Madras High Court
S.Jesuraj vs M.A.R.Sathiyagu on 30 June, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2016
CORAM
THE HONOURABLE Ms.JUSTICE R.MALA
Second Appeal No.1843 of 2000
AND
M.P.(MD) No.2 of 2014
S.Jesuraj ... Appellants
versus
1.M.A.R.Sathiyagu
2.Dhavidhu
3.Irudayasami
4.Jegaraj ...
Respondents
(R2 to R4 given up)
Prayer: Second Appeal is filed against the judgment and decree dated
12.09.1996 rendered in A.S.No.125 of 1995 on the file of the Additional
District Court and Chief Judicial Magistrate, Sivagangai, confirming the
decree and judgment dated 14.09.1995 rendered in O.S.No.346 of 1987 on the
file of the District Munsif, Sivagangai.
!For Appellant :Mr.P.Senthurpandian
^For Respondent No.1:Mr.R.Gowrishankar for R1
R2 to R4 Exparte
:JUDGMENT
The plaintiff, who lost before both the Courts below, has come forward with this second appeal against the judgment and decree passed by the first appellate Court in A.S.No.125 of 1999, by confirming the judgment and decree passed in O.s.No.346 of 1987 by the trial Court, dismissing the suit filed by him, for declaration and injunction.
2.The appellant, as plaintiff filed a suit for declaration and injunction stating that the properties are originally owned by one Savarimuthu, who is the father of the plaintiff and the second defendant and after enquiry under recognition, settlement patta has been granted to him. Savarimuthu died on 1982, leaving behind the plaintiff and the second defendant as his legal heirs. The second defendant was residing at outside of the village on account of his avocation. In a oral family arrangement, the suit property was given to the plaintiff and he is enjoying the property for more than statutory period. He raised punja crops and also during the drought season, he enjoyed the 'Karuvela' trees. Since the second defendant was in outstation, he filed the suit on behalf of the second defendant also for declaration of title and injunction. The first defendant has no right over the property. The first defendant attempted to interfere with the peaceful possession and enjoyment of the property. The third and fourth defendants have also no right over the property. Therefore, the plaintiff has come forward with the suit for declaration, declaring that the suit property belong to the plaintiff and the second defendant and also restraining the defendants 1, 3 and 4 not to interfere with his peaceful possession and enjoyment.
3.The first defendant filed a detailed written statement stating that the suit property is not belonging to the father of the plaintiff. Originally, the property is belonging to one Santhoshi, who is the father-in- law of the father of the first defendant. The daughter of Santhoshi was given in marriage to the father of the first defendant viz. Periya Arulandhu as first wife and the suit property was given to her as Sreedhana. She died 1920 without having child.
4.It is further stated that the first defendant's grandfather is one Manuvel Konar and he had two sons viz., Periya Arulandhu, who is the father of the first defendant and Chinna Arulandhu. The first defendant born to Periya Arulandhu through his second wife viz., Savuriammal. Chinna Arulandhu has three sons viz., Savarimuthu, Irudhayasamy and Jegaraj and four daughters viz., Mariammal, Mariyasironmani, Arulayee and Pappammal @ Savariammal. Savarimuthu's children are the plaintiff and his brother Thavidhu/second defendant. Savurimuthu died in 1982. Irudhayasamy and Jegaraj are D3 and D4. Both Chinna Arulandhu and Periya Arulandhu were residing in single family and Periya Arulandhu died in 1940 before partition. At that time, the first defendant was aged about 8 years. Therefore, his junior paternal uncle viz., Chinna Arulandhu has looked after the properties. He also died in the year 1948. The father of the plaintiff is the elder male member. The defendants 3 and 4 viz., Irudhayasamy and Jegaraj, the first defendant and Savarimuthu, father of the second defendant and plaintiff were enjoying the properties jointly. In 1958, partition was taken place only in respect of nanja lands. In 1958, punja lands have not been divided. They are barren lands and no cultivation has been done and hence, there was spontaneous growth of Avaarai, Neem and Kavuvela trees. Then and there, they cut and used the trees for firewood and for agricultural purposes. Patta has been changed in the name of plaintiff's father, since he was the elder male member. On 16.08.1987, there was a family arrangement in the house of Irudhayasamy in respect of suit punja and common punja, wherein, entire suit punja and 3 acre in kokku punja and 1/3 share in common punja were allotted to the plaintiff. However, without changing patta, now, with the intention, to grab the property, he filed the suit with ulterior motive and prayed for dismissal of the suit.
