Madras High Court
Manthira Thevar (Died) vs Kaliammal : 1St on 12 December, 2017
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
0BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 05.12.2018
Date of Judgment 23.01.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
SA No.1675 of 2000
1.Manthira Thevar (Died)
2.Shanmuga Thevar (Died) : A1 and A2/Appellants/D1 & D2
3.Krishnasamy
4.Balasubramanian
5.Ramalakshmi
6.Annachiammal
7.Parvathi
8.Vijaya : A3 to A8/LRs of the deceased
(A3 to A8 were added, Appellants 1 and 2
vide order, dated 12.12.2017
made in MP(MD)No.6 of 2007
in SA NO.1675 of 2000)
Vs.
1.Kaliammal : 1st Respondent/ 1st Respondent/
Plaintiff
2.Thoogam : 2nd Respondent/2nd Respondent/
3rd defendant
Prayer: This Second Appeal has been filed under Section 100 of
Civil Procedure Code against the judgment and decree, dated
23.03.1999 made in A.S.No.235 of 1996 on the file of the Subordinate
Judge, Tuticorin, confirming the judgment and decree, dated
20.08.1996 made in O.S.No.53 of 1995on the file of the Additional
District Munsif, Tuticorin.
http://www.judis.nic.in
2
For Appellants : Mr.S.Kadarkarai
For 1st Respondent : Mr.A.Chidambaram
for Mr.A.R.Nixon
For 2nd Respondent : No appearance
JUDGMENT
This second appeal is directed against the judgment and decree, dated 23.03.1999 made in A.S.No.235 of 1996 on the file of the Subordinate Judge, Tuticorin, confirming the judgment and decree, dated 20.08.1996 made in O.S.No.53 of 1995 on the file of the Additional District Munsif, Tuticorin.
2.The case of the 1st respondent/plaintiff is that her parents namely Ramaiah Thevar and Madathiammal purchased the suit property from Agniammal, Gomathi Ammal, Balasubramanian and Mariammal under a registered sale deed, dated 02.09.1976 and the vendors of the plaintiff's parents purchased the same on 05.10.1959 and the plaintiff parents executed a settlement deed on 23.11.1978 to the plaintiff and from that onwards, she has been in possession and enjoyment of the same for more than 35 years and since, the defendants are interfering with the plaintiff's peaceful possession and enjoyment of the second schedule of the suit property to an extent of 36-1/2 cents of land and on southern side of 1 acre and 11 cents, the suit was filed.
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3.The defendants resisted the suit by filing written statement contending that the documents filed by the plaintiff are not related to the suit property and the plaintiff never enjoyed the property in dispute and the plaintiff enjoyed the property only an extent of 71 cents and she has not enjoyed the total extent of 1 acre and 11-1/2 cents, out of total extent of 2.23 Acres in Survey No.235/1 as alleged in the plaint and an extent of 1.12 Acres belongs to the 1st defendant and an extent of 1.11 Acres belongs to the 2nd defendant and on the western side to an extent of 40 cents is in enjoyment of the 2nd defendant and his brothers Velu Thevar, Krishna Thevar, Palani Thevar and the plaintiff is enjoying only 71 cents and not an extent of 1 acre and 11 cents and the Revenue Authorities sent a notice on 19.07.1985 to the plaintiff and issued a joint patta and since, the suit has been filed by the plaintiff in the year 1995 that is beyond three years, which is barred by limitation and the defendants are in continuous possession and enjoyment of the suit property for more than 15 years and the defendants are having perfect title to the plaint second schedule property by adverse possession and prayed for dismissal of the suit.
4.The trial Court had partly decreed the suit on 20.08.1996. On appeal preferred by the defendants 1 and 2, the first appellate court had confirmed the findings of the trial court and dismissed the appeal http://www.judis.nic.in 4 on 23.03.1999. Aggrieved by the judgments of the courts below, the defendants 1 and 2 are before this Court.
5.While admitting the second appeal, this court has framed the following substantial question of law:-
Whether the suit claim is barred by limitation?
