Madras High Court
M. Venkammal vs Rathina Udayar And Anr. on 4 November, 1998
Equivalent citations: (1999)1MLJ606
JUDGMENT A. Ramamurthi, J.
1. The unsuccessful plaintiff is the appellant herein. The plaintiff filed a suit for declaration, possession and for damages of Rs. 2,100. The plaintiff got the property from Renga Reddy by a settlement deed dated 2.5.1970 which was settled on her in consideration of the love and affection which the settloer had and also her services rendered to him. Renga Reddy purchased the above property from Ammakannu Ammal and her sons by registered document dated 2.8.1962. Till the death of Renga Reddy he was in possession of the properties covered by the settlement deed. The suit property is a portion of Survey No. 2/2 and the total extent is about 2.08 acres. Out of this, the plaintiff leased out 83 cents to one Ponnuswamy Reddy under 'guthagai muchilika' executed by him. The said property was cultivated by the plaintiff for one year after the settlement. Next year, when she was away at a different village, the first defendant trespassed into the property and cultivated the same. He did not deliver possession and the first defendant contended that the property was purchased in the name of his wife, namely, the second defendant.
2. The first defendant resisted the suit stating that Renga Reddy was never in possession of the property and also denied the settlement deed dated 2.5.1970 as well as the sale deed dated 2.8.1962. Ammakannu Ammal was not in possession and she was not the owner of the suit property at any time. She had no valid right or title to convey to Renga Reddy. The plaintiff never cultivated the suit property. The suit property belonged to Subramania Reddy, son of Kumarasamy Reddy, Kumarasamy Reddy was in possession and enjoyment for more than 20 years. Thereafter, the suit property fell to the share of Subramania Reddy and he was in possession and enjoyment of the same for more than the statutory period. Subramania Reddy sold the property to the second defendant under the sale deed dated 20.5.1972. Even since the date, they are in possession and enjoyment of the property.
3. The second defendant contended that Ammakannu Ammal had 4 sisters. Each of them had a share in the property covered under the sale deed dated 2.8.1962. Renga Reddy purchased two shares from two sisters whereas Subramania Reddy purchased three shares from 3 sisters. The three shares purchased by Subramania Reddy were in possession and enjoyment and the extent is 1.27 acres. He sold the said extent to the second defendant under the sale deed dated 2(15.1972. She is in possession and enjoyment of the suit property also by adverse possession and the plaintiff is not entitled to any relief.
4. The trial court framed eight issues and one additional issue and on behalf of the plaintiff, Exs.A-1 to A-14 more marked and P.Ws.1 to 3 were examined. On behalf of the defendants, Exs.B-1 to B-8 were marked and D.Ws.1 to 5 were examined.
5. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No. 76 of 1982 on the file of Sub Court, Thiruvallur and the appeal was also dismissed. Aggrieved against this, this second appeal is now filed.
6. The plaintiff/appellant raised the following questions of law:
(a) Whether the lower appellate court has properly framed the points to be discussed in the appeal, except stating as the point for determination as follows: 'Whether the judgment and decree of the learned District Munsif have to be set aside?".
(b) Whether the court below have placed the burden of proof of the claim in the suit property properly?
(c) Whether the courts below are right in rejecting the claim of title of the appellant, when she has proved title at least to the extent of 1.20 cents, without prejudice to her claim for the entire extent in S.No. 2/2?
(d) Whether the decision of the lower appellate court in approving the title of the defendants which was totally rejected by the trial Judge is proper?
(e) Whether the lower appellate court is right in approving the title of the defendants without setting aside the finding of the trial court which was totally against the defendants?
7. The points that arise for consideration are:
(1) Whether the plaintiff is entitled to the declaration and recovery of possession?
(2) Whether the plaintiff is entitled to the damage for use and occupation?
(3) Whether the settlement deed dated 2.5.1970 and the sale deed dated 2.8.1962 are true, valid and binding?
(4) Whether the defendants have perfected title to the property by adverse possession?
(5) To what relief?
8. The suit property measuring 1.25 acres is in Survey No. 2/2 situates in the village of Kavanallur. However, the total extent of Survey No. 2/2 is 2.08 acres. The plaintiff's title is an extent of 83 cents in the same survey number is not disputed by the defendant. Moreover, it is not the subject matter of the suit property. The subject matter between the parties is only with reference to 1.25 acres and both the parties claimed title to the property on the basis of sale deeds. The plaintiff claims that she got the property from one Renga Reddy under settlement deed Ex.A-1, dated 2.5.1970. The said Renga Reddy purchased this property from Ammakannu Ammal and her sisters under the registered sale deed dated 2.8.1952 as per Ex.A-2 for Rs. 2,000. On the other hand, the defendants claim that the suit property belonged to one Subramania Reddy, son of Kumarasamy Reddy and after the demise of Kumarasamy Reddy, Subramania Reddy sold the property to the second defendant, wife of the first defendant, under registered sale deed dated 20.5.1972 as per Ex.B-1. The 2nd defendant further stated that Ammakannu Ammal had four sisters and Renga Reddy purchased only two shares from the two sisters, whereas the three shares from three sisters were purchased by the predecessors in interest of the second defendant. The burden is on the, plaintiff to show that she has acquired title to the suit property measuring 1.25 acre.
