Namasivaya Thevar v. Venkaduswamy Konar

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 19.8.2009Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.1319 of 19951. Namasivaya Thevar2. Chelladurai Thevar3. Mahalinga Thevar4. Sambasivam .. Appellants/Defendantsvs.Venkaduswamy Konar .. Respondent/PlaintiffThe Second Appeal has been filed against the judgment anddecree, dated 22.12.1994, made in A.S.NO.8 of 1993, on the file ofthe Subordinate Court, Nagapattinam, confirming the judgment anddecree, dated 25.11.1991, made in O.S.No.235 of 1987, on the file ofthe District Munsif Court, Thiruthuraipoondi. For Appellants : Mr.S.Mukunth for M/s.Sarvabhauman Associates For Respondent : Mr.S.Sathia Murthi J U D G E M E N TThis second appeal has been filed against the judgment anddecree, dated 22.12.1994, made in A.S.NO.8 of 1993, on the file ofthe Subordinate Court, Nagapattinam, confirming the judgment anddecree, dated 25.11.1991, made in O.S.No.235 of 1987, on the file ofthe District Munsif Court, Thiruthuraipoondi. 2. The defendants in the suit, in O.S.No.235 of 1987, are theappellants in the present second appeal. The plaintiff had filed thesuit praying for the declaration of title and for permanentinjunction in respect of the suit property. 3. The plaintiff in the suit, in O.S.No.235 of 1987, had statedthat the suit Survey No.141/1, with an extent of 5.80 acres, washeld by 13 persons, under a joint patta. However, they had been inpossession and enjoyment of their individual shares in the saidproperty. Govinda Konar is one of the persons, who was in possessionand enjoyment of a portion of the property. Dharmaiya Konar is hisson. The land in suit survey No.141/1 and the adjacent lands were https://hcservices.ecourts.gov.in/hcservices/ lying fallow. 50 cents in the suit survey number had been allottedas the share of Govinda Konar, who has been in enjoyment of the saidproperty. Thereafter, his son Dharmaiya Konar has been enjoying thesaid property. On 19.10.1986, the plaintiff had purchased theproperty from Dharmaiya Konar. Since the date of the purchase, the50 cents of land, which is the suit property, has been in thepossession and enjoyment of the plaintiff. 30 cents of landbelonging to the family of the defendants is lying on the westernside of the suit property. According to the resettlement, the grandfather of the defendant, namely, Ponnusamy Devar is one of the 13patta holders. As the legal heirs of Ponnusamy Devar, the defendantsare entitled to 1/13th share of the property. 4. On 13.4.1987, a legal notice had been issued to thedefendants asking them not to interfere with the plaintiff'senjoyment of the suit property. A reply notice had been issued bythe defendants stating that Dharmaiya Konar did not enjoy any rightsin the suit property and therefore, the sale deed in favour of theplaintiff is not valid in the eye of law. Since the defendants weredenying the rights of the plaintiff, the plaintiff had filed thesuit praying for a declaration and permanent injunction against thedefendants. 5. In reply, the defendants had stated that the suit SurveyNo.141/1 has an extent of 5.80 acres. On 29.5.1964, a joint pattahad been issued showing that it belonged to 16 persons. The name ofGovinda Konar had never found a place in the patta issued in respectof the suit survey number. He was never in enjoyment of the land,either by himself or through any other person. The document, dated19.10.1986, is invalid and it has been created by the plaintiff andDharmaiya Konar, fraudulently. The boundaries shown in the documentare not correct. The document has been created only with the malafide intention of illegally occupying the land found to be withinthe four boundaries shown in the document. As the land in questionis under the possession and enjoyment of the defendants, theplaintiff is not entitled to the reliefs, as prayed for in the suit.6. Based on the averments made on behalf of the plaintiff, aswell as the defendants, the trial Court, after framing the relevantissues for consideration, had decreed the suit in favour of theplaintiff. The trial Court had found that there was no dispute withregard to the fact that the suit survey No.141/1 was having anextent of 5.80 acres. The trial Court had not accepted thecontention of the defendants that the land in suit survey No.141/1is under a joint patta and that 13 persons are in joint enjoyment ofthe said property, since the land in the said survey number had beensold to various persons and they have been in separate possessionand enjoyment of their shares in the property. https://hcservices.ecourts.gov.in/hcservices/

7. The trial Court had noted that the name of Govinda Konar,the father of Dharmaiya konar, is found in the Exhibits A.13 andA.14, marked on behalf of the plaintiff. There is nothing shown onbehalf of the defendants that Govinda Konar is not the father ofDharmaiya Konar. Further, the claim of the defendants that the nameof Dharmaiya Konar has been wrongly entered in the U.D.R. patta hasnot been accepted by the trial Court. Even if it had been wronglyentered, jointly, with the other names, the issue should have beenagitated by appealing before the concerned authorities of theRevenue Department. Such a contention, which has not been supportedby sufficient evidence, cannot be accepted. As such, the fact thatDharmaiya Konar has been in enjoyment of the property, in accordancewith the joint patta, is not in doubt. Therefore, the plaintiff hasthe rights in the property purchased by him from Dharmaiya Konar, asclaimed by him. 8. From the evidence available, the trial Court had come to theconclusion that the plaintiff is in enjoyment of the suit propertyand that he has the rights, as claimed by him, in the said property.Further, the trial Court had held that the defendants do not haveany right in the suit property. Accordingly, the trial Court haddecreed the suit in favour of the plaintiff. 9. Aggrieved by the judgment and decree, dated 25.11.1991, madein O.S.No.235 of 1987, on the file of the District Munsif Court,Thiruthuraipoondi, the defendants had filed an appeal, in A.S.NO.8of 1993, on the file of Subordinate Court, Nagapattinam. 