Madras High Court
M.Vivekanandan (Died) vs V.Karuppaiah on 3 October, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.10.2018
Reserved on : 18.09.2018
Pronounced on : 0310.2018
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
Second Appeal No.875 of 2004
1. M.Vivekanandan (Died)
2. V.Maran
3. V.Amutha
4. V.Selvi
5. V.Vennila
6. V.Agila ...Appellants
(Appellants 2 to 6 brought on record as
Lrs of the deceased sole appellant vide
order dated 10.03.2010 made in M.P.Nos.
1 and 2 of 2010 in S.A.No.875 of 2004)
Vs
1. V.Karuppaiah
2. S.Pandi (Died)
3. P.Thanga Karthick
4. P.Senthil viravalingam
...Respondents
(Respondents 3 and 4 are brought on
record as Lrs of the deceased second
respondent vide order dated 21.06.2018
in M.P.Nos.1 to 3 of 2011 in
S.A.No.875 of 2004)
Prayer: The Second Appeal is filed under Section 100 of CPC against the
Judgment and Decree in A.S.No.60 of 1999 dated 28.01.2000 by the Additional
District Sessions Judge cum Chief Judicial Magistrate, Ramanathapuram
confirming the Judgment and Decree in O.S.No.203 of 1996 dated 03.12.1998 by
the Principal District Munsif Court, Ramanathapuram.
!Counsel for Appellants : M/s.A.L.Gandhimathi
^Counsel for R1,R3 : Mr.PT.S.Narendravasan
and R4
R2 : Died
:JUDGMENT
The plaintiff in O.S.No.203 of 1996 on the file of the Principal District Munsif, Ramanathapuram is the appellant herein. The said suit in O.S.No.203 of 1996 was dismissed by Judgment and Decree, dated 03.12.1998. As against that, the plaintiff filed Appeal Suit No. 60 of 1999. That appeal was also dismissed by Judgment and Decree dated 28.01.2000 by the Additional District Sessions Judge cum Chief Judicial Magistrate, Ramanathapuram. Challenging that Judgment, the plaintiff has filed the present second appeal.
2. Pending the second appeal, the plaintiff died and his legal representatives had been brought on record as appellants 2 to 6. The second defendant who was the second respondent in the appeal also died and his legal representatives have been brought on record as respondents 3 and 4.
3. O.S.No.203 of 1996 had been filed by the plaintiff Vivekanandan against two defendants namely, Karuppaiah and Pandi seeking a Judgment and Decree for declaration of title over the suit property and for permanent injunction restraining the defendants from interfering with his peaceful possession. The suit property is vacant land measuring 0.52.0 ares in S.No.98/1, Patta No.847, Peruvaiyal village, Devipattinam, Ramanathapuram District. The plaintiff claimed that the suit property originally belonged to Muthuirulappan Servai. The suit property and the property to the South of it were originally one whole splot. Muthuirulappan Servai was granted Patta during the Samasthanam period. He created a mortgage in favour of Ramu Konar on 12.07.1952. After his death, the plaintiff and the plaintiff's three brothers namely, Naganathan, Manivannan, and Dhandapani took possession of the property as legal heirs of Muthuirulappan Servai. The plaintiff claimed that he had filed the suit on behalf of his brothers also. He paid taxes for the property. During the survey and settlement period, patta was wrongly granted in the name of Subbiah Servai. The plaintiff claimed that the defendants had no right in the property. Initially patta was granted to the plaintiff by the District Revenue Officer. An appeal was filed before the District Revenue Officer. The matter was again remanded to the District Revenue Officer. He cancelled the patta. Since the property was under the continuous enjoyment of the plaintiff, he had filed the present suit seeking declaration and injunction.
4. In the written statement, defendants claimed that the suit property was originally owned by Subbiah Servai and his brother Thangasamy Servai. Subbiah Servai was granted Patta by the Samasthanam. They were in joint enjoyment of the property. After they died, the property devolved to Kuppammal, daughter of Subbiah Servai and Sivasamy Servai, son of Thangasamy Servai. The first defendant is the son of Kuppammal and they are in enjoyment of the property. They had protested against grant of Patta to the plaintiff and finally the Patta granted in the name of the plaintiff was cancelled. The defendants claimed that the plaintiff has no right of title or interest over the property and sought for dismissal of the suit.
5. On the basis of the above pleadings, the following issues were framed for consideration:
(i) Whether the plaintiff is entitled to the declaration of title over the suit property?
(ii) Whether the plaintiff is entitled to the relief of Permanent Injunction?
(iii) Whether the defendants had acquired title by adverse possession?
(iv) Whether the suit is barred by limitation?
(v) To what relief the plaintiff is entitled to?
