Madras High Court
Chokkalingam vs 5.Raman on 17 October, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.10.2014 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH S.A.(MD)No.272 of 2006 1.Chokkalingam 2.Natarajan 3.Paramasivam 4.Arumugam ..Appellants vs 5.Raman ..Respondent Prayer Second Appeal filed under Section 100 of Civil Procedure Code against the decree and judgment passed by the District Judge, Sivagangai in A.S.No.100 of 2003, dated 29.08.2005 reversing the decree and judgment made in O.S.No.117 of 2000, dated 31.01.2003 on the file of the District Munsif, Thiruppathur, Sivagangai District. !For Appellants :M/s.K.Sulthan Allowdhin ^For Respondent :M/s.M.Mohanasundaram Judgment Reserved on:11.09.2014 :JUDGMENT
This second appeal filed against the decree and judgment passed by the District Judge, Sivagangai in A.S.No.100 of 2003, dated 29.08.2005 reversing the decree and judgment made in O.S.No.117 of 2000, dated 31.01.2003 on the file of the District Munsif, Thiruppathur, Sivagangai District.
2.For the sake of convenience, the plaintiffs in the original suit are referred as appellants and the sole defendant in the original suit is referred as respondent hereafter.
3.The appellants filed a suit for permanent injunction in respect of two items of punja lands in S.No.1/3A2 to an extent of 0.97.0 hectors and in S.No.1/6 to an extent of 0.09.0 hectors in patta No.1820. Briefly the case of the appellants is that the appellants are brothers and the suit properties are joint family properties and patta also issued in the name of the appellants' father viz., Pichan as patta No.1820. Further, the appellants have put up houses in the properties and they are residing in a portion of the properties and let out the remaining portions to the tenants and planted trees in portion of the properties. It is also the case of the appellants that a portion of the property was sold to the third party and the above said portion was assigned as survey No.1/3A1 and the remaining portion (i.e.) the first item of suit schedule was assigned as Survey No.1/3A2. The appellants' father died in the year 1999 and then, the appellants changed the patta in their names on 27.12.1999 and they are enjoying the suit properties by paying kists. Since the respondent attempted to interfere with the possession of the appellants in both items of suit properties, the appellants filed the suit for permanent injunction.
4.The case of the respondent is that the suit properties are not joint family properties as alleged by the appellants. According to the respondent, the appellants' father viz., Pitchan sold the suit properties under registered sale deed, dated 19.07.1966 and the above said facts are known to the appellants. The appellants' father died in the year 1999. Since the respondent has not taken steps to change the name in the patta, the appellants fraudulently obtained joined patta in their name, after the death of their father. The respondent already preferred an appeal against the order of grant of joint patta before the Revenue Divisional Officer, Devakottai and the same is pending. Therefore, prayed for to dismiss the suit.
5.The trial Court framed four issues for consideration from the above said pleadings. On the side of the appellants, examined two witnesses as P.W.1 and P.W.2 and marked 26 documents as Exs.A1 to A26. On the side of the respondent, examined two witnesses as D.W.1 and D.W.2 and marked six documents as Exs.B1 to B6.
6.The trial Court has considered the above said oral and documentary evidence adduced on either side and finally held that the suit properties are in possession of the appellants even though the suit properties sold to the respondent under Ex.B1-sale deed and therefore, they are entitled to the relief of permanent injunction and accordingly decreed the suit as prayed for in the plaint.
7.Aggrieved over the above said findings of the trial Court, the respondent herein preferred first appeal in A.S.No.100 of 2003. The first appellate Court has held that even though the appellants have produced Ex.A2 to Ex.A26 documents such as tax receipts, electricity receipts etc., but the suit schedule properties described only as punja lands and the respondent admittedly purchased the properties in the year 1966 from the appellants' father under Ex.B1-sale deed and also produced Ex.B2 and Ex.B3-kist receipts paid for the year 1982 and 1992 to prove possession and hence, the appellants are not entitled to the relief of permanent injunction and finally set aside the decree and judgment passed by the trial Court and dismissed the suit filed by the appellants.
8.Aggrieved the above said reversal findings of the first appellate Court, the appellants herein/plaintiffs preferred this second appeal.
9.This Court admitted the Second Appeal on the following Substantial Questions of Law:
(1)Whether the Lower Appellate Court is committed error and illegality in drawing the presumption that the appellants/respondents/ plaintiffs admitted validity of Ex.B1 and consequentially the finding that they are estopped from claiming possession when there is no proper pleadings, issues and evidences?
(2)When the trial Court held that in spite of Ex.B1, the appellants/respondents/plaintiffs proved the continuous possession from the date of Ex.B1, whether the Lower Appellate Court is correct in reversing the findings on presumption of Ex.B1?
