Madras High Court
Isthalingam vs Meenambal(Died) on 29 March, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.3.2012
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.No.712 of 1991
Isthalingam .. Appellant
vs.
1.Meenambal(died)
2.Unnamalai (Died)
3.K.Ramachandran
4.Natarajan
5.Sundaram(deceased)
6.Natesan(deceased)
7.Ramasamy Reddiar(died)
8.Dhanalakshmi
9.Manickavasagam
10.Shanugam
11.Valliammal
12.Durai(minor)
13.Sankar(minor)
14.Arul(minor)
12 to 14 sons of late Anandan,
rep.by their mother and
natual guardian Dhanalakshmi,
8th respondent herein
15.Rajendran
16.Radha @ Unnamalai
17.Krishnamurthy
R15 brought on record as
LR of the deceased R1 vide
order of Court dated 22.4.2009
made in C.M.P.Nos.1335 to 1337
of 2008
R16 brought on record as LR of the
deceased R2 vide order of Court
dated 22.4.2009 made in CMP
Nos.1338 to 1340 of 2008
R17 brought on record as LR of the
deceased R7 vide order of Court
dated 22.4.2009 made in CMP
Nos.1341 to 1343 of 2008
18.Senthamarai
19.S.Kumaran
20.Ananthi
21.S.Palani
R18 to 21 brought on record
as Lrs of deceased R5 vide
order by Court dt.20.7.2011
made in CMP Nos.642 to 647
of 2011
22.Nirmala
23.Meenakshi
24.Bhuvanalochani
D/o.late Natesan,
rep.by mother and
natural guardian
Nirmala ... Respondents
R22 to 24 brought on record
as Lrs of deceased R6 vide
order of Court dt.20.7.2011
made in CMP Nos.642 to 647
of 2011
Appeal preferred against the judgment and decree dated 10.6.1991 passed by the First Additional District Judge of Pondicherry in O.S.No.4 of 1983.
For Appellant : Mr.R.Subramani
For Respondents : Mr.G.Masilamani, Sr.Counsel
for M/s T.P.Manoharan for R3
Mr.V.Prabhakar for R4, R8 to R14
M/s G.sumithra for RR15 to R17
M/s I.Abrar Md. Abdullah
for RR 18 to 24
JUDGMENT
Animadverting upon the judgement and decree dated 10.6.1991 passed by the First Additional District Judge of Pondicherry in O.S.No.4 of 1983, which is one for declaration and permanent injunction, this appeal has been focussed by the third defendant.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Precisely but broadly, succinctly but narratively, the germane facts absolutely necessary for the disposal of this appeal would run thus:
(i) The original plaintiffs, namely, 1.Alamelu @ Pavunambal, rep.by her power agent K.Ramachandran, 2.Meenambal, 3.Unnamalai and 4.K.Ramachandran, the respondents 1 to 3 herein, filed the suit seeking the following reliefs:
"1.declaring that the plaintiffs are the absolute owners of the suit schedule mentioned properties.
ii) for the relief of permanent injunction in favour of plaintiffs restraining the defendants, their agents, their henchmen, their heirs, their servants, from interfering into the peaceful possession and enjoyment of the suit schedule mentioned properties by the plaintiffs.
iii) for cost of this suit." (extracted as such) based on the following facts, which could tersely and briefly be set out thus:
(a) Originally the properties described in the schedule of the plaint, 8 in number, belonged to one Subburaya Gounder, who died intestate, leaving behind his only son Velu Gounder to inherit and enjoy the properties. Whereupon Velu Gounder, while he was in possession and enjoyment of the suit properties, died intestate in the year 1932, leaving behind his daughters, namely, 1.Pavounambal(the first plaintiff), 2.Amma Ponnu Ammal @ Kuzhandai-the mother of plaintiffs 2 and 3, as his legal heirs and they were in possession and enjoyment of the suit properties. The said Amma Ponnu Ammal @ Kuzhandai died intestate on 10.6.1953, leaving behind her two daughters, namely, 1.Unnamalai and Meenambal(plaintiffs 2 & 3). Those two sisters married one and the same person, namely, Kuppusamy Gounder of Anbhizhigai of Tindivanam Taluk and they entrusted the entire right of administering the suit properties with the first plaintiff, who was in possession and enjoyment of the same. As such, the legal heirs of Velu Gounder, referred to supra, had been in possession and enjoyment of the suit properties ever since the death of their father Velu Gounder. They leased out the suit properties in favour of one Ramasamy Gounder, son of Sadaya Gounder of Kunichampet Village, vide lease deed dated 30.1.1957 and up to the year 1970, he was in possession and enjoyment of those properties.
(b) In the month of October 1970, the said Ramasamy Gounder surrendered physical possession of the suit properties in favour of the plaintiffs; whereupon, the plaintiffs on 9.11.1970 leased out the suit properties in favour of one Manickam, son of Iyyacannou Gounder of Kunichampet village, who continued to enjoy the suit properties. On 13.3.1981, he surrendered the physical possession of the suit properties in favour of the plaintiffs. Whereupon the first plaintiff has been in possession and enjoyment of the suit properties, through her Power Agent-K.Ramachandran, who has been cultivating the items 1 to 7 of the suit properties. The plaintiffs have been enjoying item No.8 by putting up hayrick and they have also grown Poovarasan trees thereon and a part of it also is being used as thrashing floor.
(c) While so, the defendants 1 to 5, who are the sons and grandsons of Natesa Gounder, hailed from Ranganathavaram of South Arcot District, started making untenable claims over the suit properties, on 28.7.1982, and they also tried to interfere with the peaceful possession and enjoyment of the same.
(d) The defendants contending that one Mottaiya Gounder and Sivapakkiathammal sold certain items of suit properties, as per an alleged sale deed of the year 1940 in favour of a third party, claimed right over the suit properties as though the defendants purchased the suit properties from the said third party on 27.8.2971 and 21.10.1971.
(ii) In a bid to torpedo and pulverise the averments/allegations in the plaint, D3 filed the written statement, which was adopted by the other defendants, the summation and summarisation of the same would run thus:
(a) The narration of facts in the plaint as though the plaintiffs were in possession and enjoyment of the suit properties through their tenants is false.
(b) The suit was barred by res judicata.
(c) One Manickam, the alleged tenant of the plaintiffs filed a suit in O.S.No.351 of 1972 for injunction in respect of the same suit properties and the suit was decreed partly by the Additional District Munsif, Pondicherry and as against which, appeal was filed and the same was dismissed.
(d) The suit properties did not belong to Subburaya Gounder at any point of time and the claim of the plaintiffs that they inherited the suit properties from Subburaya Gounder is false.
(e) One Mottaiya Gounder, son of Manicka Gounder along with Sivapakkiathammal, wife of Velu Gounder sold the items 1 to 9 of the suit properties (there are only 8 items and not 9 items in the suit) in favour of Periathambi Gounder, son of Rangavelu Gounder, who in turn sold those properties as per the sale deed of the year 1963 in favour of Annamalai Gounder, Datchinamurthy Gounder and Ananda Gounder, who started enjoying those properties and they also paid tax.
(f) The plaintiffs were not in possession of the suit properties at any point of time and they did not pay any tax in respect of the same.
(g) The Matrice Cadasrale stands in the name of the defendants only. The subsequent Survey Records also would speak in the name of the defendants.
Accordingly, the defendants prayed for the dismissal of the suit.
(iii) The defendants also filed the additional written statement, setting out the plea that the suit was barred by Order 2 Rule 2 of CPC as well as limitation. The genealogy, as found set out in the plaint is false. Subburaya Gounder had a son by name Manicka Gounder, who had two sons, namely, Mottaiya Gounder and Natesa Gounder. Periathambi Gounder, who purchased items 5, 6, 7 and 8, as per the sale deed dated 2.3.1940 from Mottaiya Gounder and Sivapakkiathammal, who was the daughter of late Kanagamoola Gounder and widow of Velu Gounder, sold those items, in turn, to Annamalai Gounder, Datchibnamurthy Gounder and Ananda Gounder as per sale deed dated 1.10.1963. Accordingly, the defendants prayed for the dismissal of the suit.
(iv) The trial Court framed the issues.
(v) During trial, on the plaintiffs' side, P.Ws.1 to 6 were examined and Exs.A1 to A32 were marked. On the defendants' side, D3-Isthalingam examined himself as DW1 and marked Exs.B1 to B67.
(vi) The trial Court ultimately decreed the suit.
4. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, D3-Istalingam alone filed this appeal on various grounds.
5. The learned counsel for the appellant/D3 placing reliance on the grounds of appeal would advance his arguements, the epitome and the long and short of the same would run thus:
(a) Disregarding the well settled principle that the 'burden of proof' is on the plaintiffs to prove their title and possession over the suit properties as on the date of filing of the suit for declaration and for injunction, the trial Judge simply decreed the suit taking the plaintiffs case for gospel truth.
