Madras High Court
Munusamy Gounder vs Palani Gounder on 7 June, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1672 of 1997 Munusamy Gounder ... Appellant/1st Respondent/Plaintiff Vs. 1.Palani Gounder ..Respondent/1st Appellant/1st Defendant 2.Ganesa Gounder ..Respondent/2nd Respondent/2nd Defendant 3.Mani Gounder ..Respondent/3rd Respondent/3rd Defendant 4.Renganatha Gounder ..Respondent/2nd Appellant/4th Defendant Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 26.06.1996 in A.S.No.215 of 1994 passed by the Learned District Judge, (Villupuram Ramasamy Padayachi District), Villupuram, in reversing the Judgment and Decree dated 23.12.1993 in O.S.No.184 of 1987 passed by the Learned District Munsif, Tirukoilur. For Appellant : Ms.J.Starli for M/s.V.Raghavachari For Respondents : R1 and R3 Died (T/E) No appearance for R2 and R4 Served J U D G M E N T
The Appellant/1st Respondent/Plaintiff has focused the present Second Appeal as against the Judgment and Decree dated 26.06.1996 in A.S.No.215 of 1994 passed by the Learned District Judge, (Villupuram Ramasamy Padayachi District), Villupuram, in reversing the Judgment and Decree dated 23.12.1993 in O.S.No.184 of 1987 passed by the Learned District Munsif, Tirukoilur.
2.The Plaint Facts (filed by the Appellant/1st Respondent /Plaintiff in O.S.No.184 of 1987):
The 1st Respondent/1st Defendant and one Arunachala Gounder and Durai Gounder are the sons of their father Narayanasamy Gounder born through first wife Thanam Ammal. The Appellant/Plaintiff, Kannusamy Gounder and Annamalai Gounder are the sons of the said Narayanasamy Gounder born through his second wife Selli Ammal. The 1st Respondent/1st Defendant, Arunachala Gounder and Durai Gounder 40 years ago have divided their half share of properties from the family and the said three of them have been in enjoyment and possession of the said properties.
3.The Plaint schedule properties have been in enjoyment of the Appellant/Plaintiff, his brother Kannusamy and Annamalai as joint family and 25 years ago. They have orally divided the properties in the presence of Panchayatars by putting up the fences. In the said Partition, the suit property and other items of properties have been allotted to the share of the Appellant/Plaintiff. The Appellant/Plaintiff's brothers Kannusamy and Annamalai have been in enjoyment of their allotted properties separately by means of possession of the same. Ever since the Partition, the Appellant/Plaintiff has been in possession of the suit and other properties and also in payment of Kists to the Government. The Appellant/Plaintiff has been issued with Patta No.428 under the UDR Scheme by the Special Tasildhar in respect of the suit and other properties. The Appellant/Plaintiff is paying the kists and enjoying the properties.
4.There is an enmity between the Appellant/Plaintiff and the Respondents/Defendants. During October 1982, in the suit property, the Appellant/Plaintiff has planted nilgiri saplings and has protected the same. The 2 to 4 Defendants are the sons of the 1st Defendant. On 09.11.1986, with a view to cause loss and damage to the Appellant/Plaintiff, the Defendants have trespassed into the suit property and destroyed the nilgiri saplings planted by the Appellant/Plaintiff. The actions of the Respondents/Defendants are unlawful. The value of the damaged nilgiri saplings amounts to Rs.3,000/-. Though a complaint has been lodged with the Arakandanallur Police Station by the Appellant/Plaintiff against the Respondents/Defendants, it has not yielded the desired results. The Respondents/Defendants have joined in unison and have ploughed the suit property and has taken over the possession. When the Appellant/Plaintiff's son Dhandapani obstructed the Respondents/ Defendants' unlawful acts, they beat him with sticks and stones and caused injury to him. Hence, the Appellant/Plaintiff has filed the suit seeking the relief of declaration in respect of the suit property and also, sought recovery of possession of the suit property from the Respondents/Defendants through Court. Also, the Appellant/Plaintiff has sought a relief of Rs.3,000/- towards the damages caused for destruction of nilgiri saplings. Furthermore, the Appellant/Plaintiff has sought the relief of mesne profits as per Order 20 Rule 12 of the Civil Procedure Code.
5.The Written Statement averments of the 1st Respondent/1st Defendant (adopted by the 3rd and 4th Respondents/3rd and 4th Defendants:
It is true that the 1st Respondent/1st Defendant Arunachala Gounder, Durai Gounder are born to Narayanasamy Gounder through his wife Thanam Ammal. The Appellant/Plaintiff, Kannusamy and Annamalai are born to Narayanasamy Gounder and Selli Ammal. The 1st Respondent/1st Defendant and his brothers Arunachalam and Durai 40 years ago have divided the half share of the properties from their family and has taken possession and also in enjoyment of the same. The other averments are that the suit property have been in enjoyment of the Appellant/Plaintiff, his brothers Kannusamy and Annamalai Gounder and further, 25 years ago, a Partition has been taken place by means of putting up of boundaries etc. are all false and they have to be proved by the Appellant/Plaintiff.
