Madras High Court
Bhoomathy vs Glory Bai
Author: R.Vijayakumar
Bench: R.Vijayakumar
S.A.No.542 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 16.12.2021
DELIVERED ON : 06.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.542 of 2003
Bhoomathy ... Appellant/
Respondent/
Defendant
Vs
1.Glory Bai
2.Justin Jebaraj
3.Mary Bai
4.Edwin Jose (minor) ... Respondents/
Appellants/
Plaintiffs
(4th respondent minor is represented
by mother natural guardian)
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, against the judgment and decree made by in A.S.No.151 of 1997 by
the learned Sub-Judge, Padmanabhapuram on 30.09.2002 reversing the
judgment and decree made in O.S.No.187 of 1993 by the learned Principal
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https://www.mhc.tn.gov.in/judis
S.A.No.542 of 2003
District Munsif Court on 29.08.1997.
For Appellant : Mr.P.Thiyagarajan
For Respondents : No appearance
JUDGMENT
The defendant is the appellant herein.
2. The plaintiffs filed O.S.No.187 of 1993 before the Principal District Munsif Court, Padmanabhapuram for permanent injunction for an extent of 17 ½ cents in old Survey No.3668 corresponding to Resurvey No. 577/14. The suit was dismissed by the trial Court. The plaintiffs filed A.S.No.151 of 1997 before the Sub Court, Padmandhapuram. The first appeal was allowed granting a decree in favour of the plaintiffs. As against the same, the present second appeal has been filed by the defendant.
3. The plaintiffs filed a suit contending that the old Survey No.3668 having an extent of 3 acre and 80 cents, originally belonged to one Sabari Muthu. After his death, it devolved upon his son Peruma Kutty and after his 2/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 death, it devolved upon his son Innasi. The plaintiffs further contended that the said Innasi had 5 sons and the present plaintiff is one of the sons of Innasi namely, Narayanan. The plaintiffs further contended that they are entitled to 1/5th share which could come around 72 cents under 3 distinct plots comprised in Re-Survey No.577/14, 578/7 and 578/18. According to the plaintiff, the plot comprised in Resurvey No.577/14 having an extent of 17.5 cents is the suit schedule property and he has put up a house in Door No.7-86 in the said property. According to the plaintiffs, the defendant has purchased a property from one Gnanasighamony and the defendant does not has any right title or possession over the suit schedule properties.
4. The defendant filed a written statement contending that the plaint suit schedule properties correspond to Resurvey No.577/14 forms part of old Survey Nos.3667B and 3668. According to the defendant, the old survey number of the suit schedule properties corresponding to Resurvey No. 577/14 is not old Survey No.3668 alone. The defendant disputed the extent claimed by the plaintiffs in old Survey No.3668 and also disputed the genealogy described by the plaintiffs in the plaint. The defendant further 3/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 contended that the suit schedule properties falling under old Survey No. 3667B belongs to the defendant.
5. According to the defendant, the suit schedule properties were allotted to the share of one Ponnamma having an extent of 1 acre and 28 cents. After her death, the Ponnamma's daughter namely, Kamalam and Palamma have executed a sale deed in favour of one, Gnanasighamony and Russalian for an extent of 50 cents on the Westernmost portion on 21.10.1976. The said Gnanasighamony and his father Russalian had executed a sale deed in favour of the defendant for an extent of Westernmost 7 ½ cents out of the said 50 cents on 07.02.1991. According to the defendant, he is in possession of the said 7 ½ cents and the plaintiffs are not entitled to any title or possession over the said 7 ½ cents.
6. The trial Court considered Exhibit A20 which is a partition deed said to have been entered into among the family members of the plaintiffs. According to the plaintiffs, in the said partition deed, the suit properties were allotted to the share of the father of the first plaintiff namely, 4/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 Gnanamuthu. The trial Court however rejected Exhibit A10 correlation register on the ground that it does not seem to be maintained in the official course of business. The trial Court further held that the plaintiffs have not established that the old Survey No.3668 correlates to R.S.No.577/14. The trial Court also held that except Exhibit A20 in which there is a reference about old Survey No.3668, no document has been filed on the side of the plaintiffs to establish their title over the suit schedule properties. The trial Court also took adverse interference on the fact that none of the plaintiffs have chosen to examine themselves as witness and only a third party to the suit has been examined as witness.
7. The trial Court also found that the documents relied upon by the party to establish possession, does not relate to the suit schedule properties and on the basis of the same, plaintiff cannot establish possession. The trial Court also found that the boundary recitals in Exhibit A20 does not correlate to the boundary recitals in the plaint schedule and hence, it cannot be construed that the property allotted to the plaintiffs' father under Exhibit A20 has devolved upon the plaintiffs. The trial Court also found that the 5/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 plaintiffs have not taken any steps for appointment of an Advocate Commissioner to establish the lie and identity to the suit schedule properties or to correlate the old survey number with the Resurvey Number. The trial Court however rejected the contention of the defendant that the previous suits referred by the defendant in the written statement does not relate to the suit schedule properties, but proceeded to dismiss the suit on ground, that the plaintiffs have not established their title or possession over the suit schedule properties.