(b) Belittling the well settled French legal propositions of law relating to Notaire Sale deeds, the trial Judge treated Ex.B1-the sale deed dated 1.10.1963 as well as Ex.B2-the Notaire sale deed dated 2.3.1940 as void.
(c) For no good reason, Ex.B3-the Matrice Cadasrale, which stood in the name of Periathambi Gounder was disregarded by the trial Court.
(d) The absence of reference to the antecedent title deed in Ex.B2, was not fatal to the genuineness of the said document.
(e) The trial Judge should have noted that Mottaiyagounder-the vendor under Ex.B2 inherited the properties referred to therein from the original owner Subburaya Gounder and there was no antecedent title deed to that effect.
(f) The trial Judge was not justified in holding that Mottaiya Gounder has only a 'Driot Viagere' and 'Possession Viagere' and did not have title over the suit properties.
g) The hostile possession of the defendants over the suit properties was not considered by the lower Court.
(h) In the absence of any evidence on the plaintiffs' side to prove their possession, the trial Court was not justified in granting permanent injunction.
(i) The title acquired by adverse possession by the defendants was not also taken into consideration by the lower Court.
(j) Exs.B7, B8, B13, B14 to B17, B20 to B24, B31 and B33 to B67 were not considered by the lower Court, but it rejected the plea of possession of the suit properties by the defendants over a period of 50 years.
(k) The lower Court should have held that the plaintiffs have not proved the genealogy set out in the plaint. Referring to the deposition of P.W.1, the trial Court should have dismissed the suit.
(l) The defendants, in respect of items 4 to 8, placing reliance on Exs.B1 and B2, cogently and legally established their title over those items and the trial Judge was not justified in ignoring the same.
(m) In the previous litigation initiated by Manickam-the alleged tenant of the plaintiffs, the District Munsif Court, as well as the appellate Court, namely, the District Court held that the said Manickam-being the tenant of the plaintiffs was entitled to get injunction only in respect of items 1 to 3 and part of item No.6 and not in respect of the rest of the 9 items referred to in those proceedings and that too, Manickam could get injunction purely based on Ex.A2-the matrice Calastre stood in the name of Amma Ponnu @ Kulandai and Alamelu @ Pavounambal.
(n) In respect of the rest of the suit items, there is no shard or shred, iota or molecular extent of evidence adduced on the plaintiffs side to prove their title and possession and on that ground, the trial Court should have dismissed the suit.
Accordingly, the learned counsel for the appellant/D3 would pray for setting aside the judgement and decree of the trial Court and for dismissing the original suit.
6. The rest of the arguements of the learned counsel for the appellant/D3 would be referred to at the appropriate place infra, during discussion.
7. In a bid to make mincemeat of and torpedo the arguements as put forth on the side of the appellant/D3, the learned counsel for the respondents/plaintiffs would pilot his arguements, the epitome and the summation of the same would run thus:
(i) The Etat Civil records namely, Exs.A12, A14 and A15 relating to the plaintiffs and their relatives would unambiguously and unequivocally establish and evidence the fact that the plaintiffs happened to be the legal heirs of the original owner Subburaya Gounder.
(ii) D3/the appellant herein in his deposition as D.W.1 would categorically and candidly, without mincing words, admit that Subburaya Gounder happened to be the original owner of the suit properties, but he failed to produce even a single Etat Civil record showing that he and the other defendants happened to be the legal heirs of the deceased Subburaya Gounder.
(iii) The prevaricative stands of the defendants would expose that they had no specific case of their own. In one breathe they would claim that Subburaya Gounder had two sons by name, Manicka Gounder and Mottaiya Gounder; Mottaiya Gounder died issueless and that Manicka Counter happened to be the only legal heir of Subburaya Gounder, the original owner of the suit properties, however, in another breathe they would contend that the said Subburaya Gounder was not the owner of the suit properties and the defendants' predecessor became owner by purchasing the suit properties from one Periathambi Gounder.
(iv) The defendants created false declarations before Notaire relating to heirship so as to suit the recitals found set out in Ex.B2-the Notaire document. The defendants' contention that Manicka Gounder was the son of Subburaya Gounder, cannot be true because the said Mottaiya Gounder, son of Manicka Gounder married the said Alamelu @ Pavounambam-the daughter of Velu Gounder and Sivapakkiathammal for the obvious reason that a brother cannot marry his sister.
(v) Mere declarations at the instance of the defendants before Notaire are not authentic and those documents cannot be relied on by the defendants to prove their relationship with the said Subburaya Gounder-the original owner of the suit properties.
(vi) The conduct of the defendants in getting surrender lease deed from Manickam-the tenant of the plaintiffs even after the defendants having failed in the litigation initiated by Manickam, would speak volumes about their false case and that would also indicate that they determined to create document after document, so as to falsify the genuine claim of the plaintiffs.
(vii) The judgements granting injunction by the Additional District Munsif Court and the appellate Court in respect of item Nos.1 to 3 and part of item No.6 of the suit properties in the injunction suit filed by Manickam attained finality and in such a case, the defendants, who were bound by the said judgements, cannot claim that they got surrender of those properties from Manickam. The Courts, in the proceedings initiated by Manickam, granted the relief partly as aforesaid, purely based on the Matrice Cadasrale-Ex.A2 dated 19.12.1956, which refers to only items 1 to 3 and part of item No.6 herein and in respect of other items, those Courts did not grant any relief, because at that time the relevant documents were not produced, however, in the present suit, the plaintiffs being the owners adduced voluminous evidence showing that they are the owners of all the suit items and they have been in possession and enjoyment of the same.
(viii) Exs.A3 and A4-the lease deeds executed by the tenants in favour of the plaintiffs would indicate and exemplify that the plaintiffs were in possession and enjoyment of the suit properties through their tenants and that the last tenant, namely, Manickam surrendered possession in favour of the plaintiffs, whereupon they have been in possession and enjoyment of the same.
(ix) The trial Court correctly decided the suit in favour of the plaintiffs warranting no interference in the appeal.
(x) The present appeal has been filed only by D3 and not by the other defendants and in such a case, in the peculiar facts and circumstances of this case, D3 cannot canvas the case of the other defendants, who, as per the Revenue records produced by them, are divided sharers.
(xi) The Revenue records would indicate that only in respect of one Survey No.120/12 in the Fourth item of the suit properties, the defendants are joint pattadars and in such a case, even though the plaintiffs are not admitting the pattas and the Revenue records produced on the defendants' side as genuine ones, yet for the purpose of resisting this appeal, the plaintiffs are entitled to contend that as per Order 41 Rules 4 read with Order 41 Rule 33 of C.P.C., D3 cannot canvas the case of other defendants who are divided sharers.
8. The other arguements of the learned Senior counsel for the respondents/plaintiffs, would be referred to infra, at the appropriate stage of discussion.
9. The points for consideration are as under:
(i) Whether as per Order 41 Rules 4 and 33 of C.P.C. the appellant/D3 is not entitled to canvas the entire case of the defendants including his own case and challenge the whole judgement and decree of the trial Court in respect of all items of the suit properties, in view of the Survey records produced by them before the trial Court showing that the suit items of properties are standing not jointly in the names of the defendants, but dividely except one item which stands in the joint names of the defendants?
(ii) Whether the trial Court failed to apply the principle of 'onus of proof' properly in deciding the case?
(iii) Whether the plaintiffs have not proved their title to the suit properties by producing legal evidence and whether the trial Court was justified in allegedly picking holes in the case of the defendants and in decreeing the suit in favour of the plaintiffs?
(iv) Whether the plaintiffs are entitled to place reliance on the alleged admission made by D.W.1(D3) in his deposition that Subburaya Gounder happened to be the original owner of the suit properties?
(v) Whether the trial Court was justified in treating Exs.B1 and B2 as null and void even though they happened to be notaire documents i.e. Acte authentique and also in ingnoring the subsequent emergence of Matrice Cadestrals following the aforesaid sale deeds?
(vi) Whether the trial Court was justified in granting injunction even though the plaintiffs allegedly have not produced any evidence to prove their possession over the suit properties as on the date of filing of the suit?
(vii) Whether there is any perversity or illegality in the judgement and decree of the trial Court?
10. The whole kit and caboodle of the facts, which are absolutely necessary and germane, could be discussed under the following sub heads:
(i) Genealogy relating to Subburaya Gounder and his descendants.
(ii) The effect of the previous two judgements in O.S.No.351/1972 and A.S.Nos.135 and 113 of 1976 in respect of the suit properties and the prayers of the plaintiffs in this case.
(iii) The evidentiary value of the French documents, namely, Ex.B1-the sale deed dated 1.10.1963 executed by Periathambi Gounder in favour of Anandan, Annamalai and Datchinamurthy and Ex.B2-the original sale deed dated 6.3.1940 executed by Mottaiya Gounder and Sivapakkiathammal in favour of Periathambi Gounder and Exs.B3, B5 and B6, the Matrice Cadasrales relating to the suit properties.
