Madras High Court
Muthuvel Thevar vs Senthur Pandi on 14 August, 2019
Author: R.Tharani
Bench: R. Tharani
S.A.(MD)No.896 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED ON : 14.08.2019
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
S.A.(MD)No.896 of 2009
Muthuvel Thevar .. Appellant
Vs.
1.Senthur Pandi
2.Somasundaram
3.Kumarayee (died)
4.Muthirulandi
5.Indirani
6.Kalyani
7.Murugeswari
8.Vijayarani
9.Muruga Boopathy
10.Ammasi
11.Panthanam .. Respondents
(Memo USR-4014 of 2014, recorded as third respondent - died,
Respondents 4 to 7 and 9 who were already on record are recorded
as legal heirs of the third respondent as per order dated 02.04.2019 by RPAJ)
Prayer :Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside
the Judgment and Decree passed in A.S.No.21 of 2008 dated 27.07.2009 on the file of
the learned Sub Judge, Paramakudi confirming the Judgment and decree passed in
O.S.No.160 of 1995 dated 25.04.2008 on the file of the learned District Munsif-cum-
Judicial Magistrate, Muthukulathur.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondents 1, 2, 4 to 9 : Mr.V.Sitharanjandas
For Respondents 3, 10 and 11 : No Appearance
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S.A.(MD)No.896 of 2009
JUDGMENT
Heard the learned counsel appearing on both the side.
2.This appeal is filed against the Judgment and Decree passed in A.S.No.21 of 2008 dated 27.07.2009 on the file of the learned Sub Judge, Paramakudi confirming the Judgment and decree passed in O.S.No.160 of 1995 dated 25.04.2008 on the file of the learned District Munsif-cum-Judicial Magistrate, Muthukulathur.
3.The appellant herein is the first defendant, the respondents 1 to 9 herein are the plaintiffs 2 to 10 and the respondents 10 and 11 herein are the defendants 2 and 3 in the suit. The respondents 1 to 9 herein have filed a suit in O.S.No.160 of 1995 before the learned District Munsif-cum-Judicial Magistrate, Muthukulathur for declaration and for injunction with regard to the 1st item of suit property in favour of the first plaintiff and to declare the title of the second schedule property in favour of the plaintiffs 2 and 3 and for injunction. The trial Court decreed the suit. Against that Judgment and decree, the appellant herein has preferred an appeal in A.S.No.21 of 2008 before the learned Sub Judge, Paramakudi. The appeal was dismissed by confirming the Judgment and decree passed by the trial Court. Against which, the appellant has come forward with this second appeal.
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4.The case of the plaintiff is that all the suit properties were the ancestral property of Shanmuga Pillai and Muthu Erulandi Pillai. The suit property includes Paimash Nos.147 and 147A. Patta number 14 was issued in the name of first plaintiff's mother, Ramayee Ammal and patta number 55 was issued in the name of the Sundararasu son of Shanmuga Pillai during the zamin period. The suit property was measuring an extent of 1 acre and 16 cents. The legal heir of Shanmuga Pillai and Muthu Erulandi Pillai entered into an oral partition, Muthu Erulandi Pillai allotted the suit properties to his son Muthu Pillai and his wife, Ramayee Ammal and their two sons, the first plaintiff and Ramu. The plaintiffs 2 and 3 were the sons of Ramu. In the family partition, the first schedule property was allotted to the share of the first plaintiff. The second schedule property was allotted to the share of the plaintiffs 2 and 3. The female issues relinquished their rights after getting jewels and cash at the time of their marriage. During the survey settlement, joint patta in