9. P.W. 1 stated that he never stayed with Renga Reddy nor he is related to her. Both of them belonged to different caste. She would state that Renga Reddy owed money to her. But the recitals in Ex.A-1 disclose that out of love and affection, the settlement deed was executed. P.W.4, one of the witness to Ex.A-1 stated that he had seen Renga Reddy signing the documents and Ex.A-1 was written by one Ponnuswamy. The settlement under Ex.A-1 covers an area of 2.08 acre. There is no record to show that the vendor to Renga Reddy has got title to the entire extent of 2.08 acre. When admittedly Ammakannu Ammal had four other sisters there should be some document to show that Ammakannu Ammal is entitled to the entire extent in Survey No. 2/2 excluding the other four, sisters. In the, absence of any such documents to prove the title in favour of Ammakannu Ammal relating to the entire extent, I am of the view that Ex.A-1 would not convey valid title to the entire extent. Only when Renga Reddy has got valid title to the entire extent then alone the settlement deed also can be considered as valid to the entire extent and under the circumstance, the plaintiff prima facie failed to establish that the settler had got valid title to the entire extent of 2.08 acre.
10. The learned Counsel for the plaintiff contended that even assuming that the plaintiff had no title to the property when there is no dispute by the defendant relating to the 83 cents that relief could have been granted. I am unable to agree with the contention of the counsel for the simple reason that if the subject matter of the suit property is only 1.25 acre and the defendants do not claim any right relating to 83 cents now claimed by the plaintiff and when this is not the subject matter, no relief need be given. Ex.A-5 is the decree for declaration in O.S.No. 834 of 1974 on the file of District Munsif's Court, Thiruvallur, declaring that the plaintiff is entitled to 83 cents out of 2.08 acres in Survey No. 2/2. The defendants in this case also admitted the case and this being so, when the plaintiff had already obtained a valid decree relating to the aforesaid 83 cents, it is absolutely unnecessary to give another finding that the plaintiff has got valid title relating to 83 cents in Survey No. 2/2.
11. Ex.B-2 is a certified copy of the original sale deed in which the three sisters of Ammakannu Ammal and others have conveyed 2.08 acre in Survey No. 2/2. This also would not convey a valid title in respect of the entire extent because relating to the two shares the property was conveyed by Ammakannu Ammal and her sons in favour of Renga Reddy. There is rival claim relating to the entire extent by the plaintiff as well as the defendants under various documents. But, as adverted to, the plaintiff can claim a valid title only in respect of 83 cents and the same has already been declared in another suit and the plaintiff has no right whatsoever relating to the suit property since it was enjoyed by Subramania Reddy and he has conveyed a valid title to the second defendant under a registered document Ex.B-1. P.W. 1 admitted that she does not know even the survey number of the property and the total extent and in whose name the patta was granted. P. W.2 stated that Renga Reddy purchased the property from Ponnuswamy Naicker whereas the recital under Ex.A-2 is completely different P. W.3 also stated that the property belonged to Ponnuswany Naicker and both P.Ws.2 and 3 have no personal knowledge about the ownership of these properties and their evidence has not improved the case of the plaintiff in any way. Even the witnesses examined on the side of the defendants also is not consistent. But, however, the plaintiff is not entitled to take advantage of the weakness in the case of the defence. The plaintiff must prove her case on the basis of her documents of title. There is a clear reference in Ex.B-2 that the three shares were purchased after deducting the two shares. D.W.3 in as attestor to Ex.B-2. But the trial court came to the conclusion that D.W.3 may not be a witness to this document. He is also not aware of the extent of the land covered under Ex.B-1. So far as Ex.B-1 is concerned, neither the scribe nor the attestor was also examined. Under the circumstances only, the Courts below came to the conclusion that the plaintiff has not proved the title so far as the suit property is concerned.
12. The defendants claimed that they have also prescribed title to the property by adverse possession. They haves filed Exs.B-4 to B-8, kist receipt. The plaintiff has also filed Exs.A-5 to A-14. The trial court has given valid and cogent reasons for coming to the conclusion that the defendants have not perfected their title by adverse possession. D.W.3 is the son of Subramania Reddy and he stated that he does not know the extent of the property and whether it is dry or wet land and the patta number and other particulars. D.W.2 also does not know the Survey Number of the property. Both the courts gave a concurrent Finding that the defendants have failed to prove that they have perfected title by adverse possession and it is proper and correct. In the circumstances, the trial court as well as the lower appellate court has properly appreciated the evidence as well as the documents properly and the plaintiff is not in a position to point out any Infirmity in the orders. There is no reason to interfere with the findings of the courts below.
13. For the reasons stated above, this second appeal fails and it is dismissed. However, there will be no order as to costs.