8. The First Appellate Court relied upon Exhibit A20 to arrive at a conclusion that in the said partition deed, an extent of 3 acres and 43 cents in old Survey No.3668 was owned by the family of the plaintiffs. The First Appellate Court also relied upon Exhibit A10 for arriving at a conclusion that the plaintiffs were successful in correlating O.S.No.3668 with the Resurvey No.577/14. The First Appellate Court also relied upon Exhibits A2 and A3 tax receipts and the house tax receipt under Exhibit A20 receipt issued in favour of the plaintiffs to establish the possession of the suit schedule properties, in favour of the plaintiffs. The First Appellate Court on 6/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 perusal of Exhibit B1 found that though the old Survey No.3667B has been correctly mentioned, Resurvey No.577/14 has been wrongly included which has resulted in the present dispute. The First Appellate Court also found that the parent document of the plaintiffs namely Exhibit B4 does not consist of Resurvey No.577/14, but only consist of old Survey No.3667B. The First Appellate Court also found that the defendant is not making any claim over the old Survey No.3668 and the plaintiffs are not making any claim over the old Survey No.3667B. The only issue that arises for consideration is, whether the old Survey No.3668 is falling within the Resurvey No.577/14.
9. The First Appellate Court proceeded to rely upon Exhibit A10 and the deposition of P.W.2 to arrive at a conclusion that the plaintiffs have proved the correlation between the old Survey No.3668 with Resurvey No. 577/14. The First Appellate Court also arrived at a finding that the previous suits indicated by the defendant in the written statement have nothing to do the present suit. Based on the said finding, the First Appellate Court reversed the judgment and decree of the Trial Court and decreed the suit as prayed for. As against the judgment and decree of the First Appellate Court, 7/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 the present second appeal has been filed.
10. The second appeal has been admitted on the following substantial question of law:
“Whether the judgment of the Courts below is vitiated in law due to its failure in not drawing the legal conclusions in favour of the appellant on the admitted and established facts”
11. The learned counsel for the appellant contended that the First Appellate Court has mainly relied upon Exhibit A20 partition deed said to have been entered into between the family members of the plaintiffs. He pointed out that there is no pleading in the plaint with regard to Exhibit A20 partition deed. He further contended that Exhibit A10 correlation register has been rejected by the trial Court on the ground that it does not seem to be maintained in the regular course. However, the First Appellate Court without assigning any reason has accepted Exhibit A10. In fact Exhibit A10 also does not disclose the proper correlation of old Survey No.3668. The learned Counsel for the appellant further contended that the present suit has 8/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 been filed for permanent injunction without seeking a prayer for declaration of title. In the present suit, the title of the defendant has been strongly disputed by filing Exhibits B1 to B3 partition suit decrees. The defendant has also produced Exhibits B4 and B7 sale deed in their favour, creating a cloud over the title of the plaintiffs. Under the said circumstances, the plaintiffs ought to have prayed for declaration of title and the present suit for permanent injunction alone is not maintainable.
12. The learned counsel for the appellant further contended that the defendant's vendors' Gnanasighamony and his father Russalian had initiated O.S.No.706 of 1979 before the Additional District Munsif Court, Padmanabhapuram for the relief of declaration of title, possession and injunction for the 50 cents purchased by him under Exhibit B4. In the said suit, the present plaintiff was the 5th defendant. It is pertinent to point out that the 5th defendant remained exparte. The said suit was decreed in favour of the plaintiffs in the said suit. The present defendant has purchased the property from the successful plaintiffs under Exhibit B7 for an extent of 7.5 cents. Hence, the present suit for permanent injunction is hit to principles of 9/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 res judicata. According to the learned counsel for the appellant, the suit register in O.S.No.706 of 1979 has been filed as Exhibit B6 by the defendant. The judgment in O.S.No.706 of 1979 has been filed as Exhibit A9 on the side of the plaintiffs. Hence, this Court can come to a conclusion that the present suit is barred under Section 11 C.P.C.
13. Though the defendants have been served and learned counsel has been engaged, that there is no appearance on the side of the respondents.