6.The Ayan Nanja Re-survey No.58/2, 1 acre and 44 cents of land in Oottampattu Village and 0.66 cents of land belonged to Andi Gounder and they have been in his enjoyment. Narayanasamy Gounder (Appellant/1st Defendant's father), Thulasi Gounder and Veerasamy Gounder are the sons of Andi Gounder. All the properties belonging to Andi Gounder in the presence of Panchayatars have been divided between his three sons by metes and bounds before 50 years. In Ayan Nanja Re-survey No.58/2, 1 acre and 44 cents, Narayanasamy has been allotted 0.45 cents of land, Thulasi Gounder has been allotted 0.48 cents of land with specified boundaries and Veerasamy has been allotted 0.51 cents with specified boundaries.
7.In Ayan Nanja Re-survey No.58/3, out of 0.63.6 of land, Narayanasamy Gounder has been allotted 0.28 cents, Thulasi Gounder has been allotted with 0.22 cents of land, Veerasamy Gounder has been allotted 0.16 cents of land in Partition, with specified boundaries. The three brothers have cultivated the aforesaid properties separately and have been in enjoyment. The said Narayanasamy Gounder in Ayan Nanja Re-survey No.58/2, out of 1 acre and 44 cents of land has allotted 0.45 cents, in Nanja Re-survey No.58/3, out of 0.66 cents of land, has allotted 0.28 cents to his sons (born through Thanam Ammal) namely to the 1st Respondent/1st Defendant Arunachalam and Durai in the presence of Panchayatars well 40 years ago and also, in Nanja Re-survey No.58/2, 1 acre and 44 cents, out of 0.45 cents allotted to Narayanasamy Gounder, 0.17 cents of land and in Survey No.58/3, out of 0.66 cents of land allotted to Narayanasamy Gounder's share, 0.28 cents and other properties have been allotted to the 1st Respondent/1st Defendant and his brothers Arunachalam and Durai Gounder. In Survey No.58/2, out of 1 acre and 44 cents, Narayanasamy Gounder in 0.45 cents after allotting 0.17 cents of land to the 1st Respondent/1st Defendant and his brothers has kept the balance of 0.28 cents and other properties for himself. The Balance 0.28 cents of land is in possession and enjoyment of the Appellant/Plaintiff's brother Kannusamy born through Narayanasamy Gounder and Selli Ammal.
8.The 1st Respondent/1st Defendant in Survey No.58/2, out of 1 acre and 44 cents, 0.17 cents and in Survey No.58/3, out of 0.66 cents, 0.28 cents have been allotted to him and in the capacity of owner, he has been cultivating and paying kist and in enjoyment of the properties. Therefore, the 1st Respondent/1st Defendant has acquired all rights as per Law.
9.Andi Gounder's second son Thulasi Gounder in Ayan Nanja Re-survey No.58/2, out of 1 acre and 44 cents has been in enjoyment of 0.48 cents and in enjoyment of 0.22 cents out of 0.66 cents in Nanja Re-survey Number, which he obtained on Partition. Further, because of the fact that the said Thulasi Gounder has no male issues and also for the reason that he has two daughters (1)Kannammal (2)Saraswathi Ammal, the said Thulasi Gounder has desired that the 1st Respondent/1st Defendant ought to perform his last rites and therefore, has left 0.26 cents out of 0.48 cents (which the said Thulasi Gounder obtained in Partition in Survey No.58/2, out of 1 acre and 44 cents) in his possession. As requested by Thulasi Gounder, the 1st Respondent/1st Defendant maintained him and also, performed his last rites. Continuing further, the balance 0.22 cents of land has been given to Kannammal and in Nanja Re-survey No.58/3, out of 66 cents, 22 cents have been given to his daughter Saraswathi Ammal in front of Village Panchayatars and that during the lifetime of Thulasi Gounder, the properties have been divided and handed over to the 1st Respondent/1st Defendant, Kannammal and Saraswathi Ammal. As stated supra, out of 1 acre and 44 cents in Survey No.58/2, 0.26 cents given to the 1st Respondent/1st Defendant has been cultivated and Kist have also been paid by him and therefore, the aforesaid properties belongs to him. Kannammal, in the aforesaid Survey Number has sold 0.22 cents for a valuable consideration of Rs.1,210/- by means of a Sale Deed dated 17.06.1978 to the 1st Respondent/1st Defendant and from the date of sale, he has been in enjoyment of the property by cultivating the same and also paying Kist.
10.The 0.22 cents of land out of 0.66 cents in Survey No.58/3, given to Saraswathi Ammal has been in her enjoyment and since she has been affected by fits, her hands and legs have been affected and therefore, for meeting out her medical expenses, the 1st Respondent/1st Defendant has spent more than Rs.1,200/-. The said Saraswathi has left 0.22 cents of land to the 1st Respondent/1st Defendant, who is in enjoyment of the property by cultivating the same.
