Madras High Court
)V.Subbiah vs )V.R.Rethinam on 25 April, 2008
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/04/2008 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.1770 of 1996 and C.M.P.17642 of 1996 1)V.Subbiah 2)S.P.Sethu Ambalam ... Appellants Vs. 1)V.R.Rethinam 2)N.V.Somasundaram 3)R.Meenakshisundaram Chettiar 4)Kannappa Valliappa ... Respondents Second appeal filed under Section 100 C.P.C. against the judgment and decree of the Sub-court, Devakottai dated 26.07.1986 made in A.S.No.66/1994 confirming the judgment and decree of the Trial Court (Court of District Munsif, Devakottai) dated 09.08.1994 made in O.S.No.50 of 1992. !For Appellants ... Mr.T.R.Rajaraman ^For Respondents ... Mr.VR.Shanmuganathan :JUDGEMENT
Notice of motion was served on the respondents indicating that the appeal might be disposed of at the stage of admission itself. Meanwhile records were also sent for from the courts below. After the records were received from the courts below and the respondents entered appearance, the second appeal came up for disposal on merits even without being formally admitted.
2. The defendants 2 and 4 in O.S.No.50 of 1992 on the file of the Court of District Munsif, Devakottai have preferred this second appeal after unsuccessfully pursuing the appeal A.S.No.66 of 1994 on the file of the lower appellate court (Sub-court, Devakottai) against the judgment of the trial court.
3. V.R.Rethinam, the first respondent herein had filed the above said original suit against the appellants 1 and 2 and respondents 2 to 4 in the second appeal arraying them as defendants 1 to 5. The said suit had been filed for a declaration that the suit properties absolutely belonged to him (first respondent herein/plaintiff) and his brother, the 4th respondent/5th defendant and for a consequential injunction against the appellants 1 and 2 herein and respondents 2 and 3 herein (defendants 1 to 4 in the suit) not to interfere with their peaceful possession and enjoyment of the suit properties. However, subsequently based on a further plea that the defendants 1 to 4 (appellants and respondents 2 and 3 herein) forcibly took possession of the suit properties during the pendency of the suit, a prayer for recovery of possession was incorporated as an alternate relief by amending the plaint.
4. The following are the contentions based on which the first respondent / plaintiff had sought for the above said reliefs:-
The suit properties were ancestral properties of the first respondent/plaintiff and his brother the 4th respondent/5th defendant. Join patta had been issued in their names and the first respondent/plaintiff was paying kist on his own behalf and on behalf of his brother the 4th respondent/5th defendant. They were the absolute owners of the suit properties and were in actual and physical possession of the same as on the date of suit. The appellants and respondents 2 and 3 (defendants 1 to 4) did not have any title or right in respect of the suit properties, but they were making attempts to trespass into the same and were threatening to put up a barbed wire fence around the suit properties. Hence the first respondent/plaintiff had to rush to the court for the relief of declaration and injunction. However, during the pendency of the suit the appellants and the respondents 2 and 3 (defendants 1 to
4) proved to be successful in their attempt to trespass into the suit properties and take possession. Hence the plaint was amended and the prayer for recovery of possession was incorporated as an alternate relief for relief of permanent injunction.
