Madras High Court
Rengasamy vs The Family Manager on 18 July, 2012
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18/07/2012
CORAM
THE HONOURABLE MS.JUSTICE K.B.K.VASUKI
S.A No.1376 of 2002
1. Rengasamy
2. Periasamy
3. Veerappan ...Appellants/
Appellants/Defendants
Vs
1. The Family Manager, Rengaraj
S/o.Krishnan Asari,
Thalinchi Village,
Kulithalai Taluk. ... 1st respondent/
1st respondent/1st plaintiff
2. Alagumani
3. Selvarani ... Respondents 2 & 3/
Respondents 3 & 4/Plaintiffs 3 & 4
PRAYER
Second Appeal filed under Section 100 C.P.C. against the judgment and
decree made in A.S.No.50 of 1999, dated 27.10.2000, on the file of the
Subordinate Judge, Kulithalai confirming the judgment and decree made in
O.S.No.180 of 1995, dated 21.01.1999, on the file of District Munsif Court,
Kulithalai.
!For Appellants ... Mr.G.Vasudevan
^For Respondents ... M/s.Sarvabhauman Associates
:JUDGMENT
The unsuccessful defendants are the appellants herein. The suit is filed by the respondents/Plaintiffs for the relief of declaration that the plaintiffs are jointly entitled to the suit properties and for consequential permanent injunction for restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property.
2. According to the plaintiff, the suit properties and other properties originally belonged to one Ponnusamy and he died leaving behind his four sons viz., Perumal, Veeramalai, Santhanam and Raman and all the four brothers effected oral partition among themselves in respect of the ancestral joint family properties, in which Perumal was allotted the suit properties and since the date of partition, four brothers have been in separate possession and enjoyment of specific portions allotted to them. The first plaintiff is the elder son of Krishnan, who is one of the sons of Perumal and who died leaving behind the first plaintiff and his brother Nagarajan and his daughter by name Mariyayee and his widow. The second plaintiff is the brother of Krishnan. During the pendency of the suit, the second plaintiff Ponnusamy died and his legal heirs are impleaded as the Plaintiffs 3 & 4. The brothers Krishnan and Ponnusamy, after the death of their father Perumal, divided the joint family properties, leaving the suit properties in common, without any division and the first plaintiff's father Krishnan purchased the undivided extent of 3 acres from the second plaintiff under a registered sale deed, dated 30.08.1978. The total extent of the 1st item of the suit property in the suit Survey No.103/4 is 7.16 acres. Thereafter, Krishnan became entitled to the undivided extent of 6.58 acres in the undivided extent. The second plaintiff is entitled to remaining undivided extent of 58 cents. The suit second item is a well with an electric motor pumpset. The plaintiffs are entitled to 4/5th share in the suit second item and the defendants are entitled to remaining 1/5 share in the same. The suit items 1 and 2 were in joint possession and enjoyment of Krishnan and Ponnusamy. After the death of Krishnan, his share devolved upon his legal representatives and his legal representatives and the second plaintiff had been in possession and enjoyment of the same by obtaining joint patta in the settlement proceedings. While so, defendants 1 and 2 managed to get their names included in the joint patta in respect of the suit items and attempted to raise dispute with regard to title in respect of suit items without any right, title or interest to do so.
3. The suit reliefs are seriously resisted by the defendants by denying the plaintiffs' claim of absolute ownership regarding suit item Nos.1 and 2. According to the defendants, who are the legal representatives of Veeramalai, who is the one of the sons of the original owner, Ponnusami, are jointly entitled to two cents in suit item No.1 and one third share in the suit items with the right to irrigate the same from the common well and motor pump-set in suit item No.2, and the defendants 1 and 2 have also in the course of enjoyment sold their share to the third defendant and also delivered possession to the third defendant.
4. The trial Court, on the basis of the pleadings raised on both sides, raised the following issues for determination in the suit:
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5. The plaintiffs and defendants have in order to prove their case examined the first plaintiff and the defendants 1 and 3 and their witnesses as P.W.1 and D.W.1 to D.W.4 and have produced Ex.A1 to Ex.A16 and Ex.B1 to Ex.B10 documents on both sides.
6. The trial Court, on the basis of the available evidence, arrived at a conclusion that Ex.A2-patta granted in respect of suit item No.1 was originally granted jointly in the names of the first plaintiff's father by name Krishnan and also the Second plaintiff and the inclusion of the defendants name in Ex.B4 during settlement re-survey is erroneous and without any due enquiry and the payment of tax under Ex.B8 to Ex.B10 in respect of patta No.57 relating to suit item of the plaintiffs will not confer any right upon the defendants and the absence of any patta in the name of either Veeramalai/father of the defendants 1 and 2 or the defendants 1 and 2 would improbablise the defendants' claim regarding 3 acres in suit item No.1 and Ex.B7-Panchayat Muchalika purported to be executed among the defendants on 15.05.1983 is not genuine and the plaintiffs claim for absolute ownership regarding suit item No.1 is duly established on the strength of Ex.A1, Ex.A2 and Ex.A14 and accordingly, suit is decreed in respect of suit item No.1. As far as the suit item No.2 is concerned the trial Court came to the conclusion that the same jointly belongs to the parties and accordingly, dismissed the suit in respect of suit item No.2.
