Madras High Court
K.Paul Raj vs Raju on 10 November, 2014
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.11.2014 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS SECOND APPEAL (MD) Nos.483 of 2009 and SECOND APPEAL (MD) Nos.484 of 2009 K.Paul Raj ... Appellant in both Appeals -vs- 1.Raju 2.Chandra ... Respondents 1 & 2 in both Appeals 3.Radhakrishnan 4.Santhanam 5.The District Collector Madurai District 6.Thasildhar Usilampatti Taluk Madurai District ... Respondents 3 to 6 in S.A.(MD) No.484 of 2009 PRAYER (in S.A.(MD) No.483 of 2009): Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 14.12.2007, passed in A.S.No.118 of 2004, on the file of the learned First Additional Sub Judge, Madurai, reversing the Judgment and Decree, dated 08.01.2004, passed in O.S.No.252 of 1996, on the file of the learned District Munsif, Usilampatti. PRAYER (in S.A.(MD) No.484 of 2009): Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 14.12.2007, passed in A.S.No.119 of 2004, on the file of the learned First Additional Sub Judge, Madurai, reversing the Judgment and Decree, dated 08.01.2004, passed in O.S.No.259 of 1996, on the file of the learned District Munsif, Usilampatti. !For Appellant : Mr.R.Surianarayanan (in both S.As) ^For Respondents 1 & 2: Mr.M.V.Venkateseshan (in both S.As) For Respondents 5 & 6: Mr.R.Karthikeyan (S.A.(MD) No.484 of 2009) Additional Government Pleader For 3rd Respondent : Died (S.A.(MD) No.484 of 2009) For 4th Respondent : No appearance (S.A.(MD) No.484 of 2009) :COMMON JUDGMENT
As these two second appeals are connected on factual matrix and legal issues and common arguments have been advanced, we propose to render this common Judgment.
2. The 3rd defendant, namely, Paul Raj, in O.S.No.259 of 1996, in the Court of District Munsif, Usilampatti, who is also plaintiff in O.S.No.252 of 1996, in the same Court, is the appellant herein.
3. Plaintiffs/spouses in O.S.No.259 of 1996 (O.S.No.471 of 1992, District Munsif's Court, Thirumangalam) namely, Raju and Chandra, have instituted the suit seeking injunction mainly as against the 3rd defendant (appellant herein) and his vendor Radhakrishnan (first defendant).
4. In the suit schedule, property measuring 2.1 acres, comprised in Survey No.152/3, situate, in Panamoopanpatti Village, in Usilamatti Taluk, in Madurai District has been shown as suit property.
5. The principal pleadings in the plaint in O.S.No.259 of 1996 is on the following lines.
6. About 25 years, the suit property has been enjoyed by the first plaintiff under an oral othi/lease. During 1979, at the southern portion, a brick roofed house was put up. Utilizing the electricity from S.C.No.122, in Survey No.153/1, belonging to the plaintiffs, water has been taken through PVC pipes to the suit property. Kist is being paid to the suit property in the name of first plaintiff. To avoid complication, first plaintiff had purchased the suit property from Raj, son of Mayandi Thevar, under a sale deed, dated 01.06.1992 (Ex.A1). Thus, 1st plaintiff is having title to the suit property. Possession is also with them.
7. In the circumstances, in 1996, 3rd defendant, who is inimical to the plaintiffs, with the connivance of defendants 1 and 2, namely, Radhakrishnan and Santhanam, tried to interfere with plaintiffs' possession. It came to light that the first defendant had influenced the revenue authorities and obtained patta in his name for a portion of the suit property under updating registration scheme. First plaintiff objected to this to the revenue authorities. Enquiry has been initiated. Thus, defendants 4 and 5, namely, District Collector, Madurai and Tahsildhar, Usilampatti, have also been impleaded in the suit.
8. The suit has been resisted by 3rd defendant by filing a written statement, which has been adopted to by defendants 1 and 2.