(iv) The documents which emerged prior to the litigation initiated by Manickam by filing the suit O.S.No.351 of 1972 and thereafter and also the ones emerged subsequent to the present suit.
In re genealogy pertaining to Subburaya Gounder and his descendants:
11. I would like to refer to the genealogy as per the plaintiffs.
One Subburaya Gounder died leaving behind his only son Velu Gounder, whose wife's name is Sivabakkiyathammal, daughter of Kanagamoola Gounder. Velu Gounder and Sivabakkiyathammal gave birth to two daughters, namely, Amma Ponnu and Alamelu @ Pounambal and no sons. Amma Ponnu and her husband-Vadivelu gave birth to two children, namely, Unnamali (P3) and Meenambal(P2). Amma Ponnu died on 10.6.1953. The said Alamelu @ Pounambal married one Mottaiya Gounder and the couple gave birth to one daughter by name Alamelu @ Kannammal, whose husband is Kodandapani. Alamelu @ Pounambal died during the year 1986. The couple, namely, Alamelu @ Kannammal and Kodandapani gave birth to six children, namely, 1.Ramachandran (P4), 2. Jeyalakshmi (died during the year 1999), 3. Jeyaraman (not a party to the suit), 4. Sivaprakasam (not a party to the suit), 5.Sivanandam(not a party to the suit) and 6.Mohan (not a party to the suit).
12. Before her death, the said Alamelu @ Pounambal executed a Will bequeathing the properties in favour of Ramachandran(P4).
13. However, the defendants would project a different genealogy as under:
One Subburaya Gounder had two sons by name Manicka Gounder and Muniyappa Gounder. Muniyappa Gounder died in unmarried state. The said Manicka Gounder gave birth to two sons, namely, Natesa Gounder and the said Mottaiya Gounder-the husband of Alamelu @ Pounambal(P1). Natesaa Gounder gave birth to three children, namely, 1.Annamalai, 2.Dakshinamurthy and 3.Anandan. Annamalai died leaving behind his four children, namely, Subramanian, Sundaram (D4), Istalingam (D3), Natarajan (D2). Dakshinamurthy died leaving behind his son Natesan(D5). The said Anandan died leaving behind D7 to D13.
14. The learned Senior counsel for the plaintiffs, placing reliance on Exs.A12-the birth extract of Alamelu dated 29.04.1906, A14-the death extract of Velu Gounder dated 16.10.1932 and A15-the birth extract of Alamelu dated 24.07.1926, would submit that those documents would prove the genealogy as put forth by the plaintiffs conclusively, whereas, the defendants have not produced any shard or shred, iota or jot of evidence to prove the genealogy as projected by them.
15. It is therefore just and necessary to analyse, at the first instance, Exs.A12, A14 and A15 as under:
Ex.A12 the birth extract of Alamelu dated 29.04.1906 would highlight that Alamelu @ Pounambal (P1) was born on 20.08.1905 to Velayutham Gounder, son of Kolandai Gounder of Kunichampatti Village and Alamelu @ Pounambal whose mother's name is found specified as Sivabakkiyathammal, daughter of Kanagamoola Gounder. This would indicate that Velu Gounder and Sivabakkiyathammal-being husband and wife, gave birth to their daughter Alamelu @ Pounambal-the first plaintiff. The relationship of Velu Gounder with his father Subburaya Gounder, is also found exemplified therein.
16. The question might arise as to how it could be inferred when the name Subburaya Gounder is not found specified in Ex.A12, whereas, only the name of Kolandai Gounder is found therein; for this, the other documents also should be scrutinised.
17. Ex.A14 is the death extract of Velu Gounder dated 16.10.1932, who died on 16.10.1932 at Kunichampatti Village. In that death certificate, Velu Gounder is referred as the son of Subburaya Gounder. In addition to that, the deceased Velu Gounder is also found described therein as the husband of Sivabakkiathammal, daughter of Kanagamoola Gounder. As such, there is clinching evidence to show that Subburaya Gounder was also known as Kolandai Gounder.
18. Ex.A15 is the birth extract of Alamelu, wherein she is referred to as the daughter of the first plaintiff Alamelu @ Pounambal and Mottaiya Gounder. There is also one other point, which has to be understood from this document. The said Alamelu-the first plaintiff was also known as Pounambal and she is described as the daughter of the said Velu Gounder. Mottaiya Gounder happened to be the husband of the first plaintiff-Alamelu also known as Pounambal and the said couple gave birth to their daughter Alamelu as found described to in Ex.A15.
19. In Ex.A15 the said Velu Gounder was described as the son of Kolandai Gounder and it was he who happened to be the witness to that document. In other words, the grandfather of the child Alamelu, namely, Velu Gounder, son of Kolandai Gounder is also found specified in Ex.A15. Axiomatically, all the three documents are ante litum motem documents.
20. In this connection I would like to refer to the French Law on the point PART I, TitleII-OF THE RECORDS OF THE CIVIL STATUS DEPARTMENT OF PART I OF THE FRENCH CIVIL CODE, which would make the point clear that importance could be attached to such Etat Civil records, as those records emerged in appropriate manner within a time frame and in this connection, I would like to refer to the relevant Chapter No.III of the famous treatise Amos and Walton's Introduction to French Law (3rd Edition), which would also exemplify the fact that importance could be attached to Etat Civil Records. Certain excerpts from it would run thus:
3.Etat Civil A person's e'tat civil is the group or complex of qualities or attributes by which he is principally characterized as a subject of capacities and rights-his nationality, age, parentage, adoption, emancipation, status in respect of marriage, subjection to interdiction and so forth. The actes de l'e'tat civil are the official and therefore authentic records of such of those facts as the law requires to be recorded. Births, marriages and deaths are recorded in the registres de l'e'tat civil, kept en double original by the mayors of communes, who are the officiers de l'e'tat civil. At the close of every year one copy of these registeres is transmitted for preservation to the civil court, while the other is preserved in the archives of the mairie. There are no centralized archives such as, in England, are kept at Somerset House.
A practice had grown up of giving to the spouses at the time of marriage a livret de famille, which contained a copy of the marriage certificate and into which were entered from time to time copies of extracts from the registers dealing with such matters as the birth or adoption of children. This practice was regularized and made compulsory by a decree of 1954.
The registres de l'e'tar civil record certain other facts besides birth, death, and marriage. Thus, the recognition of an illegitimate child is registered in the margin of the entry of his birth, a judgment of divorce is recorded in the margin of the registers of the marriage it dissolves and of the birth f each spouse, and an adoption order is required to be recorded in the register of the adoptee's birthplace. But the municipal registers are far from presenting a complete view of the civil status of every citizen. Emancipation, interdiction, judicial separation, separation of property (which puts an end to the marital community), are facts which do not appear upon the register. This lack of completeness, coupled with the absence of centralization, are recognized defects in the existing system.
Civil status is, like property, susceptible of possession. There is a presumption that a person is entitled to the status, such as that of Frenchman, married woman, legitimate child of given persons, which he appears in fact to possess, but he may perfectly well be in possession of a status to which heh is not entitled, just as he may be entitled to a steatus which he does not possess, in which case he has available an action d'e'tat to establish his right. The subject of the possession of a status is dealt with in the Code in reference to a particular case only, that of filiation; but the principles there laid down are of general application. The Code provides as follows:
Possession of the status (of a legitimate child) may be proved by a sufficiently strong combination of facts which indicate the existence of the relation of filiation and parenthood between a person and the family to which he claims to belong.
Of such facts the most important are:
That the person has always borne the name of the father whose child he claims to be;
That the father has treated him as his child, and has provided, in that capacity, for his education, support and establishment in life;
That he has been constantly recognized in society as such;
That he has been recognized as such by the family."
(emphasis supplied) It is therefore crystal clear from the aforesaid excerpts that the plaintiffs proved the genealogy as put forth by them beyond doubt.
21. However, the learned counsel for the appellant/D3 would raise certain objection by contending that there is no presumption that Subburaya Gounder referred to in those E'tat Civil Records, was the same Subburaya Gounder, who allegedly owned the suit properties, as claimed by the plaintiffs. The defendants' written statement, D.W.1 (D3)'s deposition and the grounds of appeal would furnish fitting answers to such objection; over and above that, this point will also be discussed infra, at the appropriate stage.
22. Now turning to the genealogy as found set out by the defendants, what I would like to observe is that the learned Senior counsel for the plaintiffs is right in describing the stand of the defendants as prevaricative and there is no consistency or cogency.
23. Prior to embarking upon the analysis of that point, it is imperative to observe thus:
I would like to point out that the defendants, in my considered opinion must have deliberately suppressed their respective E'tat Civil Records, as, it is common knowledge that under the French law, which was obtaining in Pondicherry almost all residents of Pondicherry in those days during the French R'egime, had their respective E'tat Civil Records; Pondicherry being a small place, which was a French colony of France, was implementing Title-II of French Civil Code in stricto sensu with all rigour.
