Ramamirtham & Ors. v. Arunachalam Chettiar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.02.2012CORAMTHE HONOURABLE MR. JUSTICE M. VENUGOPALS.A.No.772 of 19991.Ramamirtham2.Thiyanayaki... Defendants/Appellants/AppellantsVs.Arunachalam Chettiar... Plaintiff/Respondent/RespondentThe present Second Appeal is filed against the Judgment andDecree of the Learned Principal Sub Judge, Mayiladuturai in A.S.No.89of 1998 dated 26.10.1998 confirming the Judgment and Decree of theLearned District Munsif, Mayiladuturai in O.S.No.973 of 1986 dated03.01.1995.For Appellants : Mr.S.SountharFor Respondent : Mr.A.MuthukumarJ U D G M E N TThe Appellants/Defendants have filed the present Second Appeal asagainst the Judgment and Decree dated 26.10.1998 in A.S.No.89 of 1998passed by the Learned Principal Sub Judge, Mayiladuturai inconfirming the Judgment and Decree dated 03.01.1995 in O.S.No.973 of1986 passed by the Learned District Munsif, Mayiladuturai.2.The 1st Appellate Court viz., the Learned Principal Sub Judge,Mayiladuturai, while passing the Judgment in A.S.No.89 of 1998, on26.10.1998, has, inter alia opined that as per Ex.A.1 Sale Deed dated26.01.1928, it is seen that the Respondent/Plaintiff's grandfatherhas half share right in the suit property and also, that as perEx.A.3, the Town Survey Field Register Book Extract in respect of thesuit property, Subramaniya Iyyer, who has executed a sale in favourof the Respondent/Plaintiff's grandfather, has right and it is notestablished that as to how the Sambandam Pillai has executed Ex.B.1Sale Deed dated 17.01.1955 to and in favour of Pethaperumal Pillai inrespect of the suit property and no evidence of witnesses anddocuments have been let in or produced to show that PethaperumalPillai, as an absolute owner, has enjoyed the property purchased as https://hcservices.ecourts.gov.in/hcservices/ per Ex.B.1 Sale Deed dated 17.01.1955 and moreover, theAppellants/Defendants have not established that they have got fullright in respect of the suit property and under this circumstance,the Respondent/Plaintiff has a right to claim the half share in thesuit property and resultantly, dismissed the Appeal with costs,thereby confirming the Judgment and Decree passed by the trial Courtin the main suit.3.Before the trial Court, in the main suit, 1 to 4 issues havebeen framed for trial. On behalf of the Respondent/Plaintiff,witnesses P.W.1 to P.W.3 have been examined and Exs.A.1 to A.9 havebeen marked. On the side of the Appellants/Defendants, witnessesD.W.1 to D.W.3 have been examined and Exs.B1 and B.2 have beenmarked. 4.The trial Court after analysing the oral and documentaryevidence available on record has come to a definite conclusion thatthe Respondent/ Plaintiff is entitled to get the relief of his halfright share in the suit property as an alternate relief and passed apreliminary decree by decreeing the suit, leaving the parties to beartheir own costs.5.At the time of Admission of the Second Appeal, this Court hasformulated the following substantial questions of Law:“1)Whether the Judgment of Court below is vitiated byreason of reliance upon a document which came intoexistence after suit?2)Whether the court below was justified in placingthe burden wrongly upon the Appellants?3)Whether the Courts below erred in granting therelief to the Plaintiff when they have notestablished their vendor's title to the property?” 6.The Contentions, Discussions and Findings on substantialquestions of law 1 to 3: According to the Learned Counsel for theAppellants/Defendants, the Respondent/Plaintiff has failed todischarge his onus by establishing the title of his vendorSubramaniya Iyyer.7.The Learned Counsel for the Appellants/Defendants submits thatthe Appellants/Defendants in their written statement have denied thetitle of the Respondent/Plaintiff's title vendor Subramaniya Iyyerand it is clearly stated that he has no title to convey the suitproperty to the Appellants as per Ex.A.1 Sale Deed dated 26.01.1928and that there is no evidence to show that the Respondent/Plaintiffenjoyed half of the suit property, subsequent to Ex.A.1 Sale Deeddated 26.01.1928. https://hcservices.ecourts.gov.in/hcservices/