9. The 3rd defendant's plea in his written statement proceeds on the following lines.
10. On 07.10.1991, under a sale agreement, the third defendant had agreed to purchase three items of properties from first defendant, namely, Radhakrishnan, son of Subramania Thevar @ Jayaraman. 2nd item is the suit property. It is western 1.39 acres, comprised in Survey No.152/3A, out of 2.1 acres. Rs.2,000/- as advance was paid (Ex.B1 sale agreement). On 03.06.1992, on receipt of the balance sale consideration, first defendant executed the sale deed in favour of the third defendant (Ex.B2 sale deed). In the said property, the third defendant raised coconut trees and also cultivates the lands. Patta has been changed in his name. Kist is being paid by him. Whileso, 1st plaintiff got a fictitious sale deed from a person, who has no title at all.
11. Subsequently, the said Paul Raj filed the suit in O.S.No.1260 of 1993, in the III Additional Sub Court, Madurai. After transfer, it has become O.S.No.252 of 1996, in the Court of District Munsif, Usilampatti.
12. In the said suit, Paul Raj sought for declaration as to his title to 1.39 acres, comprised in Survey No.152/3A, consequential injunction and alternatively, recovery of possession. The defendants are plaintiffs in O.S.No.259 of 1996. The allegations in the written statement of the third defendant in O.S.No.259 of 1996 is the plaint pleadings in O.S.No.252 of 1996.
13. Defendants have resisted the suit filing a joint written statement. The plaint pleadings in O.S.No.259 of 1996 is the allegations in their written statement in O.S.No.252 of 1996.
14. In both the suits, separate issues were framed by the Trial Court. The suits were tried together. Common evidence was recorded in O.S.No.259 of 1996. The first plaintiff Raju in O.S.No.259 of 1996 has examined himself as P.W.1 and one Ganesan as P.W.2 and marked Exs.A1 to A19, while the 3rd defendant Paul Raj examined himself as D.W.1 and one Jayabalan as D.W.2 and marked Exs.B1 to B23.
15. Considering the arguments of both sides and appreciating the said evidence, the Trial Court concluded that the first plaintiff in O.S.No.259 of 1996 has not established his title to the property, first defendant Radhakrishnan's evidence in a criminal case is not relevant to decide plaintiffs' possession and the documents produced would not show plaintiffs' possession. The Trial Court also concluded that the suit survey number has been sub-divided as survey nos.152/3A, through Exs.B2 to B4, sale deeds, title of the 3rd defendant to 1.39 acres has been established. He being in possession and enjoyment of the said 1.39 acres also has been established by voluminous oral and documentary evidence.
16. On the said premises, the Trial Court declared the title of 3rd defendant Paul Raj to 1.39 acres, granted him injunction and also simultaneously granted recovery of possession and also directed a separate enquiry to be conducted for the ascertainment of mesne profits under Order XX Rule 12 C.P.C., and thus decreed the suit in O.S.No.252 of 1996 and dismissed the suit in O.S.No.259 of 1996.
17. In the circumstances, plaintiffs in O.S.No.259 of 1996 have directed the first appeal in A.S.No.119 of 2004 as against the dismissal of their suit and they have also filed A.S.No.118 of 2004 as against granting of decree to plaintiffs in O.S.No.252 of 1996, before the 1st First Appellate Court/1st Additional Sub Court, Madurai.
18. The First Appellate Court reheard the matter, re-appraised the entire evidence and noticed the birth of Ex.B2 two days after Ex.A1, the considerable delay took place between execution of Ex.B2 and it's registration and it came to the view that Exs.A1 and B2 were obtained from the legal heirs of the very same Mayandi Thevar, it smelt a rat.
19. The 1st Appellate Court also took exception to the Trial Court granting injunction as well as recovery of possession and also in not making any decision with regard to the balance property after 1.39 acre out of 2.1 acres and thus allowed both the appeals and set aside the decree and Judgment passed in O.S.No.252 of 1996 and decreed the suit in O.S.No.259 of 1996.
