Madras High Court
Veerasubramanian vs Chellappa on 19 August, 2009
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :19/08/2009 Coram THE HONOURABLE MS.JUSTICE R.MALA S.A.19 of 2004 and C.M.P.No.79 of 2004 1.Veerasubramanian 2.Kasiammal 3.Ramakrishnan ... Appellants vs. Chellappa ... Respondent PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 26.03.2003 made in A.S.No.22 of 2002 passed by the learned Principal District Judge, Tuticorin confirming the judgment and decree dated 16.11.2001 made in O.S.No.47 of 2000 passed by the learned District Munsif, Srivaikuntam. !For Appellants ... Mr.K.Srinivasan ^For Respondent ... Mr.Agilesh for M/s.Sarbhauman Associates :JUDGMENT
The second appeal has been preferred against the judgment and decree dated 26.03.2003 made in A.S.No.22 of 2002 passed by the learned Principal District Judge, Tuticorin confirming the judgment and decree dated 16.11.2001 made in O.S.No.47 of 2000 passed by the learned District Munsif, Srivaikuntam.
2. The averments in the plaint is as follows:
The first item of suit property and west of the first item of suit property is originally owned by Subbiah Konar, grandfather of the plaintiff. He purchased the said property under a registered sale deed dated 20.02.1933. After his death, the plaintiff's father Isakki Konar inherited and enjoyed the same. Before 15 years back, the plaintiff's father effected a partition and in that partition, the property purchased in the year 1933 and the west portion of the property was allotted to the plaintiff. In that property, the plaintiff constructed a house facing on the north and a cattle shed facing on the east and put up a gate facing on the common lane which is on the southern side. At the time of construction, the plaintiff has left 7-1/2 feet east west on the northern side and 6-1/2 feet on the eastern side for convenient enjoyment. He has also laid a bore well in front of the house. That property is shown as second item of suit property. There is a lane measuring 3-1/2 feet x 3 feet on the northern side of second item of suit property in order to have access to go to Kovilpathu street for the plaintiff and his brothers. The land is shown as third item of suit property. The main entrance of the house of the defendants is situate in the eastern side of third item and northern side of second item of suit property. An one feet nathi is extended on the northern side of the second item of suit property belonging to the defendants. That passage is helpful for passing rain water. There are three windows on the southern wall, which are exclusively belong to the defendants. But, they never maintained the said wall to the knowledge of the plaintiff. Even for argument sake, that along foot space south of southern wall they can come and maintain the same. The entire second item of suit property belongs to the plaintiff. The defendants at any time enjoyed the second item of suit property. They did not leave any space for second item of suit property. On 28.03.2000, the defendants had attempted to put up new pathway, that has been prevented. On 14.04.2000, the defendants have issued a notice with false allegation. Now, the defendants have taking steps to interfere with the plaintiff's peaceful possession. Hence, the plaintiff is constrained to file the suit for declaration that the second item of suit property is absolutely belonging to the plaintiff and for injunction restraining the defendants from interfering his peaceful possession and prayed for a decree.
3. The averments in the written statement as well as in the counter claim of the defendants are as follows:
The lane is belonging to second defendant and one Madathiammal, who is the wife of one Sundarrajan. Second defendant had put up a window facing that lane. There is a nathi on the western wall of the second defendant. Butress wall was constructed in the downstairs with a measurement of 3/4 feet in the western wall. The plaintiff and his brothers are reaching the street inside on the south through their southern gate. The north-south space measuring 1-3/4 feet south of southern wall is the exclusive space used by the defendants and they are in exclusive possession of the same. The defendants are white-washing their southern wall by going through the vacant site and they are also maintaining the said vacant space. On the southern wall, there are three windows. In that, nathi is projecting one foot towards south. The house of the defendants and the vacant site measuring 1-3/4 feet was originally belonged to one Lakshmana Konar and he was in possession of the same. He sold the property to one Krishna Konar on 13.07.1946. The said Krishna Konar has bequeathed the same in respect of door No.152 and the vacant site measuring 1-3/4 feet in favour of Radhakrishnan. The wife of Krishna Konar by name Rajammal alias Ponnammal had executed a will on 23.02.1989 in favour of the defendants 1 and 2. In pursuance of the above said will, they are the owners of the suit property. Among them, one Radhakrishnan had sold the same to third defendant on 20.04.1994. So, the defendants alone are the owners of the property. Since the vacant site of 1-3/4 feet is in the possession and enjoyment of the defendants, the plaintiff indirectly admitted the right of the defendants to the one foot space south of southern wall. So, the plaintiff is not entitled for injunction. Measurement of the suit properties are approximately mentioned. Hence, the defendants are forced to file the counter claim for declaration that the north-south vacant site measuring 1-3/4 feet which is situate south of southern wall of the house of the defendants and for permanent injunction restraining the plaintiff from interfering with the enjoyment of the defendants and also for declaration that D.C. wall belongs to the defendants and that the defendants have right to put up sun-shade projecting 1-3/4 feet south-north facing second schedule and the defendants have paid Court fee also and they prayed for the dismissal of the suit.
