Madras High Court
Subramaniya Konar vs Palani Pillai And 5 Ors. on 14 December, 2001
Equivalent citations: (2002)1MLJ549
ORDER
1. The plaintiff in O.S.No. 341 of 1982 and the first defendant in O.S.No. 354 of 1982, on the file of the District Munsif Court, Gingee has preferred the present second appeals, aggrieved against the judgment and decree made in A.S.No. 7 of 1987 and A.S.No. 10 of 1987 on the file of Subordinate Court, Tindivanam, made on 22.9.1988, reversing the judgment and decree of the trial court dated 9.12.1986.
2. The case in brief is as follows:
The plaintiff in O.S.No.341 of 1982 filed the suit for declaration of his title and for permanent injunction. The plaintiff's father purchased among other The plaintiff in O.S.No. 341 of 1982 filed the suit for declaration of his title and for permanent injunction. The plaintiffs father purchased among other properties 2.88 acres in Dry R.S.No. 14/2, 16 cents in Dry Re.S.No. 14/3 and 13 cents in Dry R.S.No. 14/4 all in Kanjjor Village, Gingee Taluk under the registered sale deed dated 14.4.1937. Pursuant to the purchase his father took possession of the property and also took possession of 1.11 acre of land viz the suit property in S.No. 15/2 situated immediately on the west of Dry S.No. 14/4 and 14/4 (marked as A B C D E F G )in the rough sketch put up a ridge along AB' H I' levelled the lands and was in possession and enjoyment of the said properties in his own right as absolute owner. The plaintiff's father and the plaintiff were in possession and enjoyment of the suit property more than the statutory period and they have also prescribed title. The properties covered under sale deed dated 14.4.1937 and the suit property all form one single plot, uniform in level. The property in possession and enjoyment of the defendant is 3.96 acres and there is permanent ridge dividing the marked portion. In April, 1982 an updating survey was made in Gingee Taluk in order to sub divide the holdings and to give patta to persons in actual possession. The suit property was given in S.No. 15/2B and the possession of the suit property by the plaintiff was also recorded and notice under Section 9(2) of the Tamil Nadu Act of 8 of 1923 was given to the plaintiff and to the 1st defendant. No appeal has been filed by the first defendant against the order. As such the order of the surveyor is final and binding upon the parties and they are not entitled to dispute the same now. The first defendant is the owner of 3.96 acres in Dry S.No. 15/2 now 15/2A. The 2nd defendant is the brother of the 1st defendant and defendants 3 and 4 are sons of the first defendant. Defendant No. 5 is the son-in-law of the first defendant. When the plaintiff went to plough the suit property the defendants interfered with his possession and enjoyment and hence the suit.
3. The defendants contended that under the saie deed dated 14.4.1937, the plaintiff had purchased the land in S.No. 14/2 measuring 2.88 acres and S.No. 14/3 measuring 16 cents and S.No. 14/4 13 cents. It is not correct to state that the plaintiff's father also enjoyed the suit property along with the other properties purchased on 14.4.1937. There is no ridge, as mentioned in the plaint. The plaintiffs' father has no right in the suit property is in the possession and enjoyment of the defendant along with other properties. For proper and valid sale consideration, the defendants have purchased the properties under registered document dated 17.12.1970. Patta was also transferred in his name and he is paying the kist. The defendant and his predecessors enjoyed the property for more than the statutory period and prescribed title by adverse possession. S.No. 15/2 is in one single plot and the entire property measures about 5.07 acres and very since the date the first defendant is in enjoyment of the entire property. There were also number already filed the suit relating to the very same subject matter in O.S.No. 354 of 1982 for declaration and injunction and obtained interim injunction also. There is no subdivision as in S.NO.15/2B and because of the objection raised by the first defendant it was subsequently cancelled. The plaintiff is therefore not entitled to claim any relief.
4. The first defendant in O.S.No. 341 of 1982 as plaintiff filed O.S.No. 354 of 1982 claiming declaration and injuction with reference to the suit property. The plaintiff in O.S.No. 341 of 1982 is the first defendant in the other suit. Since the plaintiff and the defendant in O.S.No. 354 of 1982 raised the very same contention raised by them in O.S.No. 341 of 1982, it is unnecessary to reproduce the same.