24. I have ventured to pass such a remark supra as against the defendants because the E'tat Civil Record even relating to one of the ancestors of the defendants has not been produced. Not even a single E'tat Civil Record such as 'birth certificate', 'death certificate', 'marriage certificate' of either Manicka Gounder, Muniyappa Gounder, Natesa Gounder or Mottaiya Gounder was produced. This really raises the suspicion about the conduct of the defendants. Had they produced such record, certainly that would have exposed their real lineage to their common ancestor.
25. Needless to say that those persons were not ordinary people, but propertied ones, as per their own claim. According to them, de hors the suit properties, they own also other properties. When such is the factual position, I am at a loss to understand as to how they after taking their births there, marrying there, giving birth to children there and dying the death there, could presumed to have no E'tat Civil Record or any similar record. As such, I hold firmly that the defendants failed to prove the genealogy as found set out by them.
26. Indubitably and indisputably, unarguably and admittedly both sides could not produce any pint or shard, scintilla or molecular, jot or iota of evidence to demonstrate and display that Subburaya Gounder owned the suit properties. Not even any, the then existed Revenue Record, was produced in the name of Subburaya Gounder.
27. However, the plaintiffs would claim that Subburaya Gounder's only son Velu Gounder enjoyed the suit properties of Subburaya Gounder and that he died in the year 1932, leaving behind his wife Sivabakkiathammal and his two daughters, namely, Amma Ponnu and Alamelu @ Pounambal to enjoy the same.
28. The learned counsel for the appellant/D3 would point out that in the course of adducing evidence on the plaintiffs' side, they accepted that Velu Gounder had one brother, who died at the age of 12, relating to which, except the oral admission of P.W.1, there is no other evidence and that is a pococurante one.
29. The learned Senior counsel for the plaintiffs would point out that the defendants want to link themselves with Subburya Gounder, so as to get the benefit and simulataneously attempt to estrange Velu Gounder.
30. On the side of the plaintiffs as has been found by me supra, they have succeeded in establishing and demonstrating that Velu Gounder happened to be the son of Subburaya Gounder. But on the defendants' side, even though they claimed that Manicka Gounder happened to be the son of Subburaya Gounder, they could not produce any evidence in that regard. In such a case, as has been observed by me supra, the defendants cannot trace their lineage to Subburaya Gounder.
31. The learned counsel for the defendants, inviting the attention of this Court to various other exhibits marked, would claim that the same would evince and evidence that in fact the suit properties stood in the name of Manicka Gounder and from Manicka Gounder his children inherited the properties and accordingly, their respective children in turn also inherited the same.
32. Here again, one could not countenance their claim. Applying the principle "Reductio ad absurdum" if the facts are analysed, it becomes at once pellucid and palpable that the defendants' plea relating to genealogy is nothing but a rope of sand woven by them to hoodwink the plaintiffs. As per the genealogy of the defendants, Mottaiya Gounder is stated to be the brother of Natesa Gounder, son of Manicka Gounder. If Mottaiya Gounder-the husband of the first plaintiff Alamelu @ Pounambal is stated to be the son of Manicka Gounder and brother of Natesa Gounder, then he could not have married legally the first plaintiff Alamelu @ Pounambal, because, between brother and sister there could not be any marriage and they would be in prohibited relationship. Accordingly if viewed, it is pellucidly and plainly clear that Mottaiya Gounder's father Manicka Gounder could not be the son of the said Subburaya Gounder.
33. The learned counsel for the appellant/D3 would try to point out that the genealogy of the plaintiffs cannot be believed because in Ex.A12-the birth extract of Alamelu, it is found specified that she is the daughter of Velu Gounder, son of late Kolandai Gounder, whereas, Kolandai Gounder is stated to have died only in the year 1915, as per the deposition of P.W.1.
34. The learned counsel for the plaintiffs would try to explain and clarify by pointing out that P.W.1, due to lapse of memory, might have quipped during cross as though Subburaya Gounder @ Kolandai Gounder died during the year 1915 and much importance need not be attached to it and one cannot make a mountain out of mole hill.
35. I am of the view that while P.W.1 deposing before the Court during the year 1986, almost 60 years after the death of Subburaya Gounder due to lapses memore might have stated the wrong year and much importance cannot be attached to it.
36. On the defendants' side, placing reliance on Ex.A20- the Acte de notoriete made by Anandan(deceased D1) before Notaire, the learned counsel would develop his arguement that the said notoriete emerged on 6.6.1966 would evidence and convey that the said Anandan/D1(deceased) happened to be the son of Natesa Gounder, son of Kolandai Gounder and brother of Muniyappa Gounder.
37. Not to put too fine a point on it, the said description is a self-serving one and from the very document Ex.A20, it cannot be termed as an acte authentique as per French Law. It is only a declaration and importance cannot be attached to it and there could be no second thought over it as it is an elephant in the room.
38. The learned Senior counsel for the plaintiffs would submit that Ex.A20 is a self-serving document, which emerged purely for the purpose of thwarting the contents of Ex.A2 Matrice Cadastrale, which stood in the name of Amma Ponnu and Alamelu @ Pounambal, both daughters of Velu Gounder and Sivabakkiathammal.
39. No doubt, in Ex.A20, the properties found set out in Ex.A2 are found incorporated as though D1's ancestors were owning and enjoying those properties, for that, absolutely there is no documentary proof.
40. Ex.A19, in my opinion, is not a relevant document, however, the plaintiffs placed reliance on it to project and portray that the defendants were bent upon bringing about self styled declarations to show that Velu Gounder and Natesa Gounder happened to be the brothers, being the sons of Subburaya Gounder. Whereas, the learned counsel for the defendants would disown the said document as the one emerged at the instance of the defendants. As such, no importance could be attached to that document.
In re property rights of respective parties:
41. I would like to discuss the property rights of the respective parties, particularly under two sub heads:
(i) Relating to items 1 to 3 and part of item No.6 of the suit properties herein as found referred to in Ex.A2 and in the litigation started by Manickam-the tenant of the plaintiffs;
(ii) Relating to the rest of the items of suit properties.
42. It would not be out of place here to narrate in detail a few more facts.
43. Ex.A3 is the lease deed dated 30.1.1957 executed by one Ramasamy Gounder in favour of the first plaintiff. The said document could be described as acte de sous seing prive and it was also enregistered with the Department concerned. The effect of the acte de sous seing prive which was registered, is to the effect that authenticity could be attached to the date of emergence of that document even though it is not a Notaire document. As such, it could conclusively be presumed that on 30.1.1957, Ex.A3 emerged, whereby, Ramasamy Gounder executed the lease deed in favour of the plaintiffs in relation to the properties found set out in Ex.A2 dated 19.12.1956 and not in respect of the other items of the suit properties.
44. The learned Senior counsel for the plaintiffs would submit that there is no necessity that an owner of various lands should lease out all his lands only in favour of one person and as such, from the absence of the other items in Ex.A3, the Court cannot assume or presume that the plaintiffs were not the owners of those properties, which are found left out in Ex.A3.
45. No doubt, there could be no presumption that simply because only a few items of the suit properties were leased out by the plaintiffs to Ramasamy Gounder, the former were not the owners of other items. However, it is for the plaintiffs to prove their case.
46. My mind is reminiscent and redolent of the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
47. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.
48. As such, here the defendants have not sought for any declaration. Only the plaintiffs sought for declaration of their title and consequential injunction. As such, the 'onus probandi' is only on the plaintiffs and not on the defendants to prove their title and their possession over the suit properties.
49. The endorsement in Ex.A3 itself would exemplify and evince that the said Ramasamy Gounder surrendered possession of those items referred to in Ex.A3 to the plaintiffs.
50. At this juncture, I would like to refer to Ex.A2-the Matrice Cadastre stood in the name of Amma Ponnu, Alamelu @ Pavunambal dated 19.12.1956.
51. Incontrovertibly and unassailably Ex.A2 could be described as a document, which could be relied upon conclusively. In the said document, namely, Matrice Cadastre, which is a document maintained by the French Revenue Department relating to the ownership of the agricultural lands, the following could be seen from the translation copy of Ex.A2.
"Extract of cadastre matrice of land tax regarding Ammaponnu and Alamelu @ Pounambal daughter of Velu Gounder residing at Kunichampatti Village.
The land No.151/2/2 is comprised in the land No.151/2. The latter is situated in land No.150 of Covindacavounder and others to the east of lands no.146 of latchoumane Rettiar and 145 of Pavounambalammalle and others, to the south and to the west of the canal; the land No.151 bis/2/2 is comprised in land No.151 bis/2. The latter is situated to the north of land No.153 of Mounissamy modely to the east and to the south of the canal and to the west of that No.135 bis of Pavounammalle and others.