11.As aforesaid, the 1st Respondent/1st Defendant has been in enjoyment of 0.48 cents in Survey No.58/2, in Survey No.58/3 has been in enjoyment of 0.22 cents and in all he has been in enjoyment of 0.70 cents absolutely as per Law.
12.Andi Gounder's third son Veerasamy Gounder has obtained 0.51 cents out of 1 acre 44 cents in Nanja Re-survey No.58/2 in 58/3, has acquired 0.16 cents out of 0.66 cents and in all, has acquired 0.67 cents, as Owner and has been in enjoyment of the same. Thereafter, his son Balu Gounder has got the said 0.67 cents and in 0.51 cents allotted to his father, has dug a stone well and has been in cultivation and enjoyment of the same. While that being so, the said Balu has sold 0.44 cents in Survey No.58/2 to the 1st Respondent/1st Defendant on 10.05.1973 together with well for a valuable consideration of Rs.1,400/- by means of a registered Sale Deed. Thereafter, on 26.06.1974, the said Balu for himself and on behalf of his minor child as guardian, has sold 0.07 cents in Survey No.58/2 and Survey No.58/3, 0.14 cents out of 0.64 cents, for a valuable sale consideration.
13.Therefore, by virtue of the aforesaid Sale Deeds, the 1st Respondent/1st Defendant has acquired right in the above mentioned properties. Therefore, the Appellant/Plaintiff has no right over the said properties.
14.The 1st Respondent/1st Defendant in the aforesaid properties has acquired the right of Adverse Possession and also, got the prescriptive title. The patta granted to the Appellant/Plaintiff in respect of II Item in Survey No.58/2D, 3.03.0 Hectares of land is not proper. The suit has to be dismissed. At any point of time, the 1st Respondent/1st Defendant has not encroached into the property of the Appellant/Plaintiff and damaged the nilgiri saplings. Therefore, the Appellant/Plaintiff is not entitled to claim damages for mesne profits. There is no necessity for the 1st Respondent/1st Defendant to trespass into the Appellant/Plaintiff's property on 09.11.1986.
15.The 2nd Respondent/2nd Defendant has been set Ex parte before the trial Court in the main suit.
16.Before the trial Court, in the main suit, 1 to 6 Issues have been framed for determination. On the side of the Appellant/Plaintiff, Witnesses PW1 to PW3 have been examined and Ex.A.1 to Ex.A.3 have been marked. On the side of the Respondents/Defendants, Witnesses DW1 and DW2 have been examined and Ex.B.1 to Ex.B.16 have been marked.
17.The trial Court, on an analysis and appreciation of oral and documentary evidence available on record, has come to a resultant conclusion that the suit property have come to the share of the Appellant/Plaintiff in Partition and also that, the Appellant/Plaintiff is not entitled to claim a sum of Rs.3,000/- towards damages of nilgiri saplings and decreed the suit in favour of the Appellant/Plaintiff in regard to the recovery of possession of the suit property from the Respondents/Defendants. It also granted two months time for handing over of the suit property by the Respondents/Defendants to the Appellant/Plaintiff.
18.The 1st Respondent/1st Defendant and the 4th Respondent/4th Defendant being aggrieved against the Judgment and Decree of the trial Court in O.S.No.184 of 1987, dated 23.12.1993, have preferred A.S.No.215 of 1994, as aggrieved persons before the Learned District Judge, Villupuram.
19.The First Appellate Court viz., the Learned District Judge, Villupuram, while passing the Judgment in A.S.No.215 of 1994, dated 26.06.1996, has held that the Appellant/Plaintiff is not entitled to claim the relief of declaration and also, for recovery of possession from the Respondents/Defendants and consequently, allowed A.S.No.215 of 1994 with costs and dismissed the suit filed by the Appellant/Plaintiff.
20.At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for determination.
(1)Whether the finding of the Lower Appellate Court holding that the patta issued in favour of the Appellant (Ex.A.1) was erroneously issued by the Revenue Authorities could be sustained having regard to the settled proposition that patta can be declared as invalid only by the appropriate authorities in a manner known to law and that the defendant had not taken any steps to cancel the patta?
(2)Whether the Lower Appellate Court is right in ignoring that patta is a prima facie evidence of title of the plaintiff?
(3)Whether failure by the Lower Appellate Court to consider the admission of PW1 regarding factum of partition would vitiate its finding of title and possession by the Appellant?
(4)Whether the Appellate Court is right in dismissing the suit notwithstanding the sale under Ex.B.2 which shows the Plaintiff's land as one of its boundaries and whether the Respondent is estopped from denying the title of the Plaintiff?
21.The Contentions, Discussions and Findings on Substantial Questions of Law 1 to 4:
According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court is not correct in reversing the well considered Judgment and Decree of the trial Court, dated 23.12.1993, in O.S.No.184 of 1987. Further, they are opposed to material evidence on record and probabilities of the case.