20. In the circumstances, plaintiff Paul Raj in O.S.No.252 of 1996, who is the respondent in A.S.No.118 of 2004, directed the second appeal in S.A.(MD) No.483 of 2009 and as against the decree in in A.S.No.119 of 2004, he preferred the second appeal in S.A.(MD) No.484 of 2009 before this Court.
21. For convenience sake, throughout, we shall call the plaintiffs in O.S.No.259 of 1996, namely, Raju and Chandra Ammal as such and the defendants in the said suit, namely, Radhakrishnan (first defendant), Santhanam (second defendant), Paulraj (third defendant) as such and the Government as such wherever necessary.
22. The main contest is between the third defendant, namely, Paul Raj (appellant) and the first plaintiff, namely, Raju (respondent).
23. At the time of admission of these second appeals, the then learned Brother framed the following substantial questions of law:
1. Whether the judgment and decree of the first appellant court is vitiated due to the non-compliance of Order 41 Rule 31 of the Civil Procedure Code?
2. It is wrong on the part of the first appellate Court to observe that since the trial court gave an alternative relief it is doubtful to accept the title of the appellant, when the title is proved independently by the appellant as accordance with law and since granted relief of possession is an error only?
3. Is it not wrong on the part of the first appellate Court to determine that the respondents are in possession and enjoyment of the suit property on the basis of appellant's evidence in Ex.A15, which is admittedly evidence in a criminal proceeding and as per law the same is not relevant to a civil case and when the title and possession of the appellant is proved by him independently by way of Exs.B2 to B4 and other B series documents??
24. The learned counsel for the appellant/third defendant submitted that the suit property is western 1.39 acres in Survey No.152/3A out of 2.01 ares. It was purchased by the third defendant from the first defendant under Ex.B2, sale deed, dated 03.06.1992. It's parent documents are Exs.B3 and B4. Thus, he has title to the suit property.
25. The learned counsel for the appellant further submitted that on the side of the plaintiffs except Ex.A1 sale deed, no document showing antecedent title, has been filed. Plaintiffs are pinning their hope very much on their untenable case of oral lease and oral purchase. Actually, Ex.A1 has been created by the plaintiffs with the connivance of one Devaraj, who has no title at all. Thus, respondents have no title to the property.
26. The learned counsel for the appellant further contended that since the date of his purchase under Ex.B2, he is in possession and enjoyment of the property. Ex.B5 patta stands in his name. Kist is being paid by him. Electricity service connection has also been obtained by him. Many documents showing his possession have also been produced.
27. The learned counsel for the appellant further contended that on consideration of title deeds of the third defendant and the plaintiffs, the Trial Court recorded correct finding that the 3rd defendant has title to the suit property. However, his misery began when he was mistakenly granted the alternative relief of recovery of possession and a separate enquiry for ascertainment of mesne profits was also ordered. This has caused much havoc to him. Practically, this has been taken advantage of by the plaintiffs to confuse the First Appellate Court. Further, 1st Appellate Court entertained a misconception that the vendor of 3rd defendant and the vendor of 1st plaintiff are legal heirs of the very same Mayandi Thevar. But, it is not so. Both are different Mayandi Thevars.
28. The learned counsel for the appellant further contended that like the Trial Court, the First Appellate Court has also correctly concluded as to the title of the third defendant. However, it took exception to the Trial Court, having granted recovery of possession also, when injunction has also been granted and while granting the relief to the third defendant with respect to his 1.39 acres out of 2.01 acres, it had failed to give any decision as to the balance property and thus set aside the Decree and Judgment of the Trial Court. Ultimately, operation success, but patient dies.
29. The learned counsel for the appellant further contended that the First Appellate Court had blown inconsequential matters out of proportion. Instead of deciding the case on the basis of evidence oral and documentary,, the First Appellate Court had went astray and dwelt much on suspicion and surmises and completely misdirected itself in dismissing the appellant's suit in O.S.No.252 of 1996.
