Madras High Court
Malliga vs Veerasamy Padayatchi on 9 October, 2012
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.10.2012 CORAM THE HONOURABLE Mrs. JUSTICE. S.VIMALA S.A.No.1347 of 2001 Malliga .. Appellant/plaintiff ..Vs.. 1.Veerasamy Padayatchi 2.Anandhavalli 3.Jayam Ammal 4.Vedhavyasa Rao 5.R.Ramachandran (R.R.1,4 and 5 are exparte in lower court. Hence, is given up) .. Respondents/defendants Prayer:- Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 20.04.2001 made in A.S.No.127 of 2000 on the file of the Principal Subordinate Judge, Mayiladuthurai in confirming the judgement and decree dated 2.11.2000 made in O.S.No.158 of 1988 on the file of the District Munsif Court, Sirkali. For Appellant : Mr. G.Ethirajulu For Respondents : Mr. S.Sounthar for R2 and R3 - - - JUDGMENT
The plaintiff is the appellant. The plaintiff filed the suit in O.S.No.158 of 1988 seeking the relief of recovery of possession and mesne profits from defendants 1 to 3 and claiming damage at Rs.4,912/- from defendants 4 and 5. The suit was dismissed by the decree and judgement dated 2.11.2000. Challenging the dismissal of the suit, the plaintiff filed an appeal in A.S. No.127 of 2000. Confirming the dismissal of the suit, the appeal was also dismissed. In the appeal, application was filed in I.A.No.46 of 2000 under Order 41 Rule 27 C.P.C., seeking permission of the court to adduce additional evidence. This I.A. was also dismissed.
2. The plaintiff has filed the second appeal challenging the concurrent dismissal.
2.1. The second appeal has been admitted on the following substantial questions of law:-
"1. Whether the Courts below is justified in rejecting the plaintiff's title to the suit property despite upholding the validity of sale in her favour on the ground of non identification of the suit property?
2. Is not the onus, on the defendants 4 and 5, being the vendors of the suit property, to prove the identification of the property, and failure to do so, made them liable to compensate the loss caused to the plaintiff?"
3. Brief facts:
The suit property is situated in R.S.No.349 B/6 A.C.03.1/3 cents with a dilapidated hut, at Mayiladuthurai registration district, Thirumayiladi Vattam within the following boundaries.
North of path way, south of Duraisamy Padayatchi's dry land, west of dry land of defendants 4 and 5 and east of Gurusamy Nadar's wet land.
4. The plaintiff's husband and mother-in-law constructed a hut in the suit property about 20 years back and they were living there. The tax assessment originally stood in the name of plaintiff's mother-in-law and later, after her death, the tax assessment was transferred in the name of plaintiff's husband.
4.1.The suit property originally belonged to defendants 4 and 5 and from them, the plaintiff purchased the same on 7.10.1982, for a valuable consideration. When the plaintiff visited the property along with her husband, she found that the first defendant had encroached upon the northern portion of the suit property and had put up a hut. The plaintiff wanted the first defendant to remove the hut and hand over the vacant possession. When the plaintiff issued notice to D1, D4 and D5, D1 alone sent a reply and D4 and D5 despite the receipt of notice, did not send any reply.
5. The contention of the first defendant was that the suit property belonged to Sri Mushnam Boovaramasamy Temple. The plaintiff wanted recovery of possession from defendants 1 to 3 and if not possible, the value of money equivalent to the sale consideration from defendants 4 and 5.
6. The suit was resisted by defendants 4 and 5 on the following contentions:
(1) The defendants 4 and 5 are not responsible for the illegal action of defendants 1 to 3 and as contended by the plaintiff as the encroachment was on 7.12.1987 (date of sale 3.9.1987) i.e., after the sale of property defendants 4 and 5 are not liable to answer the claim of the plaintiff.
(2) The defendants 4 and 5 had title and possession over the suit property. As they had conveyable title and as competent persons, they sold the property to the plaintiff. The plaintiff was in possession even prior to the sale as a tenant. Therefore, on the date of sale, possession and title has been transferred to the plaintiff.
7. The claim of the plaintiff is resisted by defendants 1 to 3 on the following contentions:
(1) Neither the plaintiff's vendor nor the plaintiff has got title and possession over the suit property. The title vest with Sri Mushnam Boovaramasamy Temple.
(2) The defendants are in continuous possession and enjoyment of the property.
(3) An extent of 20 cents of which the suit property is also a part of it, was in possession of the third defendant. In lieu of enjoyment, the third defendant used to supply vetti ver, maruvoo and kozhunthu to the temple when goddess would be brought to Killai village.