(3)Whether the lower Appellate Court had not properly appreciated the pleadings and evidences of the parties and whether this Court can re-
appreciate the same?
10.Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent and also perused the materials available on record.
11.The learned counsel appearing for the appellants mainly contended that the suit properties are joint family properties and the appellants filed the suit only for permanent injunction on the basis of possession and so as to prove the above said possession, the appellants produced Exs.A1 and A5-patta issued by revenue authorities and also marked Exs.A2 to A4 and Exs.A6 to A26-property tax receipts, water tax receipts etc., and from the above said documents and also oral evidence, the appellants have clearly proved the possession and therefore, the appellants are entitled to get the relief of permanent injunction as sought for in the plaint. Further, the case of the appellants is that Exs.B2 and B3 kist receipts produced by the respondent are not at all relating to the suit properties. The learned counsel further submitted that the respondent failed to prove the sale deed Ex.B1as genuine document and hence the trial Court has correctly considered all the relevant factors and held that the appellants have proved the possession in the suit properties and therefore, they are entitled to the relief of permanent injunction. The learned counsel further submitted that the appellate Court has not at all properly considered the oral and documentary evidence adduced on the side of the appellants and only relied on Ex.B1-sale deed executed in the year 1966 wrongly set aside the decree and judgment passed by the trial Court and dismissed the suit. Further, the first appellate Court has not considered the fact that Exs.B2 and B3 are not relating to the suit properties and therefore, the learned counsel appearing for the appellants prayed for set aside the decree and judgment passed by the first appellate Court and confirmed the decree and judgment passed by the trial Court.
12.Per contra, the learned counsel appearing for the respondent would submit that the appellants' father for himself and also as guardian for his then minors sons (i.e) appellants sold the suit properties as per Ex.B1-sale deed to the respondent and the respondent paid two tax receipts Ex.B2 dated 26.03.1982, Ex.B3 dated 09.06.1992. The learned counsel further pointed out that from the above said documents, it is revealed that the respondent alone is the owner of the properties and also he is in possession and hence, the decree and judgment passed by the first appellate Court are correct and there is no need to interfere with the above said findings.
13.Admittedly, the appellants herein filed the suit for permanent injunction in respect of two items of suit properties i.e. S.No.1/3A2 to an extent of 0.97.5 hectors punja land and S.No.1/6 to an extent of 0.09.0 punja land in patta No.1820. The appellants are not seeking any relief of declaration of title regarding the above said two items of suit properties.
14.The respondent herein/defendant claimed right only in the property purchased under Ex.B1-Sale deed dated 19.07.1966, wherein the father of the appellants namely, Pichan on his own behalf and also on behalf of his minor children, who are appellants herein, executed the above said Ex.B1-sale deed in favour of the respondent and on the basis of the sale deed, the respondent claimed right over the porperties.
15.On perusal of the above said registered Ex.B1-sale deed, it is revealed that the father of the appellants executed the above sale deed in respect of southern portion in the entire extent of 3 acres and 66 cents in old patta No.1901 in S.No.1/3 measuring east- west 85 feet and north-south 110 feet (i.e.) about 21 cents punja land. In the written statement, the respondent has not claimed any right except the portion of the property purchased by the respondent under Ex.B1-sale deed. In the above said circumstances, the appellants have not filed any reply statement, after filing the written statement, so as to deny the alleged Ex.B1-sale deed and at the time of evidence also, on the side of the appellants have not suggested as the property mentioned in Ex.B1-sale deed is not relating to the portion of the suit properties or it is relating to some other property. Therefore, the appellants have not at all denied the validity of the above said Ex.B1-sale deed or not contented that it is not relating to the protion of the suit properties.
16.The learned counsel appearing for the appellants only pointed out that even though the father of the appellants executed Ex.B1-sale deed on his own behalf and also on behalf of the appellants, who were minors at the time of execution of Ex.B1-sale deed, the possession of the suit property has not been given and the possession of the above said portion is continuing with the appellants and therefore, the appellants are entitled to the above said portion also. But, there is no such pleadings or evidence to prove the above said contention on the side of the appellants.
17.As already discussed, the appellants have filed the suit for permanent injunction in respect of two items in S.No.1/3A2 to an extent of 0.97.5 hectors and S.No.1/6 to an extent of 0.09.0 hectors punja lands. The appellants also stated in the plaint and also in the evidence that in the entire two items of suit properties, the appellants had put up construction and only in a meager portion, the appellants planted trees and they are enjoying the same. Further, the appellants have stated in the plaint itself that the appellants family already having other portion of the property also and the above said portion was sold to a third party. But, the appellants have not stated the details of the sale deed or the details of vendors in the plaint or at the time of evidence. Only on the side of the respondent examined DW2 and also marked the above said sale deed as Ex.B5 and patta issued to DW2 as Ex.B6. Therefore, the appellants suppressed the material facts and also documents as rightly pointed out by the learned counsel appearing for the respondent.