6.The learned counsel for the appellants argued that the 1s respondent/plaintiff received the notice under Ex.A7, dated 19.07.1986, but she has not filed the suit within three years, but the she filed the suit only on 03.02.1995, which was beyond the period of three years and hence, the suit is barred by limitation and the defendants are in continuous possession and enjoyment of the suit property for more than 15 years and the defendants are having perfect title to the second schedule property by adverse possession continuously and uninterruptedly and the 1st respondent/plaintiff is not entitled to the suit property and hence, the findings of the courts below are to be set aside and the second appeal has to be allowed.
7.On the other hand, the learned counsel appearing for the 1 st respondent/plaintiff argued that the second schedule property is the part of the first schedule property and the parents of the plaintiff http://www.judis.nic.in 5 purchased the same from Agniammal, Gomathi Ammal, Balasubramanian and Mariammal and the parents of the plaintiff executed a settlement deed in favour of the plaintiff in respect of the first schedule property and from the date of gift deed, the plaintiff was in possession and enjoyment of the suit property and the defendants have attempted to disturb the possession of 36-1/2 cents on the southern side of the first schedule property and since the plaintiff took steps to measure her property, it was resisted by the defendants and hence, the plaintiff filed the suit and the suit is not barred by limitation and the defendants are not entitled to the suit property by way of adverse possession and prays for dismissal of the second appeal.
8.Heard the learned counsel appearing on either side and perused the materials available on record.
9.In this case, the plaintiff was examined as PW1. PW1 stated during her evidence that she filed petition before the Revenue Authorities challenging the joint patta issued in respect of the first schedule property and subsequently, she filed a petition to grant separate patta in respect of the first schedule property in her favour and on 13.12.1994, the Tashildar, Ottapidaram has passed an order stating that since the defendants opposed for demarcation of the suit http://www.judis.nic.in 6 property, the plaintiff was advised to approach the civil court for demarcation and rejected to grant patta.
10.It is seen that the said order was passed on 13.12.1994. The plaintiff challenged the grant of joint patta in respect of the first schedule property and after exhausting the remedy before proper forum, Ex.A7 order was passed on 13.12.1994. Hence, the plaintiff filed the suit in the year of 1995 that is within three years from the date of Ex.A7. Therefore, this Court is of the considered view that the suit is not barred by limitation.
11.The next contention of the appellants/defendants 1 and 2 is that their grand-father Kumarvel Thevar had 5 sons and the suit property originally belonged to Subbiah Thevar, who is the father of Kumarvel Thevar and the survey number for the suit property is 235 and the extent of the survey number 235 is 2 Acres and 23 cents and the above property was orally partitioned between Subbiah Thevar and Krishna Thevar and the other brothers of Subbiah Thevar were given other properties and the property allotted to Subbiah Thevar is south-north 40 cents, and 71 cents east-west and 40 cents, out of 1 acre 11 cents were allotted to the sons of Subbiah Thevar namely Vel Thevar, Shanmuga Thevar, Krishna Thevar, Palani Thevar and the remaining 71 cents was allotted to Manthira Thevar and hence, http://www.judis.nic.in 7 Manthira Thevar is entitled only 71 cents, but he sold 1 acre and 11 in Survey No.235/1 to Manthira Thevar and as per Ex.A2, he sold the property to his daughters Agniammal, Gomathi Ammal, and his sons Balasubramanian and his minor daughter Mariammal and in turn, the above sons and daughters of Manthira Thevar sold 1 acre and 11 cents to Ramaiah Thevar and Madathiammal and as per Ex.A3, Ramaiah Thevar and Madathiammal executed a gift deed in respect of 1 acre and 11 cents in Survey No.235/1 and hence, the plaintiffs predecessor-in-title was entitled to 71 cents only and hence, the plaintiff is not entitled to 1 acre and 11 cents and hence, the plaintiff is not entitled to the relief of declaration and injunction in respect of the second schedule property.