30. On the other hand, the learned counsel for respondents 1 and 2/plaintiffs would submit that after knowing the filing of their suit in O.S.Nos.259 of 1996 (=O.S.No.471 of 1992) and Ex.A1, dated 01.06.1992, with the connivance of the first defendant the 3rd has manufactured Exs.B1 and B2.
31. The learned counsel for the respondents further contended that there is discrepancy as to the extent of the property and the boundaries in Exs.B2 to B4. They would show that Ex.B2 has been procured from a person, who has no title. There is something fishy in registering Ex.B2, dated 03.06.1992 only on 10.08.1992 and Ex.B7, dated 04.06.1992, is earlier to Ex.B2.
32. The learned counsel for the respondents further contended that the plaintiffs are in possession and enjoyment of the property for nearly 25 years and at a corner of the property, they are having their house. Kist is being paid by them. There is electricity service connection in the name of second plaintiff.
33. The learned counsel for the respondents further contended that in a criminal case, during his cross-examination, the third defendant's vendor Radhakrishnan (first defendant) has admitted that the plaintiffs are in possession of the property. Further, in his suit, the third defendant having sought for recovery of possession and also for mesne profits would show that possession was not with him. Thus, rightly the First Appellate Court had set aside the Decree and Judgment of the Trial Court.
34. In reply, the learned counsel for the appellant would submit that the total extent of the property in the main survey number is more. Under Ex.B2, the third defendant had purchased three items of properties, one of them is suit 1.39 acres comprised in Survey No.152/3A (suit property). The remaining extent of property is with the vendor himself. That is how, difference as to the extent and boundaries in Exs.B2 to B4. Further, the sub-division as Survey No.152/3A having been taken place prior to third defendant's purchase also has been admitted by the plaintiffs. In such circumstances, now he cannot harpen on this. Even, in his evidence 1st plaintiff has admitted that the total 3.31 Acres has been sub-divided into three. Patta has been issued to the 3rd defendant based on execution of the sale deed.
35. The learned counsel for the appellant further replied that when dispute arose with regard to fixing of a pipeline, a criminal case was given. In that context, Radhakrishnan deposed. And title cannot be decided in a criminal case. Evidence given in a civil case will be relevant under Section 41 of the Evidence Act in another civil case. But, it will not be relevant in a criminal case to decide the title issue. In this connection, the learned counsel for the appellant also cited Shanti Kumar Panda v. Shakuntala Devi, (AIR 2004 SCC 115).
36. I have given my anxious consideration to the rival submissions, perused the records of the case and Judgments and decrees of the Courts below and the decision cited at the Bar.
37. The plaintiffs in O.S.No.259 of 1996 seek injunction with reference to 2.1 Acres comprised in S.No.152/3, situate in Panamoopanpatti Village, in Usilampatti Taluk, in Madurai District. According to them, it is the suit property and they are in possession of the same.
38. For mere possession, the relief of injunction cannot be granted. Injunction could be granted only if the possession is legal. In other words, it must be legal possession. There cannot be relief from Court to protect illegal and unlawful possession. If an injunction is to be granted based on mere possession, however long it may be, it will be recognition of might his right. One who has no legal character to remain in possession/enjoyment of possession cannot seek protection from the Court.
39. Thus, even to seek injunction, the suitor must show that he is in possession of the property either by deed or by adverse possession. Dehors that it will be mere possession. That alone will not qualify for grant of the discretionary relief of injunction.
40. The initial burden is on the plaintiff to establish that he is in legal possession of the property. Thus, in a suit for injunction, the initial burden to prove that he is in legal possession of the property is fixed on the plaintiff. It will not shift. It will not change. Equally if an opposite case is pleaded, the Court has to consider the case of both sides and accept the case which is probable and acceptable and reject the case which is improbable and not acceptable.
41. In the instant case, 1st plaintiff Raju (P.W.1) pleads that he is in possession of 2.1 Acres of the property comprised in S.No.152/3 for more that 25 years under oral lease from one Mayandi Thevar, thereafter, he has purchased it under a registered sale deed from Devaraj S/o. Mayandi Thevar under Ex.A.1 sale deed on 01.06.1992.