5.The trial Court, after considering the plaint and written statement framed necessary issues and after considering the oral and documentary evidence, has dismissed the suit. Against the said dismissal of the suit, the plaintiff filed appeal before the first appellate Court, where, the appeal was also dismissed, confirming the judgment and decree of the trial Court. Against which, the present second appeal has been preferred by the plaintiff.
6.At the time of admission of the second appeal, the following substantial questions of law have been framed for consideration of the second appeal:
1.Whether the courts below are correct in dismissing the suit after having found that the patta has been issued in favour of Savarimuthu in 1958 the father of the plaintiff?
2.Whether the Courts below are correct in holding the suit property is a Joint family property though it was not included in the partition deed dated 02.06.1937 between Periya Arulanandau and Chinna Arulanandau?
3.Whether the Courts below are correct in shifting the burden upon the shoulders of the plaintiff?
SUBSTANTIAL QUESTIONS OF LAW 1 TO 3:
7.The genealogy of the parties are as follows:
Manuel Periya Arulandhu Chinna Arulandhu 1st wife 2nd wife No issue Santhiyagu/D1 Savari Irudhaya Jegaraj Mari- Mariya Arulayee pappammal muthu samy D4 ammal siron @ D3 mani savaiammal Jesuraj/ Dhavidhu Plaintiff D2
8.The learned counsel for the appellant would submit that the suit property has been enjoyed by Savarimuthu. Patta has been issued under Ex.A1. Ex.A2 to A7, A9, A11 and A12 are kist receipts. Ex.A8 is the Patta transfer order. Ex.A10 is partition deed. The above said documents show that patta stands in the name of Savarimuthu. Thereafter, his children, the plaintiff/appellant and the second defendant inherited the property as per Indian Succession Act. They are in possession and enjoyment of the property. The defendants 1, 3 and 4 have no right over the suit property. They attempted to interfere with the possession of the plaintiff.
9.During the pendency of the second appeal, the first respondent/first defendant filed an application in M.P.(MD) No.3 of 2014 under Order 41 Rule 27 of C.P.C., and the same was dismissed as not pressed, in view of the endorsement made by the learned counsel for the first respondent/first defendant.
10.The appellant/plaintiff has filed M.P.(MD) No.2 of 2014 under Order 41 Rule 27 of C.P.C for reception of additional evidence. In the said application, he sought permission to receive the judgment in O.S.No.402 of 1964 on the file of the District Munsif Court, Paramakudi, and the judgment in A.S.No.4 of 1996, which was arising out of decree and judgment in O.S.No.402 of 1964. In that suit and appeal, the plaintiff/appellant was not a party and only the first defendant/first respondent is the party to the suit proceedings.
11.The learned counsel would submit that the said petition was filed to show that since they are Christians, no concept of joint family and to prove the same, he wanted the documents to be marked. Admittedly, the appellant was not party to the earlier suit. Those documents are not necessary, since it was admitted by both the parties that both are belonging to Christians. The appellant has not proved the ingredients of Order 41 Rule 27 of C.P.C. The documents were not filed before the Court and he has also not proved that they are unable to trace out the same due diligence and those documents are necessary for the final disposal of the appeal. Admittedly, the parties are belonging to Christian. In such circumstances, I am of the view that the documents filed in M.P.(MD) No.2 of 2014 are not necessary for the disposal of the appeal and hence, the application in M.P.(MD) No.2 of 2014 filed under Order 41 Rule 27 of C.P.C. is hereby dismissed.
12.As per Ex.A1, patta, it stands in the name of Savarimuthu. He paid kist and enjoyed the same. The learned counsel for the appellant would submit that since his father Savarimuthu died, the plaintiff and the second defendant inherited the property as per Indian Succession Act. But, here, the first respondent raised a plea that in written statement, in earlier paragraph, it was stated that the property belongs to his father's father-in- law Santhoshi, whose daughter was given in marriage to his father Periya Arulandhu as first wife and the property was given to her as Sreedhana and she died in 1920 without issues and the property was enjoyed by them.