8.Advancing his arguments, it is the contention of the LearnedCounsel for the Appellants/Defendants that Ex.A.3 Town Survey FieldRegister Book Extract in respect of the suit property is not a titledocument and it cannot confer any title to Subramaniya Iyyer.9.That apart, the Learned Counsel for the Appellants/Defendantsprojects a plea that Exs.A.7 to A.9 Tax Demand Notice, Order of theAssistant Commissioner (Urban Land Tax) and Mayiladuturai Town SurveyField Register Book Extract are all subsequent to suit and ought notto have been relied on by both the Courts. Lastly, it is thecontention of the Learned Counsel for the Appellants/Defendants thatboth the trial Court as well as the 1st Appellate Court have committedan error in not taking into consideration the admissions of P.W.1 andP.W.3 regarding the possession of the Appellants/Defendants.10.Per contra, it is the contention of the Learned Counsel forthe Respondent/Plaintiff that the trial Court clearly observed in theSuit Judgment that based on Exs.A.1 and A.2 Sale Deeds dated26.01.1928 and 02.12.1959 respectively, in the total extent of thesuit property of 13,188 square feet, the Respondent/Plaintiff isentitled to partition his half share because of the fact that theentire property has not been totally divided and rightly granted thealternative relief of partition and passed a decree that theRespondent/ Plaintiff is entitled to get his half share in the suitproperty and passed a preliminary decree to that effect and further,the 1st Appellate Court has also looked into the matter in adispassionate manner and has rightly dismissed the Appeal, which neednot be interfered with, by this Court sitting in Second Appeal.11.It is the evidence of P.W.1 (Respondent/Plaintiff) thatoriginally the suit property belonged to Subramaniya Iyyer and hisfather has purchased the property on 26.01.1928 as per Ex.A.1 SaleDeed and his grandfather has purchased half portion in the surveynumber and thereafter, their family has partitioned the property andEx.A.2 is the Partition Deed dated 02.12.1959 and that he is not inpossession of the original Partition Deed and as per Partition Deed,the suit property has been allotted to him and that Ex.A.3 is theTown Survey Field Extract issued by the Municipality and the Easternside of the property has been enjoyed by their family and that theAppellants/Defendants are the wives of Pethaperumal and the Westernside of the property has been in enjoyment of theAppellants/Defendants and that on the road side, he has put up afence and their enjoyment is a separate one.12.It is the further evidence of P.W.1 (Respondent/Plaintiff)that in his portion there is one tamarind tree and also, in theAppellants/Defendants' portion there is another tamarind tree and thetree in the portion of the Appellants/Defendants has been cut and hehas issued Ex.A.4 Notice dated 29.01.1986 to theAppellants/Defendants and that the Appellants/Defendants, after https://hcservices.ecourts.gov.in/hcservices/ receiving the Notice, have not given any reply and it is not correctto state that on 17.01.1955, the entire extent in survey number hasbeen purchased by Sambandam Pillai.13.P.W.1 (in his cross examination) has deposed that he has notseen the prior document at the time of purchasing the suit propertyand he does not know, who is residing on the Eastern side of the suitproperty and he has given instructions for the preparation of theplaint and in that Partition Deed, four boundaries to the suit havebeen written and at any point of time, there has been no house in thesuit property.14.P.W.1 goes on to add in his evidence that in Ex.A.3, TownSurvey Field Register Book Extract, it is mentioned that a house hasbeen in existence for which the door number is 7 and in respect ofthe suit, he has issued two Notices to the Appellants/Defendants.15.Apart from the above, it is the evidence of P.W.1 that at thetime of family partition during the year 1959, from whom, theDefendants have purchased, he does not know and that the suitproperty has been purchased by the husband of the Defendants, but hedoes not know the year of purchase and he does not know the extent ofthe property purchased by the Appellants/ Defendants' husband.Furthermore, it is the evidence of P.W.1 that Ex.A.7 Urban Land Taxdemand Notice has been handed over to him personally and in Ex.A.7,after the signature, there is no date and Ex.A.8 Urban Land TaxAssistant Commissioner's Order dated 02.09.1994 has been given to himdirectly from the Office and he has paid the tax. In Ex.A.9Mayiladuturai