Madras High Court
Ramesh Babu vs Velu on 11 July, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 17.06.2019
Judgment Pronounced on : 11.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.(MD)No.559 of 2001
and
M.P.(MD).No.1 of 2009
Ramesh Babu .. Appellant/ Appellant /Plaintiff
Vs.
Velu .. Respondent/ Respondent/
Defendant
PRAYER: Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree dated 14.12.2000, passed in
A.S.No.44 of 1998, by the learned Principal Subordinate Judge,
Tirunelveli, confirming the Judgment and Decree, dated 20.04.1998,
passed in O.S.No.247 of 1995, by the learned Principal District
Munsif, Tirunelveli.
For Appellant : Mr.G.Prabhu Rajadurai
For Respondent : Mr.S.P.Maharajan
http://www.judis.nic.in
2
JUDGMENT
Aggrieved over the concurrent Judgements and decrees passed in O.S.No.247 of 1995 on the file of the learned Principal District Munsif, Tirunelveli and in A.S.No.44 of 1998 on the file of the learned Principal Sub Judge, Tirunelveli, the appellant, who is the plaintiff in the suit filed the present second appeal.
2. Before the trial Court, the plaintiff filed a suit in O.S.No.247 of 1995 and seeking the relief of declaration declaring that the plaintiff is the absolute owner of the suit properties and for the relief of permanent injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. By the decree and judgment, dated 20.04.1998 the learned Principal District Munsif, Tirunelveli dismissed the suit with respective costs.
3. Aggrieved over the said findings, the plaintiff filed an appeal in A.S.No.44 of 1998, before the Principal Subordinate Judge, Tirunelveli. By Judgment and Decree dated 14.12.2000, the learned Principal Subordinate Judge, Tirunelveli had dismissed the appeal after confirming the findings arrived at by the trial Court. Feeling aggrieved over the same, the plaintiff is before this Court with this second appeal.
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4. For the sake of convenience, the parties are referred to as, as described before the Court below.
5. The averments made in the plaint, in brief, are as follows:
Originally, the suit properties belonged to one Palavesam alias Kilikunju. The patta for the suit schedule properties stands in his name. The father of the said Palavesam, by name, Thadiveeran, was buried on the north eastern corner of the suit schedule properties. In the patta, the serial number allotted for the first item of the suit schedule properties is 192, whereas for the second item is 55. In the year of 1977, the said Palavesam alias Kilikunju passed away leaving behind his wife Angammal, daughter Leela and his sons Sivaji, Arul and Aanthan as legal heirs. In the oral partition entered between the family members of Angammal, the suit schedule properties were allotted in her favour. Ever since, from the date of family arrangement, the said Angammal was in the exclusive possession and enjoyment of the suit schedule properties. The said Angammal had sold the suit schedule properties in favour of the plaintiff for Rs.13,000/- vide registered sale deed, dated 09.02.1995. Ever since from the date of purchase, the plaintiff is having the possession of the suit schedule properties. The defendant is not having any right or interest over the suit schedule properties. The defendant was not even a cultivating tenant in the suit schedule properties. However, http://www.judis.nic.in 4 the defendant threatened the plaintiff that he would not allow the plaintiff to raise any crop in the suit schedule properties. Hence, the suit.
6. The averments made in the written statement filed by the defendant, are as follows:
It is not correct to say that the suit schedule properties belonged to one Palavesam alias Kilikunju, further, it is not correct to say that after the demise of the said Palavesam alias Kilikunju, a family arrangement was made in the family of Angammal. It is false to say that the plaintiff purchased the property from the said Angammal. Originally, the suit schedule properties were owned by one Karuthan, Angammal, Kilikunju alias Shanmugam and Chockalingam. On 01.03.1995, through a registered sale deed, the defendant purchased 1/4th share of the suit schedule properties from one Mohan and Mallika, who are the legal heirs of the said Chockalingam. Further, the share of the said Kilikunju alias Shanmugam and Angammal are being enjoyed by the defendant as a cultivating tenant. Accordingly, the defendant is in the possession of 3/4th share over the suit schedule properties from the year 1975. The remaining 1/4th share of the said Karuthan is being enjoyed by his son Panneer Selvam. Hence, the plaintiff and his predecessors have not enjoyed the suit schedule properties so far. Therefore, according to the defendant, the suit is liable for dismissal.
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7. Based on the above pleadings, the learned Principal District Munsif, Tirunelveli framed necessary issues and tried the suit.