4. The averments in the written statement of the plaintiff for the counter-claim of the defendants are as follows:
The claim of the defendants is not maintainable either in law or on facts. The defendants are not entitled to the relief prayed for. The defendants are estopped from denying the title of the plaintiff. The lane situate in the north of second item of suit property belongs to the plaintiff and his brothers. In that, the defendants have no right. That is the only lane available for the plaintiff and his brothers to reach the street on the northern side. There is no alternative way for them. The main gate for the plaintiff and his brothers are facing north. The second defendant or Madathi ammal, W/o.Sundarrajan have no connection with the said lane. The second defendant has right to white-wash the western wall and also for maintaining the same. On the contrary, the defendants have no right in the lane. The counter-claim is not maintainable without asking for a prayer for declaration. The claim of the defendants is not also maintainable without a prayer for recovery of possession. The southern wall of the defendants belonged to them. Since they had no right over the south of the southern wall, they had no right to put up sun-shade basing the southern wall. The first item of suit property does not form part of house of the first defendant. First item of the suit property never belonged to them. The court fees paid not correct. Even, if they got any right, they can get the same under Section 25(a) of Court Fees Act. In respect of second item of suit property, they can claim relief only under Section 25(a) and 25(b), but they cannot claim relief under Section 25(d) of the Court Fees Act. Hence, the plaintiff prayed for the dismissal of counter-claim of the defendants.
5. The learned District Munsif, Srivaikuntam after considering the averments both in the plaint and written statement, framed six issues and considering the oral evidence of P.Ws.1 and 2, D.Ws.1 to 3 and Exs.A1 and A2, B1 to B5 and Exs.C1 and C2, decreed the suit and dismissed the counter claim of the defendants stating that the plaintiff is the owner of the second item of suit property. Against the said judgment and decree, the defendants have preferred an appeal before the learned Principal District Judge, Tuticorin. The learned First Appellate Judge, after considering the arguments of both sides, framing five points for consideration and dismissed the appeal, confirmed the decree and judgment of the trial Court. Against that the defendants have come forward with this second appeal.
6. The substantial questions of law arises in the Second Appeal are as follows:
"1. Whether the Courts below are right in granting a decree for injunction, having upheld the enjoyment right of the appellants with respect to 1-3/4 feet on the south of the appellants 'CD' wall, especially when the claim of the appellants is with respect to 'CD' wall and 1-3/4 feet alone.
2. Whether the judgment and decree of the Courts below are vitiated by its failure to consider the absence of any materials except Ex.A1, which is of the year 1993 and Ex.A2, the patta book, in granting decree for declaration and injunction.
Points 1 and 2 :
7. The respondent as plaintiff has filed a suit for declaration that he is the owner of the second item of suit property and for injunction not to interfere with his peaceful possession. But the appellants/defendants have raised the plea that they are the owners of the second item of suit property and they have also made a counter claim for consequential injunction.
8. The trial Court after considering the oral and documentary evidence, came to the conclusion that the second item of suit property is belonging to the respondent herein and granted decree. Against that, the defendants have preferred an appeal before the learned Principal District Judge, Tuticorin, where the appeal has also been dismissed and confirmed the decree and judgment of the trial Court. Against that, the defendants/appellants have come forward with the second appeal.
9. The learned counsel for the appellants would contend that the dispute is only in respect of the second item of suit property, which has been shown as first item of the defendants' counter claim, measuring east-west 32 feet, south- north 9-1/2 feet. Even though, in Ex.A1 sale deed, survey number has been mentioned as 78, there is no identification of the property and the measurement also are different. He would further urge that D.W.1 has himself admitted in his cross-examination that the plaintiff/respondent herein is having house and he is enjoying the same for more than 45 years and they are having three windows in the same. The learned counsel would rely upon the decision reported in (2008) 11 Supreme Court Cases 306 (Corporation of City of Bangalore Vs. Zulekha Bi and others) and 2004-1 L.W.728 (R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P.Temple) and urged that the burden of proof is upon the plaintiff. He also relied upon the judgment reported in 1997(2) MLJ 669 (Kanchana Vs. S.ramasami) and urged that the Will can be used for collateral purpose and further urged that the trial Court and first appellate Court have erroneously come to the conclusion that the respondent/plaintiff is entitled for decree in respect of the second item of suit property and injunction as prayed for in the plaint and hence, he prayed for the allowing of second appeal.
