Madras High Court
Ghafoor (Died) vs Mohamed Gani on 11 October, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/10/2007
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
S.A.(MD).NO.183 OF 1997
1.Ghafoor (died)
2.Sohara Ammal
3.Raikana Banu
4.Abul Hasan
5.Ahamadyakia
6.Kamarnisha Begum
7.Mohamed Dhawood
8.Mohamed Rasultheen
9.Abdul Lathif
10.Juvairiya Banu ... Appellants
(Appellants 2 to 10 were brought on record as
legal representatives of the deceased first appellant as per
order of this Court dated 25.01.2005 made in
C.M.P.(MD).Nos.336 to 338/2004)
Vs.
1.Mohamed Gani
2.Abdul Hameed
3.Jafar Rahamathullah ... Respondents
This second appeal is filed under Section 100 of the Code of Civil
Procedure against the Judgment and decree of the learned Subordinate Judge of
Ramanathapuram, dated 30.11.1992 in A.S.No.107 of 1992 reversing the judgment
and decree of the learned District Munsif of Ramanathapuram in O.S.No.294/1989
dated 18.03.1991.
!For Appellants ...Mr.V.Sitharajandas
^For Respondent ...Mr.T.D.Vasu
:JUDGMENT
This second appeal has been preferred against the judgment and decree of the lower appellate Court (Sub-Court, Ramanathapuram) dated 30.11.1992 made in A.S.No.107 of 1992, setting aside and reversing the judgment and decree of the trial Court (Court of District Munsif, Ramanathapuram) dated 18.03.1991 made in O.S.No.294 of 1989. This Second appeal was originally filed by the deceased first appellant (sole plaintiff in the original suit). During the pendency of the second appeal, the first appellant died and the appellants 2 to 10 were brought on record as legal representatives of the deceased first appellant.
2. The deceased first appellant had filed the original suit against the respondents 1 to 3 herein for declaration and permanent injunction based on the following plaint averments:-
i) The first item of suit properties originally belonged to Mohamed Fathumal, wife of Mohamed Gani. However, during Samasthanam period, patta had been issued wrongly in the name of Mohamed Gani. The couple had no issues and the husband predeceased wife. Thereafter the wife Mohamed Fathumal got patta in her name and was in possession and enjoyment of the first item of suit properties till her death in the year 1960. On her death, her brother Abdul Hameed got the said property as her sole legal heir. However, patta continued to stand in the name of Mohamed Fathumal. After the death of Abdul Hameed, from his legal heirs, the said property was purchased by the deceased first appellant/sole plaintiff under a registered sale deed dated 12.12.1986.
ii) The second item of suit properties was the ancestral property of Hadijath Rasula and Seithathunnissa. However during survey settlement, patta had been wrongly issued in the name of Mohamed Fathumal. But she did not claim any right in the said property. The deceased first appellant/sole plaintiff purchased the second item of suit properties from the above said Hadijath Rasula and Seithathunnissa under a sale deed dated 09.08.1986.
iii) The deceased first appellant/sole plaintiff, having purchased items 1 and 2 of the suit properties, became the absolute owner of the first and second items of the suit properties. Though the subject matter of suit has been described as two separate items, the deceased first appellant/plaintiff enjoyed the same as a single unit. The respondents/defendants, claiming to be the legal heirs of Mohamed Fathumal, created certain documents and managed to get U.D.R. patta in their names. On the strength of such patta, they were proclaiming that they would trespass into the suit properties and take possession. Hence the deceased first appellant/plaintiff was constrained to file the suit for declaration and injunction.
3. The suit was resisted by the respondents/defendants. The third respondent/third defendant filed the written statement for himself and on behalf of the respondents 1 and 2/defendants 1 and 2 as their power agent. The following are the averments found in the written statement:-
i).The deceased first appellant/plaintiff did not have valid title or possession in respect of the suit properties. The suit properties and other properties originally belonged to Ayinisai Gani in whose favour Samasthanam patta had been issued in patta No.142. The paimash number relating to the suit properties was 402. After the death of Ayinisai, his sons Mohamed Gani and Segumeera got the suit properties, obtained patta and were enjoying the same.