22.The Learned Counsel for the Appellant/Plaintiff urges before this Court that the patta has been issued in the name of the Appellant/Plaintiff and that he is in possession and enjoyment of the property as seen from Ex.A.1 to Ex.A.3 Patta and Kist receipts. But, these factual aspects of the matter have not been adverted to by the First Appellate Court in a real and proper perspective, which has resulted in miscarriage of Justice.
23.It is the plea of the Appellant/Plaintiff that as per Ex.B.2 and Ex.B.3 Sale Deeds, dated 10.05.1973 and 26.06.1974 respectively, the Appellant/Plaintiff's land is located on the Eastern side of the land under purchase and hence, the Respondents/Defendant are estopped from denying the possession and occupation of the Appellant/Plaintiff as regards the suit property.
24.Advancing his arguments, the Learned Counsel for the Appellant/Plaintiff contends that the First Appellate Court has wrongly relied upon Ex.B.4 to Ex.B.16 Patta and Kist receipts and indeed, both the Appellant/Plaintiff and the 1st Respondent/1st Defendant have been in possession and enjoyment of the property partitioned among themselves four decades ago and these crucial facts have not been properly appreciated resulting in adverse Judgment being passed against the Appellant/Plaintiff in A.S.No.215 of 1994.
25.Finally, the Learned Counsel for the Appellant/Plaintiff contends that the oral sale pleaded by the 1st Respondent/1st Defendant is not sanctioned in law. However, the First Appellate Court has not correctly appreciated this aspect while deciding the A.S.No.215 of 1994.
26.At this stage, this Court makes an useful reference to the oral evidence of PW1 to PW3 and DW1 and DW2 to appreciate the merits of the matter in a proper fashion.
27.PW1 (Appellant/Plaintiff) in his evidence has deposed that his father Narayanasamy's first wife is Thanammal and the 1st Defendant, Arunachala Gounder and Durai Gounder are the children born through the first wife and that Narayanasamy's second wife Selli Ammal, who is his mother and that Kannusamy and Annamalai are born through his father's second wife and his father has partitioned the family properties giving half share to them to the children and 30 years ago, they have partitioned the properties orally and that there is no documents for effecting the Partition and that the suit property has fallen to his share and he is the elderly person and his persons along with him are in enjoyment of the properties separately.
28.PW1 in his evidence further deposed that Patta No.468 stands in his name and in Ex.A.1 to Ex.A.3 are the Kist receipts and that during the year 1982, he has planted 150 nilgiri saplings and they have grown up in five years and the value of the saplings are Rs.3,000/- and the 1st Respondent/1st Defendant's children namely D2, D3 and D4 have destroyed the nilgiri trees/saplings and they have annexed the land and they are presently in enjoyment of the same and if the trees are inexistence now, then, its value will be Rs.10,000/- and that he claims a damage of Rs.3,000/- and also claims right in the suit property.
29.PW1 (in his cross examination) has deposed that he does not know about the Survey Number of the suit property and that he has filed a suit for 25 cents and also, he does not know about the total extent of the property and initially, the properties belongs to one Andi Gounder, who has three sons namely Periyasamy, Thulasi, Veerasamy and they have partitioned themselves the properties by each one getting an acre of land and Palani is born through the first wife of Narayanasamy and he is born to his father's second wife and Partition has taken place 40 years ago for himself, Kannusamy and Annamalai, 40 cents have come in Partition and he is in enjoyment of the properties for 30 years by paying Kist and Saraswathi is the daughter of Thulasi Gounder and the property has been purchased by the 1st Respondent/1st Defendant (Palani) from Saraswathi and even the share of Kannammal has been added to the share of the 1st Respondent/1st Defendant (Palani) and it is wrong to state that the patta stands in the name of the 1st Respondent/1st Defendant and Veerasamy has sold to the 1st Respondent/1st Defendant and 25 cents of lands is in enjoyment of the 1st Respondent/1st Defendant.
30.PW2 has stated in his evidence that his brother Munusamy (Appellant/Plaintiff) and he and his brother have partitioned the property 50 years ago and before eight years, the Appellant/Plaintiff in the suit property has planted nilgiri saplings/trees and the 1st Respondent/1st Defendant and his children six years ago have kept the 2 = years nilgiri saplings valued about Rs.1,500/- and in the suit property, his brother has a right and that Kannammal and Balu's land have been purchased by the 1st Respondent/1st Defendant and that the 1st Respondent/1st Defendant is ploughing the land for six years and he and his brother have got separated 30 years ago and the 1st Respondent/1st Defendant is the son of his father's first wife and the 1st Respondent/1st Defendant has gone separately 50 years ago and when the saplings has been cut, he and his brother have not obstructed the same.
31.PW3 in his evidence has deposed that the Appellant/Plaintiff is his uncle and the suit is concerned with 25 cents of land and that the Kist has been paid by the Appellant/Plaintiff and he does not know in whose name the patta stands and that the Appellant/Plaintiff has been in enjoyment of the property, but, he has not been in enjoyment of the property for the past six years and the 1st Respondent/1st Defendant is in enjoyment of the suit property.