13.It is also admitted that Manuvel Konar has possessed some properties and after his death, his children viz., Periya Arulandhu and Chinna Arulandhu inherited the property and enjoyed the same. On 02.07.1937, as per Ex.A10, partition has been taken place between Periya Arulandhu and Chinna Arulandhu, in which, admittedly, the suit properties were not the subject matter. But, in the defence, it was stated that during the lifetime of the father of both Periya Arulandhu and Chinna Arulandhu, there was no partition. The defence raised in the written statement is not correct. In the defence, it was stated that in 1958, there was an oral partition only in respect of wet lands. But, the above defence is falsified by Ex.A10. However, in para 8 of the written statement, it was stated that on 16.08.1987, in respect of the suit properties and other punja properties, dry lands, there was a family arrangement, wherein, it has been stated that, entire suit properties, kokku punja 3 acres and other dry lands 1/3rd share were allotted to the plaintiff. It is appropriate to incorporate the description of property:
?g.K.nj.khtl;lk;. Rptfq;if tl;lk;. ky;yy; gph;fh cilahnue;jy; F:U:g;. brq;Fsk; cl;fiu nfhuhFsk; fpuhkj;jpy; g[Q;ir. rh;nt eph;.44/1> tp];jPuzk; 1.18.0 bcwf;nlh;?
At this juncture, the learned counsel for the first defendant/first respondent would submit that the plaintiff must prove his case and he cannot take up the loopholes in the written statement and sought for relief.
14.The first defendant has filed documents viz., Ex.B1 to B18, wherein, the revenue records viz., Ex.B1, B2, B3, B6, B7, B10 to B13 are not related to the suit properties. He relied upon only Ex.B17 and submitted that in Ex.B17, one of the boundary is mentioned as ?k.mU.rt[hpKj;J cGfpw re;njhrp g[Q;irf;Fk; Vrd; g[Q;irf;Fk; b$gkhiy g[Q;irf;Fk; nkw;F?, which shows that Santhoshi's punja is the suit property. Since Ex.B17 is 30 years old document , the trial Court ought to have considered Ex.B17. However, considering Ex.B17, I am of the view that the suit property is belonging to Santhoshi, which was cultivated by Savarimuthu.
15.Furthermore, on 16.08.1987, it was agreed that the property must be given to the first defendant. Admittedly, if the properties belong to Chinna Arulandhu or Periya Arulandhu, it will be found place in the partition deed. Because, as per Ex.A10, during the life time of Periya Arulandhu and Chinna Arulandhu, partition has been taken place. Therefore, once the plaintiff has come forward with the suit, it is for the plaintiff to prove his case.
16.The learned counsel for the respondent relied upon the decision of this Court in S.A.No.317 of 1998, wherein, it was held that the plaintiff must prove the case and he cannot take shelter under the defence raised by the defendants. The relevant portition is extracted as follows:
?Obviously, the burden is on the plaintiff to establish the title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree.? The plaintiff must prove his case and he cannot pick up weakness of the defence and sought for a remedy and there is no dispute over the proposition laid down in the citation.
17.The learned counsel for the appellant relied upon the decision reported in 2012-5 L.W. 618 ? Sri Ahobila Mutt Jeear Srivan, etc. V. Sethubava Chatram Haridranathi and another and submitted that once the first defendant admitted that the settlement patta has been issued in favour of the plaintiff by Inam Settlement Officer and tax assessment stands in the name of the plaintiff, the first defendant is estopped from contending otherwise. He relied upon the relevant portion in para 10 of the said judgment, which is extracted as follows:
?10. ....... As it is the document issued by a statutory authority, prima facie the document cannot be rejected, unless it is proved to be incorrect or false. The defendant has not proved the document to be incorrect. The chitta and adangal are also in the name of the plaintiff. The tax assessment also stands in the name of the plaintiff. There is clear admission in the written statement of the first defendant that the suit property constituted a minor inam governed by the provisions of T.N.Act, 30 of 63 and that patta has been issued in favour of the plaintiff and one Sri.V.Ratnam, Retd. Judge, High Court. Therefore, the defendant is estopped from contending otherwise. Even though, the defendant has stated that he did not come to occupy the buildings with the leave and license of the plaintiff, he did not state how the defendants came into possession of the property.?
18.While perusing Ex.A1, it is seen that it has not been issued by the Settlement Officer. It has been issued by the revenue authority. In Ex.A1, it is stated as follows:
gl;lh vz; ' 137
epy cilikahshpd; bgah; ' rt[hpKj;Jf;Fkhh;
jfg;gdhh; bgah; ' mUshe;J nfhd;
Kfthp ' brq;Fsk;
ifg;gw;wpy; cs;s epyk; tHpKiwahdjh? kw;Wk; ,ju tptuq;fs; g[y vz;. g[yj;jpd; cl;gphpt[ vz;.
g[d;bra; my;yJ ed;bra;
gug;g[ tHpKiw 137 44-1 50-6 g[d;bra;
ed;bra;
2.91 0.90 So, the above citation is not applicable to the facts of the present case. In the above said decision, it is stated that after the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 came into force, the statutory authority made an enquiry and granted settlement patta in the name of Mutt and on that basis only, the possession has been transferred and that has been admitted by the defendant. Therefore, he was estopped from contending otherwise.