10. The learned counsel for the respondent would contend that there is no question of law arise in this second appeal and it is a concurrent finding passed by the trial Court as well as the first appellate Court. He would further submit that the first appellate Court is the last fact finding court and both the trial Court and first appellate Court had considered Exs.C1 and C2, Commissioner Plan and report and evidence of P.Ws.1 and 2 and come to the correct conclusion and hence there is no need to interfere with the findings of the trial Court and first appellate Court and he prayed for the dismissal of the second appeal.
11. The learned counsel for the appellants would rely on the decision reported in (2008) 11 Supreme Court Cases 306 (Corporation of City of Bangalore Vs. Zulekha Bi and others) and argued that the person who is claiming title to the suit property, the burden is upon him to prove his title to the suit property. There is no quarrel over the proposition laid down in the said citation. He also relied on the decision reported in 2004-1 L.W.728 (R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P.Temple) and urged that suit for possession based title, scope of burden of proof lying on the plaintiff. There is also no quarrel over the proposition laid down in the above said citation. So, it is clear that it is the duty of the respondent/plaintiff to prove that he is the owner of the property and he is in possession of the property.
12. The respondent has claiming title as per Ex.A1 dated 20.02.1933, Subbiah Konar S/o.Sudalaimuthu Konar purchased the property from one Subbiah Konar S/o.Sunthara Konar. In Ex.A1, the measurement was mentioned that in S.No.78 East-west 7-9/16 jr;RKHk; and north south 11-1/4 jr;RKHk; and the Patta has been marked as Ex.A2. In Ex.A2, it was stated that old survey number is 78 part and the new survey number is 102/12. It stands in the name of Chellappa, S/O.Isakki Konar, who is the respondent herein measuring 0.00.67 Hectares. So, the respondent herein has proved that he is the owner of the property.
13. The learned counsel appearing for the respondent would contend that since the concurrent finding has been given, the first appellate Court is the last fact finding court and the trial Court and first appellate Court have considered all the oral and documentary evidence and come to the conclusion and hence the second appeal is not maintainable.
14. At this juncture, the learned counsel for the appellants would rely upon the decision reported in 2000(III) 193 (S.N.Hasan Abubucker Vs. Kottikulam St. Mohideen Pallivasal Therkku Mohideen Pallivasal, Nirvagi Mutheru Committee through its Secretary M.S.Buhari and another) and arguing that the concurrent finding of the fact are normally binding under Section 100 Code of Civil Procedure unless and otherwise there has been any omission to consider any vital evidence or appreciation of evidence are so unreasonable and perverse enough to warrant interference. As per the above citation, if the findings is perverse or if the first appellate Court is not appreciates the evidence, then only as per Section 100 C.P.C., this High Court having right to interfere with the findings of the Court. There is also no quarrel over the proposition. So, we have to consider whether there is a omission to consider any vital evidence or appreciation of evidence are so unreasonable and perverse.
15. In this case, it is pertinent to note that a commissioner has been appointed and he also filed his report and plan, which were marked as Exs.C1 and C2. Even considering the second question of law, except Exs.A1 and A2, there is no other evidence. While considering Ex.A1, it is the sale deed in favour of Subbiah Konar. On the side of the respondent, he filed the documents in Ex.B1. It is the sale deed in favour of Krishna Konar, who purchased the property from Lakshmana Konar under Ex.B1 on 13.07.1946. In that, the northern side boundary was stated that north of Subbiah Konar's house and site(Rg;igah Bfhdhh; kid tPl;Lf;F tlf;F). Ex.B2, Will has been executed by Rajammal @ Ponnammal in favour of Veerasubramanian, the first appellant herein and one Radhakrishnan. In that, the northern boundary was stated that north of Isakki Konar's house (nrf;fp Bfhdhh; tPl;L kidf;Fk; tlf;F). Isakki Konar is none other than the father of the respondent herein. Krishna Konar, who is the husband of Rajammal @ Ponnammal has also executed a Will in favour of Rajammal @ Ponnammal, Veerasubramanian, the first appellant herein and Kasi Ammal, the second appellant herein on the same day i.e. 23.02.1989 under Ex.B5. In that also, the northern boundary was stated that north of Isakki Konar's house (nrf;fp Bfhdhh; tPl;L kidf;Fk; tlf;F). After the death of Krishna Konar, Radhakrishnan has got the property and he sold the same in favour of the third appellant herein under Ex.B3 dated 20.03.1994. These all would show that the appellants herein having property on the north of plaintiff's/respondent's house and site. In Ex.A1, Exs.B1 to B5, the survey number is mentioned only as 78. It is an admitted fact that the suit property is grama natham. To prove that the new survey number of old survey number 78 is 102/12, Ex.A2 has been filed. In such circumstances, the trial Court and the first appellate Court have considered the documents in Exs.A1 and A2 along with the documents filed by the defendants and come to the conclusion that the respondent/plaintiff is the owner of the second item of suit property.