32.DW1 (1st Defendant) in his evidence has deposed that the 2 and 3 Defendants is his sons and the Appellant/Plaintiff is his brother and his father has two brothers, who have partitioned themselves and in Nanja land, Narayanasamy originally possessed 1 Cani and in Punja land, he possessed 4 = Canies and 40 years ago, they have partitioned themselves of the properties and in Nanja land each one got = cani of land and in Punja land, they have 1 = Canies of land, but he, does not know about the Survey Number.
33.DW1 further added in his evidence that the suit has been filed in respect of the two Survey Numbers measuring an extent of 25 cents in which the Appellant/Plaintiff has no right and Kannammal is the heir of Thulasi Gounder and that he has purchased from Saraswathi and Kannammal and Ex.B.1 is the Sale Deed dated 17.06.1983 purchased by him and that he is in enjoyment of the land purchased from Saraswathi and also, he has purchased his maternal uncle son Balan's share of the property by means of Ex.B.2 Sale Deed dated 10.05.1973 and as per Ex.B.3 Sale Deed, dated 26.06.1974, he has purchased 16 cents in the I Item and also, purchased 7 cents in the II Item and Ex.B.4 is the Patta granted in respect of the I Item and UDR Patta is Ex.B.5 and the Kist receipts are Ex.B.6 to Ex.B.12 and Ex.B.13 to Ex.B.16 is the Kist paid in respect of Patta No.371.
34.DW2 in his evidence has deposed that the Appellant/Plaintiff and the Respondents/Defendants have partitioned the properties orally 35 years ago and the land is Nanja land and the 1st Respondent/1st Defendant has got the suit property by means of Partition and that the Appellant/Plaintiff at any point of time has not enjoyed the suit property and that in Survey No.58/2, he has sold 44 cents, as per Ex.B.2 Sale Deed, dated 10.05.1973 and that in the suit property, the Appellant/Plaintiff has no right.
35.DW2 (in his cross examination) has stated that he does not know about the plant of nilgiri trees in the suit property and that he has not gone to the Police Station and he does not know about the complaint being lodged in regard to the cutting of nilgiri trees and that he has sold the two items of property and that Narayanasamy's children, the Appellant/Plaintiff and the 1st Respondent/1st Defendant have partitioned 30 years ago.
36.In a civil litigation, it is the bounden duty of the Plaintiff to establish his case to the satisfaction of a Court of Law and in accordance with Law. In the instant case on hand, the Appellant/Plaintiff has sought the relief of declaration of his right in respect of the suit properties and further, claimed a sum of Rs.3,000/- towards damages/mesne profits in respect of the destruction of nilgiri trees.
37.However, the 1st Respondent/1st Defendant and other Defendants (except 2nd Defendant, who remained Ex parte in the suit before the trial Court) have taken a plea that the Appellant/Plaintiff has no manner of right in the suit property and further, the 1st Respondent/1st Defendant has been in enjoyment of the suit property by cultivating the same and also, paid Kists. As such, the Appellant/Plaintiff is not entitled to claim any relief as sought for by him in the Plaint.
38.In the Plaint, in O.S.No.184 of 1987 on the file of the trial Court, the schedule of properties I-Item speaks of Ayan Punja Re-Survey No.58/3C, 0.07.0 Hectares and the II Item refers to Ayan Punja Re-survey No.58/2D, 0.03.0 Hectares.
39.PW1 (in cross examination) has deposed that he has filed the suit for 25 cents and he does not know the total extent of the Plaint schedule properties and that 25 cents are in possession of the 1st Respondent/Plaintiff for 6 or 7 years etc. In this connection, it is not out of place for this Court to make a relevant mention that in the Plaint schedule two items in Ayan Nanja Re-survey No.58/3C and 58/2D, no four boundaries have been mentioned/described.
40.Significantly, PW2 in his evidence has stated that the Appellant/Plaintiff is his brother and they have divided the properties 50 years ago and that the Appellant/Plaintiff has planted nilgiri saplings 8 years ago in the suit property and that the 1st Respondent/Plaintiff and his children 6 years ago have cut the 2 = years saplings, valued about Rs.1,500/-. PW1 (Appellant/Plaintiff) has claimed a sum of Rs.3,000/- towards cutting of nilgiri saplings in the Plaint. But, PW2 (brother of the Appellant/Plaintiff) has in his evidence stated that the value of nilgiri trees destroyed is Rs.1,500/-. Therefore, there is a discrepancy in regard to the evidence of PW1 (Appellant/Plaintiff) as to the loss in cutting of the nilgiri trees, with that of the evidence tendered by PW2 (none else than the brother of the Appellant/Plaintiff).
41.PW3 in his evidence has stated that the nilgiri saplings (young plants) in the land of the Appellant/Plaintiff has been cut during night hours and that the 1st Respondent/Defendant has annexed the land of the Appellant/Plaintiff with the land of the 1st Respondent/Defendant and that the Appellant/Plaintiff for the past 6 years is not in enjoyment of the suit property.