Mohamed Gani and his wife Mohamed Fathumal had no issues and hence they brought up Khaleetha Beevi, daughter of Segumeera, as their own daughter. After the death of Mohamed Gani and his brother Segumeera, Mohamed Fathumal and Khaleetha Beevi got the properties as co-owners and they jointly enjoyed the suit properties. Subsequently, Mohamed Fathumal made an oral gift (hiba) of her share in the suit properties to Khaleetha Beevi. Khaleetha Beevi accepted the gift and thus became the absolute owner of the suit properties.
ii).After the death of Khaleetha Beevi in 1983, her sons, the present respondents/defendants got the suit properties as her legal heirs and they are in possession and enjoyment of the same. Since the respondents 1 and 2/defendants 1 and 2 are in foreign countries, the third respondent/third defendant is in actual possession of the suit properties in his own right and on behalf of the other respondents as their power agent. The deceased first appellant/plaintiff, having failed in his attempt to get the U.D.R. patta issued in the name of the respondents cancelled, chose to institute the vexatious suit making a false claim. The vendors of the deceased first appellant/plaintiff purchased litigation alone by getting sale deeds from persons having no right or title in respect of the suit properties and hence the suit should be dismissed.
4. Based on the pleadings, the learned District Munsif, Ramanathapuram framed as many as seven issues and conducted trial. The deceased first appellant/plaintiff, besides examining himself as PW1, examined two more witnesses as PW2 and PW3 and produced 11 documents marked as Exs.A1 to A11. DW1 was the sole witness examined and Exs.B1 to B35 were the documents marked on the side of respondents/defendants. The reports and plans submitted by the Advocate- Commissioner were marked as Exs.C1 to C4. At the conclusion of trial, the learned District Munsif considered the evidence and upon such consideration, accepted the case of the deceased first appellant/plaintiff and decreed the suit as prayed for. On appeal, the learned Subordinate Judge, Ramanathapuram reversed and set aside the decree of the trial Court and dismissed the original suit. As against the judgment and decree of the lower appellate Court dated 30.11.1992 and made in A.S.No.107 of 1992, the present second appeal was filed by the deceased first appellant/plaintiff. After the death of the first appellant / plaintiff appellants 2 to 4 are pursuing the second appeal as the legal representation of the deceased first appellant/plaintiff.
5.This Court heard the arguments advanced by Mr.V.Sitharajandoss, advocate on behalf of the appellants and by Mr.T.D.Vasu, advocate on behalf of the respondents and paid its considerations to their respective submissions. The materials available on record were also perused.
6. The sole plaintiff in the original suit had filed this second appeal against the respondents. As he died after the filing of the second appeal, appellants 2 to 10 got them impleaded as the legal representatives of the deceased first appellant. Claiming title to the suit properties and contending that they were in his possession and enjoyment, the deceased first appellant/plaintiff filed the suit seeking the reliefs of declaration and injunction against the respondents/defendants. The suit was decreed by the trial court. But the lower appellate court reversed the same and dismissed the suit. At the time of admission of the second appeal, this court framed the substantial question of law involved in this case as follows:-
"Whether the judgments and decrees of the Courts below are vitiated for not considering the entire evidence available on record and not applying the correct principles of law applicable to the facts of the case?"
7. It appears that the said question was framed on the assumption that the second appeal had been directed against the concurrent judgments of the Courts below. But the fact remains that the suit had been decreed by the trial Court and the lower appellate Court reversed and set aside the judgment and decree of the trial Court. Hence this Court is convinced that the substantial question of law involved in this second appeal has got to be reframed. Accordingly the substantial question of law is reframed as follows:-
"Whether the judgment of the lower appellate Court is vitiated for not considering the entire evidence available on record and not applying the correct principles of law applicable to the facts of the case?"
