Madras High Court
Panchavarnam vs Poochiammal on 16 August, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.08.2016 Coram THE HONOURABLE MS.JUSTICE R.MALA S.A(MD)No.828 of 2005 and C.M.P.(MD)No.5393 of 2005 Panchavarnam .. Appellant/Appellant/Defendant vs. Poochiammal .. Respondent/Respondent/Plaintiffs PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree made in A.S.No.69 of 2003, dated 20.08.2004, on the file of II Additional Subordinate Judge, Madurai confirming the decree and judgment made in O.S.No.781 of 1995, dated 04.02.2003 on the file of the Principal District Munsif of Madurai Town. !For Appellant : Mr.P.Ramagopalan for Mr.R.Ganesh ^For Respondent : Mr.R.J.Karthick for Mr. R.Subramanian :JUDGMENT
The defendants, who lost the legal battle in both the Courts, have come forward with the Second Appeal, challenging the Decree and Judgment passed in A.S.No.69 of 2007, dated 20.08.2004 by the II Additional Subordinate Judge, Madurai by confirming the Judgment and Decree, passed in O.S.No.781 of 1995, dated 04.02.2003, by the Principal District Munsif, Madurai Town.
2. Heard the learned counsel for the appellant and the learned Counsel for the respondent and perused the materials available on record.
3. The respondent as plaintiff filed a suit in O.S.No.781 of 1995 for a declaration of title and recovery of possession stating that the property is belonging to him and the defendant is her sister. Since the defendant is not having any house, she was given a permissive possession. But when the plaintiff demanded to vacate the house, the defendant has not vacated the same. Hence, the plaintiff issued a notice dated 11.07.1991 and on 05.11.1992 and filed a suit for declaration of title and recovery of possession.
4. Resisting the same, the defendant filed a written statement by stating that the property is a Natham Poromboke, where their father Santhanam encroached the vacant site 31 years ago and put up a thatched house in the vacant site and subsequently Santhanam removed the thatched house and put up a stone basement and raised a thatched house and he also put up a tiled cattle shed 30 years ago. From the year 1967, Santhanam was occupying the suit property. The defendant is also residing in the suit property. The plaintiff got married and she went to Kaluvankulam Village near Thiruppuvanam. She would further submit that the plaintiff never resided in the suit property. On the other hand, the defendant has been residing in the suit property till now, during the life time of her father and after his death. Apart from the plaintiff and the defendant, there is one daughter and three sons for the said Santhanam. Santhanam died 18 years ago. One of the brothers of the plaintiff and the defendant viz., Karuppanan died 13 years ago. All the brothers and sisters including the plaintiff relinquished their right in favour of the defendant after the death of their father Santhanam. So, she is the absolute owner of the property. Since the plaintiff is the eldest members of the family, all the records are taken in the name of the plaintiff and taking advantage of this, the plaintiff has filed the suit.
5. She would further submit that the plaintiff is owning a separate house in S.S.Colony. The defendant alone is residing in the suit property as absolute owner. She received two legal notices dated 11.07.1991 and 05.11.1992. In the presence of elders, the plaintiff promised that she would not claim the suit property and she would not take any legal action against the defendant. So, she has not given any reply. Hence, she prayed for dismissal of the suit.
6. The trial Court, after considering the averments in the plaint and written statement, framed issues and after considering the oral and documentary evidences, decreed the suit. Against which, the appellant/defendant has preferred an appeal and the first appellate Court has also dismissed the appeal by confirming the judgment and decree passed by the trial Court. Against which, the Second Appeal has been filed by the appellant/defendant.
7. At the time of admission of this Second Appeal, the following Substantial Questions of Law have been framed:
?(a) Whether the findings of the lower appellate Court that the plaintiff is the owner of suit property on the basis of revenue records is legally right and acceptable?
(b) When the plaintiff has failed to establish her title to the suit property and her prior possession, is the lower appellate Court right in granting a decree declaring her title and recovery of possession?
(c) Is the lower appellate Court right in shifting the burden to defendant to prove her case in the case of suit for declaration and recovery of possession?
(d) In a suit for declaration and title and recovery of possession, is not the duty of the plaintiff to prover her title on the strength of her own documents and must not the suit fail notwithstanding the fact that defendant in possession have not proved her title to suit property??
8. The learned Counsel for the appellant/defendant would submit that as the plaintiff, the plaintiff must prove her case and the revenue records have not conferred any title. The property was owned by Santhanam, father of both the plaintiff and the defendant. After the death of Santhanam, including the plaintiff and defendant, the other brothers and sisters relinquished their right in the suit property and the defendant is in possession and enjoyment from the year 1967 onwards. The plaintiff has no right over the property, since there is no written release deed, she filed the present suit. The document filed by the plaintiff viz., Ex.A.8 will not confer any title to the property. Ex.A.9 is the property tax demand notice and that will not confer any right. Hence, he prayed for setting aside the judgment and decree passed by both the Courts below. In support of his contention, he relied upon a decision in Union of India and Others Vs. Vasavi Co-op Housing Society Ltd., and Others reported in 2014(4) CTC 471.