12.It is admitted on both sides that originally the suit property to an extent of 1 acres 35 cents in Survey No.235 belonged to Subbiah Thevar and the above property was orally partitioned between Subbiah Thevar and Krishna Thevar and Subbiah Thevar was given 1 Acre and 11 cents. As per the version of the defendants, the above 1 Acre and 11 cents allotted to Subbiah Thevar was orally partitioned between his sons and in the other oral partition, his son Manthira Thevar was given 70 cents and his sons namely Vel Thevar, Shanmuga Thevar, Krishna Thevar and Palani Thevar were allotted another 40 cents. To prove it, no document was filed on the side of http://www.judis.nic.in 8 the defendants and only on the basis of the above oral partition, mutation took place.
13.It is seen that the above oral partition among the sons of Subbaiah Thevar was denied on the side of the plaintiff. Hence, it is the bounden duty of the defendants to prove the above partition. But the defendants have not filed any document to show the above partition.
14.In this case, the 2nd defendant was examined as DW2. DW2 during his chief examination stated that the property in Survey No. 235 to an extent of 2 acres and 23 cents originally belonged to Subbaiah Thevar and then the above property belonged to Kumaravel Thevar and sons of Kumarvel Thevar orally partition the above properties and his father Subbaiah Thevar is entitled to 1 acre and 11 cents and in the above 1 Acre and 11 cents, Manthira Thevar was given 71 cents and the other sons of Subbaiah Thevar were given 40 cents and the Manthira Thevar, the predecessor in title of the plaintiff is entitled to only 70 cents and not 1 Acres 11 cents. But DW2 during his cross examination stated as follows:-
“vd; mg;gh bgah; Rg;igah njth;. vd;
mg;gh Rg;igah njtUf;F tlgf;fk; 1 Vf;fh;
http://www.judis.nic.in 9 11-1/2 brz;Lk;> 1k; gpujpthjp mg;gh fpU\;znjtUf;F bjd;gf;fk; 1 Vf;fh; 11-1/2 brz;Lk; xJf;fpdhh;fs;. vq;fs; FLk;g ghfg;gphptpid gj;jpuk; ,y;iy. tlgf;fk; cs;s 1 Vf;fh; 11-1/2 brz;l; vd; rnfhjuh; ke;jpunjtUf;F XJf;fg;gl;lbjd;why; rhpay;y. 1959y; ke;jpu njth; mijjd; gps;isfSf;F vGjpf; bfhLj;jhh; vd;why; rhpay;y. vGjpf; bfhLj;jJ tp\akhf eltof;if vLf;ftpy;iy. 1959f;F gpwF buhk;gehs; gps;isfs;me;j brhj;ij Mz;lhh;fs;. mth;fs; me;j brhj;ij ntW ahUf;fhtJ fpuak; bra;J bfhLj;jhh;fsh vd;why; bjhpahJ. nkw;go ehd;F ngUk; jhth brhj;ij khlj;jp mk;khSf;Fk; uhikah njtUf;Fk; fpuak; vGjpfbfhLj;jhh;fs; vd;why; rhpjhd.; thq;fpd Ml;fs; brhj;ij mDgtpj;jhh;fs.; khlj;jp mk;khs; uhikah njth; mDgtk; bra;jhh;fs; vd;why; rhpjhd;. mth;fs; kfs; jhd; fhspak;khs; vd;why; rhpjhd;. mth;fs; kfs; jhd; fhspak;khs.; 23.11.78-y; thjp fhspak;khSf;F mth;fs; mk;kht[k; mg;ght[k; ed;bfhil vGjpf; bfhLj;Js;shh;fs; vd;why; rhpjhd;. http://www.judis.nic.in 10 ..tlghjpapd; bjd; gFjpis ke;jpu njth; mDgtk; bra;fpwhh;. ehd; mDgtk; bra;atpy;iy.”