5. The trial court framed eight issues in O.S.No. 342 of 1982 and five issues in O.S.No. 354 of 1982. The evidence recorded in O.S.No. 341 of 1982 was treated as evidence in the other suit. On behalf of the plaintiff P.W.I to P.W.5 were examined and Ex.A.l to A.12 were marked. On the side of the defendants D.W.I to D.W.6 were examined and Ex.B.l to Ex.B.24 were marked. The report and the plan filed by the commissioner were marked as Ex.C.l and Ex.C.2. The trial court decreed O.S.No. 341 of 1982 and dismissed O.S.No. 354 of 1982 and aggrieved against this A.S.No. 7 of 1987 and A.S.No. 10 of 1987 were filed before the Subordinate Court, Tindivanam. The learned Judge after hearing the parties allowed both the appeals, set aside the judgment and decree of the trial court and dismissed O.S.No. 341 of 1982 and decreed O.S.No. 354 of 1982. Aggrieved against this, the present two second appeals are filed.
6. At the time of admission, the following substantial questions of law were framed in both the appeals.
(1) Whether the decision of the lower appellate court is vitiate for non-consideration of the entire oral and documentary evidence in reversing the judgment of the trial court?
(2) Whether the decision of the lower appellate court is vitiated by erroneous conclusion that the respondents have prescribed title over the suit properties by adverse possession while saying that an extent of 5.07 acres in Survey No. 15/2 belongs to the respondent?
(3) Whether the decision of the lower appellate court is vitiated by misconstruing the Commissioners' report?
7. The parties and the subject matter in both the appeals are one and the same and as such a common judgment is pronounced. The parties will be hereinafter referred to as they are described in O.S.No. 341 of 1982 to avoid confusion.
8. Heard the learned counsel for all the parties.
9. The suit property is measuring 1.11 acres in S.No. 15/2. The total extent of S.No. 15/2 was 5.07 acres and according to the plaintiff S.No. 15/2 was subdivided as 15/2A measuring 3.96 acres and S.No. l5/2B is measuring 1.11 acres. The suit property is marked as ABCDEFG in the plaint plan. The plaintiff's father purchased 14/2, 14/3,14/4 under Ex.A.l dated 14.4.1937 for a sum of Rs. 300. The properties covered under Ex.A.1 measuring 4.28 acres are admittedly situate on the east of the suit property. Now the plaintiff claims that himself as well as his father were in enjoyment of the property covered under Ex. A.1 as well as the other suit property also. The plaintiff conceded the right of the defendants with respect to 3.96 acres in S.No. 15/2A. The plaintiff further stated that there is no dividing ridge between the suit properties and the properties covered under Ex.A.1, thereby establishing the possession and enjoyment of the plaintiff and his predecessor in his interest for more than 50 years. The plaintiff also pointed that there is a ridge between point A and B, dividing 15/2A and S.No. 15/2B thereby indicating that the defendant could not be in possession and enjoyment of the entire extent of 5.07 acres.
10. The learned counsel for the appellant contended that the lower appellate court erred in reversing the well considered decision of the trial court without taking into account all the possession over the suit property for a period of 50 years by the appellant and his father. The appellant had also prescribed his title over the property by means of adverse possession. The lower appellate court also erred in ignoring Ex.A-4, Ex.A-9 to Ex.A.12 as irrelevant to the suit property, while in fact the boundaries mentioned in those documents clearly establishes the possession of the appellant over the suit property. P.W.4 clearly testified that the appellant alone was in possession of the suit property, whereas the first respondent was in possession of 3.96 acres. The evidence of D.W.2, D.W.3 and D.W.5 are interested. The lower appellate court also erred in ignoring Ex.A.3, Ex.A5 to Ex.A8 on the ground that they were subsequent to the proceedings, whereas the court accepted Ex.B.16 to Ex.B.19, although they are also subsequent to the dispute. Further the respondent has not preferred any appeal against the order passed by the surveyor under Section 9(2) of the Survey and Boundaries Act relating to the subdivision of S.No. 15/2 into 15/2A and 15/2B.
11. The appellant raised the substantial questions of law contending that the lower appellant court has not considered the entire oral and documentary evidence. The decision is also vitiated by erroneous conclusion that the respondents have prescribed title over the suit property by adverse possession, while showing that the entire extent of 5.07 acres in S.No. 15/2 belongs to the respondent. The Commissioner's report has also not been considered properly which resulted in vitiating the entire proceedings.
12. The burden is only upon the plaintiff/appellant to show that he was in possession of the suit property also along with the property purchased by him under Ex.A.1. Evidently the suit property is not referred to under Ex.A.1.On the other hand the title deed filed by the defendant under Ex.B.l dated 17.2.1970 contains S.No. 15/2 with an extent of 5.07 acres, prima facie it is clear that the defendants have got title to the entire extent of 5.07 acres. When once the plaintiffs document do not refer to the suit survey number. Prima facie the plaintiffs has no title to the property and as such the appellants has to establish that they have prescribed title to the property by adverse possession for more than the statutory period. Now the plaintiff filed the suit claiming declaration and injunction based upon Ex.A1 but curiously though the suit survey number is not included in the document. It is only under this circumstances, the lower appellate court came to the conclusion that the plaintiff cannot claim any declaration with respect to the suit property based upon Ex.A.l.