18.A perusal of the documents adduced on the side of the appellants revealed that Ex.A1-patta issued on 10.08.1987 in the name of the father of the appellants, namely, Pichan in respect of S.No.1/3A to an extent of 1.00.5 hectors and S.No.1/6 to an extent of 0.09.0 hectors. ExA2 and A3- kist receipts were paid for S.No.1820 on 1.1.1991 and Ex.A4-kist receipt paid on 09.06.1992. Ex.A5-kist receipt paid for S.No.1820 on 22.11.2000. All other documents Ex.A6 to A26 produced by the appellants are only relating to the buildings and not relating to the suit properties (i.e) punja lands.
19.Per contra, the respondent has claimed right in the property under Ex.B1-registered sale deed, dated 19.07.1966 and further, to prove the possession of the above said property, the respondent has produced two kist receipts Ex.B2 and Ex.B3. Further, on the side of the respondent, Ex.B4- encumbrance certificate was marked, wherein it is clearly stated about Ex.B1- sale deed. Further, on the side of the respondent, one Pampaian was examined as DW2, who purchased another portion of the property in the same survey number from the appellants' and their father on 18.11.1963 and marked a copy of the sale deed as Ex.B5 and on the basis of Ex.B5, patta was also granted in the name of DW2 under Ex.B6.
20.From the above said oral and documentary evidence of DW1 and DW2, it is clearly revealed that the respondent purchased the portion of the suit schedule properties from the appellants and their father under Ex.B1- sale deed and he is in possession of the property and paying the kist under Exs.B2 and B3.
21.The learned counsel appearing for the appellants submitted that Ex.B3 kist receipt alone is relating to the portion of the suit properties, but, Ex.B2 is not relating to the suit properties. On a perusal of Exs.B2 and B3-kist receipts, it is revealed that in S.No.1/3, the entire extent of 3 acres and 66 cents was originally assigned as patta No.1901 and later assigned as patta No.1802. Therefore, both Exs.B2 and B3 receipts dated 26.03.1982 and 09.06.1992 are relating to portion of suit properties. From the above said oral and documentary evidence, it is clear that the respondent had purchased the portion of the suit properties from the appellants and their father under Ex.B1-sale deed and he is in possession of the above said portion. By suppressing all the above said facts, the appellants falsely claimed right over the entire properties including the respondent's property and also the appellants have filed the suit, as if the entire suit properties are vacant site suppressing the fact that there are nine buildings put up in the suit properties.
22.The learned counsel for the appellants submitted that the appellants have filed the suit only for permanent injunction and hence, the question of title need not be considered and only on the basis of possession, the relief can be granted. Further, the learned counsel submitted that in the second appeal, this Court can interfere with the findings of the lower Appellate Court, if the findings are misconceived or erroneous or perverse. The learned counsel submitted that in the instant case, the first appellate Court's findings are perverse and erroneous and therefore, prayed for interfere with the above said findings under Section 100 C.P.C. In support of his contentions, the learned counsel appearing for the appellants relied on several decisions reported in (1) New India Assurance Co.Ltd. v. M/s National Rubber and another[AIR 1998 Jammu and Kashmir 96]; (2)Muthu Goundar v. Poosari @ Palaniappan and 4 others [1998 (1) CTC 477]; (3)Venkataramanappa v. Narasaiah [AIR 2004 Karnataka 414]; (4)Lalitha and another v. Selvaraj [2006(2)CTC 24];(5)S.Parthasarathy v. Durai alias Govindasamy and others [(2006) 2 MLJ 453]; (6)S.Parthasarathy v. Durai @ Govindasamy and others [2006(2) CTC 545]; and (7) S.K.Balaguru Pandian v. S.K.Murugesan Nadar,
2.R.Kumaravel (2nd respondent was impleaded vide. C.M.P.No.4957 of 2005 dated 1.12.2005) [2010(6)CTC 279]. The learned counsel appearing for the respondent submitted that the facts of the above said cases are not applicable to the facts of the present case.
23.In the first decision reported in New India Assurance Co.Ltd. v. M/s National Rubber and another[AIR 1998 Jammu and Kashmir 96] wherein in paragraph No.6 it reads as follows:-
?6.Fact remains that parties had joined issue and in the ordinary course of things unless the claim of plaintiff was admitted by defendant No.1, on the pleadings of parties, matter was required to be gone into after framing of issues. Admittedly, that has not been done in the present case....