Lands No.397/2/2 and 397/3/1 are comprised respectively in lands No.397/2 and 397/3. The latters are situated to the north of the limit of Indian Territory, to the east of the way and of the limit of Indian Territory, to the south of land No.396 bis of Mounissamy Cavoundin and the west of land No398 of Soundiramballe. The land No.135 bis/2 is comprised in land No.135bis the latter is situated to the north by lands No.154 of Gnanammale and 153 of Mounissamy and to the west of the said land No.153, of lands No.151 bis of Sinnatamby cavoundin and land No.152 of Pavounambalammalle 138 of Aroumougacavoundar and of the canal to of the said canal of lands No.138 of Aroumougacavoundar, 136 4/4 of .......cavoundin and others and to the west of land No.135 of Pavounambalammalle and others"
(Extracted as such)
52. Placing reliance on the said Ex.A2, subsequently, two judgements emerged in favour of Manickam-the last tenant under the plaintiffs. Hence, it is just and necessary to refer to Ex.A4-the lease deed dated 9.11.1970 executed by Manickam in favour of plaintiffs 1 to 3 in respect of the 8 items of the suit properties, including one other item.
53. At this juncture, the learned counsel for the appellant/D3 without fear of contradiction would detail and delineate that the 4th item of the suit properties herein, is not found referred to either in Ex.A4 or in the suit instituted by Manickam. Whereas, the said 4th item is referred to in Ex.B5-the Matrice Cadastrale, in favour of the defendants and their ancestors -Datchinamurthy and five others.
54. The learned counsel for the appellant/D3 would convincingly submit that the 4th item of the suit properties, is not found referred to in any one of the documents filed on the side of the plaintiffs and by no stretch of imagination they could lay claim over it; Scarcely could it be stated that the plaintiffs by objective evidence acquired title over it.
55. On the plaintiffs side, no plausible explanation has been furnished as to how holus-bolus in Ex.A4-the lease deed dated 9.11.1970, as many as 9 items came to be incorporated when in Ex.A2-the Matrice Cadastre dated 19.12.1956, as well as in Ex.A3-the lease deed dated 30.1.1957, the previous documents, only a few items of the suit properties were referred to and not all the items of the suit properties.
56. It appears, the said Manickam facing some difficulties in enjoying the properties as per Ex.A4 filed the suit O.S.No.351 of 1972 in the Additional District Munsif Court, Pondicherry, citing the defendants herein as the defendants therein.
57. The trial Court decreed the suit only in respect of items 1 to 3 and part of item No.6, based virtually on Ex.A2-the Matrice Cadastre dated 19.12.1956 and the suit filed by Manickam was dismissed in respect of the other suit items, as against which, both parties preferred appeals, not for anything but to be dismissed by the appellate Court, confirming the judgement and decree of the lower Court.
58. Ex.B26 is the certified copy of the judgement in O.S.No.351 of 1972 and Ex.A22 is the certified copy of the common judgement in A.S.No.135 of 1976 and A.S.No.113 of 1976 dated 31.3.1980, which appeals were preferred as against the judgement of the learned District Munsif; and, there was no second appeal. In fact, the judgement of the appellate Court became conclusive and final.
59. Wherefore it is clear that the plaintiffs' tenant-Manickam met with his waterloo in the litigation instituted by him in respect of certain items of the suit properties, except items 1 to 3 and part of item No.6 as found set out in Ex.A2.
60. No doubt, it is a run of the mill proposition that the judgement obtained by Manickam would not be pitted as against the present plaintiffs as an embargo for them to lay claim over the entire suit properties, provided they are capable of producing clinching evidence. But one fact is clear that the defendants in the previous litigation and the defendants herein are one and the same and as such, the defendants are very much bound by the findings of the trial Court as well as the appellate Court in the previous proceedings and there is no explanation as to why they could not produce any clinching evidence, proving their title in respect of items 1 to 3 and part of item No.6 as found in Ex.A2.
61. Adding fuel to the fire, the defendants exposed themselves that bending over backwards they frantically attempted to grab the said four items in Ex.A2 also in a non chalant and cavalier fashion by getting surrender deed-Ex.B32 dated 2.9.1982 executed by Manickam in their favour as though Manickam surrendered those properties, relating to which he got a decree before the Court.
62. I am at a loss to understand as to how any defendant, who is bound by a decree, can, for the purpose of thwarting the essence of the decree could get such release deed from the plaintiffs in those proceedings. The defendants litigated before the trial Court as well as the appellate Court by contenting that the claim of Manickam that he got the lease from the plaintiffs was false and that the defendants happened to be the owners of the property; but that was negatived by the Courts as against the defendants in respect of the said four items and in such a case, the act of the defendants in getting executed Ex.B32 was nothing but an illegal act resorted to by them, so as to falsify and thwart the legal rights of the plaintiffs and that shows that the defendants stooped down to the level of depriving the plaintiffs by hook or crook.
63. I hark back to the following maxims:
(i) Ex dolo malo non oritur actio Out of fraud no action arises; fraud never gives a right of action.
(ii)Ex turpi causa non oritur actio: Out of a base illegal, or immoral consideration, an action does not arise.
64. It would not be out of place to specify here that even before Ex.B32 dated 02.09.1982, the surrender of lease executed by Manickam in favour of the defendants, the said Manickam surrendered the lease as per Ex.A7-the lease cancellation deed dated 13.3.1981 in favour of the plaintiffs, from whom he had taken on lease the properties concerned.
65. The learned counsel for the defendants would try to attack Ex.A7 as though it was not a genuine document, because the signature of Manickam is found in the first sheet of the alleged surrender deed and not in the next sheet, beneath the concluding portion.
66. Be that as it may, de hors Ex.A7, the wrongful and illegal conduct of the defendants in getting Ex.B32 executed in their favour, pooh-poohing, belittling, discarding the two judgements operating as against them, would dis-entitle them to lay claim over those four items.
67. The II Additional District Court in the common judgment as in Ex.A22, observed correctly as to how without any basis, in respect of items 1, 2,3 and part of item No.6, the names of the defendants, and their ancestors could figure in the Matrice Cadestrals Exs.B5 and B6. My aforesaid discussion would indicate that the defendants by disregarding the legal mandates created certain documents referred to supra and brought about such later matrice cadastrales without any rhyme or reason.
68. As has been already observed by me supra, on the defendants' side no reliable documentary evidence could be produced to lay claim over the items 1, 2, 3 and part of the item 6 referred to above; A fortiori the plaintiffs' claim over those four items could be countenanced and upheld that they are the owners of those properties and possession also could be held to be with them, as possession follows title and furthermore, from Manickam, the last tenant, they only could obtain possession of those four items and not the defendants. Any claim to the contrary by the defendants, would amount to flouting the judgments of both the Courts, namely the II Additional District Court, Pondicherry as well as the I Additional District Munsif, Pondicherry as per Exs.A22 and B26 respectively.
69. The learned Senior Counsel for the plaintiffs would submit that the admission on the part of the appellant/D3 as D.W.1 that Sivapakkiathammal happened to be the original owner of the suit properties is much more than sufficient for the plaintiffs to claim that they are the owners of the entire suit property, because it is they who proved their lineage to Subburaya Gounder, the original owner and not the defendants and as such, the ownership of the plaintiffs could be declared in favour of the plaintiffs even in respect of the other items of the suit property.
70. I observe that the adage "Why buy a cow, when one could get milk for free" will not be applicable to the facts and circumstances of this case.
71. Whereas, the learned counsel for the defendants would vehemently oppose the argument on the plaintiffs' side by placing reliance on Ex.B2-the Notaire sale deed dated 02.03.1940 and Ex.B3-the Matrice Cadastrale relating to the properties referred to in Ex.B2 and also Ex.B1, which is another Notaire sale deed executed by the vendee under Ex.B2 in favour of Anandan-D1, Annamalai Gounder and Dakshinamurthy, the propositus of the other defendants.
72. The learned Senior counsel for the plaintiffs would attack Ex.B2 on the main ground, that no antecedent title had been referred to in Ex.B2 and it is a concocted, ersatz and fabricated document brought about by the defendants' ancestors, purely for the purpose of setting up a wrongful claim over the few items of the suit properties referred to therein. It is therefore just and necessary to analyse Ex.B2.
73. A mere poring over and perusal of the recitals in Ex.B2, would exemplify and demonstrate that no antecedent title is referred to, but certain revenue records are found relied on to buttress and fortify the title of the vendor. If at all as per French law, the Notaire referred to any antecedent title deed, and on perusal of the same he scribed the document, then authenticity could be attached to it and it would become acte authentique, but that is absent in Ex.B2, which fact is quite obvious and axiomatic.
74. At this juncture, I would like to refer to the importance of Notaire documents and my mind is redolent and reminiscent of The French Civil Code, translated into English, with Notes Explanatory and Historical and comparative References to English Law, By B.Blackwood Wright, Trinity College.
Article 1317 of the French Code Civil and the notes thereunder would run thus:
1317. An instrument of record is one drawn (d) up by a public officer entitled to draw up legal documents with the formalities required by law in the place where the document has been drawn up (e). (C.1690 and following; 2127, 2129) ....