13. Ex.B.1 is admittedly the sale deed in favour of the defendant relating to the entire extent of 5.07 acres in S.No. 15/2. No doubt the records filed by the parties indicates that there was subdivision of survey numbers 15/2 into 2A and 2B, but on the objection raised by the defendant at a later point of time, it was given up. Hence it is no longer open to the appellant to claim that because of the subdivision of the suit property as 15/2B, he is entitled to the relief as prayed for. Ex.A4, Ex.A.9 and Ex.A.10 have been pressed into service by the appellant in order to show that boundary description. The land of the plaintiff is shown as west of the land of the defendants. Ex.A.4 relates to S.No. 21 which is situated on the East of S.No. 15/2. None of the defendants were also parties in any of these documents. By virtue of the boundary description. I am of the view that the plaintiff cannot claim any right with reference to the suit property moreso when S.No. 15/2 is not included under Ex.A.1.
14. D.W.4 is the vendor under Ex.B. 1 and he categoically stated that the suit property is in the possession and enjoyment of the defendant only. D.W.5 and D.W.6 also supported the case of D.W.I. D.W.4 Shanmugham was then working as a village Karnam and he also admitted that S.No. 15/2 is in the possession and enjoyment of D.W.I and in support of the same. The defendants have also pressed into service Ex.B.16, Ex.B.17 and Ex.B.19 relating to the entries made in the revenue records. Simply because S.No. 15/2 was subdivided at one point of time and later it was cancelled, it cannot be taken advantage of by the appellant to claim right in the entire suit property. In view of Ex.B.1 the defendants alone have got title to S.No. 15/2 and it is supported by the entries in the revenue records also. No doubt oral evidence has been adduced on either and each side supported their case and hence I am of the view much weight cannot be given to the oral evidence in this case.
15. The learned counsel for the appellant relied on a decision reported in Kannappan v. Pargunam and 9 Ors., 2001 (1) CTC 219, wherein it has been held that when the plaintiff is recognising title only by him and he is claiming title in vendors, he cannot say that he has got animus to hold the property against others. Only when he admits that another person got title, the question of prescribing title by adverse possession will arise. There is no dispute about this principle. It is manifestly clear that the defendant had taken a consistent stand the Ex.B.1 covers the suit property also and only in the alternative he had a claim by adverse possession. Now admittedly Ex.A.1 do not cover S.No. 15/2 and as such the appellant alone has to establish that he had prescribed title to the property by adverse possession in order to succeed in me case. The appellant cannot taken advantage or any weakness or loopholes in the case of the other side.
16. The learned counsel for the respondent relied on V.A. Amiappa Nainar v. N. Annamalai Chettiar DB, 1984 (97) LW 691, wherein it has been held that recitals as to boundaries in documents not inter parties are inadmissible in evidence under Sections 11, 13(1), 32(3) and 32(7) of the Evidence Act. The only method by which recitals in a document not inter parties could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found. There is no dispute about this principle and the applicability of the case depends on facts and circumstances of each case.
17. It has also been held in the judgment reported in Santhosh Hazari v. Pumshottam Tiwari (Dead) by Lrs, 2001 (1) CTC 505. The decision of the Apex Court is that the first appellate court is final and its findings of fact cannot be challenged in second appeal. First Appellate Court is also final court of law and its decision on question of law even if erroneous cannot be challenged in second appeal-Error of Law or erroneous findings of first Appellate Court even on question of law cannot be challenged in second appeal unless such questions of law are substantial one. This decision is applicable to the case on hand.
18. It has also been held in the judgment reported in Sheel Chand v. Prakash Chand, 1999 (1) LW 96. The decision of the Apex Court that existence of 'substantial question of law' is the sine qua non for exercise of jurisdiction. It was not proper to reverse the concurrent findings of fact under Section 100, CPC. There is also no dispute about this proposition.
19. It is therefore clear from the aforesaid decisions and discussions that the appellant has to establish that he had prescribed title to the property by adverse possession, in view of the absence of S.No. 15/2 under Ex.A.l. On the other hand the defendants have positively establish title to the disputed property because S.No. 15/2 finds a place in Ex.D.1, if the plaintiff/appellant fails to establish the case of adverse possession, then naturally when once the title to the property is established, he is bound to succeed in the case. The lower appellate court had properly considered the rival contentions of the parties and it is a well considered judgment and the finding is also based on legal evidence. The learned counsel for the appellant is not in a position to prove that there was erroneous application either on law of on facts and as such the finding is not a perverse one calling for interference.
20. For the reasons stated about both the second appeal fails and accordingly dismissed. However, there will be no order as to costs.