42.DW1 (1st Respondent/1st Defendant) in his evidence has deposed that the Appellant/Plaintiff has no right in the suit property of 25 cents and that in these Survey Number, his uncle Thulasi has been given 25 cents and that the heir of Thulasi is Kannammal and from Saraswathi and Kannammal, he has purchased and Ex.B.1 is Sale Deed dated 17.06.1978 and that he is cultivating Saraswathi's Portion of land and also, he purchased the uncle Veerasamy's portion from his only heir Balan as per Ex.B.2 Sale Deed dated 10.05.1973 and in the I Item, he has purchased 16 cents and in the II Item, he has purchased 7 cents as per Ex.B.3 Sale Deed dated 26.06.1974, Ex.B.4 Patta for the I Item of the property, Ex.B.3 Sale Deed dated 26.06.1974 and Ex.B.5 UDR Patta.
43.DW2 has also stated that he has sold 44 cents in Survey No.58/2 as per Ex.B.2 Sale Deed dated 10.05.1973 and further, as per Ex.B.2 and Ex.B.3 Sale Deeds, the entire land has been sold to the 1st Respondent/1st Defendant and they have sold the two Items.
44.It is to be pointed out that the Tamil Nadu Survey and Boundaries Act are applicable for fixing the boundaries of undisputed lands only, as per decision Venugopal v. Chandrasekara Padayachi (deceased) and others, 2003 2 MLJ 286 (Mad).
45.In Law, the concept of possession is of two types. (1)the Corpus (2)the Animus. The Corpus refers to actual, exclusive physical control over the property denoting physical possession. The Animus refers to the intention and exercise of right to possess the property as owner to the exclusion of others. They go to constitute legal possession. Indeed, the possession of a vacant land is presumed to follow the title and in such a case, it is for the defendant to prove his Adverse Possession for 12 years period as per decision Ghulam Muhammad v. Fatch Khan, AIR 1928 Lah 896.
46.This Court worth recalls the decision Ayissa v. Kunhaikalanathan, AIR 1948 Mad 420, it is observed that in a suit for ejectment on the strength of title and allegation of dispossession, if 12 years of dispossession is proved but no evidence to led to prove possession before the date of dispossession, the plaintiff can invoke the presumption of possession following title and held that he need not prove the acts of ownership before the date of dispossession.
47.If a Plaintiff files a suit to recover possession of a property and not merely damages for some interference with his possession, he has to prove his title to the property, or at least, that he has a better right to be in possession of that property than the Defendant. Since the Defendants holds the property, his possession raises a presumption of ownership in his favour and he cannot be disturbed till someone establishes that he has a better title to the possession. Really speaking, a Plaintiff cannot recover possession except based on the strength of his own title. He cannot pick holes of Defendant's title or relies on the weakness of the Defendant's title, for possession gives the Defendant a good title against everyone who cannot show a better title as per decision Cf Arumugam v. Perriyanana 25 WR 81 (PC).
48.An action for ejectment is ex-hypothesi brought against an individual in possession of immovable property. The legal presumption that possession is prima facie evidence of title has to be rebutted. If the Plaintiff comes into Court and only establishes that once he has been in possession of the property before the Defendant and nothing more, he only sets up a presumption and the onus is on him to prove his case. Otherwise, he must fail.
49.If a Plaintiff seeks relief not only on proprietary, but also on possessory title, the onus is on them to prove the same. If a Plaintiff has title then, that can be replaced by means of acquisition of title by means of Adverse Possession of the Defendants. If the contesting Defendant has acquired title by means of Adverse Possession then, the Plaintiff suit for declaration of title will fail. However, if the Plaintiff fails to establish independent proprietary title, he will succeed to get possession if he proves that he is earlier in possession and has been dispossessed by the Defendant, who claims no independent title. To put it differently, if the possession of the Defendant falls short of the requisite perspective period of 12 years and the Plaintiff has anterior possession, then, he will not be entitled to declaration of title, but, merely recovery of possession as per decision Gadadhar Sahu v. Karsanbasta Patel, (1963) ILR Cut 482.
50.If the legal dispossession of the Plaintiff is proved, the Defendant must prove his title and if he fails to do the same, the Plaintiff is entitled to a decree. However, if the Defendant succeeds in establishing his title, the Plaintiff is then, and not till then, called upon to prove a better title as per decision Enaetoollah v. Kishen Soondur 8 Suth WR 386.
51.Where the Defendant is in possession of land for 16 years and his name is also recorded in the revenue records, right of Plaintiff on the basis of title is lost by means of Adverse Possession as per decision Rajiv Lochan Patil v. Sapneswar Pandey, AIR 1995 Orissa 70.
52.This Court aptly points out the decision Chander Singh and others v. Jamuna Prasad Singh and others, AIR 1958 PATNA 193, wherein it is held as follows:
A sale is complete when a sale deed is executed by the vendor and the vendor has no right in law to rescind or revoke the sale, registration or no registration. After a sale is completed by execution of a deed, registration comes as a matter of course and is not dependent upon the volition of the vendor. It can be brought about compulsorily in the event of refusal by the vendor to assent to the registration. AIR 1927 PC 42 and AIR 1928 PC 86 and AIR 1938 All 431 Rel. on ILR 11 Cal 229 and AIR 1916 All 199 Ref. (Para 7).