patta no.445 was issued in the names of the first plaintiff and his mother, Ramayee Ammal and Shanmuga Pillai's son Sundararasu and that though the properties were in the enjoyment of the plaintiffs but during the UDR survey, Survey No.98/1 with a total extent of 31 acres and 41 cents was sub divided and a separate patta was issued for the first schedule property in survey No. 98/1B32 and the second schedule property was sub divided as survey no.98/1B28 and that the authorities wrongly issued patta in the name of the defendants. As the defendants disturbed the possession of the plaintiffs, they have filed this suit. http://www.judis.nic.in 3/16 S.A.(MD)No.896 of 2009
5.The brief substance of the case of the first defendant is that the suit properties belonged to the first defendant. Without impleading the first defendant, the plaintiffs with an ulterior motive impleaded only the defendants 2 and 3 and filed a petition before the Sub Collector in R.O.C.No.1/1166/89. Only after due enquiry, the Sub Collector has passed an order. The defendants were never in possession of survey No.98/1B and the suit property belongs only to the defendants. The suit properties were the ancestral properties of the defendant's father, Mookandi Thevar @ Moothandi Thevar and the Paimash No is 133. The zamin patta no.16 was issued to the defendant's predecessor and in survey settlement, the property was assigned with survey no.98/1 and Mothandi Thevar and 68 others got patta in patta no.445. In the UDR scheme, the suit property was divided into 98/1B, 98/1B1, 98/1B2. Instead of issuing patta in the name of Mothandi Thevar, the authorities wrongly issued the patta in the name of the defendants 2 and 3. In the same manner, the authorities issued patta for survey No. 98/1B6 in the name of the defendants. On enquiry, the Sub Collector in Na.Ka.No. 2.4059/88 gave a finding that there was no such property in survey Nos.98/1B35 and 98/1B36. After enquiry, the Sub Collector issued patta in the name of the first defendant and after the order of the Sub Collector, the first defendant cleared the karuvelam trees in the suit property and he cleared and developed the suit property. The first defendant and his predecessors were in peaceful possession of the suit property with the knowledge of the plaintiffs and the defendants got title by prescription. The defendants 2 and 3 are not necessary parties. The suit is bad for mis- http://www.judis.nic.in 4/16 S.A.(MD)No.896 of 2009 joinder of parties.
6.On the above said pleadings, the following issues were framed by the trial Court:
(i) jhth 1tJ yf;fk; 1k; thjpf;Fk; jhth 2tJ yf;fk; 2> 3 thjpfSf;F ghj;jpa mDgtkhdJ ?
(ii) jhth nrhj;Jf;fspy; tof;Fiuapy; $wg;gl;bUg;gJ Nghy thjpfSf;F gpup];fpupg;bt; ill;by; rpj;jpj;Js;sjh ?
(iii) jhth nrhj;Jf;fs; 1k; gpujpthjpf;F ghj;jpa mDgtkhdjh ?
(iv) jhth nrhj;Jf;fspy; vjpupia ghj;jpa mDgt %yk; 1k; gpujpthjpf;F gpup];fpupg;bt; ill;by; rpj;jpj;Js;sjh ?
(v) jhth nrhj;Jf;fs; rupahd gb milahsk; fhl;lg;gl;bUf;fpwjh ?
(vi) 2> 3 gpujpthjpfs; ,t;tof;fpw;F mdhtrpa fl;rpf;fhuu;fsh ?
(vii) vjpu;tof;Fiuapy; tptupf;fg;gl;Ls;s fhuzq;fspdhy; ,t;tof;F epiy ?
(viii) thjpfSf;F vd;d gupfhuk; fpilf;fj;jf;fJ ?
7.Six witnesses were examined as P.W.1 to P.W.6 and 27 documents were marked as Exs.A1 to A27 on the side of the plaintiffs and one witness was examined as D.W.1 and seven documents were marked as Exs.B1 to B7 on the side of the defendants. After considering the pleadings and evidence, the trial Court decreed the suit. Against which, the appellant herein have preferred an appeal in A.S.No.21 of 2008 before the learned Sub Judge, Paramakudi.