8. According to the plaint averments the first item of the suit properties originally belonged to Mohamed Fathumal. After her death, her brother Abdul Hameed got it as her sole legal heir. After the death of Abdul Hameed, his three daughters became entitled to the said property and the deceased first appellant/plaintiff purchased it from them under a sale deed dated 12.12.1986. So far as the second item of suit properties is concerned, the case of the appellants is that the same belonged to Hadhijath Rasula and Seithathunnisa from whom the deceased first appellant/plaintiff purchased it under a sale deed dated 19.08.1986. The sale deeds under which the deceased first appellant/plaintiff allegedly purchased the first and second items of suit properties have been marked as Ex.A6 and Ex.A8 respectively. The deceased first appellant/plaintiff had not stated in his plaint as to how Mohamed Fathumal and the vendors under Ex.A8 (Hadhijath Rasula and Seithathunnissa) got the first and second items of suit properties respectively. On the other hand, the respondents/defendants have come forward with a clear case that both the items of suit properties originally belonged to Ayinisai Gani and on his death the same devolved upon his sons Mohamed Gani and Segumeera; that after the death of the above said Mohamed Gani and Segumeera, Mohamed Fathumal and Khaleetha Beevi became entitled to the same; that thereafter Mohamed Fathumal made a oral gift (hiba) of her share in the said properties in favour of Khaleetha Beevi and that the said gift was accepted by the donee Khaleetha Beevi and thus she became the absolute owner of the suit properties. The respondents/defendants are the legal heirs of the said Khaleetha Beevi.
9. The respondents/defendants have produced Ex.B2-patta issued on 24.06.1913 in favour of Mohamed Gani. Exs.B3 to B10 are the kist receipts which show that Mohamed Gani was paying kist in respect of the suit properties from 1914. No averment has been made in the plaint to the effect that patta in respect of the first item of suit properties was transferred in the name of Mohamed Fathumal during the life time of her husband Mohamed Gani. The arrangement of averments found in paragraphs 2 and 3 of the plaint will show patta was issued in the name of Mohamed Fathumal only after the death of her husband Mohamed Gani. In fact, Exs.B11 and B12 were issued in the year 1956. Ex.A2-death certificate shows Mohamed Fathumal died on 10.02.1960. Admittedly, Mohamed Gani predeceased his wife Mohamed Fathumal. From Ex.B1 to B10, it is obvious that patta for the suit properties stood in the name of Mohamed Gani form 1913 till it was sought to be transferred in the name of Mohamed Fathumal and another person named Seeni Mohammed in the year 1956 under Ex.B11. What was the occasion for changing the patta after the same stood in the name of Mohamed Gani for more than four decades? There is no explanation forthcoming from the appellants. The same will lead to the inference that patta was transferred in the name of Mohamed Fathumal only after the death of her husband Mohamed Gani. The said view gets strengthened by the following facts also. There is no evidence, except that ipsi dixit of PW1 to show that patta was transferred in the name of Mohamed Fathumal even during the life time of her husband. In the trial Court, during his cross-examination by the counsel for the defendants PW1 admitted absence of any personal knowledge as to whether patta was changed in the name of Mohamed Fathumal during the life time of Mohamed Gani. He also admitted that he did not know when Mohamed Gani died. It is pertinent to note that the death certificate of Mohammed Gani has not been produced by the deceased first appellant/plaintiff. Thus, it is quite obvious that the deceased first appellant/plaintiff, without making necessary averment in the plaint, at the time of trial of the suit made an attempt to show that patta was transferred in the name of Mohamed Fathumal even during the life time of Mohamed Gani. However he has utterly failed in such an attempt. The foregoing reasons are enough to hold that the trial Court had made a perverse finding to the effect that patta was changed in the name of Mohamed Fathumal even during the life time of her husband.