(4) Defendants 1 to 3 had granted license to some body to put up house in the suit property.
8. The trial court framed the following four issues:
(1) Whether the plaintiff is entitled to recovery of possession from defendants 1 to 3 ?
(2) Whether the plaintiff is entitled to recovery of compensation/damage from defendants 4 and 5 ?
(3) At the time of sale whether defendants 4 and 5 had title to the suit property ?
(4) To what other reliefs the plaintiff is entitled to ?
9. The contention of the plaintiff is that he is the owner of the property by virtue of the sale deed dated 3.9.1987. Even according to the defendants 4 and 5, the plaintiff and his ancestors bearing the suit property as a tenant for about 20 years prior to the date of sale, i.e., 3.9.1987.
9.1. The contention of the defendants is that the property belongs to Sri Mushnam Boovaramasamy Temple. Neither the plaintiff nor the plaintiff's predecessor in title had title to the suit property is the contention of the defendants.
9.2. The plaintiff has filed Ex.A1 sale deed dated 3.9.1987 to prove the purchase of suit property from defendants 4 and 5. The house tax receipt in the name of the plaintiff's mother-in-law (Ex.A6) and in the name of plaintiff's husband (Ex.A7, A11, A12, A14, A15) have been filed to show the enjoyment of property by the members of plaintiff's family. The kist receipts bear Door No.176. The patta which stood in the name of defendants 4 and 5 have been filed as Ex.A8.
9.3. The defendants have also filed house tax receipt (Ex.B1 to B4) which stand in the name of third defendant and Ex.B.5 and Ex. B.6 which stand in the name of the first defendant. But the kist receipts bear Door No.178.
10. Admittedly, the defendants 1 to 3 have not filed any documents in order to substantiate the contention that the property belongs to the temple. Still the trial court held that even though defendants 1 to 3 failed to prove the title to suit property in favour of the temple, the court need not accept the case of the plaintiff and the plaintiff has to prove the title independent of the weakness in the defendants case.
10.1. So far as the title of the plaintiff's vendor is concerned, the finding of the trial court is that the plaintiff's vendor has only patta in their favour and as the patta is not a document of title, the title of the plaintiff's vendor remained unproved. The trial court has deeply analysed Exs.A-8 and A-9, but failed to appreciate in a proper perspective. Under Ex.A-8, patta has been issued on 13.10.1986 (patta No.775) in favour of the fourth defendant K.Vedhavyasa Rao in R.S.No.349B-6 to an extent of 0.45.0 aers (1.11 acres). Ex.A-9 dated 17.3.1972, notice issued under Section 9(2) of the Survey and Boundaries Act, 1923 calling for appeal if any with regard to survey. The notice has been issued with respect to the same survey number, but the extent of property has been noted as 1.44 acres. Name of the parties have been mentioned as 'Vedavyasa Rao and five others'. The trial court has taken exception to the initial given in the UDR Patta, under Ex.A8. In the UDR patta, before the name of the fourth defendant, the initial has been given as 'kaa'. A mere comparison of survey number with the extent of property between Ex.A8 and Ex.A9 would go to show that the initial of fourth defendant has been written by mistake. The trial court omitted to take note of it. It is relevant to point out that sale deed has been executed on 3.9.1987, in which it is executed by Vedavyasa Rao and one Ramachandran of whom Vedavyasa Rao has spoken about in the evidence.
10.2. Relying upon the evidence of the fourth defendant (P.W.2) and comparing it with the details furnished in the patta, the trial court has given a finding that patta has not been issued in consonance with the evidence of P.W.2, and therefore, patta alone is not sufficient to prove the title of plaintiff's vendor.
10.3. No doubt, in the evidence, the fourth defendant has stated that along with his name, the names of Govindaraj Iyer, Krishnamurthy Rao, Poovaragamurthy Iyer and Ramachandran are included in the patta. If the patta does not mention all the names, it is a mistake of the Revenue Department, which issued the patta and it is not the mistake of the plaintiff's vendor. Moreover, the extent of the property sold is only 0.3 1/3 cents, whereas the property covered in the patta is AC - 1.44. Therefore, comparing the extent of property for which patta has been granted and comparing the extent of property sold, the contention that the plaintiff's vendor had no title to convey cannot be accepted.