5. The 4th defendant (3rd respondent herein) filed a written statement and the same was adopted by the defendants 1 to 3 (appellants and respondent No.2). In the said written statement they had denied the plaint allegations regarding the claim of title to the suit properties made by the first respondent / plaintiff for himself and on behalf of his brother the 4th respondent/5th defendant. The allegations that the appellants and respondents 2 and 3 (defendants 1 to 4) made an attempt to trespass into the suit land and that they also proclaimed to put up barbed wire fence around the suit properties were also denied. It was their further contention that, at no point of time the first respondent/plaintiff was in possession and enjoyment of the suit properties. The following are the other contentions made in the above said written statement:-
The suit properties having an extent of 3-3/4 kurukkam comprised in Paimash No.6/39P originally belonged to three persons namely, 1) Kanaga Nadar S/o Perianna Nadar, 2) Ramasamy Nadar @ Vellaya Nadar S/o Perichi Nadar and 3) Alagan Nadar, son of the above said Ramasamy Nadar @ Vellaya Nadar. The said persons sold the suit properties under a registered sale deed dated 17.01.1918 to one Chidambaram Chettiar S/o Murugappa Chettiar. The said Chidambaram Chettiar sold the southern half of the suit properties to one Shanmugam Chettiar on 24.11.1954 and retained the northern half for himself. After Kallal Village was taken over by the Government under Act 26 of 1948, patta for the said land was granted in the name of Shanmugam Chettiar who had purchased only the southern half of the suit properties from Chidambaram Chettiar. Survey No.256/3 assigned to the suit properties. Even after the issue of patta for the entire property comprised in Survey No.256/3, the northern half continued to be in the possession and enjoyment of Chidambaram Chettiar till his death. There after the same came to be possessed and enjoyed by his two sons 1) Valliappa Chettiar and 2) Subbiah Chettiar. Valliappa Chettiar died leaving behind him a son by name Subbiah Chettiar. The 2nd appellant/4th defendant entered into an agreement for sale with Subbiah Chettiar S/o.Chidambaram Chettiar and Subbiah Chettiar S/o.Valliappa Chettiar on 03.02.1992. By virtue of the above said agreement, the second appellant/4th defendant got possession of 1 Acre 16 . cents being the northern half of the suit properties and continued to be in possession and enjoyment of the same. Meanwhile, the first respondent/ plaintiff and the 4th respondent/5th defendant approached the son and grandson of Chidambaram Chettiar to sell Survey No.256/3 to them. As the said attempt proved ineffective, the first respondent/plaintiff with the connivance of his brother filed the suit vexatiously. The 2nd respondent/first defendant filed an additional written statement contending that the suit properties belonged to him and his family members by virtue of purchase made from the original owners.
6. The learned District Munsif framed necessary issues and conducted trial in which three witnesses were examined as P.W.1 to P.W.3 and thirty three documents were marked as Ex.A1 to Ex.A33 on the side of the plaintiffs. Three witnesses were examined as D.W.1 to D.W.3 and eight documents were marked as Ex.B1 to Ex.B8 on the side of the defendants.
7. At the conclusion of trial, the learned District Munsif considered the evidence, both oral and documentary, and came to the conclusion that the plaintiff and the 5th defendant had title to the suit properties and that the defendants had trespassed into the same. Based on the said findings, the learned District Munsif decreed the suit declaring the title of the plaintiff and the 5th defendant in respect of the suit properties and granting the relief of recovery of possession.
8. As against the said judgment and decree of the trial court dated 09.08.1994, the present appellants/ defendants 2 and 4 preferred an appeal A.S.No.66/1994 on the file of the Sub-Court, Devakottai. Similarly, R.Meenakshisundaram Chettiar (2nd respondent herein/first defendant) filed an appeal A.S.No.67/1994 on the file of the Sub-court. In the appellate court, 32 documents were produced as additional documentary evidence on the side of the defendants and they were marked as Ex.B9 to B40. Both the appeals were heard together and the learned Subordinate Judge, Devakottai by a common judgment dated 26.07.1996, confirmed the judgment and decree of the trial court and dismissed both the appeals with cost. As against the dismissal of the appeal (A.S.No.67/1994) preferred by the 2nd respondent herein/first defendant, he has not chosen to file any second appeal. As against the dismissal of the appeal (A.S.No.66/1994) preferred by the appellants herein/2nd and 4th defendants, they have preferred the present second appeal on the file of this court.
9. This court heard the submissions made by Mr.T.R.Rajaraman, learned counsel for the appellants and by Mr.VR.Shanmuganathan, learned counsel for the respondents. The materials on record were also perused.
10. The suit filed by the first respondent herein/ plaintiff against the appellants and respondents 2 to 4 (defendants 1 to 5) was decreed by the trial court. The said suit was filed initially for a declaration of title of the first and fourth respondents herein (plaintiff and fifth defendant) in respect of the suit properties and for a consequential perpetual injunction not to disturb their peaceful possession and enjoyment of the same. The relief of perpetual injunction was sought for on the strength of their contention that they were in possession and enjoyment of the suit properties and that the appellants and respondents 2 and 3 / defendants 1 to 4 were trying to interfere with their possession and were proclaiming to take forcible possession and enclose the suit properties with barbed wire fence. Subsequently, contending that the appellants and respondents 2 and 3 / defendants 1 to 4 succeeded in their attempt to trespass into the suit properties, the plaint was amended seeking the relief of recovery of possession as an alternate relief for the relief of perpetual injunction originally sought for in the plaint. The suit was decreed against the defendants 1 to 4 therein who are the present appellants and respondents 2 and 3 in the second appeal in respect of the reliefs of declaration and recovery of possession.