8.In the grounds of appeal in A.S.No.21 of 2008, it is stated that the trial Court has failed to give any findings to issue no.5 pertaining to the identity of the http://www.judis.nic.in 5/16 S.A.(MD)No.896 of 2009 property. The total extent of the suit property is 2 acres and 36 cents as per the plaint and as per the survey records, the total extent of the suit property was one acre and 86 cents. The measurement stated in Exs.C1 and C2 was one acre and 96 cents but the lower Court failed to consider Exs.C1 and C2. There was no possibility for the suit property to have an extent of 2 acres and 36 cents in Paimash Nos.147 and 147A. The trial Court failed to consider that Paimash nos.147 and 147A was not related to the suit property. The trial Court failed to consider that the measurement in the zamin patta was not accurate. The trial Court wrongly considered that the extent in Paimash No.133 was 68 cents which was different from the suit property. The trial Court failed to consider that Exs.A1 and A3 were executed on the same day and that Paimash No.147 only was mentioned and Paimash No.147A was not mentioned and no patta was issued to P.W.3 for survey No.98/1B, 24 and that no patta was issued to P.W.2. The trial Court failed to consider that the first defendant has already cleared the Karuvelam trees in the suit property for preparing the suit property fit for cultivation. On the basis of the grounds of appeal, the first Appellate Court has framed the following issues:
“(a) KJFsj;J}u; khtl;l cupikapay; ePjpkd;w K.t.vz;.160/95y fle;j 25.04.2008k; Njjp gpwg;gpf;fg;gl;l jPu;g;ghiz kw;Wk; jPu;g;ghiz rupahdjh? ,y;iyah ?
(b) NtW vd;d gupfhuk; toq;fg;gl;l Ntz;Lk; ?”
9.After hearing both the sides, the appeal was dismissed and the Judgment and decree of the trial Court was confirmed. Against which, the appellant herein has come forward with this second appeal.
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10.In the grounds of second appeal, it is stated that the Courts below failed to appreciate the defence of the appellant in the proper perspective. Both the Courts below failed to consider that the plaintiffs have not identified the suit properties with the help of the documents of title and the suit property did not correlate and the boundaries did not fix up. The trial Court failed to frame an issue regarding the identity of the suit property. Both the lower Courts have failed to consider that the extent of the property as per the patta was 1 acre and 86 cents whereas the suit property was described in the plaint as 2 acres and 36 cents. Paimash Nos.147 and 147A each with an extent of 1 acre 18 cents was not available of ground. There was no proper survey during the Zamin period and the extent in the Paimash numbers under the Estate Land Act would not tally with the extent of the properties on land and that both the lower Courts have failed to consider that the extent for Paimash No.133 was wrongly given as 68 cents. The trial Court failed to consider Exs.A1 and A3 were executed on the same day and that Paimash No.147A was not mentioned in them. Both the lower Courts failed to consider that P.W.3 was not given patta though he was the lawful owner of survey No.98/1B,24. The lower Court failed to consider that P.W.2 was not given patta, though he was in possession of survey No.98/1B6. Patta issued in the name of the first defendant instead of P.W.2 was cancelled by Ex.B7. The Courts below were wrong in considering Exs.A24 to A27 issued by the Village Administrative Officer. Possession was with the first defendant and the same was admitted by the plaintiffs. But the plaintiffs http://www.judis.nic.in 7/16 S.A.(MD)No.896 of 2009 failed to make any arrangements for recovery of possession. Considering Exs.C1 and C2, the Courts below came to a wrong conclusion as to the extent of the suit property. The Courts below failed to consider that Paimash No.133 did not correlate survey No.98/1 and Ex.B1 and that the wrongful grant of patta in favour of the defendants 2 and 3 during UDR scheme was set aside by Ex.B7 and that Exs.B2 to B5 proved the possession by the ancestors of the first defendant.
11.This Court by its order dated 13.10.2009, has admitted the second appeal and has framed the following substantial questions of law, which are as follows:
“(i)Have not the Courts below committed an error in declaring the title in favour of the plaintiffs though the plaintiffs have failed to correlate the suit property with the help of documents of title and whether such a finding can be sustained without evidence of title?
(ii)Whether the Courts below have committed an error in their failure to find that the extent of the property lying on ground does not tally with the documents of title?