42. P.W.2 - Ganesan, Attestor to Ex.A.1 would corroborate P.W.1 that the said property has been sold to P.W.1 by its prior title holder Devaraj.
43. Ex.A.1 sale deed has been executed by Devaraj on 01.06.1992 in favour of the 1st plaintiff/P.W.1 with respect to 2.1 Acre comprised in S.No.152/2. The history of the title of the vendor Devaraj has been traced in Ex.A.1. It is to the effect that the property is ancestral property of Chinna Thevar S/o. Kondi Mayandi Thevar. After him, his son Chittu Mayandi Thevar and Chinna Thevar succeeded. Thereafter, at an oral partition, between the said brothers, the suit property fell to the share of Chittu Mayandi Thevar. After him, his four sons (1) Periya Karuppa Thevar, (2) Subbiah Thevar, (3) Kokkadaiyan Ocha Thevar and (4) Chinna Thevar had enjoined the property. Thereafter, at an oral partition Kokkadaiyan Ocha Thevar purchased Chinna Thevar's share also. After the death of Kokkadaiyan Ocha Thevar, property was enjoyed by his two sons C.Ko.O. Mayandi Thevar and C.Ko.O. Chitthamalayan and in an oral partition the suit property fell to the share of C.Ko.O. Mayandi Thevar and whose son is the 1st plaintiff's vendor Devaraj.
44. In Ex.A.1, it is also stated that 25 years ago, under an oral lease, 1st plaintiff has took the property from the said Mayandi Thevar for Rs.500/- and thereafter the property was purchased from Devaraj under Ex.A.1 on 01.06.1992.
45. It is the specific case of P.W.1 Raju that he got the suit property from his vendor Devaraj's father C.Ko.O. Mayandi Thevar for Othi (lease). However, for the history/origin of the property traced in Ex.A.1 from Chinna Thevar S/o. Kondi Mayandi Thevar up to 1st plaintiff's vendor's father Mayandithevar, he has no anterior/parent document. Except his words in Ex.A.1 nothing worthmenting has been produced by the 1st plaintiff.
46. It is pertinent to note that the admission of P.Ws.1 and 2 in their cross-examination as to the title to the suit property is mainly based on Ex.A.1 sale deed. In such circumstances, there is nothing to show that 1st plaintiff's vendor Devaraj is title holder of the said property. Further, 1st plaintiff/P.W.1 could not substantiate his version that patta to the suit property stood in the name of Mayandi Thevar by producing the patta.
47. The specific case of the 1st plaintiff is that the patta for the suit property covering 2.1 Acres comprised in R.S.No.153/3 is No.279. It also only remain as his ipse dixit. He did not establish it by producing document. Further, D.W.2 Jeyabalan, the Revenue Department staff would not confirm that the patta number for the said 2.1 acre in S.No.152/3 was 279. Ex.A.2 to A.4 kist receipts in the name of P.W.1 did not have the said patta number. Under Ex.A.5 to A.11, electricity charges are paid in the name of second plaintiff.
48. It is pertinent to note that on the southern side of S.No.152/3 is S.No.152/1, P.W.1 Raju is having the property. They are also stated to have a well and a service connection. In this view of the matter, Ex.A.5 to A.11 cannot be considered to be relevant to the entire 2.1 Acres comprised in S.No.152/3.
49. As per the evidence of D.W.2, the revenue department staff, the patta number for the sub divided survey number 152/3A is 400. Thereafter, it became 603. But the survey number mentioned in Ex.A.12 Chitta does not correspond to it. Further, the 3rd defendant did not say the entire 2.1 Acres belongs to him and also he is in possession of 2.1 acres. In such circumstances, Ex.A.12 becomes irrelevant to consider the case of the 1st plaintiff. In this connection, Ex.A.14 the Field Survey Map for Survey No.153, particularly 153/1 also vouchsafe this.