11. The first respondent herein/plaintiff, in order to protect his interest as well as the interest of his brother-the fourth respondent/fifth defendant as joint owners of the suit properties, had filed the suit. According to the plaint averments, the suit properties are their ancestral properties and patta was issued jointly in their names when the Government took over the village under the Act 26 of 1948. On the other hand, the appellants and respondents 2 and 3 / the contesting defendants (defendants 1 to 4) claimed that the suit properties were purchased by one Chidambaram Chettiar, son of Murugappa Chettiar under a sale deed dated 17.01.1918, a certified copy of which was marked as Ex.B5; that the said Chidambaram Chettiar sold the southern half of the suit properties to one Shanmugam Chettiar under a sale deed dated 24.11.1954, a certified copy of which has been marked as Ex.B2 and the northern half was retained for himself and that the appellants and respondents 2 and 3 / defendants 1 to 4 got the suit properties under sale deeds and sale agreement from the legal heirs of the above said Shanmugam Chettiar and Chidambaram Chettiar.
12. The learned counsel for the appellants argued that the courts below, especially the first appellate court, committed an error in decreeing the suit for the reliefs of declaration and recovery of possession despite the production of a number of documents by the appellants and respondents 2 and 3/defendants 1 to 4 in support of their contention. The learned counsel also submitted that the oral evidence adduced as well as documents produced on the side of the appellants and respondents 2 and 3 / defendants 1 to 4 should have been held sufficient to prove that the suit properties were purchased by Chidambaram Chettiar in the year 1918; that thereafter Shanmugam Chettiar purchased the southern half of the suit properties from the said Chidambaram Chettiar and the appellants and the respondents 2 and 3 / defendants 1 to 4 became entitled to the suit properties by virtue of a sale deed obtained from the legal representatives of Shanmugam Chettiar in respect of the southern half of the suit properties and an agreement for sale obtained from the legal heirs of Chidambaram Chettiar in respect of northern half of the suit properties.
13. On the other hand, the learned counsel for the first respondent/plaintiff argued that none of the documents submitted on behalf of the appellants and respondents 2 and 3/defendants 1 to 4 were relating to the suit properties; that all the documents produced by them in support of their claim of title related to another property comprised in Survey No.256/3 whereas the suit properties are comprised in Survey No.256/2C; that the courts below have rightly held that those documents did not relate to the suit survey numbers; that all the witness examined on the side of the appellants and respondents 2 to 4 (contesting defendants) were not able to give the correct boundaries of the suit properties and that the admission made by the witnesses examined on their side regarding their ignorance of some of the boundaries itself would be enough to show that the conclusion arrived at by the courts below in this regard were unassailable.
14. This court gave its consideration to the above said submissions made by the learned counsel appearing on either side.
15. The sale deed dated 17.01.1918 under which Chidambaram Chettiar allegedly purchased the suit properties from Kanaga Nadar and others has been produced and marked as Ex.B5. 3-3/4 kurukkam of land within defined boundaries was purchased under Ex.B5 by the Chidambaram Chettiar. In order to show that the properties sold under Ex.B5 was lying on the south of the property belongs to Karuppa Nambalam and Mahalinga Asari, Ex.B6 has been produced. In none of the said documents, either the Paimash number or Survey number has been provided. More particularly Ex.B5 does not contain either the Paimash number or the Survey number. It is the admitted case of the contesting defendants that out of 3-3/4 kurukkam of land purchased under Ex.B5, Chidambaram Chettiar sold the common half share (1 7/8 kurukkam) to Shanmugam Chettiar under Ex.B2. Ex.B3 is a letter dated 20.10.1958 titled as partition letter executed by Chidambaram Chettiar in favour of Shanmugam Chettiar under which he agreed to retain the northern half for himself and leave the southern half to the share of Shanmugam Chettiar. As pointed out supra, none of the above said documents contain either the Survey number or Paimash number. It is the definite case of the first respondent/plaintiff that the suit properties are comprised in Survey Nos.256/2A and 256/2C2 whereas the property purchased under Ex.B5 by Chidambaram Chettiar was admittedly comprised in Survey No.256/3. It is pertinent to note that the appellants and Respondents 2 and 3 / defendants 1 to 4 did not produce any document to show that any part of the property purchased by Chidambaram Chettiar under Ex.B5 comes under Survey No.256/2. They also failed to produce any adangal extract or kist receipts to show payment of kist for the suit properties comprised in Survey Nos.256/2A and 256/2C2. All other documents produced on bahalf of the contesting defendants before the trial court as well as lower appellate court show that the contesting defendants claim title to Survey No.256/3 and not to Survey Nos.256/2A and 256/2C2 namely, the suit properties. In fact the patta passbook marked as Ex.B11 and the field map of Survey No.256 marked as Ex.B13, 'A' Register extracts marked as Ex.B15 and B16, Survey Land Register extract marked as Ex.B17 and the field map pertaining to the Survey No.258 marked as Ex.B14 would clearly show that Survey No.256/2 lies on the north and Survey No.256/3 lies on the south. It is abundantly clear that the contesting defendants have not made any claim of title in respect of Survey No.256/2. They contend that they are the owners of Survey No.256/3. Perhaps under the mistaken identity of the land, the contesting defendants have taken a plea that the suit properties are the properties purchased under Ex.B5 by their predecessor in title namely, Chidambaram Chettiar. The lower appellate court considered the above said aspect and came to a correct conclusion that the contesting defendants could claim right in respect of Survey No.256/3 and not in respect of any part of Survey No.256/2.