(iii)Have not the Courts below failed to find that when the village in which the suit property situate was not subject to survey and settlement before zamin Abolition Legislations and erred in holding that the measurement under the Estate land Act does not tally with the measurement after survey and settlement?” Issue No.1:
12.On the side of the appellant, it is stated that the respondents 1 to 9 failed to correlate the suit property with the help of the documents before the trial Court and http://www.judis.nic.in 8/16 S.A.(MD)No.896 of 2009 that the trial Court and the first appellate Court committed an error in declaring the title in favour of the plaintiffs.
13.On the side of the respondents 1 to 9 who are the plaintiffs, 27 documents were marked. The documents Exs.A1, A18 and A19 were the zamin pattas. Exs.A2 and A3 were the settlement pattas. Ex.A4 was the settlement register copy. Exs.A5 to A16 were the tax receipts. Exs.A24 to A27 were documents to denote that the suit property was in the possession of the plaintiffs. Exs.A17, A20 to A23 were documents relating to the properties of the defendants. On the side of the respondents 1 to 9, it is stated that the evidence of P.Ws.2 and 5 clearly proves that the suit property was in possession of the plaintiffs and that the documents filed by the plaintiffs correlates the evidence of P.Ws.1 to 5 and that the evidence of P.W.6 prove that the defendants claimed draught relief fund for survey No.98/1B6.
14.In the above circumstances, it is seen that the plaintiffs prove their title by correlating the suit property with the help of documents and the question raised by the appellant is not a question of law and this question raised by the appellant is not acceptable.
Issue No.2:
15.On the side of the appellant, it is stated that the trial Court failed to http://www.judis.nic.in 9/16 S.A.(MD)No.896 of 2009 consider that the plaintiffs did not prove the extent of the property lying on the ground with that of the document of title.
16.The case of the appellant is that the plaintiffs failed to prove the extent of the land and failed to identify the land. Specific boundaries were given in the plaint and specific extent was also given in the plaint. There was no specific pleadings in the written statement questioning the measurement stated in the suit property. The appellant cannot come up with a new case in the second appeal. The claim of the defendant was that the measurement stated in Paimash No.133 was wrongly mentioned as 68 cents. But the defendants insist upon the plaintiffs to correlate the measurement stated in the Paimash Number with the measurement stated in the settlement patta and UDR patta.
17.The case of the plaintiffs was that for Paimash Nos.147 and 147A, a measurement of 1 acre and 18 cents each was given. The plaintiffs were claiming 2 acres and 36 cents as per the settlement patta no.445. The patta issued in the name of Ramayee was marked as Ex.A1. The patta number was 144 and the patta number 55 issued in the name of Sundarraj were marked as Exs.A2 and A3. The tax receipts filed by the plaintiff were marked as Exs.A6 to A16. In the settlement patta, an extent of 1 acre and 18 cents was mentioned in the name of Ramayee and that 1 acre and 18 cents was mentioned as the property of Sundarraj and that totally 136 cents was available for the http://www.judis.nic.in 10/16 S.A.(MD)No.896 of 2009 share of plaintiffs. The land tax receipt was marked as Ex.A25. The possession Certificate issued by Village Administrative Officer was marked as Exs.A26 and A27.
18.The contention of the appellant is that the property of the plaintiffs as per the settlement patta is 2 acres 36 cents. But the suit property is only 1 acre and 90 cents and that the trial Court failed to consider this aspect. The appellant is questioning the extent of land available to the plaintiffs on the basis of the settlement patta. At the same time the defendants were claiming the property triple the extent stated in the patta stating that there were chance for differences in measurement mentioned in that patta. Ex.A4 was a document based upon the settlement patta. In the settlement patta, Paimash No.147 with an extent of 1 acre 18 cents was entered in the name of Ramayee and Paimash No.147A with an extent of 1 acre 18 cents was entered in the name of Sundarraj. In Paimash No.133 only 68 cents was mentioned in the name of the father of the first defendant. Exs.B3 and A4 were copies of the settlement document. Enteries in both the documents were similar. The settlement survey number 133 was with an extent of 68 cents as per Ex.B3 which was issued in the name of Moothandi Thevar. An extent of 34 ares which is equivalent to 83.98 cents was mentioned in Ex.A20 patta no.613.