14. I have carefully considered the submission on the side of appellant.
15. The plaintiffs have contended that the old Survey No.3668 is having an extent of 3.80 cents. However, a perusal of Exhibit A11 land tax assessment register will indicate that the total extent of old Survey No.3668 is just 3.43 acres. Hence, the entire burden is upon the plaintiff is to establish that though the records indicate the total extent as 3.43 acres yet as per lie, the said survey number was having an extent of 3.80 acres. The 10/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 plaintiffs have not produced any oral or documentary evidence to establish that the old Survey No.3668 had an excess of 37 cents. That apart, the main contention of the plaintiffs is that the old Survey No.3668 correlates to Resurvey No.577/14 and 17.5 cents in the said Resurvey Number is the suit schedule property. For correlating the old survey number with the re-survey number, the plaintiffs have produced Exhibit A10.
16. I have carefully perused Exhibit A10 and it could be seen that it is some unofficial record maintained by the officers during field inspection. It is not a document which is regularly maintained in the official course of business, so that, it could be relied upon by the Court. The plaintiffs have also not taken steps to get any correlation certificate from the revenue authorities. Hence, it can be safely concluded that the plaintiffs have neither proved the total extent of the suit schedule properties in old Survey No.3668 as 3.80 acres nor they have proved the correlation of old Survey No.3668 with R.S.No.577/14.
17. The defendant has filed Exhibit B3 final decree proceedings in 11/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 O.S.No.112 of 1961 which would disclose that one, Ponamma was allotted 1.28 acres in the suit schedule properties. According to the defendant, the said Ponamma had died intestate leaving behind her daughters, Kamalam and Palamma. The said daughters have executed Exhibit B4 registered sale deed for the Westernmost extent of 50 cents in favour one Gnanasighamony and Russalian Nadar. The said Gnanasighamony and Russalian Nadar have jointly executed Exhibit B7 sale deed in favour of the defendant for an extent of 7.5 cents out of the said 50 cents in favour of the defendant. Hence, the defendant has traced his title to the suit schedule properties. The old Survey No.3667B has been mentioned in Exhibit B4 and R.S.No.577/14 is also mentioned in Exhibit B7 sale deed.
18. The plaintiffs' vendor namely Gnanasighamony Nadar and Russalian Nadar have initiated O.S.No.706 of 1979 before the Additional District Munsif Court, Padmanabhapuram for the relief of declaration of title, possession and injunction for an extent of 50 cents purchased by them under Exhibit B4 sale deed from Kamalam and Palamma. In the said suit, the suit property is mentioned as 50 cents in old Survey No.3667B. The 12/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 present plaintiff is the 5th defendant in the said suit. The 5th defendant had remained exparte and a decree has been passsed in favour of the plaintiffs therein. The First Appeal filed by the other defendant has been dismissed and the second appeal has also been dismissed as per the suit register filed by the defendant in Exhibit B6. These facts will clearly indicate that the present suit filed by the plaintiffs is barred under Section 11 of Civil Procedure Code. The defendant has filed Exhibits B8 and B9, B11 to B13 revenue records to establish their possession over the suit schedule properties.
19. The First Appellate Court has relied upon Exhibit A20 partition deed to decide upon the title of the plaintiffs. Infact there is no pleading with regard to Exhibit A20 in the plaint. The First Appellate Court also relied upon Exhibit A10 alleged correlation register which has not been maintained in the official course of business. Merely relying upon the deposition of Village Administrative Officer who was examined P.W.2, the trial Court has come to the conclusion that the plaintiffs have established the title and possession over the suit schedule properties. The first plaintiff had 13/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 died before the trial had begun his legal heirs have been impleaded as plaintiffs 2 to 5. None of the plaintiffs have chosen to enter into the box to prove their case.
20. On the other hand, one Swamindass who is the 3rd party to the plaintiffs' family has been examined as P.W.1 on the side of the plaintiffs. No explanation has also been offered on the side of the plaintiffs for not examining anyone of the plaintiffs as witness. Hence, this Court can safely come to a conclusion that the plaintiffs have not proved their case.
21. The title of the plaintiffs has been strongly disputed in the written statement. The defendant has filed Exhibits B1 to B4 and B7 to create a cloud over the title of the plaintiffs. When the defendant has disputed the title of the plaintiffs and filed competing documents, the present suit for permanent injunction without seeking a prayer for declaration of title is not maintainable.
22. In view of the above said discussion, the substantial question of 14/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 law is answered in favour of the appellant and the judgment and decree of the First Appellate Court are liable to set aside and accordingly set aside. The second appeal is allowed and the suit is dismissed. No costs.
06.01.2022
Index : Yes / No
Internet : Yes / No
btr
Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To
1.The Sub-Judge, Padmanabhapuram.
2.The Principal District Munsif Court, Padmanabhapuram.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
15/16 https://www.mhc.tn.gov.in/judis S.A.No.542 of 2003 R.VIJAYAKUMAR,J.
btr Judgment made in S.A.No.542 of 2003 06.01.2022 16/16 https://www.mhc.tn.gov.in/judis