50. Ex.A.18 is the decree copy in O.S.No.506 of 1995, which has been filed by the plaintiffs herein as against the Electricity Board and also the present third defendant as 5th defendant, seeking injunction against defendants 1 to 4 in respect of 2.1 Acre comprised in S.No.152/3 and injunction has been granted as against defendants 1 to 4 that they should not interfere with their possession. The said Ex.A.18 cannot be taken to be a document by which the plaintiffs have established their possession with respect to suit 2.1 Acres.
51. The contesting 3rd defendant is the own brother of 2nd plaintiff, whose husband is 1st plaintiff. Both are closely related and they have close contest with respect to the property dispute both in civil and criminal Courts.
52. Ex.A.16 is the F.I.R. lodged by the 3rd defendant in C.C.No.297 of 2001, on the file of the Judicial Magistrate, Usilampatti. Ex.A.15 is the evidence of P.W.1, who is the present 3rd defendant in the converted Calender Case in C.C.No.1136 of 1996 on the file of the Judicial Magistrate, Usilampatti. In his cross-examination, he had stated that A.1 is owning a property adjacent to the suit property and using the adjacent electricity service connection, he is taking water to the suit property. Ex.A.17 is the evidence of P.W.2 Radhakrishnan, the vendor of the 3rd defendant. In C.C.No.1136 of 1996, in his cross-examination P.W.2 had stated that at a corner Raju Thevar, (the present 1st plaintiff) is having a super structure, he had put up a pipe line in the suit property, he is in enjoyment of the Thope for a long time. It is pertinent to note that by then with regard to the alleged trespass into the property by the 1st plaintiff Raju Thevar, the 3rd defendant Paulraj has given a criminal case. In that context, P.Ws.1 and 2, have stated that the 1st plaintiff took water to the suit property through P.V.C. Pipe. This is the evidence given in a Criminal Case.
53. O.S.No.259 of 1996 relates to an injunction suit. Whereas O.S.No.252 of 1996 relates to a suit for declaration, injunction and recovery of possession. Now, in O.S.No.252 of 1996, the title is the main issue. That has to be decided based on the oral and documentary evidence let in before the trial Court. Whereas, in the criminal case that was not the issue. In the criminal case evidence has been let in on the side of prosecution to show that the accused have committed the offence.
54. In MAHABIR PANDEY VS. RAMNARAYAN SINGH (AIR 1959 PAT 406), it was held that evidence given in a criminal proceedings before a Magistrate with regard to possession will not become relevant in a civil Court dealing with declaration of title and possession as the civil Court is entitled to render a different finding based on the evidence, oral and documentary, adduced before it.
55. A criminal Court's finding will not bind a Civil Court (See BHINKA AND OTHERS VS. CHARAN SINGH (AIR 1959 SC 960) and SHANTI KUMAR PANDA VS. SHAKUNTALA DEVI (AIR 2004 SC 115)). Thus, in such circumstances, evidence given in a criminal case which is altogether let under a different context is not relevant in a civil case before the civil Court where the right, title, possession are being adjudicated. Therefore, based on Ex.A.15 to A.17, it cannot be declared that the plaintiffs are in possession of 2.1 Acre in S.No.152/3. In this respect the Trial Court rightly held so. However, the 1st defendant, held contra, which is palpably wrong.
56. The specific case of the 3rd defendant, who is plaintiff in O.S.No.252/96 is that he has title to 1.39 acres comprised in S.No.152/3A situate in Panamoopanpatti Village, in Usilampatti Taluk, in Madurai District. It is also his specific case that the said 1.39 Acres is out of the total 2.1 Acres comprised in S.No.152/3 mentioned by the plaintiffs in O.S.No.259 of 1996. Thus, according to the 3rd defendant his 1.39 acres is part of the said 2.1 acres.
57. The case of the 3rd defendant is that he purchased the said 1.39 acres from Radhakrishnan on 03.06.1992 under Ex.B.2 sale deed and since then he is in possession and enjoyment of the property. He did not say that he is in possession of the entire 2.1 acres. He has restricted his claim to title to the said 1.39 acres comprised in S.No.152/3A.