7. Aggrieved against the decree granted in respect of suit item No.1, the defendants have preferred an appeal in A.S.No.50 of 1999, whereas, no appeal is filed by the plaintiffs against the dismissal of the suit in respect of suit item No.2. The lower appellate Court, after analysing the oral and documentary evidence adduced herein, agreed with the findings of the trial Court and confirmed the judgment and decree of the trial Court, in respect of suit item No.1. Hence, this second appeal by the defendants before this Court.
8. The second appeal is admitted on the following substantial questions of law:
"a) Whether the lower appellate Court is correct in shifting the onus of proof on the defendants especially when the plaintiff has to succeed on the strength of their case rather than relying on the weakness of the defence?
b) Whether the lower appellate Court ought to have placed the burden upon the plaintiff to prove their case instead of placing the burden on defendants which is against the fundamental principles of law since plaintiff alone has to prove their case more so, in a case of declaration of title and consequential injunction?
c) Whether the judgment and decree of the lower appellate Court are vitiated by its failure to consider relevant evidence on record?
9. Heard the rival submissions made on both sides and perused the records.
10. As the first appeal is preferred by the defendants against the decree granted in respect of suit item No.1, the correctness of the decree, as confirmed by the lower appellate Court, is to be considered herein only in respect of suit item No.1.
11. The suit item No.1 is measuring 7.16 cents in S.No.103/4, Thalingi Village, Kulithalai Taluk, Tiruchirapalli District. Out of 7.16 cents, 1.16 cents is admittedly purchased by one Perumal Aasari, who is the father of the second plaintiff, Ponnusamy and grandfather of the first plaintiff, Rangaraj and the plaintiffs 3 & 4. The case of the plaintiffs is that the remaining 6 acres is ancestral in nature and the same belonged to the ancestor by name Ponnusamy and the same was allotted to the share of Perumal Aasarai, who is one of the sons of the original owner Ponnusamy, in the oral partition of Perumal Aasari and his brothers, and after purchase of 1.16 acres and obtaining 6 acres by oral partition, totally 7.16 (6 + 1.16 = 7.16) acres was being enjoyed by Perumal Aasari and his sons constituting a joint family and after the death of Perumal Aasari, his sons Krishnan and Ponnusamy, commonly enjoyed the same and in the course of such enjoyment, Krishnan purchased 3 acres from his brother Ponnusamy/second plaintiff and thereafter, Krishnan and Ponnusamy became entitled to 6.58 acres and remaining 58 cents respectively, out of 7.16 acres and the same now devolved upon the first plaintiff and his other brother, sister, widowed mother, and the second plaintiff and thereafter, the plaintiffs 3 & 4 respectively.
12. The plaintiffs have in support of their contentions produced Exs.A2 settlement chitta in respect of patta No.57 in the name of brothers Krishnan and Ponnusamy sons of Perumal Aasari, in respect of 7.16 acres in S.No.103/4; Exs.A13, sale deed, dated 29.12.1950, executed in favour of Perumal Aasari in respect of 1.96 acres; Ex.A14, dated 27.11.1952, registered mortgage deed executed by Perumal Aasari in respect of 6 acres and Ex.A1 sale deed, dated 30.08 1978, executed by Ponnusamy Aasar, second plaintiff in favour of the father of the first plaintiff. Out of the four documents, the Chitta in respect of patta No.57 is issued in the name of Krishanan and Ponnusamy in the settlement resurvey held in 1952. After Ex.A13, sale deed, Perumal Aasari and his sons became entitled to 7.86 acres, out of which, Perumal Aasari has, under Ex.A14, mortgaged 6 acres and under Ex.A1, Krishnan Aasari purchased 3 acres from the 2nd plaintiff.
