Office, later, he himself denied that he did not pay the amount in the Registrar's office. To top it all, he has further stated that the money was given to him only in discharge of the borrowal made by the said Mooka Konar.
10. The learned counsel for the appellant pointed out that this discrepancy in the evidence is only a mistake and a statement made in isolation cannot be put against the plaintiff. However, his contention cannot be accepted because it is not a single statement in isolation but the cogent reading of the evidence of P.W.2 goes to show that he was not speaking the truth. Hence the question of law No.2 is answered against the appellant.
11. As stated earlier, Ex.A.3 document will go to the root of the matter. Once it is proved, Ex.A.4 will also be held to be true. But from the evidence, it can be seen that on the question of consideration, the plaintiff has not discharged his burden whether the vendor in Ex.A.3 was paid a valid consideration.
12. So far as the registration of the document is concerned, there is no valid reason why it was not registered before the nearest S.R.O. All these suspicious circumstances would go to show that Ex.A.3 is not proved and as stated by the defendant, it appears to be a forged document. Once the purchaser under Ex.A.3 does not have any title, she could not have transferred the same under Ex.A.4 to the plaintiff and Ex.A.4 is also not a valid document.
13. In the above circumstances, it is very clear that the plaintiff had not established his title to the suit property.
14. So far as regarding the possession of the property, admittedly, it is with the defendant. It is stated on the side of the plaintiff that even on the date of Ex.A.3, the defendant had been in possession of the property. She has also further contended that the possession of the defendant was permissive, as the defendant had requested the said Muthammal to permit him to continue to be in possession till he found an alternate accommodation. This statement of the plaintiff is disbelieved by the Courts below because after coming into force of the alleged Ex.A.3, the said Muthammal had not taken any steps to evict or vacate the defendant from the suit property. In fact, the defendant has been in possession of the property more than 15 years from the date of Ex.A.3 itself. As the execution of Ex.A.3 is not proved, the vendor of the plaintiff cannot get any title under Ex.A.3. While so, based on Ex.A.3, Ex.A.4 has been created in favour of the plaintiff which by any stretch of imagination cannot convey any title to the plaintiff.
15. The Courts below also have found that the evidence of P.W.2 are contra to their pleadings and therefore, the plaintiffs are not entitled to recovery of possession. Admittedly, the defendant has been in possession of the property for more than the required statutory period. Even presuming that the defendant had not established his title, he has been in long continuous and uninterrupted possession to the knowledge of the alleged owner viz., Muthammal for more than the required statutory period, thereby perfecting his title by adverse possession also.
16. In this regard, the learned counsel for the appellant cited a decision reported in AIR 2009 SC 103 {HEMAJI WAGHAJI JAT Vs. BHIKHABHAI KHENGARBHAI HARIJAN AND OTHERS}, wherein paragraph 34, it has been held as follows:-
"Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner."
17. The above said paragraph is only a recommendation by the Apex Court to consider and make suitable changes in the law of adverse possession and that will not in any way help to improve the case of the appellant.
18. From the foregoing discussions, it can be seen that the plaintiff has produced Exs.A.1 to A.8 to establish his right and title to the suit property. But however, the Courts below have held that Exs.A.3 and A.4 are all the forged documents under which no title passes to the plaintiff. If those documents are eschewed, there is absolutely no acceptable evidence on the side of the plaintiff except ipse dixit of the oral evidence. Even the said oral evidence has not been cogent and the same has been disbelieved by the Courts below. Of course, it is needless to mention that in order to get decree for declaration, the plaintiff has to succeed or fail in his own case by establishing his title. If he cannot succeed on the strength of his title, his suit must fail not withstanding the fact that the defendant has no title to the suit property. In other words, the person who comes to the Court with the specific relief must establish it affirmatively by proper legal evidence.
19. The said principle is reported in AIR 1965 SC - 1506 {BRAHMA NAND PURI Vs. NELEI PURI since deceased REPRESENTED BY MATHRA PURI AND ANOTHER}, wherein it is held that the plaintiff has to succeed or fail on the title, he establishes and cannot take advantage of the defendant's title.
20. In view of the foregoing circumstances, I am of the view that the plaintiff has not established his case. Consequently, the judgment and decree of the Courts below are confirmed. The suit filed by the plaintiff in O.S.No.23 of 2004 is dismissed and the questions of law are answered against the appellant.
21. In the result, this Second Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also dismissed.
mvs To
1. The Sub-Court, Tuticorin
2. The District Munsif Court, Srivaikundam