"(d) "Recu" (drawn); to say that a deed is "recu" means that the notary was present when the parties expressed their wishes. The document must be written by the notary, or dictated by him, or else drawn up in his presence. The vise by signature proves the notarial drawing up. (Laurent, Vol.XIX.102).
(e) "Acte" in the French, here translated "instrument". Laurent says that the writing intended by the parties to it to serve as evidence is called by the Code indifferently an "acte" or a "titre", and that writings not drawn up and intended to be evidence are described by it simply as "ecritures" (Writings). "Titre" is also used to mean a juridical factan act of law eg., the agreement which the instrument is intended to prove. (See the expression "a titre gratuit" in Art.893). It is also the name given to "donations". Thus in Art.2265 the "juste titre" is an "act in law" which would have transferred the property if the person who transferred the property had been owner, and the word is also so used in Art.2267. From the above it will be seen that these expressions are both used interchangeably, and that neither of them is used in the same sense throughout. (See Laurent, Vol.XIX.97).
Notaries have a general authority to draw up all documents of record, except special documents, which have to be drawn up by special officers, as acts of civil status-- records of births, marriages and deaths. 'Juges de paix' draw up instruments as to adoption (Art.353), voluntary guardianship (Art.363), emancipation (Art.477). Notaries alone can draw up instruments of donation marriage contracts and mortgages. Bailiffs of Courts certificates of service of writs and other Court notices."
75. Keeping in mind the relevant portions of the French Code Civil, if Ex.B2 is analysed, certainly it cannot be described as acte authentique. But in the meantime, one cannot endorse the view of the lower Court which the learned counsel for the defendants would correctly attack and impugn, by pointing out that the trial Court was not at all justified in simply treating the document as a void one. Voidity is different from lack of authenticity. I would like to agree with the counsel that in 1940 there emerged before the French Notaire a document, and there could be no second thought over it. But the Notaire did not record therein that the purchasers relieved the seller from the responsibility of producing the title deeds. Even if that be so, yet one other point still remains to be considered. Any one having contrary interest could always lay claim over the property de hors Ex.B2, because the Notaire who wrote the document did not vouch for the title of the vendor. With that in mind, if the evidence is analysed it is glaringly and palpably clear that on the plaintiffs' side, they could not produce any clinching evidence to the effect that they acquired title over those items in Ex.B2, except their reliance on the admission of the appellant/D3 (D.W.1) that Subburaya Gounder happened to be the original owner of the suit properties.
76. In respect of Ex.B2, a few more observations also are required. Two persons have been described as the vendors, namely Mottaiya Gounder, son of Manicka Gounder and Sivapakkiathammal, the daughter of Kanagamoola Gounder and wife of Velu Gounder. However after describing them as the vendors, the recitals would proceed further to the effect that only Mottaiya Gounder happened to be the owner of the suit properties and that he was executing the sale deed in favour of one Periathambi Gounder. Absolutely there is nothing to indicate and exemplify as to why Sivapakkiathammal was cited as one of the executants. Normally a responsible officer like French Notaire was not expected to simply draft such a sale deed in that manner, but my discussion supra would show that Sivapakkiathammal happened to be the wife of Velu Gounder and mother of the first plaintiff - Alamelu @ Pavounambal. It is an indubitable and undisputed fact that the said Mottaiya Gounder happened to be the husband of the first plaintiff. As such, the first plaintiff's husband Mottaiya Gounder being the son-in-law of Sivapakkiathammal along with Sivapakkiathammal figured as executants in Ex.B2.
77. At this juncture, I have to highlight and spotlight that while the plaintiffs are vociferously attacking the claim of the defendants, the former have not in any manner explained as to what galavanised, actuated, propelled and impelled the first plaintiff's own husband Mottaiya Gounder and the first plaintiff's own mother to go to the extent of depriving the first plaintiff and her sister of their ownership over the few items of the suit properties found specified in Ex.B2.
78. The learned Senior Counsel for the plaintiffs would argue that the defendants should prove the genuineness of Ex.B2 and it is not for the plaintiffs to explain those details, because the plaintiffs are attacking Ex.B2 as a false and fabricated one.
79. Whereas, the learned counsel for the defendants would submit that Ex.B2 emerged in the year 1940 and that too at the instance of the first plaintiff's husband and the first plaintiff's mother and in such a case, the plaintiffs cannot simply disown their responsibility to explain the circumstances under which Ex.B2 emerged. I would like to observe that subsequent to the emergence of Ex.B2, Ex.A2 the Matrice Cadastrale emerged in the name of the said Ammaponnu and Alamelu @ Pavounambal, both the daughters of Velu Gounder and Sivapakkiathammal.
80. Any prudent owner of as many as eight or nine items of immovable properties, would be interested in getting incorporated their names in the Matrice Cadastrale if they are the owners effectively in possession and enjoyment of all those properties, but in Ex.A2 which emerged during the year 1956, only items 1, 2 , 3 and part of item 6 referred to supra are found specified and no other items of the suit properties are found specified therein and this creates grave suspicion in the mind of the Court as to whether the plaintiffs were really ignorant of Ex.B2 and the execution of Ex.B2 by Mottaiya Gounder and Sivapakkiathammal. Over and above that, following Ex.B2, Ex.B3 - the Matrice Cadastrale emerged in the year 1946. Both Exs.B2 and B3 emerged anterior to Ex.A2. Keeping these two sets of evidence side by side in juxtaposition, the Court can easily infer and understand that the plaintiffs have not approached the Court with full truth and for that matter, the defendants also have not disclosed the full truth.
81. I recollect the maxims:
(i) Suppressio veri suggestio falsi Suppression of the truth is equivalent to the suggestion of what is false.
(ii) Suppressio veri, expressio falsi Suppression of the truth is equivalent to the expression of what is false.
82. In such a case, to the risk of repetition and pleonasm, but without being tautologous, I would like to point out that the onus probandi is on the plaintiffs alone to prove their ownership over all the items of the suit property and also their effective possession as on the date of filing of the suit. But the aforesaid evidence would show that they could not prove their title relating to the other items of the properties, apart from items 1, 2, 3 and part of item 6 referred to supra.
83. The learned counsel for the defendants would submit that based on Exs.B2 and B3, the said Periathambi Grounder the vendee under Ex.B2, after he having enjoyed those items of the properties referred to therein, sold those properties in favour of Anandan, Annamalai and Dakshinamurthy as per Ex.B1 (A17), which is a Notaire deed.
84. The learned counsel for the defendants would submit that whether the defendants are held to have proved their genealogy under Subburaya Gounder or not, their right to the items referred to in Exs.B2, B3 and B1 cannot be denied by the plaintiffs.
85. The learned Senior Counsel for the plaintiffs would try to refute such an argument by pointing out that when the vendees under Ex.B2 did not have the capacity or legal right to transfer the right over the properties referred to therein, the question of Periathambi or the Periathambi's vendees namely the defendants, claiming right over the properties does not arise at all. No doubt I recollect the maxim:
Nemo dat quod non habet : No one gives what he does not have.
Accordingly if viewed, ex facie and prima facie, there is nothing to indicate and exemplify that Mottaiya Gounder as well as Sivapakkiathammal the executants under Ex.B2, had the saleable right over the properties referred to therein. The trial Court was right in observing that at the most Sivapakkiathammal could be even, as per the plaintiffs, taken as the one having 'Driot Viagere' and such a person cannot validly transfer the property.
86. At this juncture, I would like to recollect the Coromandel Hindu Law (Ref. Sonner's Hindu Law) which was precisely the law at the relevant time, was that if a Hindu male dies leaving a son as well as daughters intestate, his properties would devolve upon his sons to the exclusion of his daughters. But if a Hindu male dies without male issues but leaving behind his wife and daughter, then the widow will get the right of possession during her life time and enjoy the usufruct and on her death, the property would go to the daughter absolutely. The concepts 'Driot Viagere' and 'Possession Viagere' are referred to by the trial Court correctly even as per the plaintiffs. On the death of Velu Gounder, Sivapakkiathammal being the only daughter could enjoy it for her life and have it for her maintenance and leave the property in favour of her two daughters Ammaponnu and Alamelu @ Pavounambal. However, it appears that she figured as one of the executants along with Mottaiya Gounder and that too she was not properly described therein as set out supra. It would not be out of place to observe here that the plaintiffs cannot try to play safe by contending that Ammaponnu as well as Alamelu happened to be ladies and they were not aware of Ex.B2 as well as Ex.B3. There is nothing to indicate that Alamelu @ Pavounambal was at logger heads with her husband or she was not in good terms with her mother Sivapakkiathammal.