58. On 07.10.1991, under Ex.B.1, 3rd defendant had entered into a sale agreement with one Radhakrishnan S/o. Subramania Thevar @ Jeyaraman for purchasing certain items of properties. The 2nd item is the said western 1.39 Acres comprised in S.No.152/3A, as stated already it is out of 2.01 Acres comprised in S.No.152/3. The said 1.39 Acres is the suit property mentioned by the 3rd defendant in his suit in O.S.No.252 of 1996. Subsequently, under Ex.B.2 - Sale deed dated 03.06.1992, the said three items of properties were purchased by 3rd defendant from the said Radhakrishnan. Out of the three items, 2nd item is the suit property measuring 1.39 acres comprised in S.No.152/3A.
59. In Ex.B.2 it is mentioned that the said Subramania Thevar @ Jeyaraman had purchased the said property from the legal heirs of Mayandi Thevar on 27.01.1970. Ex.B.4 is the said sale deed executed in favour of Subramani Thevar @ Jeyaraman by Chinna Thevar S/o. Mayandi Thevar and Chellammal. In Ex.B.4 in, S.No.152/3, 1.81 acres have been mentioned. In Ex.B.4, it is mentioned that the property has been purchased by Chinna Thevar's legal heirs on 03.06.1943. Ex.B.3 is a registration copy of the sale deed dated 03.06.1943. Under which the said Chinna Thevar, who is the son of Thavasi Thevar purchased the said 1.81 acres comprised in S.No.152/3 from Chinna Thevar and Ocha Thevar sons of Angappa Thevar and Chinna Maya Thevar S/o. Ocha Thevar. The 3rd defendant has produced Exs.B.3 and B.4 as parent documents to his Ex.B.2 sale deed, which has been executed by Radhakrishnan S/o. Subramania Thevar.
60. The said Survey No.152/3 has been sub-divided as S.No.153/3A (Patta No.400), 152/3B (Patta No.401) and 152/3C (Patta No.402) (See Ex.B.22 Sketch Map) in the name of 3rd defendant's vendor Radhakrishnan and this has taken place during the life time of Mayandi Thevar. This sub-division has been admitted by the plaintiff. They also did not deny that suit western S.No.1.39 is part of the total 2.01 Acres in the un-subdivided S.No.152/3.
61. It is pertinent to note that the legal heirs of Mayandi Thevar mentioned in Ex.B.4 and the Mayandi Thevar mentioned in Ex.A.1 are not one and the same because they are the sons of different persons. 1.81 Acres have been conveyed under Ex.B.3. That has also been conveyed under Ex.B.4. However, under Ex.B.2, only 1.39 Acres have been conveyed. It is also pertinent to note that Radhakrishnan's father Subramania Thevar's vendor purchased 1.81 acres under Ex.B.4. But Radhakrishnan has sold only 1.39 acres under Ex.B.2 retaining the balance land with him. That is why there is difference in extent between Exs.3 and 4 and Ex.B.2.
62. It is pertinent to note that in the next survey No.152/1, plaintiff is having his land. Further, even in S.No.152/3, the balance property out of 2.1 acre after selling 1.39 acres is being with the vendors. Naturally, there will be change in the boundaries because of change in the ownership and the land adjoining to the land comprised in S.No.152/3A.
63. As regards 1.39 Acres comprised in S.No.152/3A, originally patta stood in the name of Radhakrishnan's grand-father Mayandi Thevar. (See Exs.B.18, B.19 Chitta.) Subsequently, after the purchase of the property by the 3rd defendant under Ex.B.2 Sale deed on 03.06.1992, the patta No.400 has been changed as Patta No.603 in the name of 3rd defendant. This is evident from Exs.B.20 and 21 - Chitta, Exs.B.5 and 6 - U.D.R. Patta and Exs.B.7 to 12
- Kists in the name of 3rd defendant for patta No.603. Further, under Exs.B.16 and 17, Electricity Charges have been paid in the name of 3rd defendant for the service connection 342.