6. During trial, the plaintiff was examined as PW-1 and the second defendant was examined as DW-1 and an independent witness was examined as DW-
2. The plaintiff marked Exs.A1 to A11. Ex.A1, dated 12.07.1952 is the mortgaged deed executed by Muthuirulappan Servai. Ex.A5, dated 31.01.1991 is the order of the Revenue Inspector. Ex.A6, dated 26.02.1992 is the order of the District Revenue Officer. Ex.A7, dated 05.03.1996 is the order of the District Revenue Officer and Executive Magistrate. Ex.A9 is the Patta in the name of the plaintiff. On the side of the defendants, Exs.B1 to B14 were marked. Ex.B1 is the Patta pass book in the name of Subbiah Servai. Ex.B2 is the Patta granted under survey and settlement of Subbiah Servai. Ex.B4, dated 20.12.1992 is the order of the Revenue Officer. Ex.B5, dated 18.11.1993 is the order of the District Revenue Officer. Ex.B6, dated 01.03.1988 is the chitta fasli.
7. On the basis of the above documentary and oral evidence, the Principal District Munsif, Ramanathapuram held that even though the plaintiff claimed that the survey number of the suit property was 98/1, in the documents filed by the plaintiff, the paimash number was given as 500 and consequently, the documents were not related to the suit property. It was also found that the entire area in S.No.98/1 and S.No.108/1 was not identified by the plaintiff by either appointment of Advocate Commissioner or through documents. It had been found that S.No.98/1 relates to paimash No.503. The learned District Munsif held that documents of the defendants are more probable and reliable and consequently, declined to grant the relief and dismissed the suit.
8. As against the said Judgment, the plaintiff had filed A.S.No.60 of 1999. This came up for consideration before the Additional District Judge cum Chief Judicial Magistrate, Ramanathapuram. By Judgment and Decree dated 28.01.2000, the learned Additional District Judge again re-examined the evidence on record and framed points for consideration. Even the first Appellate Court Judge found that the document filed by the plaintiff did not relate to the suit property. It was specifically found that Ex.A8 related to paimash No.500. The learned Judge also found that the suit property is paimash No.503 in S.No.98/1, Patta 223 and measures 2.36 acres. This had been established by Ex.B1. Consequently, findings had been given that the documents of the plaintiff do not relate to the suit property. The first Appellate Court consequently dismissed the appeal.
9. The plaintiff have then filed the present second appeal. The second appeal was admitted on the following substantial questions of law:-
(i) Whether the suit is barred by limitation?
(ii) Whether the plaintiff is entitled to injunction on the basis of the order of the Executive Sub-Divisional Magistrate, Ramanathapuram, dated 05.02.1991 passed in Section 145 Cr.P.C Proceedings?
(iii) Whether the plaintiff has proved the possession and enjoyment of the suit property dehors the revenue records?
(iv) Whether the revenue records have evidentiary value to prove the title land possession?
10. Heard the arguments advanced by Ms. AL.Gandhimathi, learned counsel for the appellant and Mr.PTS.Narendravasan, learned counsel for the respondents.
11. During the course of arguments, it was evident that both the Courts below had given a concurrent finding on facts that the documents produced by the plaintiff do not relate to the suit property. The suit property had been correctly described in Ex.B1 and it is in S.No.98/1, paimash No.503, Patta No.223 and it measures 2.36 acres. Even in the A register, Ex.B3, the paimash number for the suit property was given as 503 with Patta No.223 and the area was given as 2.36 acres. It was in the name of Subbiah Servai son of Nagalingam Servai. In Ex.B6, again the suit property had been described as S.No.98/1 with Patta No.223. The U.D.R Patta granted to the plaintiff had also been cancelled by the District Revenue Officer by order dated 20.12.1992 by Ex.B4.
12. In view of these facts, there being concurrent findings on facts, the second, third and fourth substantial questions of law which primarily relate to facts have to be necessarily answered against the appellants. The one another factor is whether the suit is barred by limitation. It is seen again that concurrent findings had been found that the respondents have been in possession of the suit property continuously. Even during the survey and settlement period the Patta had been granted only in the name of Subbiah Servai. The said Patta was granted on 10.12.1956. The suit had been filed challenging that grant only on 14.06.1996. The suit is hopelessly barred by limitation.
13. In view of the above discussion, I hold that there are no merits in the second appeal. The second appeal is dismissed, by confirming the judgment and decree of the First Appellate Court and Trial Court. No costs.
03.10.2018 To
1. The Principal District Munsif Court, Ramanathapuram.
2. The Additional District Sessions Judge cum Chief Judicial Magistrate, Ramanathapuram.
3. The Section Officer VR Section, Madurai Bench of Madras High Court, Madurai .