15.On careful perusal of the cross examination of DW2, it reveals that Manithira Thevar was in possession of 1 Acre 11 cents and further, DW2 admitted that the above property was not in their possession. Further, the defendants in their written statement claimed adverse possession in respect of the second schedule property. But DW2 admitted during his chief examination deposed that Manthira Thevar was in possession of 1 Acre and 11 cents.
16.The contention of the plaintiff is that only after filing of the suit, the defendants encroached the second schedule of the suit property. Now the defendants claimed that they are in possession of the above property. But to prove the fact that the second schedule of the suit property belonged to the defendants, no document was filed on their side. Hence, the possession claimed by the defendants that they encroached the second property is not at all acceptable.
16.It is admitted on the side of the appellants that the Survey No.235 was sub-divided into 235/1 to 3. On perusal of Exs.A1 to A3, the extent and four boundaries are one and the same. It is to be noted http://www.judis.nic.in 11 here that without filing any document on the side of the appellants to prove that the plaintiff's predecessor-in-title is entitled to 70 cents, the argument put forth on the side of the appellants stating that the 1st respondent/plaintiff is entitled to only 70 cents is not at all acceptable.
17.Further, on the side of the appellants, it is argued that from the date of oral partition, the sons of Subbaiah Thevar was in possession of 40 cents and the defendants enjoyed the suit property for a statutory period without any obstruction from the plaintiff's predecessor-in-title and hence, the defendants are entitled to the suit property by way of adverse possession and prays that the plaintiff is not entitled to any relief.
18.It is to be noted here that to prove that the defendants enjoyed the suit property for a statuary period, no document was filed. Further, the defendants have not pleaded, when the suit property became adverse to them. There was no specific pleading in the written statement filed by the defendants with regard to their adverse possession.
19.Further, DW2 during his cross examination stated that the property of his father was partitioned and the suit property was not http://www.judis.nic.in 12 yet partitioned and 1st defendant Manthira Thevar had never enjoyed the suit property. But at the same time, he admitted during his cross examination that the 1st respondent/plaintiff was in possession of 1 Acre and 11 cents. DW2 himself admitted that the plaintiff was in possession of 1 Acre and 11 cents. Hence, the admitted facts need not be proved.
20.Further, in this case, an Advocate Commissioner was appointed and he visited the suit property and filed his report. The report and plan of the Commissioner was marked as Exs.C1 and C2.
On perusal of Ex.C2, the Commissioner showed the first schedule as 'BCJI' and the second schedule property as 'EFIJ' and survey No. 235/1A as first schedule property and further, the Commissioner stated that the second schedule property comes under Survey No. 235/1A. Hence, it reveals that the second schedule property is form part of the 4th schedule.
21.The defendants have not filed any document to show that they are entitled to the suit property by way of adverse possession. They pleaded adverse possession, but, DW2 admitted that the plaintiff was in possession of the suit property. But they failed to prove that they are in possession of the suit property for a statutory period. Hence, it is held that the defendants are not entitled to the suit http://www.judis.nic.in 13 property by way of adverse possession. Accordingly, the substantial question of law is answered in favour of the 1st respondent/plaintiff and against the appellants/defendants.
22.For all the reasons stated above, this court is of the firm view that the concurrent finds of the courts below does not require any interference by this Court.
23.In the result, the Second Appeal is dismissed. The Judgment and decree of the courts below are confirmed. No costs.
23.01.2019 Index : Yes/No Internet: Yes/No er To,
1.The Principal Subordinate Judge, Tuticorin.
2.The Principal District Munsif, Tuticorin.
