Ponnuswamy Goundar v. Pappathi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 20-08-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENS.A.No.1607 of 19951.Ponnuswamy Goundar2.Periaswamy3.Madhu.. Appellants/ Defendants 1, 4 & 5Versus1.Pappathi2.Muthuswamy.. Respondents/ Plaintiff and 3rd DefendantPrayer: Appeal against the judgment and decree, dated 1.12.1993, madein A.S.No.173 of 1993, on the file of the District Court, Salem,confirming the judgment and decree, dated 5.7.1993, made inO.S.No.672 of 1986, on the file of the Additional District MunsifCourt, Salem.For Appellants : Ms.M.SrividhyaFor Respondents : No AppearanceO R D E RThis second appeal has been filed against the judgment anddecree, dated 1.12.1993, made in A.S.No.173 of 1993, on the file ofthe District Court, Salem, confirming the judgment and decree, dated5.7.1993, made in O.S.No.672 of 1986, on the file of the AdditionalDistrict Munsif Court, Salem. 2. The defendants 1, 4 and 5 in the suit, in O.S.No.672 of 1986,are the appellants in the present second appeal. The plaintiff hadfiled the suit, in O.S.No.672 of 1986, on the file of the AdditionalDistrict Munsif Court, Salem, praying for a declaration of title andfor permanent injunction, in respect of the suit property.3. The plaintiff had stated that he had got the suit property byway of a sale deed, dated 29.12.1951. The suit property had beenconveyed to the plaintiff by the first defendant and his father ontheir behalf and on behalf of the third defendant who was a minor at https://hcservices.ecourts.gov.in/hcservices/ that time. The fourth and the fifth defendants had not been born onthe said date. From the date of the sale the suit property had beenin the possession and enjoyment of the plaintiff. The plaintiff hasbeen in enjoyment of the suit property by paying the land tax and theother dues to the Government. Apart from the plaintiff no otherperson has any right in the suit property. The patta and the chittacopies have been filed along with the suit. The first defendant isthe elder brother of the plaintiff and the second defendant is hiswife. Defendants 3 to 5 are the sons of the first and the seconddefendants. The defendants are having more than 10 acres of land,having sufficient water supply. The defendants have been threateningthe plaintiff and her husband, demanding that they should bepermitted to carry on cultivation in the suit property as well. Whenthe plaintiff and her sons were wanting to put up a thatched shed inthe suit property, the defendants, along with some rowdy elements hadentered the suit property and prevented them from putting up thethatched shed. The plaintiff had also lodged a police complaint inthis regard. Unless the defendants are prevented from interferingwith the plaintiff's peaceful enjoyment of the suit property, by wayof an injunction issued by the Court, it would cause irreparable lossto the plaintiff. 4. In the written statement filed by the first defendant it hasbeen stated that the claims made by the plaintiff in the suit arefalse and that they are not sustainable. The claim of the plaintiffthat she had got the suit property by way of the sale deed, dated29.12.1951, is false. It is also false to state that the fourth andthe fifth defendants were not born at that time. The claim of theplaintiff that the suit property has been in her possession andenjoyment from the date of the sale, is incorrect. The patta and theadangal mentioned in the plaint are of recent origin. The sale deed,dated 29.12.1951, alleged to have been executed in favour of theplaintiff, is false and unsustainable in law. It will not bind thedefendants, in any manner. The alleged sale deed had not beenaccepted and given effect to. In fact, the plaintiff had been sentout by her husband as she did not possess any property. It is onlythe first defendant who had executed the sale deed, dated 29.12.1951,conveying a portion of the suit property to the plaintiff. It is thefirst defendant who has filed the sale deed before the Court. Theplaintiff has never been in possession and enjoyment of the suitproperty. The defendant has got the right in the suit property byadverse possession. The plaintiff is living with her husband inanother village, having released her right in the suit property. Theplaintiff, having sold her properties, along with her husband, isattempting to interfere with the defendant's enjoyment of the suitproperty. It is false to state that the defendants are interferingwith the possession and enjoyment of the suit property by theplaintiff. The plaintiff has never been in enjoyment of the suitproperty. It is only the plaintiff and her husband who had interferedwith the enjoyment of the suit property by the defendants. When the https://hcservices.ecourts.gov.in/hcservices/ defendants had objected to their interference in the suit propertythey had caused physical injuries to the defendants. Based on thecriminal complaint given by the defendants, a criminal case had beenregistered and it is pending before the concerned Criminal Court. Itis false to state that the plaintiff has cultivated `cholam' crops inthe suit property. When the suit property is in the possession andenjoyment of the defendants there is no necessity for them toencroach upon the said property. The plaintiff has made falsestatements only for the purpose of the filing of the suit. Theplaintiff does not have any cause of action for the filing of thesuit. 