53.In Swaminatha Udayar v. Mottaya Padayachi and others, AIR 1957 Madras 209, this Court has held as follows:
The existence of an unregistered instrument does not prevent property from passing provided delivery of the property has taken place. In such a case the deed would be evidence of the contract of sale and of negotiations concerning the transaction. AIR 1916 Mad 1126 (2) Foll. (Para 5).
54.In Chinnasami Chetty and others v. Manickammal and another, A.I.R. 1937 Madras 265, it is held hereunder:
Where the sale is only for amount less than Rs.100/-, the non-registration of the document is not fatal to the validity of the transfer if the transferee is able to establish a prior oral sale and delivery of possession in pursuance thereof, i.e., an oral sale sufficiently dissociated from the unregistered sale deed, that the one can be regarded as independent of the other: AIR 1928 Mad 546, Expl. (P.265 C 1,2)
55.In the decision, the District Collector, Thiruvannamalai and others v. Jayaseelan, (2008) 1 MLJ 1012, it is held that it is open to the party aggrieved to take appropriate remedy before the appropriate forum for seeking appropriate relief to get patta in respect of the property after impleading necessary parties.
56.Ex.A.1 is the Patta No.468, dated 09.10.1984 in favour of the Appellant/Plaintiff relates to Survey No.35-4A and other Survey Numbers (including the suit Survey No.58/3C, 0.07.0 and 58/2D, 0.02.0). In the Plaint schedule properties, the II item Re-survey No.58/2D is only mentioned as 0.03.0 Hectares. But, in Ex.A.1 Patta Re-survey No.58/2D is mentioned as measuring 0.02.0. Here again, there is discrepancy in regard to the measurement in Re-Survey No.58/2D, in the considered opinion of this Court. Admittedly, Ex.B1 Sale Deed dated 17.06.1978, Ex.B.2 Sale Deed dated 10.05.1973 and Ex.B.3 Sale Deed dated 26.06.1974 in favour of the 1st Respondent/1st Defendant are registered one. The 1st Respondent/1st Defendant has produced Ex.B.1 to Ex.B.3 Sale Deeds as referred to supra. Further, these three Sale Deeds are registered one in the eye of Law and as such, as per Section 3 of the Transfer of Property Act, 1882, registration of these documents amount to 'Notice' to the whole world. Hence, one cannot feign ignorance about these three registered Sale Deeds, which are registered by the concerned Sub-Registrars in accordance with law.
57.A perusal of the Plaint in O.S.No.184 of 1987 on the file of the trial Court indicates that the Plaint has been firstly presented on 05.03.1987. It has been returned for compliance of returns by the Office of the trial Court on 06.03.1987. The returns have been complied with on behalf of the Appellant/Plaintiff on 23.03.1987. Finally, the Plaint has been taken on file as O.S.No.184 of 1987 on 26.03.1987 by the trial Court. As a matter of fact, the 1st Respondent/ Plaintiff has been in enjoyment of the suit properties for well over statutory period and further, he has also in enjoyment of the other properties as well. In his favour, the 1st Respondent/Plaintiff has relied upon Ex.B.1 to Ex.B.3 Registered Sale Deeds apart from relying upon Ex.B.5 Patta No.371 and also, Ex.B.13 to Ex.B.16 Kist receipts. When the 1st Respondent/1st Defendant has purchased the suit property as per Ex.B.3 Sale Deed, dated 26.06.1974, then, the said Sale Deed which is earlier to that of Ex.A.1 Patta, dated 09.10.1984, holds good in the eye of Law. It is not known as to how in Ex.A.1 Patta No.468, the suit properties are included when the same has been purchased by the 1st Respondent/1st Defendant as per Ex.B.3 Sale Deed, dated 26.06.1974. To put it shortly, in the teeth of Ex.B.3 Sale Deed dated 26.06.1974, one cannot place any reliance on Ex.A.1 Patta No.468 (in regard to the suit properties) and the same is not to be given undue importance and has been very rightly ignored by the First Appellate Court, while delivering the Judgment in A.S.No.215 of 1994 on 26.06.1996. Moreover, Ex.B.3 Sale Deed dated 20.06.1974 will prevail over Ex.A.1 Patta dated 09.10.1984.
58.As regards the trespass made by the 1st Respondent/1st Defendant in regard to the suit property, as claimed by the Appellant/Plaintiff, it is to be pointed out that the Appellant/Plaintiff has not filed any proof in regard to the complaint lodged by him before the Police Station and his claim of damages of Rs.3,000/- from the 1st Respondent/1st Defendant has been very rightly negatived by the trial Court as well as by the First Appellate Court, in the considered opinion of this Court. No wonder, a patta right is intangible property and the 'other intangible thing' in Section 54 of the Transfer of Property Act, undoubtedly is meant to include those imponderables pertaining to an immovable property. As discussed already, when Ex.B.1 to Ex.B.3 Sale Deeds are very much in existence which relates to the year 1978, 1973 and 1974, then, this Court opines that no reliance can be placed upon Ex.A.1 Patta No.468 (UDR Patta) dated 09.10.1984 concerning the suit properties.