13. It is not in serious dispute that the documents above referred to relate to the suit item No.1, comprising of ancestral property and the property purchased by Perumal Aasari. Even in Ex.A13 which is document of the year 1950 eastern boundary is referred to as the property belonging to Perumal Aasari/purchaser. The said document would probablise the plaintiffs' claim that 6 acres + 1.96 acres together was commonly enjoyed by Perumal Branch since 1950 and 1952, as absolute owners of the same. It is also revealed that during the same point of time during settlement resurvey, the defendants 1 and 2, representing Veeramalai branch, who is also one of the sons of Ponnusamy and one of the brothers of Perumal Aasari, are granted with Ex.B3 patta in respect of 34 cents in resurvey No.103/3. Thus, the patta issued during settlement resurvey was the joint patta in the names of Krishnan and Ponnusamy, Sons of Perumal Aasari, in respect of 7.16 cents in S.No.103/4 and 34 cents in the name of Veeramalai in Survey No.103/3. DW3, then Village Administrative Officer has also stated in his evidence that the settlement resurvey patta was issued only in respect of the actual extent in the occupation of the individual. The revenue entry, as per settlement resurvey, is admittedly altered only after updating UDR resurvey held much latter. It is only thereafter, the name of the defendants 1 & 2 are included in the patta relating to S.No.103/4 and Ex.B4, joint patta is issued in the joint names of Veeramalai, whose branch is represented by the defendants 1 & 2, and Krishnan and Ponnusamy, representing Perumal Aasari branch.
14. There is absolutely no document much prior to Ex.B4, joint patta in the joint names of the successors in title of Perumal on the one hand and Veerappa Counder on the other hand to probabilise the defendants' claim that ancestral property belonged to Perumal and Veerappa Counder in 2/3 and 1/3 proportion i.e., 4 cents and 2 cents, as contended in the written statement. Such claim made by the defendants in the written statement stands contradicted in the oral evidence of DW3, then Village Administrative Officer and in the admission of DW1 and DW2 in the witnesses box. It is but relevant to recollect the evidence of DW3 to the effect that the resettlement patta was issued on the basis of actual extent in the occupation of the individual. It is admitted by the defendants 3 & 1 as DW1 and DW2 that no petition is given by either of the defendants 1 & 2 and no notice is issued to the plaintiffs and no enquiry is held before issuing Ex.B4 joint patta in the names of Krishnan, Rengasamy and Veerappa Gounder under UDR scheme.
15. Our High Court has on more than one occasion, dealt with the effect of inclusion of the name of the individual in the patta under UDR without notice and without enquiry to the original patta holder and pleased to hold that such patta issued without notice to patta holder is not proper and valid, and is in violation of the principles of natural justice and the same confers no right upon the parties, whose name is so included. The reported judgments are : (i) 2008 (4) CTC 193 DB Madras High Court (Malar Kodi and 6 others Vs. the Secretary to Government); (ii) 2006 (1) MLJ 423 (Lingappa Gounder Vs. Palanisamy Gounder and others); (iii) 2000 (1) TNLJ 102 (Kaliyuga Kannan Vs. The Thasildar, Land Survey and others) and (iv) 1999 (3) LW 727 (Kummavar Sangam Vs. Mani). The learned brother Justice A.K.Rajan, in the judgment reported in Indian Kanoon.org/doc/890297 in Chinnammal Vs. Malaya Gounder, dated 03.09.2002, had an occasion to consider the accuracy and correctness of UDR Patta and it is observed by the learned Brother Judge that it is a known fact that updating Register Pattas are granted without taking much care and most of updating register pattas were found to be not accurate.
17. That being so, considering the nature of the documents produced on the side of the plaintiffs and the manner of enjoyment of the property form 1950 and 1952 and the issuance of patta during settlement resurvey in respect of different extent in suit item No.1 and other survey number in the names of Krishnan and Ponnusamy on one hand and Veerpappa Gounter on other hand and the manner in which UDR joint patta is issued in the names of Veerappa Gounder and, Krishnan and Ponnusamy would, as rightly found by the Courts below, compel this Court to accept the plaintiffs' claim that the suit item No.1, having been allotted to Perumal in the earlier partition, has been in possession and enjoyment of Perumal and his male issues and thereafter, their descendants, and Veerappa Gounder Branch did not get any right and possession and enjoyment in respect of the same and their claim regarding allotment of two cents out of 6 cents to Veerappa Gounder and possession and enjoyment by leasing it out to third part is not supported by any evidence and the accuracy of only document i.e., UDR Patta, is doubtful in nature, as such no claim can be made by the third defendant on the strength of his purchase from the defendants 1 & 2 in respect of suit Item No.1.
18. Both the Courts below, on the basis of the evidence available on the side of the plaintiffs and the absence of any legal and acceptable material on the side of the defendants, have rightly accepted the plaintiffs claim. In my considered view, both the Courts below have found the plaintiffs claim to be acceptable only on the basis of his evidence and only thereafter considered the evidence adduced on the side of the defendants and having found no material, negatived their claim, as such, no legal error is committed by the Courts below in the manner of proof of the case involved in the present case. The substantial questions of law are, hence, answered against the defendants.
19. In the result, the second appeal is dismissed, confirming the judgment and decree passed by the Courts below. No costs.
vsn/gcg To
1. The Subordinate Judge, Kulithalai.
2. The District Munsif, Kulithalai.