http://www.judis.nic.in 14 T.KRISHNAVALLI,J er S.A.No.1675 of 2000 23.01.2019 http://www.judis.nic.in 15
11.The next contention of the appellants is that the 1st respondent/plaintiff enjoyed the property only an extent of 70 cents and she has not enjoyed the total extent of 1 Acres 11-1/2 cents, out of the total extent of 2.23 Acres in Survey No.235/11 as alleged in the plaint, that is an extent of 1.12 Acres belongs to the 1st defendant/1st appellant father Krishna Thevar and an extent 1.11 Acres belongs to the 2nd defendant/2nd appellant father Subbiah Thevar and on the western side an extent of 40 cents is in enjoyment of the 2nd defendant/2nd appellant and his brothers Velu Thevar, Krishna Thevar Palani Thevar and hence, the plaintiff is enjoying only 71 cents and not an extent of 1 Acres and 11 cents and there is no evidence on the side of the plaintiff to prove that the defendants encroached the suit property after filing of the suit and the defendants are enjoying the suit property for a statutory period and they have preferred titled by way of adverse possession continuously and uninterruptedly. For that, the learned counsel for the appellants submitted an unreported judgment made in SA(MD)No.357 of 2009, dated 01.07.2015 (V.Meenakshysundaram through his Power Agent R.Jeyaraman Vs. P.Shanmugam and another).
12.The learned counsel for the appellants submitted that after http://www.judis.nic.in 16 partition of 1.12 Acres between the son of the Subbiah Thevar and Krishna Thevar, the son of Manthira Thevar sold 6 cents, out of 40 cents allotted to him and his brothers and hence, it shows that the son of Manthira Thevar is entitled to 70 cents and the brothers and sons of Subbaiah Thevar are entitled to 40 cents. Hence, the plaintiff is not entitled to the suit property as prayed for.
13.In this case, to prove that the Krishna Thevar, son of Subbiah Thevar executed a sale deed in favour of the plaintiff, the certified copy of the sale deed was marked as Ex.B1. On perusal of Ex.B1, it is not stated that out of 40 cents granted in the oral partition, he sold 6 cents to the plaintiff. Further perusal of Ex.B1, in the description of property, it is stated as follows:-
“jgrpy; ghisaq;nfhl;il hpo faj;jhh;
rg;hp bjd;dk;gl;o fpuhkj;jpy; mad;g[Q;ir rh;nt 235-y; R.fpU\;znjth; 3 Vf;fh; 2 brz;L 23y; tlnky; gf;fk; brz;L 6.” Hence, on the basis of Ex.B1, it is not possible to come to the conclusion that the sons of Subbiah Thevar namely Shanmuga Thevar, Velu Thevar and Krishna Thevar were given 40 cents and another son Manthira Thevar was given 70 cents.
14.It is seen that the plaintiff claims title on the basis of Ex.A2 http://www.judis.nic.in 17 gift deed executed by her parents. Exs.A1 and A2 are the parent documents of Ex.A3. In this case, the first defendant was examined as DW1. DW1 deposed that the total extent of the property is 2.23 cents and it lies in Survey No.235 and the suit property originally belonged to Subbiah Thevar, who is the father of his father and the above property was partitioned between Subbiah Thevar and his father Krishna Thevar orally and other properties were allotted to the brother of Subbiah Thevar and Subbiah Thevar was allotted north- south 40 cents and east-west 70 cents and the above 40 cents was divided among the sons of Subbiah Thevar and the remaining 70 cents was allotted to Manithra Thevar and hence, the predecessor-in- title of the plaintiff are entitled to 70 cents and the plaintiff is entitled to 70 cents.
15.To prove that the properties given to Subbiah Thevar was partitioned as 40 cents and it was allotted to the sons of Subbiah Thevar, the sons of Velu Thevar, Shanmuga Thevar, Krishna Thevar Palani Thevar and the remaining 70 cents was allotted to the Manthira Thevar, who was the another son of Subbiah Thevar. But it is admitted that the father of Manthira Thevar was given 1.12 Acres. No document was filed on the side of the appellants to prove the above oral partition was took place among the sons of Subbiah Thevar. Further, to prove that on the basis of the oral partition, http://www.judis.nic.in 18 mutation took place in respect of 40 cents in favour of the son of Subbiah Thevar, Shanmuga Thevar, Velu Thevar and Palani Thevar and 70 cents in favour of Manthira Thevar. But on perusal of Exs.A1 to A3, it is seen that the plaintiff's predecessor-in-title are entitled to 1 Acres 12 cents in Survey No.235/1.
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