10. The deceased first appellant/plaintiff failed to state how Mohamed Fathumal became entitled to the first item of suit properties. He had simply stated in the plaint that the said property originally belonged to Mohamed Fathumal. On the other hand the respondents/defendants put forward a specific plea that the suit properties originally belonged to Ayinisai Gani, then to his sons Mohamed Gani and Segumeera and that after their death, Mohamed Fathumal and Khaleetha Beevi became entitled to the same. It is their further contention that Mohammed Fathumal made an oral gift (hiba) of her share to Khaleetha Beevi whereupon she became the absolute owner of the said properties. Thus it is obvious that the respondents/defendants have clearly accounted for the circumstances under which patta came to be issued in the name of Mohamed Fathumal. It should be noticed that patta issued in the name of Mohamed Fathumal was not produced by the deceased first appellant/plaintiff. On the other hand, they were produced on the side of the defendants as Exs.B11 and B12. From Exs.B11 and B12 it is quite obvious that patta for both the items for suit properties came to be changed in the name of Mohamed Fathumal only in the year 1956. It should also be noticed that under Ex.B11 pertaining to the first item of the suit properties Mohamed Fathumal was not shown to be the sole pattadar. Along with her, one Seeni Ahamed son of Segumeera has also been shown to be the joint pattadar. The same will probablise the case of the respondents/defendanats that the said property happened to be the ancestral property of Mohamed Gani and his brother Segumeera and on the death of both of them, patta came to be transferred in the name of Mohamed Fathumal wife of Mohamed Gani and the above said Seeni Ahamed.. Despite the production of documents showing that the suit properties stood in the name of Mohamed Gani for more than four decades and only in 1956 the same came to be transferred in the name of his wife Mohamed Fathumal, the learned trial Judge has, without any discussion, simply accepted the contention of the appellant/plaintiff that patta was wrongly issued in the name of Mohamed Gani during samasthanam period and that the same was changed in the name of his wife Mohamed Fathumal even during the life time of Mohamed Gani . No plea has been made in the plaint as to how Mohamed Fathumal got the first item of suit properties. However, an attempt was made at the time of trial to show that the property originally belonged to the father of Mohamed Fathumal and after his death she got it by way of succession. First of all any amount of evidence adduced in the absence of pleading cannot be looked into. As such evidence should not have been allowed to be adduced by the plaintiff in this regard. Secondly, the plea put forward by the deceased first appellant/plaintiff during trial is not probable. If at all the property happened to be that of the father of Mohamed Fathumal,how she alone came to get the property by way of succession, when it is the case of the deceased appellant/plaintiff that Mohamed Fathumal had got a brother by name Abdul Hameed. The same has not been explained by the appellants. That apart, there is not even a scrap of paper to show that the property, at any point of time, was owned by the father of Mohamed Fathumal. In this regard, except the ipsi dixit of PW1, there is no evidence of any independent witness. Even PW1 was not in a position to say how the father of Mohamed Fathumal got the property. Therefore, there is no defect or infirmity in the finding of the lower appellate Court that the first item of suit properties was not proved to the absolute property of Mohamed Fathumal and that on the other hand, the respondents/defendants were able to prove that both the items of the suit properties were that of Mohamed Gani and only after his death, the property came into the hands of his wife Mohamed Fathumal.