16. Considering the documents in Exs.C1 and C2, it is clear that appellants are having doorway only facing on northern side. They are having three windows on the side of second item of suit property. But, they are having one lane on the side of west of the property, that has been mentioned as C B M1 M. But, the second item of suit property is mentioned as C D. The respondent herein is enjoying the property by putting hand pump. He is also having pial. So, he is having his doorway on the second item of suit property and he reached his cattle shed only through the second item of suit property. In paragraph No.5 of the commissioner report, it was stated as follows:
" Bkw;brhd;d Kd;W tPLfspypUe;J, tlf;Bfa[s;s bjUtpw;F tUtjw;F C B M1 M re;Jjhd; ghijahFk;. C M Rthpy; khoapy; Bkw;Bfg; ghh;j;J $d;dy; xd;Ws;sJ""
In the above said circumstances, the trial Court and the first appellate Court have considered the evidence of P.Ws.1 and 2, D.Ws.1 to 3 and Exs.C1 and C2, Commissioner Report and plan and come to the conclusion that the second item of suit property is absolutely belonging to the respondent herein.
17. Considering the judgment of trial Court and first appellate Court, it was held that since D.W.3 is the scribe of Ex.B5, the attestors have not been examined and hence the documents need not be looked into. The learned counsel appearing for the appellant would rely on the decision reported in 1997(2) MLJ 669 (Kanchana Vs. S.Ramasami), wherein, it was held as follows:
"As the Will executed by 'P' in this case is not proved, it cannot be relied on only for the purpose of claiming any testamentary inheritance under the Will, but there cannot be any hurdle to rely on the said document to prove the factum of adoption."
But the above citation is not applicable. Because on the basis of Will only, appellants/defendants are claiming title to the second item of suit property mentioned in the plaint. In such circumstances, it is the duty of the appellant to prove Ex.B5, Will and Ex.B2, Will by way of examining the attestors under Section 68 of Indian Evidence Act, but, they failed to do so. Even though the appellants herein have claiming right over 1-3/4 feet in the second item of suit property in the plaint, except ipsi dixit of D.W.1. who is the party to suit proceedings, no third party has been examined to prove that the appellants/defendants are having 1-3/4 feet on the south of their property to maintain the wall. But, no one has been examined before the trial Court. They may very well examine the neighbours and also the person who did white-washing, but they have not let in any evidence. In such circumstances, I am of the opinion that it is the duty of the appellants while he is claiming counter claim in respect of 1-3/4 feet on the south of his property, they ought to have proved the same by way of examining independent witnesses.
18. In such circumstances, the trial Court and the first appellate Court have considered all the oral and documentary evidence and come to the conclusion and hence I am not inclined to interfere with the findings of the trial Court and the first appellate Court and the first appellate Court is the last fact finding Court since the findings is not perverse. Hence, I am of the opinion that the decrees and the judgments of the trial Court and first appellate Court are liable to be confirmed and the second appeal is liable to be dismissed.
19. In the result, the Second Appeal is dismissed and the judgment and decree dated 26.03.2003 made in A.S.No.22 of 2002 passed by the learned Principal District Judge, Tuticorin confirming the judgment and decree dated 16.11.2001 made in O.S.No.47 of 2000 passed by the learned District Munsif, Srivaikuntam are confirmed. No costs. Consequently, connected miscellaneous petition is also dismissed.
arul To
1. The District Munsif cum Judicial Magistrate, Eraniel.
2. The Subordinate Judge, Padmanabhapuram.