19.In the present case, in para 2 of the written statement, it was specifically mentioned that the suit property is originally belonged to one Santhoshi, who is none other than the father-in-law of the father of first defendant/first respondent. The property was given as sreedhana to her only daughter, who got married the father of the first defendant/first respondent viz., Periya Arulandhu and he was enjoying the property. After the death of Periya Arulandhu, Chinna Arulandhu and on his death, Savarimuthu were enjoying the property and that has been evidenced by Ex.B17. In such circumstances, I am of the view that the above said citation is not applicable to the facts of the present case.
20.Further, the learned counsel for the appellant relied upon the decision reported in 2009-2-L.W.546 ? Anathula Sudhakar V. P.Buchi Reddy (Dead) by Lts & Ors. and submits that the revenue records are proved the title to the property. He relied in para 20, wherein, the Hon'ble Supreme Court has held as follows:
?20.The suit sites were vacant plots. Both sides admitted that Damodar Rao was the original owner and that entire property stood in his name. The defendant claims title through Damodar Rao. The plaintiffs claim title through Rukminibai who neither has any deed of title nor any document in support of title or possession. Admittedly, there was no mutation in her name. This means that plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being mutated in her name, whereas the defendant claims title from the person who was admittedly the original owner who was registered as owner in the revenue records. Necessarily, therefore, prima facie it has to be held that defendant had made out possession following title.? The above said citation is not applicable to the facts of the present case. Because, the plaintiff must prove his case. But, the defendant can take an inconsistent plea. Ex.B17 shows that the suit property was belonging to Santhoshi.
21.He also relied on the decision reported in AIR 1997 Kerala 165 ? Ishwara Bhat V. Annappa Naika and submits that the plaintiff can on the strength of his possession resist interference from persons, who have no better title than himself to the suit property. In para 15, it is held as follows:
?15.The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial Court and the first appellate Court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding Courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily.?
There is no quarrel over the proposition. In the present case, in Ex.B17, one of the boundary has been mentioned as Santhoshi Punja, which is stated to be the suit property. In such circumstances, I am of the view that the plaintiff/appellant herein has not proved that the suit property belongs to his father exclusively or inherited by him. It is not the case that the property is an inam land and settlement Officer has issued a settlement patta in favour of his father./Savarimuthu
22.As already stated, Ex.A1 is not a document issued by the Settlement Officer, who is the statutory authority appointed by the special enactment. In such circumstances, I am of the view that the plaintiff/appellant has failed to prove that the properties belonging to his father.
23.Further, there was a panchayat, where, it was agreed that the property inherited by the father Periya Arulandhu was given to the first defendant/first respondent. Instead of making mutation of records, the plaintiff filed the suit to prove his possession and he has not filed any adangal to show that he was in possession and enjoyment of the suit property. In Ex.A2, A5 to A7 alone, patta number has been mentioned. In Ex.A3 and A4, no patta number has been mentioned. On 21.01.1987, patta has been transferred only to the plaintiff and the second defendant and kist has been paid under Ex.A9. In such circumstances, I am of the view that the plaintiff neither proved his title nor proved his possession and hence, both the Courts below are right in holding that the plaintiff has not proved his title and he is not entitled for any relief.
24.Considering all the points above, I am of the view that there is no evidence to show that the patta has been issued in favour of Savarimuthu in 1958, who is the father of the plaintiff and there is no joint family property under Christian Law and the suit property was not included in Ex.A10, partition deed dated 02.06.1937. It is the duty of the plaintiff to prove the case. The substantial questions of law are answered accordingly.
25.Considering the arguments and also perusal of the documents, the judgment and decree passed by the first appellate does not warrant any interference and hence, the same is hereby confirmed and subsequently, the second appeal deserves to be dismissed.
26.Accordingly, the second appeal is dismissed. No costs. Connected M.P.(MD) No.2 of 2014 is also dismissed.
To
1.The Additional District Judge, Sivagangai.
2.The District Munsif Court, Sivagangai