10.4. 'Patta is not a document of title' and therefore, based on patta no declaration can be given is the contention of defendants 1 to 3. It is not a case of plaintiff's relying upon patta alone. It is a case where the plaintiff rely upon the sale deed executed by defendants 4 and 5 and in support of the title of defendants 4 and 5 patta is relied upon. Depending upon the nature of the property one may have the title deed or may not have the title deed. Defendants 4 and 5 have stated that it is the ancestral property. Therefore, it is quite probable that they would not have possessed any document, if the property is inherited generation to generation. In such situations, the title has to be decided only with reference to comparative merits between the documents produced on both sides. It is not as if the plaintiff is not in possession of any document at all, but, only rely upon absence of document on the side of the defendants. The plaintiff has produced documents in his possession and has also pointed out the non- possession of title deeds in favour of the temple (which is the claim of the defendants). Therefore, the finding of the courts below that the plaintiff did not prove the title cannot be accepted.
10.5. It is a case where the plaintiff's title is based upon a registered sale deed. The validity of title has to be examined with reference to Ex.A-1 sale deed and Ex.A-8-patta, issued in respect of the suit property. The defendants have not established any better title than the title of the plaintiff. The first appellate court has taken note of this aspect and has given a finding that in the absence of better document of title, being filed by the defendants, the document of title i.e., patta filed under Ex.A-8 has to be accepted. But the first appellate court has given a finding that the plaintiff has not established the identity of 3 1/3 cents covered in the large area of AC-1.44. This finding is incorrect because the suit property has been specifically described with reference to boundaries in the plaint itself.
10.6. In the evidence of P.W.2, he has specifically stated that there are 20 to 25 huts, but those huts are in the remaining part of his property and it is not in the suit property. The first appellate court has relied upon the evidence of P.W.2 wherein he has stated that when his property was given for cultivation, many of them have put up huts and despite request, those huts have not been removed. Therefore, the first appellate court has come to the conclusion that the property belonging to defendants 4 and 5 have been leased out to relatives of defendants 1 to 3 and later on, the defendants 1 to 3 have put up huts in the suit property. When such is the finding, the title of defendants 4 and 5 over the suit property stands admitted. Because of that the case of the defendants that the suit property belongs to the Temple stands falsified. The defendants have paid tax in respect of house bearing Door No.178. The plaintiff has produced tax receipt showing the door number as 176. The first appellate court has raised a query as to how there could be two door numbers, in respect of one property. In view of the evidence of P.W.2 (fourth defendant), it is quite probable that there could have been two different houses because of the large extent in possession of P.W.2.
10.7. The relevant question is whether the plaintiff who has purchased the property by virtue of the registered sale deed can be non-suited by defendants 1 to 3, who are illegally occupying the property and against the express request of fourth defendant to vacate the property.
10.8. Once the plaintiff has filed documents to show the title and on that basis seek for recovery of possession, the defendants cannot create confusion and contend that the plaintiff has not proved the identity of property. In fact, this Court also at one point of time felt that whether there should be an order of remand for the purpose of identification of property. But on going through evidence, this Court is satisfied that the identification of property is an issue deliberately raised for the purpose of defeating the claim of the plaintiff. When the defendants have not established better title and contend that apart from the plaintiff there are others who have title over the property, it is for the other rival title holder to question the title of plaintiff's vendor. It is not open to the defendants, who are the trespassers, to question the title of the plaintiff's vendor / the plaintiff. Therefore, it is the case where the plaintiff is entitled to succeed on the main relief. When the defendants 4 and 5 who are the vendors of the suit property are clear about the plaintiff's title and possession of the suit property, the defendants 1 to 3 who are established to be the trespassers of the suit property cannot contend that plaintiff cannot claim title, when the defendants 1 to 3 have not established better title. It is the misuse of process of law by defendants 1 to 3.
10.9. Since the plaintiff is given the right of recovery of possession, the alternative relief of damage from the fourth defendant does not arise. Defendants 4 and 5 who are the vendors of the plaintiff have supported the title of the plaintiff. In fact, D.W.4 has given evidence. Even according to plaintiff, the trespass was after the purchase of the suit property. Therefore, defendants 4 and 5 cannot be directed to pay damages. Defendants 1 to 3 have failed to establish their defence. The plaintiff is entitled to declaration of title and recovery of possession, therefore, the defendants are bound to deliver possession to the plaintiff.
11. In the result, the second appeal is allowed and the concurrent dismissal of judgment and decree, in A.S.No.127 of 2000 and O.S.No.158 of 1988 is set-aside. The suit is decreed as prayed for. No costs.
aes / srk To
1.The learned Principal Subordinate Judge, Mayiladuthurai .
2. The learned District Munsif Court, Sirkali.
2.The Section Officer, VR Section, High Court, Madras