5. In the additional written statement filed on behalf of thedefendants it has been stated that the plaintiff is the sister of thefirst defendant. Since the plaintiff had wanted a land withsufficient irrigation facilities, instead of the land sold to her byway of the sale deed, dated 29.12.1951, the first defendant hadpurchased a property in the name of the plaintiff and her husband,from Muthu Gounder and Arunachalam, by way of a sale deed, dated22.2.1971, for a consideration of Rs.4,500/-. In view of the saidpurchase, the plaintiff had released her right in the suit property.Thereafter, the plaintiff had sold the said property to a thirdparty. Till the filing of the suit the plaintiff had not made anyclaim in respect of the suit property. The plaintiff does not haveany right or possession in the suit property. Since the suit isdevoid of merits, it is liable to be dismissed. 6. In view of the averments made on behalf of the plaintiff, aswell as the defendants, the trial Court had framed the followingissues for consideration:"1) Whether the sale deed, dated 29.12.1951, made infavour of the plaintiff, is true and valid? Would it bebinding on the defendants? Was the sale deed given effectto?2) Whether the defendants have established theirrights in the suit property, by way of adverse possession?3) Whether there is a cause of action for the filingof the suit?4) Whether the description of the suit property iscorrect?5) What other relief the plaintiff is entitled to?"7. An additional issue had been framed by the trial Court and itis as follows:"Whether it is correct on the part of the defendantsto state that the plaintiff had released her right in thesuit property and if so is it valid in law?"8. Based on the oral, as well as the documentary evidenceadduced on behalf of the plaintiff and the defendants, the trial https://hcservices.ecourts.gov.in/hcservices/ Court had come to the conclusion that the description of the suitproperty is correct. It had also come to the conclusion that noevidence had been shown by the defendants for the trial Court to cometo the conclusion that the sale deed, dated 29.12.1951, executed infavour of the plaintiff, is invalid in the eye of law. It was furtherheld that it is for the defendants to prove that they have been incontinuous possession of the suit property, to substantiate theirclaim regarding adverse possession. The trial Court had also come tothe conclusion that the sale deed, dated 29.12.1951, is to be takento be valid since it has been stated, on behalf of the defendantsthat they had purchased another property in the name of the plaintiffand her husband, instead of the property sold to her earlier, by wayof a sale deed, dated 22.2.1971 and that the plaintiff had releasedher rights in the suit property, thereafter. The trial Court had alsocome to the conclusion that the defendants had not been in a positionto show that the suit property has been in their possession after itssale in favour of the plaintiff, by way of the sale deed, dated29.12.1951. Even though the defendants had filed certain adangals toshow their possession in respect of the suit property, the trialCourt had held that they would not be sufficient to prove theirpossession of the suit property, since the adangals were in the nameof Idumba Gounder, the father of the plaintiff and the firstdefendant. According to the evidence shown on behalf of theplaintiff, the plaintiff, the first defendant and their father IdumbaGounder, had been living together in the suit property. Further,from the Muchalika, marked as Ex.B-28, it is seen that the plaintiffhas agreed to release her right in the suit property, subject to thedefendant purchasing an alternate land in her favour. However, Ex.B-28 is found to be an unregistered document and there is no dateentered in the document to show as to when it had come intoexistence. Therefore, the said document cannot be taken to be ofsufficient evidence to support the claims made on behalf of thedefendants. 9. The trial Court had also held that the defendants have notbeen in a position to show that they have been in continuouspossession of the suit property to claim their rights in the saidproperty, by way of adverse possession. Further, since there has beena dispute in respect of the suit property, between the plaintiff andthe defendants, there has been a valid cause of action for theplaintiff to file the suit, in O.S.No.672 of 1986, on the file of theAdditional District Munsif Court, Salem. The claim of the firstdefendant that an alternate land had been purchased in the name ofthe plaintiff, by way of the sale deed, dated 22.2.1971, and that theplaintiff had released her rights in the suit property thereafter,cannot be accepted, as the defendants had made such a claim only inthe additional written statement filed at the time of the trial ofthe suit. In such circumstances, the trial Court had come to theconclusion that the plaintiff was entitled to the reliefs sought forby her in the suit, in O.S.No.672 of 1986. Therefore, the trial Court https://hcservices.ecourts.gov.in/hcservices/ had decreed the suit in favour of the plaintiff. 