8. Before the trial Court, the plaintiff examined himself as PW.1. He has examined the said Angammal as PW.2 and marked 11 documents as Ex.A.1 to Ex.A.11. On the other hand, on the side of the defendant, four witnesses were examined as D.W.1 to D.W.4 and 8 documents were marked as Ex.B1 to Ex.B8.
9. Having considered all the materials placed before him, the learned Principal District Munsif, Tirunelveli, came to the conclusion that the plaintiff is not having any right over the suit schedule properties and thereby, he is not entitled the relief as prayed for in the suit. Hence, he dismissed the suit.
10. In the appeal filed by the plaintiff, the learned Principal Subordinate Judge, Tirunelveli, after elaborate enquiry, confirmed the findings arrived at by the trial Court and dismissed the appeal. Hence the plaintiff is before this Court with this second appeal.
11. In the said circumstances, at the time of admitting this second appeal, this Court has formulated the following Substantial Questions of Law, for consideration:
http://www.judis.nic.in 6 “i) Whether the Lower Appellate Court is right in law in rejecting the suit for declaration of title even for admitted 1/4th share of the appellant?
ii) Whether the Lower Appellate Court is right in law in rejecting the Revenue Records such as pattas and adangals marked as Exs.A2 to A.11, which would clearly prove the possession of the appellant?
iii) Whether the Lower Appellate Court is right in law in coming to the conclusion that the appellant is not in possession and enjoyment of the suit property without framing points for determination under Order 41 Rule 31 of C.P.C.?”
12. Substantial Question of Law No.1:
The suit schedule properties are situated in Kattampuli Village, Tirunelveli District comprising in two survey numbers, viz., 72/3C and 73/3D. The extent of Survey No.72/3C is 0.56.0 hectare. Similarly, the extent of Survey No.73/3D is 0.18.0 hectare. As already stated, before the trial Court, the plaintiff filed a suit for the relief of declaration and injunction. In general, for filing the relief of declaration, the plaintiff has to prove his case by producing the relevant title deeds.
13. It is the specific case of the plaintiff that, vide sale deed, dated 09.02.1995, the plaintiff purchased the suit property from one Angammal, W/o.Palavesam. The sale deed dated 09.02.1995 is Ex.A1. http://www.judis.nic.in 7 In this regard, the plaintiff has stated that originally, the suit schedule properties belonged to the husband of Angammal, after the demise of the said Palavesam, his wife Angammal inherited the same and sold out in favour of the plaintiff. In support of Ex.A.1, in order to prove the possession, the plaintiff has produced the patta pertaining to the suit properties and exhibited the same as Exs.A2 and A3. As per the patta, the owner to the Survey Nos.72/3C and 73/3D are one Matha, S/o.Chinna Michael and Kilikunju, S/o.Thadiveeran, respectively. The patta issued under UDR scheme was marked as Ex.A.4, which also stands in the name of Matha and Kilikunju. The chitta pertaining to the suit properties have also stands in the name of Matha and Kilikunju for the same survey numbers, further, the chitta pertaining to the said land was exhibited as Ex.A.5 and Ex.A.6. So, the documents relied by the plaintiff reveals that the revenue records related to the suit properties are in the name of one Matha and Kilikunju. On the other hand, the plaintiff purchased 1/4th of the suit property from one Angammal, W/o.Palavesam. In the said circumstances, in order to prove the relationship between the said Palavesam with Matha and Kilikunju, no documents have been produced on the side of the plaintiff.