87. Once a Notaire document scribed by the Notaire reached the bureau de hypotheque for transcription and it was transcribed, then it amounts to having put the document in public domain. At least at the time of emergence of Ex.A2, the plaintiffs should have analysed as to why they could not get Matrice Cadastrale in respect of the other items of the suit properties, apart from items 1, 2 , 3 and part of item 6. As such, the plaintiffs cannot try to pick holes in the case of the defendants and try to achieve success in the litigative process in respect of those items of the suit properties not covered by Ex.A2.
88. The learned counsel for the defendants would correctly observe that by painting the defendants black in the litigative process, the plaintiffs cannot try to get any benefit from the Court. He would also submit that the said mere admission by P.W.1, even if it is taken as admission, cannot be the basis for decreeing the suit in favour of the plaintiffs.
89. However, the learned Senior Counsel for the plaintiffs, would argue that such admission on the part of the plaintiffs would be sufficient, because the plaintiffs being the descendants of Subburaya Gounder the original owner, are entitled to claim also the properties not covered by Ex.A2.
90. The learned counsel for the appellant/D3 would cite the following decisions in respect of his plea:
(i) AIR 1957 Madras 186 [Govindaraj v. Kandaswami Gounder and another]
(ii) AIR 1971 Madras 422 [Lord Balamukundas v. K.Kothandapani and others]
(iii) AIR 1977 SC 1712 [Sita Ram Bhau Patil v. Ramchandra Nago Patil (dead) by LRs. and another]
(iv) 1995 (1) L.W. 72 [mourougaessa Modealiar v. Aguilandammalle (died) and 5 others]
(v) 1998 (2) CTC 146 [Arunachalam Pillai v. Ramu Mudaliar (died) and three others]
(vi) 2007 (15) SCC 529 [Udham Singh v. Ram Singh and another]
(vii) 2008 (7) MLJ 1210 [P.Arumugham and another v. P.Balasubramaniam and others]
91. The learned counsel for the defendants would cite the following decisions:
(i) AIR 1997 SC 680(1) [M/s Modi Spinning Mills Co. Ltd and another v. M/s Ladha Ram and Co.]
(ii) AIR 1998 SC 618 [Heeralal v. Kalyan Mal and others]
(iii) AIR 2007 GAUHATI 20 [Uttam Chand Kothari v. Gauri Shankar Jalan and others]
(iv) 2007(5) CTC 287 [Thimmappa Rai v. Ramanna Rai and others]
92. A mere running of the eye over those precedents would unambiguously and unequivocally highlight the point that no doubt admission could be relied on if it is a candid admission in the course of the legal proceedings. D.W.1 during cross examination candidly and categorically admitted that Subburaya Gounder happened to be the original owner of all the suit properties. Even at Nos.19 and 20 of the grounds of appeal D3 stated that Subburaya Gounder happened to be the owner of the suit property.
93. The core question arises as to whether those admissions to the effect that Subburaya Gounder happened to be the original owner would be sufficient to declare the plaintiffs as the owners of the suit property. Ex.B2 no doubt suffers from various flaws as highlighted supra by me. But the plaintiffs cannot simply call upon the Court to ignore not only Ex.B2, but also Ex.B3 the Matrice Cadastrale which emerged following Ex.B2 and also Ex.B1. Here the admission of D.W.1 (D3) is not to the effect that the plaintiffs are the owners of the suit property. As such, the documents referred to supra marked on the side of the defendants cannot simply be ignored to hold that the plaintiffs are the owners of the property, because they are the legal heirs of the deceased Subburaya Gounder ignoring the aforesaid documents marked on the defendants' side.
94. Under the French Law, as per Article 2262 to 2265 of the French Civil Code, prescriptive title is contemplated. No doubt, in so many words the defendants have not claimed prescriptive title, but they claimed only possession and enjoyment of the suit property for a pretty long time based on Exs.B2, B3 and B1.
95. I recollect the maxim:
Vigilantibus et non dormientibus jura subveniunt - The laws aid those who are vigilant, not those who sleep upon their rights.
Here absolutely there is no plausible explanation as to why for several decades together the plaintiffs simply kept quiet without asserting their right over the other items of suit properties apart from the properties found specified in Ex.A2. Only during the year 1971 by executing the lease deed in favour of Manicka Gounder, incorporating all the items of the suit property, the plaintiffs started asserting their right over those items, in addition to the items of the suit properties referred to in Ex.A2.
96. The learned Senior Counsel for the plaintiffs would argue that because the defendants started giving trouble to Manicka Gounder the tenant of the plaintiffs, the said Manicka Gounder was constrained to initiate proceedings for injunction and as such, ever since 1972, litigation started and hence, they could not also pay tax etc. There is nothing to indicate as to why the plaintiffs have not paid any tax or took any steps to incorporate their names in the Matrice Cadastrale, well before 1972.
97. The learned Senior Counsel for the plaintiffs would submit that the defendants are having prevaricative stands. In one breath, they would claim title as the descendants of Subburaya Gounder and in another breath, they would claim by way of they having allegedly purchased the property from Periathambi as per Ex.B1.
98. Whereas, the learned counsel for the defendants would argue that the defendants have not approached the Court for getting their title declared and they are only resisting the suit of the plaintiffs and that they are entitled to take such alternative pleas which cannot be found fault with.
99. I hark back to the following trite proposition of law. Only ante litem motem documents could be taken note of and not the post litem motem documents. Here on the defendants' side, Exs.B15, 16, 17, 20, 21, 22, 23, 24, 31, 33 to 67 were marked to prove that they have been in possession and enjoyment of the suit properties.
100. The learned Senior Counsel for the plaintiffs would correctly and appropriately point out that serious dispute over the property erupted between them even as early as in the year 1972 itself and in such a case, all the revenue records which emerged subsequent to that are having no probative force of their own and the defendants cannot place reliance on the same. I would like to readily agree with his submission.
101. The learned counsel for the defendants would submit that after coming into vogue of the Settlement Act 1970 in Pondicherry, the survey was conducted and at that time, legally the competent authorities incorporated the names of the defendants in the register concerned relating to the suit properties as owners as well as possessors of the suit properties and it cannot simply be slighted or belittled, pooh-poohed or discarded.
102. Pattas and revenue records would not constitute title, over such common or garden principle, there could be no dispute at all. The learned Senior Counsel for the plaintiffs would point out that the plaintiffs could not pay tax because of the fact, that the revenue records were muddied by the defendants by getting their names incorporated therein; had the plaintiffs paid tax, as such that would have amounted to recognising as though the defendants are the real owners of the properties. Be that as it may, this Court need not ponder over those points any further in view of my findings above, that the plaintiffs are the owners of the items 1, 2, 3 and part of 6 as per Ex.A2 and in respect of the other items, they have not proved their title and for that matter, my findings would show that the defendants also have not proved clinchingly that they acquired title with regard to the rest of the items of the suit properties. In such a case, mere post litem motem revenue records cannot be the decisive documents for deciding the issues involved in this case.
103. Ex.A.1 is the General Power Deed dated 10.08.1982 executed by the first plaintiff in favour of P.W.1, which is a formal document. Ex.A5-the certified copy of decree in CMA No.35 o 1972 dated 14.10.1972 of the Principal District Judge, Pondicherry and Ex.A6-the certified copy of the order dated 19.04.1973 in CRP No.2757 of 1972 of the High Court Madras, are relating to connected proceedings which are not germane for deciding this appeal. Ex.A7-the lease cancellation deed dated 13.03.1981 executed between Manickam and the plaintiffs 1 to 3 has already been referred to in my discussion above. Ex.A8-the certified copy of deposition of P.W.1 in O.S.No.351 of 1972 dated 24.09.1975 of the First Additional District Court, Pondicherry; Ex.A9-the photostat copy of Will dated 10.01.1982 executed by the first plaintiff in favour of P.W.1; and Ex.A10-the certified copy of deposition of P.W.2 dated 24.09.1975, are all formal documents. Ex.A11 is the copy of the complaint relating to the dispute between the parties. Ex.A13 series (5 Nos.) are relating to resurvey records which emerged pendente lite, having no probative force of their own. Ex.A16 is one other certified copy of Ex.B2. Ex.A17 is one other certified copy of Ex.B1. Ex.A18 is the judgment of French Criminal Court dated 07.09.1951, which is not relevant for this case. Ex.A21 is the stamped receipt dated 15.12.1971 issued by Unnamalai Ammal and Meenambal for the lease amount collected from Manickam, which would show that Manickam was paying rent to the plaintiffs. Ex.A23 is the copy of lawyer's notice dated 01.11.1982. Ex.A24 series are the acknowledgments by Sundaram, Natesan and Anandan. Ex.A25 series are the two returned postal covers addressed to Natarasan and Istalingam and those are all formal documents in this case. Ex.A26 is the Will dated 10.01.1982 executed by Pavunammal alias Alamelu in favour of P.W.1, which is concerned only with the plaintiffs' side. Exs.A27 and 31 are the Settlement records which are pendente lite documents having no probative force. Exs.A28 and A30 are the complaints relating to the dispute between the parties. Ex.A32 is the translated copy of Matrice Cadastrale which is a formal one.