Town Survey Field Register Book Extract, there is noseal and it is wrong to state that this document has not beenobtained properly.16.P.W.2 in his evidence has deposed that in the suit property,on the Eastern side, there is a tamarind tree and on the Westernside, there is another tamarind tree and that tree has been cut andon the side of the road, there is fence.17.It is the evidence of P.W.3 that the total extent of the suitproperty is approximately 6,000 square feet and it has been inenjoyment of one Arunachalam Chettiar and on the Eastern side, therehas been two tamarind trees and one tree has fallen down and he doesnot know, who is residing on the Eastern and Western sides of thesuit property.18.D.W.1 (2nd Defendant's brother) in his evidence has deposedthat Pethaperumal, before marrying his sister, is a relative and hehas died 22 years ago and he has no issues and it is not correct tostate that half portion of the suit land has been in enjoyment ofArunachalam Chettiar and there is no indication that the property hasbeen divided into half. https://hcservices.ecourts.gov.in/hcservices/

19.D.W.1 (in his cross examination) has deposed that he has paidthe tax demand in the name of Pethaperumal and that original Willhave been lost and he does not know, initially, as to whom theproperty belonged and he does not know, in whose name the 1952document stands and during the year 1955, the Sale Deed came intoexistence in the name of Pethaperumal and that he has not seen theparent document and he does not know, as to how Sambandam Pillai hasgot the property and he does not know whether Sambandam Pillai isalive or not and he has not read the two Sale Deeds and does not knowabout the same and there is no enmity between himself and thewitnesses examined on the side of the Respondent/Plaintiff.20.D.W.2 in his evidence has deposed that he is a farm servant ofthe Defendants. On four sides, who are all residing, he does not knowand on the Southern side of the backyard, there is a paddy field andon the Eastern and Western sides, there is a house and he knows aboutthe street where the suit property is situated.21.D.W.3 in his evidence has deposed that the suit propertyoriginally belonged to Muthaiya Padayachi and there has been a bigtiled house in which he has resided as a tenant approximately 45years ago and that the suit property has been sold to driverSambandam and even after the said sale, he has been residing in theproperty and he has been paying the rent to Sambandam and Sambandamhas sold the property to Pethaperumal and he has paid the rent forsix months to Pethaperumal and thereafter, the Southern side wall hasfallen down and he has vacated the house 35 years ago and now, theproperty is a vacant site, in which there are two tamarind trees andin the suit property there is no fence and to his knowledge,Arunachalam Chettiar has not come to the property place.22.The case of the Respondent/Plaintiff as seen from the plaintis that the suit property totally measures an extent of 13,188 squarefeet and that the Respondent/Plaintiff's grandfather ArunachalamChettiar has purchased an undivided half share in the suit propertysurvey number on 26.01.1928 from one Subramaniya Iyyer and that theAppellants/Defendants are wives of Pethaperumal Pillai (sincedeceased) and that the said Pethaperumal Pillai purchased the balancehalf share of the suit property subsequently and the undivided halfshare purchased by the Respondent/Plaintiff's grandfather has beenallotted to the Respondent/Plaintiff in a partition that has takenplace on 02.12.1959 and after the demise of the Pethaperumal Pillai,the Appellants/ Defendants are enjoying the property.23.Continuing further, the Respondent/Plaintiff has been informedby the Appellants/Defendants' relative, who is residing opposite tothe suit land that he will put up fence, so that the suit propertymay not be exposed to be occupied by others, for which theRespondent/Plaintiff has agreed and therefore, fences have been putup around the property and small fence has been put up in the front, https://hcservices.ecourts.gov.in/hcservices/ through which the parties are having access to reach the suitproperty. In order to have a clear demarcation between theRespondent/Plaintiff and the Appellants/Defendants, the Respondent/Plaintiff requested the Appellants/Defendants to measure the plot andfix