10. The first appellate Court had framed the following pointsfor consideration:"1. Whether the suit property was in thepossession of the plaintiff/respondent at the timeof the filing of the suit? 2. What are the reliefs, the appellant isentitled to?"11. Based on the evidence available on record, the firstappellate Court had confirmed the judgment and decree of the trialCourt, dated 25.11.1991, made in O.S.No.235 of 1987. The firstappellate Court had found that there was a joint patta for 13persons, in respect of the property in suit survey number 141/1.Further, in the patta number 25, issued in respect of the suitsurvey number 141/1, the names of Ponnuswamy Devar and 13 othershave been mentioned. The name of Govinda Konar had also beenmentioned. Govinda Konar is the father of Dharmaiya Konar. Thus, itis seen, from the records available, that the suit property,originally, was in the possession of 13 persons, under a jointpatta. Since Govinda Konar, the father of Dharmaiya Konar, was a https://hcservices.ecourts.gov.in/hcservices/ joint patta holder, the property had gone to Dharmaiya Konar, theson of Govinda Konar. 12. From Exhibits A.1 and A.15, it was found that the pattaholders had been enjoying their separate shares of the property. Theseparate property enjoyed by Dharmaiya Konar had been sold to theplaintiff, which has been in the possession and enjoyment of theplaintiff thereafter. In such circumstances, the defendants in thesuit had no right, whatsoever, to interfere in the possession andenjoyment of the suit property. Therefore, the first appellate Courthad confirmed the judgment and decree, dated 25.11.1991, made inO.S.No.235 of 1987, on the file of the District Munsif Court,Thiruthuraipoondi. 13. Aggrieved by the concurrent findings of the Courts below,the defendants in the suit in O.S.No.235 of 1987, had filed thepresent second appeal. The second appeal had been admitted by thisCourt on the following substantial question of law:"1. Whether the courts below have correctlyappreciated the evidence of P.W.3 VillageAdministrative Officer in holding separate enjoymentof the suit property?"14. The appellant in the second appeal had stated that theCourts below had erred in decreeing the suit in respect of theproperty in suit survey No.141/1, overlooking the fact that theplaintiff was only a joint patta holder of the land in the saidsurvey number. There was no evidence to prove that the plaintiff wasin enjoyment of the suit property. Even though the plaintiff had notproduced any evidence to show that the plaintiff and his vendor hadbeen in possession of 50 cents in S.No.141/1, which is the suitproperty, the courts below had erred in coming to the conclusionthat the plaintiff is entitled to 50 cents in S.No.141/1, only onthe basis of the sale deed, dated 19.10.1986, marked as Exhibit A.1.Since the property in question had been in joint possession ofvarious persons, under a joint patta, it cannot be held that thesuit property had been in separate possession of the plaintiff andhis vendor. From Exhibit B.12, it would be clear that each pattaholder is entitled only to the undivided shares in the suit surveynumber and therefore, the question of separate possession andenjoyment of the suit property, by the plaintiff, would not arise.Therefore, the judgment and decree of the courts below are erroneousand therefore, they are liable to be set aside. 15. The main contention of the learned counsel appearing forthe appellants is that the Village administrative officer, who wasexamined as P.W.3, had stated, in his evidence, that he wasreceiving the kists paid by the persons in possession of theproperty, in suit survey No.141/1. However, he had submitted that he https://hcservices.ecourts.gov.in/hcservices/ was not aware as to whether the persons occupying the suit propertywere in possession of separate shares in the property. As such, thecourts below ought not to have come to the conclusion that theplaintiff and his vendor were in separate possession and enjoymentof 50 cents in S.No.141/1. 16. In view of the averments made on behalf of the appellantsand on a perusal of the records available, it is clear that therewas sufficient evidence for the courts below to come to theconclusion that the plaintiff and his vendor were in separatepossession and enjoyment of 50 cents in suit survey No.141/1. Thecourts below had clearly found that the vendor of the suit property,namely, Dharmaiya Konar, had been in possession and enjoyment of 50cents in the suit survey No.141/1 and that Dharmaiya konar had soldthe property to the plaintiff by way of a sale deed, dated19.10.1986, marked as Exhibit A.1. 17. The courts below had rightly come to the conclusion, basedon the evidence available, that the defendants had no right,whatsoever, to disturb the possession and enjoyment of the suitproperty by the plaintiff. Even though the suit property was forminga part of a larger extent of land, in suit survey No.141/1, thejoint patta holders of the lands in the suit survey No.141/1 were inseparate possession and enjoyment of their shares. 18. In such circumstances, the Courts below had concurrentlyfound that the plaintiff in the suit, in O.S.No.235 of 1987, wasentitled to the reliefs, as prayed for by him. 19. As such this Court would be slow in interfering with thefindings of the Courts below based on facts, as in the present case,as held by the Supreme Court in GURDEV KAUR AND OTHERS Vs. KAKI ANDOTHERS (2007 (1) CTC 334). 20. Further, this Court is of the considered view that nosubstantial questions of law had arisen for the consideration ofthis Court, in the present second appeal. 21. Hence, the second appeal stands dismissed, confirming thejudgment and decree of the courts below. No costs. Sd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1. The Subordinate Court, Nagapattinam.2. The District Munsif Court, ThiruthuraipoondiCopy to:The Section Officer,VR Section, High Court,Madras.+ 1 cc to M/s.Sarvabhauman Associates, Advocate SR No.39641+ 1 cc to Mr. S. Sathiamurthi, Advocate SR No.40192PKB(CO)SR/9.9.2009S.A.No.1319 of 1995