10. Aggrieved by the judgment and decree of the trial Court,dated 5.7.1993, made in O.S.No.672 of 1986, the defendants had filedan appeal before the District Court, Salem, in A.S.No.173 of 1993. Inview of the averments made on behalf of the appellant, as well as therespondents, the first Appellate Court had framed the followingpoints for consideration:"1) Whether the sale deed, dated 29.12.1951, is trueand valid? Whether it is binding on the respondents andwhether the sale deed had been given effect to?2) Whether the respondents had got their rights in thesuit property by way of adverse possession?3) Whether the description of the suit property hadbeen correctly given?4) Whether the plaintiff is entitled to the relief ofdeclaration?5) Whether the plaintiff is entitled to the relief ofpermanent injunction?"11. Based on the contentions raised on behalf of the appellants,as well as the respondents, the first Appellate Court had come to theconclusion that the sale deed, dated 29.12.1951, made in favour ofthe plaintiff, who is the first respondent in the first appeal, istrue and valid. The appellants, who were the defendants in the suit,had not shown sufficient evidence to prove that they were inpossession and enjoyment of the suit property to claim their rightsin the said property, by way of adverse possession. Since theplaintiff has got the title in the suit property, by way of the saledeed, dated 29.12.1951, executed in her favour by the firstdefendant, she has obtained valid title in the suit property. Sincethe plaintiff has been in possession and enjoyment of the suitproperty, from the date of the said sale deed, she is entitled to thereliefs of declaration and permanent injunction, as prayed for in thesuit. Therefore, the first Appellate Court had confirmed the judgmentand decree of the trial Court, by its judgment and decree, dated1.12.1993, made in A.S.No.173 of 1993.12. Aggrieved by the concurrent findings of the Courts below thedefendants 1, 4 and 5 had filed the present second appeal, beforethis Court in S.A.No.1607 of 1995. This Court had admitted the secondappeal, on the following substantial questions of law:"1. Whether the sale deed, dated 29.12.1951 (Ex.B-1)is a sham and nominal document not intended to be actedupon and in fact was not acted upon?2. Whether in any event, the appellants have perfectedtitle to the suit property by adverse possession?"The appellants have stated that the trial Court, as well as the firstAppellate Court, had failed to appreciate the oral, as well as the https://hcservices.ecourts.gov.in/hcservices/ documentary evidence adduced in their favour. The Courts below haderred in holding that the sale deed, marked as Ex.B-1, was valid,even though it was a sham and nominal document and that it was notintended to be acted upon. The Courts below ought to have held thatthe plaintiff was not put in possession of the suit property pursuantto the sale deed, dated 29.12.1951, and that she has not been inpossession and enjoyment of the suit property at the time of thefiling of the suit. From the fact that the original sale deed, dated29.12.1951, marked as Ex.B-1, has been in the custody of the firstdefendant, the Courts below ought to have held that the plaintiff hadnot got the title in the suit property, pursuant to the said saledeed. Sufficient weightage ought to have been given to the document,marked as Ex.B-28, according to which the plaintiff had released herrights in the suit property, in view of the alternate propertypurchased in her favour, by way of a sale deed, dated 22.2.1971. 13. In view of the contentions raised on behalf of theappellants, as well as the respondents and in view of the evidenceadduced on behalf of the parties concerned and on a perusal of thedocuments available before this Court, it is clear that theappellants have not shown sufficient cause or reason for this Courtto interfere with the concurrent findings of the Courts below. Boththe trial Court, as well as the first Appellate Court, had arrived atthe right conclusions based on the evidence available on record. Boththe Courts below had concurrently held that the plaintiff had got thetitle to the suit property by way of the sale deed, dated29.12.1951, marked as Ex.B-1. The defendants in the suit had not beenin a position to show that the plaintiff had released her rights inthe suit property after the execution of the sale deed, dated22.2.1971. The defendants in the suit, who are the appellants in thepresent second appeal, have not shown sufficient evidence to provetheir claim that they have been in adverse possession of the suitproperty. The Courts below had not placed reliance on the document,marked as Ex.B-28, since it was an undated and unregistered document.Further, from the contentions raised by the learned counselsappearing for the parties concerned, this Court is not convinced thatsubstantial questions of law have arisen for consideration in thepresent second appeal, in view of the decision of the Supreme Courtreported in Gurdev Kaur and others Vs. Kaki and others (2007 (1) CTC334). Accordingly, the second appeal stands dismissed, confirming thejudgment and decree of the trial Court, dated 5.7.1993, made inO.S.No.672 of 1986, and the judgment and decree of the firstAppellate Court, dated 1.12.1993, made in A.S.No.173 of 1993. Nocosts. cshSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1) The District Court, Salem.2) The Additional District Munsif Court, Salem.3. The Section officer, VR Section, High Court Madras.+ 1 CC to Ms V.Ambika Advocate SR. 40256.S.A.No.1607 of 1995SP(CO)VC(20.10.2009)