19.The measurement in Ex.A20 tally with the measurement in Ex.B3. Though there are minor variations, this variations are negligible. The measurement stated for the suit property is triple time higher than what is mentioned in Ex.B3. The defendants http://www.judis.nic.in 11/16 S.A.(MD)No.896 of 2009 claimed title only through Exs.B1 to B3 wherein the measurements were not tallying with the suit property. As per Ex.A4 in Paimash Nos.147 and 147A, there is a deficit of 46 cents in total measurement which seems to be agreeable.
20.In the above circumstances, it is decided that the appellant cannot question the extent of land stated in Ex.A4 while he is relying on the discrepancies in the measurement stated in Ex.B3 and that of the suit land. Hence, it is decided that the issue raised by the appellant is not maintainable.
Issue No.3 :
21.The case of the appellant is that till the passing of the zamin abolition Act, there was no survey and the suit property was not subjected to survey and the measurement mentioned in zamin patta under the Estate Land Act, did not tally with the measurement after survey. But the trial Court failed to consider the same and has come to a decision that Paimash No.133 with an extent of 68 cents was not pertaining to the suit property. The lower Court failed to consider Paimash No.133 and the land was not surveyed at that time and the trial Court must have considered this aspect and decided that Paimash No.133 is pertaining to the suit property.
22.On the side of the respondents, it is stated that the plaintiffs are claiming right over the suit property through patta issued for Paimash No.133. The case of the http://www.judis.nic.in 12/16 S.A.(MD)No.896 of 2009 appellant is that the measurement given in Paimash No.133 is not accurate measurement as there is no survey during the Zamin period. The extent stated in Paimash No.133 in Ex.B1 is 68 cents. The suit property is 1 acre and 96 cents. The defendants are claiming that the extent mentioned in the Paimash No.133 is not correct and they are disputing the extent stated in Paimash No.147. A person cannot play hot and cold at the same time.
23.On the side of the plaintiffs, it is stated that patta was issued in the name of the defendants for survey No.98/1B6. The tax receipt for joint patta in patta number 445 was issued in the name of the first defendant's father which was marked as Exs.B2 and B4. This recent patta was marked as Ex.A20. The property was purchased by the first defendant's father, Muthandi Thevar on 27.05.1952 and the sale deed was marked as Ex.A21. The sale deed executed by Muthu chella Thevar in favour of Ammachi was marked as Ex.A23.
24.P.W.6 has deposed that the first defendant obtained a draught relief fund for the land in survey No.98/1B6. P.W.6 was the Bank Manager and the evidence of a third person cannot be brushed aside lightly. The first defendant received draught relief fund for survey No.98/1B6. Even if there is any discrepancies in the measurement, it cannot be three folds higher. Instead of an extent of 68 cents, the defendants are claiming 1 acre and 90 cents in the suit property on the basis of the patta issued in http://www.judis.nic.in 13/16 S.A.(MD)No.896 of 2009 Paimash No.133. Exs.A21 and A22 reveals that the extent claimed by the defendant is not correct. Hence, it is decided that the appellant failed to prove that the measurement before the zamin abolition is wrong and it did not tally with the measurement after the survey and settlement. Hence, the question raised by the appellant is unsustainable.
25.All the questions raised by the appellant are only questions of fact and even those question of facts could not decided in favour of the appellant. Hence, there is no sufficient reasons to interfere in the Judgment and decree passed by the first appellate Court.
26.This second appeal is dismissed by confirming the Judgment and decree passed in A.S.No.21 of 2008 dated 27.07.2009 on the file of the learned Sub Judge, Paramakudi confirming the Judgment and decree passed in O.S.No.160 of 1995 dated 25.04.2008 on the file of the learned District Munsif-cum-Judicial Magistrate, Muthukulathur. No Costs.
14.08.2019
Index : Yes/No
Internet : Yes/No
Mrn
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S.A.(MD)No.896 of 2009
To
1.The Sub Judge, Paramakudi.
2.The District Munsif-cum-Judicial Magistrate, Muthukulathur.
3.The V.R.Section, Madurai Bench of Madras High Court, Madurai.
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