104. The learned Senior Counsel for the plaintiffs would submit that the trial Court taking into account pro et contra including the long standing dispute, rendered the judgment which may not be interfered with. Whereas, the learned counsel for the defendants would submit that the trial Court simply took it for granted the case of the plaintiffs for gospel truth and decreed the suit ignoring the salient features highlighted by the defendants. It puts me in mind the maxim " In re dubia magis infitiatio quam affirmatio intelligenda In a doubtful matter, the negation is to be understood rather than the affirmation. "
105. In view of my findings supra, I am of the view that the trial Court was not justified in ignoring the points highlighted by me above, and simply holding that the plaintiffs established their case in entirety.
In re, application of Order 41 Rules 4 and 33 of CPC and the scope of the present appeal:
106. The learned Senior Counsel for the plaintiffs would submit that the appellant/D3 is having no locus standi at all to prosecute this appeal in respect of the other defendants who have not appealed as against the judgment and decree of the trial Court. In support of his contention he cited the decision of the Hon'ble Apex Court reported in (2004) 5 SCC 272 [Bajranglal Shivchandrai Ruia v. Shashikant N.Ruia and others]. Certain excerpts from it wuld run thus:
"44. In our view, this contention has no merit. Where there are several defendants, who are equally aggrieved by a decree on a ground common to all of them, and only one of them challenges the decree by an appeal in his own right, the fact that the other defendants do not choose to challenge the decree or that they have lost their right to challenge the decree, cannot render the appeal of the appealing defendant infructuous on this ground. In fact, Rule 4 and Rule 33 of Order 41 CPC are enacted to deal with such a situation.
49. In Ratan Lal Shah v. Lalmandas Chhadammalal this Court had occasion to examine the scope of application of Order 41 Rule 4 CPC in a situation like the present one. In this case there was a joint decree against two defendants R and M. R alone appealed to the High Court by impleading M as second respondent in the appeal. M was not served with notice as a result of which the appeal came to an end as far as M was concerned. The High Court dismissed the appeal on the ground that the decree was jointly against both R and M, in a suit on a joint cause of action, the decree against M having become final, R could not be heard alone in the appeal. This Court reversed the judgment of the High Court by taking the view that the appeal could not be dismissed on the ground that M was not served, nor could the appeal be dismissed on the ground that there was a possibility of two conflicting decrees. Delineating the provisions of Order 41 Rule 4 CPC this Court said: (SCC p. 72, para 3) The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.
52. This Court in Mahabir Prasad distinguished the judgment in Rameshwar Prasad as a case in which all the plaintiffs whose suits had been dismissed had filed an appeal and thereafter one of them being dead his heirs were not brought on record. While in the case before this Court, there was an order against all the decree-holders but all of them had not appealed. The previous judgment in Ratan Lal Shah5 was followed approvingly. Commenting on the judgment in Ratan Lal Shah5 in the light of Order 41 Rule 4 CPC, this Court observed (vide SCC pp. 268-69, para 6):
Competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the appellate court under Order 41 Rule 4, to vary or modify the decree of a subordinate court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.
58. In K. Muthuswami Gounder v. N. Palaniappa Gounder dealing with the powers of the appellate court under Order 41 Rule 33 CPC, this Court observed (vide SCC p. 333, para 12):
12. Order 41 Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the court and the question raised properly arises (sic out of) one of the judgments of the lower court and in that event, the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir v. Madan Mohan16. No hard-and-fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41 Rule 33 CPC and each case must depend upon its own facts. The rule enables the appellate court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding Order 41 Rule 33 CPC. However, in exceptional cases, the rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal.
59. In Panna Lal v. State of Bombay this Court said (vide SCR p. 987: AIR p. 1519, para 12) 12. Even a bare reading of Order 41 Rule 33 is sufficient to convince anyone that the wide wording, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as the case may require.
107. The learned counsel for the defendants also relied on the same judgment. In addition to the above on the plaintiffs' side the following precedents have been cited:
(i) (1914) ILR 36 All 510 [Binaik Bhat and another v. Narain Dikshit]
(ii) 1921 MADRAS 451 [Narayanasamy Aiyer v. Doraisamy Pathar]
(iii) AIR 1926 Mad 256 [V.Thirumalachariar v. Athimoola Karayalar and others]
(iv) AIR 1928 Mad 1144 [Thubati Venkatakrishnayya and others v. Vajrala China Veerareddi and others]
(v) AIR 1954 Madras 848 [Venukuri Krishna Reddi and another v. Kota Ramireddi and others]
(vi) AIR 1966 AP 343 [Chalasani Subbarayudu v. Kalagara Venkata Subbarao and others]
(vii) (1974) MLJ 222 [t.M.Pambayan Ambalam (dead) and others v. K.R.Veeranan Ambalam and another
108. A mere poring over and perusal of those precedents would highlight that the powers of the Court under Order 41 Rules 4 and 33 of CPC are wide; relating to the application of those provisions no hard and fast rule could be laid down. However, there should not be any conflict of decrees and keeping that in mind the appeal has to be dealt with and disposed of.
109. A few facts in this regard are absolutely necessary. It is nobody's case that the defendants got themselves partitioned the suit properties. It is not the plea of the plaintiffs that the defendants got their properties partitioned, whereas, the case of the plaintiffs is that the defendants are having no right over the properties and they created false documents as well as revenue records. The trial Court also has not given any finding to the effect that the defendants had partitioned their properties. My findings supra relating to the emergence of revenue records at the instance of the defendants, would be to the effect that those documents cannot be relied on for the purpose of deciding the lis. Simply because in some of the revenue records which the plaintiffs themselves labelled and dubbed them as the ones hit by lis pendens, the names of the defendants have been referred to separately in respect of the items of the properties, except in respect of one Survey number in 120/12, in respect of the fourth item of the suit properties which stands jointly in the names of the defendants, one cannot assume and presume that the defendants got partitioned their properties. Wherefore where the argument of the learned Senior Counsel for the plaintiffs that if at all the appellant/D3 is having any right to raise any objection, that is only with regard to that item namely S.No.120/12 and not in respect of the other items, cannot be countenanced.
110. The learned counsel for the defendants would submit that it is not the case of the defendants that they got partitioned the properties. To the risk of repetition, I would like point out that when it is not the case of either the plaintiffs or the defendants or the findings of the lower Court, that there was division of status among the defendants, the question of pitting an embargo as against the appellant/D3 that he should not prosecute this appeal challenging the entire judgment and decree in respect of all items of suit properties, does not arise at all. The factual position analysed supra, would unambiguously and axiomatically highlight that it is the case of the defendants that they jointly purchased the property as per Ex.B1 and started enjoying the suit properties. When such is the position, the plaintiffs cannot cull out certain evidence from the unreliable exhibits and try to pit it as against the appellant/D3 and contend that he lost his right to challenge the entire judgment and decree. As such, I am of the view that such an argument as put forth on the side of the plaintiffs has to be rejected.
111. On balance, the aforesaid points are answered as under:
(i) Point No.1 is decided to the effect that the appellant/D3 is entitled to canvass the entire case of the defendants including his own case and argue as against the whole judgment and decree of the trial court in respect of all items of the suit properties.
(ii) Point No.2 is decided to the effect that the trial Court failed to apply the principle of 'onus of proof' properly in deciding the case.
(iii) Point No.3 is decided to the effect that the plaintiffs have not proved their title to the suit properties excerpt item Nos.1,2,3 and part of item No.6 as found described in Ex.A2.
(iv) Point No.4 is decided to the effect that the plaintiffs are entitled to place reliance on the admission made by D.W.1(D3), but he did not admit that the plaintiffs are the owners of all the suit items.
(v) Point No.5 is decided to the effect that the trial Court was not justified in treating Exs.B1 and B2 as null and void even though those documents are not free from doubt for the reasons cited supra.
(vi) Point No.6 is decided to the effect that the trial Court was not justified in granting injunction in respect of the suit items other than item Nos.1,2,3 and part of item No.6 as in Ex.A2.
(viii) Point No.7 is decided to the effect that in view of the reasons set out supra, part of the judgment and decree of the trial Court is found to be erroneous.
112. Accordingly, the appeal is partly allowed, modifying the judgment and decree of the trial Court as under:
The plaintiffs are the owners of the suit items 1, 2, 3 and part of item 6 as found set out in Ex.A2, and their prayer in respect of the rest of the items is dismissed. The plaintiffs are entitled to permanent injunction in respect of those said suit items 1, 2, 3 and part of item 6 and not in respect of the other suit items. However, in the facts and circumstances of the case, there shall be no order as to costs.
29.03.2012 Index:Yes Internet:Yes To The First Additional District Judge of Pondicherry NOTE TO OFFICE:
Issue on 16.04.2012 G.RAJASURIA, J gms/msk A.S.No.712 of 1991 29.03.2012