9. Resisting the same, the learned Counsel appearing for the respondent/plaintiff would submit that the plaintiff got the property by way of assignment viz., Ex.A.8 and it is like a sale deed. So, the decision relied upon by the learned Counsel for the appellant/defendant in Union of India and Others Vs. Vasavi Co-op Housing Society Ltd., and Others reported in 2014(4) CTC 471 is not applicable to the present case. He would further submit that it is true that the plaintiff must prove his case. P.W.1 and P.W.2 were examined and the documents have also been marked. These facts were considered by both the Courts below and came to the correct conclusion. Except any oral ipse dixit of D.W.1 no document has been filed by the defendant to prove that she is in possession and enjoyment of the property as the absolute owner of the property. Hence, he prayed for dismissal of the second appeal.
10. Considering the rival submission made by both sides and a perusal of typed set of papers, it is an admitted fact that one Santhanam, father of the plaintiff and the defendant is having three daughters and five sons. This appellant and the respondent are the sisters. The respondent is the eldest daughter of Santhanam. At this juncture, it is appropriate to consider the decision relied upon by the learned Counsel for the appellant in Union of India and Others Vs. Vasavi Co-op Housing Society Ltd., and Others reported in 2014(4) CTC 471, wherein in paragraph No.14, it was held as follows:
?14.At the outset, let us examine the legal position with regard to whom the burden of proof lies in a Suit for declaration of title and possession. This Court in Maran Mar Bassellax Catholicos V. Thukalan Paulo Avira, AIR 1959 SC 31, observed that ?in a Suit for declaration if the Plaintiffs are to succeed, they must do so on the strength of their own title.? In Nagar Palika, Jind V. Jagal Singh, Advocate, 1995(3) SCC 426, this Court held as under:
?The onus to prove title to the property in question was on the Plaintiff. In a suit for ejectment based on title it was incumbent on the part of the Court of Appeal first to record a finding on the claim of title to the Suit land made on behalf of the Plaintiff. The Court is behind to enquire or investigate that question fist before going into any other question that may arise in a Suit.?
There is no quarrel over the proposition laid down in the above citation.
11. It is the duty of the plaintiff/respondent to prove her case. As per the decision in Union of India and Others Vs. Vasavi Co-op Housing Society Ltd., and Others reported in 2014(4) CTC 471, the revenue records have not conferred any title. There is no quarrel over the proposition. At this juncture, it is appropriate to consider the documents filed by the respondent. Ex.A.8 is the assignment order. In that it was specifically mentioned, since she is in possession, she gave a request and her request has been considered and a patta has been assigned. It was issued in L.8.733/67 C and it was issued on 07.05.2002 in which it was stated that S.No.139/6 and plot No.49 have been given. So the decision in Union of India and Others Vs. Vasavi Co-op Housing Society Ltd., and Others reported in 2014(4) CTC 471 is not applicable to the facts of the present case.
12. She has obtained a loan and for payment of loan, passbook has been given. Ex.A.4 is the property tax demand notice and in that it was stated that old Ward No.22 and New ward No.69 and the tax assignment No.127898. Exs.A.5, A.10 and A.11 are the house tax receipts for the years 1997-1998, 2001-2002 and 2002-2003. They came into effect after filing of the suit. Hence, no relevance can be placed. Ex.A.7 is the family card and it is not relevant to this case. Ex.A.9 is the property tax demand notice. Recognising her possession, Ex.A.8 assignment has been given. In that it was specifically mentioned that the assignment was given under the Harijan welfare scheme and she has to construct only one house and she has to left 5 feet on front and back side. But here admittedly, the property is situated in S.No.139/6 . It was stated that the property was in Ponmeni 3rd street, Door No.11-C and plot No.49 has been given. Considering all these facts and also considering the deposition of P.W.1 and D.W.1 the first appellate Court has taken much pain and came to the correct conclusion that Ex.A.8 is related to the suit property.
13. Per contra, the defendant would state that the property is owned by his father Santhanam, however no document has been filed to prove the same. Furthermore, except this respondent, no other brothers and sister has been examined to prove that they have relinquished their right in the suit property, since it is owned by their father. As already stated the respondent herein has proved that the suit property has been assigned under Harijan Welfare Scheme in Plot No.49. The respondent herein has proved that the appellant was in possession as permissive occupier. Instead of hand over the possession, she denied her title and hand over the possession. Hence, the respondent is constrained to file a suit for declaration of title and possession. Both the Courts below have considered all these aspects in a proper and perspective manner and came to the correct conclusion that the respondent is entitled to declaration of title and recovery of possession. So, the finding of both the Courts below does not warrant any interference. Accordingly the Substantial Questions of Law a to d are answered against the appellant/defendant.
14. In view of the answer given to the Substantial Questions of Law a to d, the judgment and decree passed by both the Courts below does not warrant any interference. Hence, this Second Appeal is dismissed, by confirming the judgment and decree passed by both the Courts below. Three months' time is given to the appellant to vacate and hand over the possession to the respondent. There shall be no order as to costs. Consequently, the connected Civil Miscellaneous Petition is also dismissed.
To
1. The II Additional Subordinate Judge, Madurai.
2. The Principal District Munsif, Madurai Town. .