16. The first respondent/plaintiff has produced settlement patta passbook issued in his favour and his brother-the 4th respondent/5th defendant and marked it as Ex.A1. Under Ex.A1, patta has been issued in their favour for Survey Nos.256/2A and 256/2C2. The order of Tahsildar for the issue of patta in their favour is Ex.A6. Several kist receipts showing payment of kist to the suit properties have been produced and marked as Ex.A9 to Ex.A15. Ex.A22 and Ex.A24 are the FMBs pertaining to Survey No.256. Ex.A25 and Ex.A26 are certified copies of 'A' Registers relating to Survey No.256. Though the contesting defendants did not produce the agreement they had got from the legal heirs of Chidambaram Chettiar, the first respondent/plaintiff has produced a certified copy of the same as Ex.A21. As pointed out supra, Ex.B12 patta pass-book shows that the property purchased by Chidambaram Chettiar under Ex.B5 was assigned Survey No.256/3. Ex.A21 also shows that the northern half of Survey No.256/3 was agreed to be sold to the second appellant/4th defendant. The northern boundary of the said land is also shown to be "bghpafUg;gd; brl;oahh; fpiuak; bra;J nUf;Fk; kid nlA;fs;". The said recital of the northern boundary refers to the suit properties alone, according to the first respondent/plaintiff. The lower appellate court, after considering the above documents plus Ex.B16 'A' Register extract and B17 Survey Settlement register, has come to a correct conclusion that the properties purchased by Chidambaram Chettiar under Ex.B5 was assigned Survey No.256/3. It is obvious from various sale deeds produced on the side of the contesting defendants that the property comprised in Survey No.256/3 was laid out as house sites and the house sites were sold to several persons. This aspect was clearly considered by the lower appellate court. After properly considering the above said documentary evidence as well as oral evidence adduced before the courts below, the trial court and the lower appellate court have rendered a concurrent finding of fact to the effect that the suit properties comprised in Survey No.256/2A and Survey No.256/2C2 and the property purchased by Chidambaram Chettiar under Ex.B5 are not the one and the same; that the contesting defendants could claim title only in respect of the properties purchased by Chidambaram Chettiar under Ex.B5 which is comprised in Survey No.256/3 and that neither Chidambaram Chettiar nor anybody claiming through him could claim title to the properties comprised in Survey No.256/2A and in Survey No.256/2C2. The courts below have also rendered a clear and correct finding that the first respondent/plaintiff had proved the suit properties comprised in Survey Nos.256/2A and 256/2C2 were the ancestral properties of the first respondent/plaintiff and his brother-the 4th respondent/5th defendant. There is no scope, whatsoever, to interfere with the said finding of fact recorded by the courts below and the same, at no stretch of imagination, could be termed a perverse finding.
17. A second appeal to the High Court, as per Section 100 of Code of Civil Procedure, shall lie only on a substantial question of law. In the instant case appellants have not proved that this second appeal involves a substantial question of law. Second appeals cannot be admitted even on mere questions of law if they are not substantial questions of law. A question of fact may assume the character of a substantial question of law when such a finding of fact shall be perverse. In the case on hand, there is nothing to show that the courts below, (especially the lower appellate court) have misinterpreted any document or omitted to consider any piece of evidence. The findings of the courts below cannot be said to be based on legally inadmissible evidence. It can't be said that no reasonable person would have arrived at such a conclusion based on the evidence available on record. In short, the finding of facts recorded by the courts below cannot be termed perverse. No substantial question of law is proved to have involved in the second appeal. Hence this court comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed.
18. For all the reasons stated above, the second appeal is dismissed. Any how there shall be no order as to cost. Consequently connected miscellaneous petition is closed.
asr To :
1) The Subordinate Judge, Devakottai