24.In the second decision reported in Muthu Goundar v. Poosari @ Palaniappan and 4 others [1998 (1) CTC 477], wherein in paragraph No.15, it reads as follows:
?15....By anyalysing the necessary averments in the plaint, oral evidence of P.Ws.1 to 4, and Exhibits A.3,5,9 and 10, I am satisfied that the plaintiff has established his case with regard to his possession and enjoyment in the suit property. When the acceptable documents are available, it is safe to accept and rely upon them rather than accepting the oral evidence. In our case the defendants have very much relied on the oral evidence and the Courts below have also committed an error in preferring the oral evidence let in on the side of the defendants than the acceptable valid documentary evidence let in on the side of the plaintiff. In the light of what is stated above, the finding of the Courts below are perverse and contrary to the evidence on record.?
25.In the third decision reported in Venkataramanappa v. Narasaiah [AIR 2004 Karnataka 414], wherein in paragraph No.7 it reads as follows:
?7.In the instant case there is a specific denial of execution of the sale deed by the defendant. It is necessary for the Courts below to have framed a specific issue regarding proof of execution of the sale deed casting burden on the plaintiff and such an issue would have given a fair opportunity to both the parties to adduce necessary evidence available with them. In the absence of a specific issue, I feel that the parties are misdirected and have placed scanty evidence. No doubt, the sale deed need not be attested by a witnesses. The examination of the attesting witness u/S. 68 of the Evidence Act is not necessary when the executant denies the execution.?
26.In the fourth decision reported in Lalitha and another v. Selvaraj [2006(2)CTC 24], wherein in paragraph No.13, it reads as follows:
?13....In any event, the law is well settled that the person, who comes to the Court especially in a suit for injunction, has to prove that he is in actual possession, which is lawful.?
27.In the fifth decision reported in S.Parthasarathy v. Durai alias Govindasamy and others [(2006) 2 MLJ 453], wherein in paragraph No.13, it reads as follows:-
?13.When we look into the above said facts, it is crystal clear that the plaintiff/appellant was not in exclusive possession and enjoyment of the suit property at the time of filing of the suit and if at all he was only in joint possession along with the defendants/respondents. Exs.A-8 and A9 are tenancy agreements entered into between the appellants and tenants written in unstamped papers and the Courts below rightly rejected them as inadmissible in law. Simply because the enjoyment of the plaintiff is rendered less beneficial that would not entail him to obtain an injunction unless he can show that there is a legal duty on the part of the defendants towards him and non-performance of it, the enjoyment of his property is materially affected.?
28.In the sixth decision reported in S.Parthasarathy v. Durai @ Govindasamy and others [2006(2) CTC 545], wherein in paragraph No.10, it reads as follows:
?10.In a suit for bare injunction, it is sufficient to decide as to who is in possession of the suit property at the time of filing of the suit. However, Court cannot confines its duty only to that extent; but has also to see as to whether the plaintiff establishes prima facie right over the property.?
29.In the seventh decision reported in S.K.Balaguru Pandian v. S.K.Murugesan Nadar, 2.R.Kumaravel (2nd respondent was impleaded vide. C.M.P.No.4957 of 2005 dated 1.12.2005) [2010(6)CTC 279], wherein in paragraph No. 37, it reads as follows:
?37. In my considered view that in a suit of injunction simplicitor the Court can look into the title incidentally and the conclusive determination of the title to the property is not called for. The parties are always at liberty to establish their title.?
30.As already discussed, in the instant case, the father of the appellants on his own behalf and also on behalf of the appellants, sold the portion of the suit properties to the respondent under Ex.B1-Sale deed. On the basis of the sale deed, the respondent paid taxes under Exs.B2 and B3. Therefore, the respondent has proved that the above said sale deed is valid in law and on the basis of the sale deed, the respondent is in possession in the above said portion of the suit properties. Further, the appellants have suppressed the material facts that several buildings are in the suit properties, but the appellants sought for the relief of permanent injunction as if the suit properties are vacant site. Therefore, the appellants are not entitled to the relief of permanent injunction on the ground of suppressing of material facts in the plaint. In the instant case, the respondent proved the title and also possession in portion of the properties. Further, necessary issues have been framed by the trial Court and the findings of the First Appellate Court are not perverse or illegal as rightly pointed out by the learned counsel appearing for the respondent. Therefore, all the decisions relied on by the learned counsel appearing for the appellants are not helpful to the appellants.
31.From the above said discussion, the appellants are not entitled to the relief of permanent injunction as prayed for in the plaint and the findings of the First Appellate Court is valid in law and all the Substantial Questions of Law are answered accordingly.
32.In the result, the Second Appeal is dismissed and confirmed the decree and judgment passed by the First Appellate Court and the suit filed by the appellants in O.S.No.117 of 2000 is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also closed.
To
1.The District Judge, Sivagangai
2.The District Munsif Court, Thiruppathur, Sivagangai District.