59.Merely because Ex.B.2 Sale Deed, dated 10.05.1973, executed by one Balu, to and in favour of the 1st Respondent/1st Defendant, mentions the Appellant/Plaintiff's land, as one of the Western boundaries, it cannot be contended that the 1st Respondent/1st Defendant is estopped in law from denying the title of the Appellant/Plaintiff, when admittedly the witnesses Pachamuthu Gounder, Thangavel and Writer of the Ex.B.2 Sale Deed have not been examined as witnesses before the trial Court. When Ex.B.1 to Ex.B.3 Sale Deeds in favour of the 1st Respondent/1st Defendant shows that he has purchased the property from Kannammal, Balu and Murugan, then, those Sale Deeds which are registered one in the eye of Law. They invalidate Ex.A.1 Patta No.468, dated 09.10.1984, issued by the Special Tahsildar, UDR Scheme of Tirukoilur Circle and in the said patta concerning the suit properties are of little help to the Appellant/Plaintiff, in the considered opinion of this Court. In Law, a Sale Deed is a title to an immovable property. Patta is an incident of title. Based on Sale Deed/Sale Deeds, a person in Law is entitled to obtain Patta in his name (by way of name transfer).
60.It is true that ordinarily, the entries in the Patta Pass-book are to be prima facie evidence of title. As per Section 6 of the Tamil Nadu Patta Pass-book Act, 1983, even Section 4 of the Act, enjoins that the entries in the Patta Pass-book and the certified copy of the entries in the Pass-book shall be presumed to be true and correct, until the contrary is proved or a new entry is substituted therefor.
61.In the present case on hand, on behalf of the 1st Respondent/1st Defendant, Ex.B.1 to Ex.B.3 registered Sale Deeds in his favour have been produced before the trial Court as Exhibits. As such, the Appellant/Plaintiff cannot seek the aid of the Ex.A.1 Patta No.468, dated 09.10.1984. In short, one cannot find fault with the observation of the First Appellate Court in its Judgment in A.S.No.215 of 1994 to the effect that Ex.A.1 Patta has been wrongly issued in favour of the Appellant/Plaintiff when he has purchased the suit property as per Ex.B.3 Sale Deed, dated 26.06.1974.
62.In the light of the aforesaid detailed discussions and on consideration of the entire subject matter in a comprehensive fashion, this Court comes to an inescapable conclusion that the First Appellate Court viz., the Learned District Judge, Villupuram, has rightly held that the Appellant/Plaintiff is not entitled to claim the relief of declaration as prayed for in the Plaint and also, he is not entitled to get the relief of recovery of possession and consequently, allowed the First Appeal (filed by the 1 and 4 Respondents/1 and 4 Defendants) with costs and dismissed the Suit. Therefore, this Court holds that the First Appellate Court is quite right in coming to the conclusion that Ex.A.1 Patta has been erroneously issued by the Revenue Authorities etc., and the real position is that a registered Sale Deed will prevail over Ex.A.1 Patta (notwithstanding the fact that the Patta holds valid till it is canceled by the Competent Authority). Further, even though Patta is a 'Bill for Rent', in the teeth of registered Sale Deed/registered Sale Deeds, it will not prevail over the same and as such, it cannot be construed that it is a prima facie evidence of title. Even though PW1 (Appellant/Plaintiff) has admitted in his evidence that orally 30 years ago, they have divided the properties for which there is no document, yet, in his cross examination, he has tacitly admitted that the 1st Respondent/1st Defendant has purchased the properties from other sharers and therefore, the said admission would not in any way vitiate the finding of the First Appellate Court in regard to the title and possession of the Appellant. Lastly, this Court opines that even though Ex.B.2 Sale Deed, dated 10.05.1973, shows that the Appellant/Plaintiff's land has one of his boundaries, the First Appellate Court is correct in dismissing the Suit. Moreover, the Appellant/Plaintiff's land shown as one of the boundaries at best can be taken as one fact to locate the property, which must be taken into consideration with other available oral and documentary evidence on record. Also that, the Respondents are not estopped from denying the title of the Appellant/Plaintiff. Accordingly, the Substantial Questions of Law 1 to 4 are answered against the Appellant/Plaintiff. Consequently, the Second Appeal fails.
In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the Learned District Judge, (Villupuram Ramasamy Padayachi District), Villupuram, dated 26.06.1996, in A.S.No.215 of 1994, are confirmed by this Court, for the reasons assigned in this Appeal.
mps To
1.The District Judge, (Villupuram Ramasamy Padayachi District), Villupuram.
2.The District Munsif, Tirukoilur