64. In his cross-examination P.W.1 did not deny the said sub-division. He also did not deny patta No.400 having become patta No.603. Though he has stated originally the patta number is 279 and patta No.279 stands in the name of his vendor Mayandi Thevar, he did not produce such patta. Survey No.152/3 having been so sub-divided has already been testified by the revenue staff D.W.2.
65. Thus, from the above analysis, it is seen that the title traced by the plaintiff to the entire 2.01 acre comprised in S.No.152/3 (before sub- division) said to have belonged to 1st plaintiff's vendor Devaraj has not been established. Plaintiff has not established that Devaraj had prior antecedent title. Documents produced by the plaintiffs also not vouchsafe their possession of the entire 2.01 acres.
66. In such circumstances, plaintiffs have not clearly established that they have titled to the entire 2.01 acres. The documents filed by them do not vouchsafe their allegations that they are being in possession. Therefore, at any stretch of imagination, the plaintiffs cannot be stated to be in legal possession of the entire 2.01 acres.
67. On the other hand, the 3rd defendant established his purchase of 1.39 acres out of 2.01 acres under Ex.B.2 by producing the parent title deeds also. The 3rd defendant also established his vendor Radhakrishnan's title to the property conveyed to him and possession of the property by Radhakrishnan and thereafter by the 3rd defendant. Under such circumstances, the trial Court has correctly recorded the finding as to 3rd defendant's title and possession. Further, the said finding has not been disturbed by the first appellate Court.
68. Instead of deciding the case of the parties based on their evidence, oral and documentary, the 1st appellate Court had gone into inconsequential matters such as haste in the execution of Ex.B.1 sale agreement dated 07.10.1991, few days delay in registering Ex.B.2 dated 03.06.1992. They will not militate against the undeniable title of the 3rd defendant emanating from the documentary evidence and admissions of P.W.1 himself in his cross-examination.
69. No doubt, in his plaint in O.S.No.252 of 1996, plaintiff (3rd defendant in O.S.No.259 of 1996) alternatively claimed recovery of possession. It may be by way of abundant caution. On evidence, the trial Court has found that the 3rd defendant is in possession of the property and granted recovery of possession also. That will not demolish the case of the 3rd defendant, which is completely backed by evidence. This inconsequential matter has been unnecessarily magnified by the first appellate Court.
70. The admitted case of both, namely the plaintiffs and the 3rd defendant is that 3rd defendant's suit property is only 1.39 acres out of 2.01 acres. The trial Court having found that the 3rd defendant is having title and possession to the said 1.39 acres has granted him relief for the same. The trial Court having not given any relief in favour of the plaintiffs with reference to the balance property after 1.39 acre out of 2.01 acres would not make throwing away of the entire case of the 3rd defendant.
71. Further, plaintiffs have pleaded title to 2.01 Acre. They had stated that they are in possession in the said capacity and sought for injunction. They had failed to establish their title to the said 2.01 acres and also legal possession. They have not established that they are in legal possession. In such circumstances, the first appellate court granting relief to the plaintiffs on mere conjectures, surmises and guessing is unsustainable. Thus, the dismissal of the suit in O.S.No.252 of 1996 by the 1st appellate Court is flawed.
72. In view of the foregoings, all the substantial questions of law are answered as against the respondents.
73. In the result, the Second Appeals are allowed. The judgment and decree of the I Additional Sub Court, Madurai in A.S.Nos.118 and 119 of 2004 are set aside. The decree and judgment of the District Munsif, Usilampatti in O.S.No.252 of 1996 are restored with the modification that relief of declaration and injunction to the suit property alone are granted. The suit in O.S.No.259 of 1996 is P.DEVADASS, J.
sj dismissed. Since both sides are closely related, they shall bear their respective costs in the Second Appeals.
10.11.2014 Internet : Yes Index : Yes krk/sj To 1.The Principal District Judge, Madurai. 2.The I Additional Subordinate Judge, Madurai. 3.The District Munsif, Usilampatti. SECOND APPEAL (MD) Nos.483 & 484 of 2009