11. It is an admitted fact that the patta for the second item of the suit properties had been issued in the name of Mohamed Fathumal in 1956 and the same stood in her name till her death in 1960. Only during the U.D.R. survey rival claims were made by the deceased first appellant/plaintiff and the respondents/defendants to get patta in respect of both the items of the suit property and the respondents/defendants succeeded in getting U.D.R. patta in their names as they claimed to have derived title through Khaleetha Beevi. The same is evidenced by the orders of Tahsildar and District Revenue Officer marked as Exs.A10 and A11. It is obvious from Ex.B33 that a suit was filed in O.S.No.143 of 1999 by Mohamed Fathumal, Abdul Salam s/o.Segumeera, Abdul Kuthus s/o Abdul Ahamed, Ahamed Jalaludeen s/o. Kadar Pakkir, Asathulla s/o. Seenu Mohideen for the recovery of the mortgage money due to Mohamed Gani. The above said five persons had filed the said suit contending that they were entitled to succeed to the estate of Mohamed Gani as his legal heirs. Mohamed Fathumal was the wife of the said Mohamed Gani. The other four persons were none other than the sons of the brothers of Mohamed Gani. During the pendency of the said suit, Mohamed Fathumal wife of Mohammed Gani died and Khaleetha Beevi, dauther of Segumeera was impleaded as her legal heir on 28.01.1961 itself. Therefore, it is quite obvious that the contention of respondents/defendants to the effect that the share of Mohamed Fathumal had been given to Khaleetha Beevi by way of an oral gift (hiba) had been accepted by the court in the said court. The learned lower appellate Judge has properly appreciated the said pleadings and evidence and has come to a correct conclusion that the hiba alleged by the respondents/defendants could be believed. This Court does not find any infirmity in the said finding to interfere with the same in this second appeal. The learned subordinate Judge (lower appellate Judge) has rightly observed that there is no material to show that the first item of the suit properties came to Mohamed Fathumal through her father and for the contention of the deceased first appellant/plaintiff, Abdul Hameed and Mohamed Fathumal were brother and sister. The learned Subordinate Judge has rightly observed that the fact that the said Abdul Hammeed did not take any steps to get patta transferred in his name after the death of Mohammed Fathumal in 1960 till 1987 when enquiry for issuing U.D.R. patta was conducted. The learned Subordinate Judge has also pointed out the fact that Khaleetha Beevi was recognized to be the legal heir of Mohamed Fathumal in 1961 itself as per Ex.B33 and that even thereafter Abdul Hameed who was alleged to be the brother of Mohamed Fathumal did not take any steps to get him recognized as her legal heir.
12. The learned Subordinate Judge meticulously went through the evidence adduced on both sides, as it was expected of a first appellate Court, and came to a correct conclusion that the case of the deceased first appellant/plaintiff in respect of the first item of the suit properties could not be sustained and on the other hand, the case of the respondents was more probable.
13. So far as the second item of the suit properties is concerned, as pointed out supra, the respondents/defendants have proved that patta stood in the name of Mohamed Gani from 1913 till it was transferred in the name of Mohamed Fathumal in 1956. The case of the deceased first appellant/plaintiff regarding the second item of the suit properties is different from the one regarding the first item of suit properties and in fact it is quite the opposite of the story propounded in respect of the first item of the suit properties. So far as the first item of the suit properties is concerned, the contention of the deceased first appellant/plaintiff is that though the property originally belonged to Mohamed Fathumal, patta had been wrongly issued in the name of her husband Mohamed Gani. On the other hand, even though it is the admitted fact that the deceased first appellant/plaintiff that patta had been granted in the name of Mohammed Fathumal, the circumstances under which the same was in her name even though, according to the appellants Hadhijat Rasula and Seithathunnissa happened to be the real owners has not been explained by them. Absolutely there is no piece of paper to show that the said Hadhijat Rasula and Seithathunnissa, from whom the deceased first appellant/plaintiff got the sale deed under Ex.A8, were the owners of the second item of the suit properties at any point of time. Admittedly, during the life time of Mohammed Fathumal, the said Hadhijat Rasula and Seithathunnissa did not take any steps to get the patta transferred in their names even after the death of Mohamed Fathumal. They did not take any such steps till the deceased first appellant/plaintiff chose to get a sale deed from them. It has not been proved that at any point of time Mohamed Fathumal disowned her title in respect of the second item of the suit properties. It should also be noticed that except the oral statement, absolutely there is no record to show that the vendors under Ex.A8 had got title to the second item of the suit properties at any point of time.