14. On the other hand, the defendant has come to the trial Court with a different story stating that the suit schedule properties initially http://www.judis.nic.in 8 belonged to one Padma Shanmugam. As per the case of the defendant, the husband of the said Padma Shanmugam was having three brothers in the name of Karuthan, Palavesam and Chockalingam. It is admitted on the side of the defendant that the vendor of the plaintiff Angammal is the wife of Palavesam and the plaintiff is the grandson of the said Angammal. Among the above four brothers, the said Padma Shanmugam sold out her 1/4th share in favour of the defendant. On the other hand, the remaining three brothers leased out their share of suit schedule properties to the defendant for cultivation. In order to prove the above said contention, before the trial Court, the sale deed stands in the name of Padma Shanmugam was marked as Ex.B.1. Further, the tenancy receipt executed by the Chockalingam in favour of the defendant was marked as Ex.B.2. It is the further case of the defendant that after the demise of the said Chockalingam, his legal representatives had sold out their share of the suit properties in favour of the defendant. The sale deed executed by the legal heirs of the Chockalingam in favour of the defendant was marked as Ex.B.3. Therefore, both the plaintiff and the defendant claiming the right over the suit properties by producing the registered sale deeds, by mentioning that they are the real owners by virtue of the sale deeds executed in favour of them. In this occasion, it is relevant to see the Encumbrance Certificate pertains to the suit properties, which was exhibited as Ex.B.4. The said certificate would http://www.judis.nic.in 9 reveal and support the case of the defendant. At this juncture, since both the plaintiff and the defendant were approached the trial Court with the registered documents, it is relevant to see the judgment of our Hon'ble Apex Court in the case of Union of India and others vs. Vasavi Cooperative Housing Society Ltd., and Others, reported in 2014 (2) SCC 269 , wherein in paragraph Nos.15 and 19, it has been held as follows:
“15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited.”
15. Therefore, it is the duty of the plaintiff to prove his clear title. In this regard, since patta and chitta also stand in the name of one Matha, so, the plaintiff is having the duty to implead the said http://www.judis.nic.in 10 Matha as a party to the proceedings. But, for the reasons best known to him, the plaintiff did not add the said Matha as a party. Further, the death certificate of Palavesam alias Kilikunju, who is the original owner of the suit properties was obtained after 18 years from his death. There was no explanation offered on the side of the plaintiff to show under what circumstances, the death certificate was not obtained immediately, after the death of the said Palavesam alias Kilikunju. The plaintiff himself admitted that the said Palavesam is having two sons and one daughter. Further, the plaintiff admitted that he purchased the suit properties only from Angammal, who is the wife of Palavesam alias Kulikunju. So with respect to three other legal representatives of the said Palavesam, no explanation is offered from the side of the plaintiff. More than that, he has admitted that he did not verify the Encumbrance Certificate in respect to the suit schedule properties.
16. Eventhough, it was stated by the plaintiff that he purchased the 1/4th share of the suit properties from the legal heirs of Thadiveeran, now the suit has been filed for the entire extent of the properties owned by Thadiveeran. So, in any event, the plaintiff has not shown the clear title to the entire suit properties. The Courts below have also dismissed the claim of the plaintiff only for the reason of non-proving of clear title by himself. So, the findings http://www.judis.nic.in 11 arrived at by the trial Court is nothing, but the question of fact and otherwise, no substantial question of law is raised in this aspect. Therefore, the Substantial Question of Law No.1 is answered in favour of the defendant/respondent.
17. Substantial Question of Law Nos.2 & 3:
The Courts below in their judgments had come to the conclusion that the copy of the pattas and adangals marked as Ex.A2 to Ex.A11 have also not proved the possession of the plaintiff. In this regard, as already stated in Ex.A.2 to Ex.A.5 apart from the name of Kilikunju alias Palavesam, one another person, by name, Matha is also included. So, as per the revenue records, the said Matha is also related with the suit schedule properties. In the said circumstances, the plaintiff has filed the suit only against the defendant and not included the said Matha as a party to the proceedings. So, the documents relied by the plaintiff to prove the possession is self- contradictory in nature. So it cannot be held that those documents are sufficient to hold that the plaintiff is in the possession. Further more, the said findings also is a question of fact and the findings in this regard is not at all raised any substantial question of law. Further the judgments rendered by the Courts below are only in accordance with order 41 Rule 31 C.P.C. Therefore, Substantial Questions of Law 2 & 3 are answered in favour of the respondent/defendant.
http://www.judis.nic.in 12 R.PONGIAPPAN, J.
PJL
18. In fine, the Second Appeal stands dismissed. The Judgment and Decree dated 14.12.2000, passed in A.S.No.44 of 1998, by the learned Principal Subordinate Judge, Tirunelveli, confirming the Judgment and Decree, dated 20.04.1998, passed in O.S.No.247 of 1995, by the learned Principal District Munsif, Tirunelveli is hereby confirmed. No Costs. Consequently, connected miscellaneous petition is dismissed.
11.07.2019 Index : Yes/No Internet: Yes/No PJL To
1. The Principal Sub Judge, Tirunelveli.
2. The Principal District Munsif, Tirunelveli.
3. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
Judgment made in S.A.No.559 of 2001 http://www.judis.nic.in