14. On the other hand, the respondents/ defendants have clearly proved that patta for the second item of the suit properties also stood in the name of Mohamed Gani from 1913 and the same was changed after his death in the name of Mohamed Fathumal in 1956. All the observations made in respect of the first item of suit properties are equally applicable to the second item also. There is no defect or infirmity in the finding of the learned Subordinate Judge (lower appellate Judge) to the effect that the deceased first appellant/plaintiff had failed to prove his title or possession to the second item of the suit properties and the said finding cannot be termed perverse to be interfered with by this Court in this second appeal. Of course, the deceased first appellant/plaintiff has produced Ex.A3 to A5 to show payment of kist in the name of Mohamed Fathumal. All the said kist receipts were issued after the death of Mohamed Fathumal. Eventhough Mohammed Fathumal died in the year 1960, in Ex.A1 issued on 01.08.1965, her name has been noted as the person who remitted the kist. Ex.A1 has been obtained in the name of Mohamed Fathumal for six fasilis at a stroke, that too showing her to be the person who remitted the kist. Therefore no importance can be attached to the said kist receipts. Ex.A3 is the kist receipt for five fasilis (1376-1380) alleged to be issued on 17.04.1970. Ex.A4 is the similar kist receipt for the fasilis (1381-1385) issued on 23.04.1975. Ex.A5 is another kist receipt for the Fasilis (1386-1390) dated 01.03.1980. There is every reason to suspect that the said documents could have been obtained for the purpose of the suit. The suit was filed in the year 1989 contending that the suit properties were in the possession of the deceased first appellant/plaintiff. Except the above said kist receipts (each one for a block of five or six years), no other document has been produced to show payment of kist. On the other hand, the respondents/defendants have produced not only the kist receipts issued in the name of Mohamed Gani before 1956, but also the kist receipts in the name of Mohamed Fathumal after 1956 and before her death in 1960 and the kist receipts in the name of Khaleetha Beevi for the period subsequent to the death of Mohamed Fathumal. It is obvious that Parallel kist receipts have been obtained and produced on either side for the very same period. But the singular fact that Mohamed Fathumal has been shown to be the person who remitted the amount in Ex.A1- kist receipt, when the same is said to have been issue ten years after her death, will probablise the case of the respondents that they are anti dated kist receipts obtained by the deceased first appellant/plaintiff for the purpose of the case. On the other hand, year wise kist receipts have been produced by the respondents/defendants.
15. Of course, there is no document to show that the suit properties were originally belonging to Ayinisai Gani. But it has been pointed out that the patta for the suit properties stood in the name of Mohamed Gani from the year 1913 till 1956 and that only in 1956 i.e. after the death of Mohamed Gani, joint patta was issued in the name of Mohamed Fathumal, Seeni Ahamed S/o Segumeera, the brother of Mohamed Gani. The learned Subordinate Judge has rightly observed that even assuming that the respondents have not proved that the property belonged to Ayinisai Gani, the fact that the property some how or other belonged to Mohamed Gani could not be disputed; that not only his wife but also his brother's son could be his legal heirs entitled to succeed to his property and that the same was the reason why patta came to be issued in the name of Mohamed Fathumal and Seeni Ahamed after the death of Mohamed Gani.
16. Above all it is a well known principle of law that the plaintiff in a suit shall stand or fall in accordance with the strength of his own case and he cannot take advantage of the loopholes in the case of the defendants and thereby try to succeed unless any statutory provision or a recognized principle of law allows shifting of the burden of proof on the defendants to prove their case in a given situation. Upon a consideration of the pleadings made by both the parties, this Court is not able to find any such situation justifying deviation from the above said general principle of law. In this case, the deceased first appellant/plaintiff had not proved the existence of any such situation whereupon the burden of proof could have been shifted and cast upon the respondents/defendants to prove their case. In civil cases where disputed questions of facts are involved, we cannot apply the straight jacket formula of burden of proof and the question of fact has to be resolved on broad probabilities rather than proof beyond reasonable doubt. In this case, as pointed out supra, the deceased first appellant/plaintiff failed to adduce sufficient evidence to make his case probable and on the other hand the respondents/defendants have produced ancient documents having more evidentiary value to prove their case. The lower appellate Court took into the account all the above said aspects and came to a correct conclusion that the contention of the deceased first appellant/plaintiff was not probable and that hence the suit was bound to be dismissed. There is no scope for interference with the judgment and decree of the learned Subordinate Judge and the same deserve to be confirmed. This Court finds no merit in the second appeal and same has got to be dismissed. Accordingly the second appeal is dismissed. However there shall be no order as to costs.