a boundary line between the properties possessed by each of them,for which they have not taken any steps till date. Therefore, anotice has been issued to the Appellants/Defendants and they havefailed to comply with the demand of the notice, theRespondent/Plaintiff has filed the suit for demarcation of theboundary line in between the property of the Respondent/Plaintiff andthe Appellants/Defendants or in the alternative praying for passing apreliminary decree for partition in respect of theRespondent/Plaintiff's half share in the suit property taking intoconsideration of the good and bad soil, etc.24.In the written statement filed by the 1st Appellant/1stDefendant (adopted by 2nd Appellant/ 2nd Defendant), it is denied thatthe Respondent/ Plaintiff's grandfather Arunachalam Chettiarpurchased an undivided half share in the suit property on 26.01.1928from one Subramaniya Iyyer and that the Subramaniya Iyyer has nopossession or title over the suit property for conveying it to theRespondent/Plaintiff's grandfather and also that theRespondent/Plaintiff's grandfather Arunachalam Chettiar has no titleor possession of the suit property or any part of it from the vendorby virtue of the purported Sale Deed dated 26.01.1928.25.The Appellants/Defendants take a stand that their husbandPethaperumal Pillai purchased the entire extent of the suit propertyin Survey No.545 as per registered Sale Deed dated 17.01.1955executed by one Sambandam Pillai in his favour for valuableconsideration and that the 1st Appellant/1st Defendant's husbandPethaperumal Pillai as per Sale Deed has been put up in possession ofthe entire suit property and he has been in enjoyment of the suitproperty as an absolute owner till his demise and thereafter, theAppellants/Defendants, as his heirs, are in possession and enjoymentof the suit property as owners thereof.26.Added further, the Appellants/Defendants have mentioned intheir statement that mere mention of the suit property in theRespondent/ Plaintiff's Partition Deed does not create any title inrespect of the Respondent/Plaintiff and further, theRespondent/Plaintiff has not enjoyed the usufructs of any of thetamarind trees in the suit property and till recent years, there hasbeen a old tiled house in the suit property and it got dilapidatedand fell down and the suit house has been used by the Appellants/Defendants till it has fallen down.27.The Appellants/Defendants or their husband, at any point oftime, has agreed to get the suit property demarcated or divided andthey have been advised to ignore the notice sent by the https://hcservices.ecourts.gov.in/hcservices/ Respondent/Plaintiff. The Respondent/Plaintiff is endeavouring totake advantage of the erroneous mention of the suit survey number inthe documents, which are mere paper transactions, obviously intendedto grab at other peoples property.28.Ex.A.1 is the Sale Deed dated 26.01.1928 wherein theRespondent/ Plaintiff's grandfather Arunachalam Chettiar haspurchased an undivided half share in the plaint schedule propertyfrom one Subramaniya Iyyer. A perusal of the said Sale Deed showsthat the vendor Subramaniya Iyyer has stated that the propertybelongs to him ancestrally and that he has been in enjoyment of theNanja, punja, Jari site, etc. Ex.A.2 is the Partition Deed dated02.12.1959 in and by which the undivided half share purchased by theRespondent/ Plaintiff's grandfather has been allotted to theRespondent/Plaintiff in the partition. In Ex.A.3, the Extract fromTown Survey Field Register in Mayuram – Town, Thanjavur Dist. inrespect of the Survey No.545 (Old No.53AE) measuring an extent of0.13188. In the Municipal Register, the names of (1) SubramaniyaIyyer and (2) Gurusamy Iyyer (Kadhiresa Pady) are seen. In Adangal,the name of M.Subramaniya Iyyer is found. In Ex.A.3, the Town SurveyField Register Book Extract, the building is said to have beenutilised as house. Ex.A.7 is the Form 4-C Notice issued under Section11(1) read with Section 7-D and 40-A of the Tamil Nadu Urban Land TaxAct, 1966, wherein the survey number is mentioned as 545 bearing WardNo.1, Block No.17 in Mayiladuturai Town and the extent mentionedtherein is 13,188 square feet. The market value per ground ismentioned as Rs.7,200/-. 29.Ex.A.7 Urban Land Tax demand Notice has been issued toRespondent/Plaintiff calling upon him to furnish a statement inwriting of his objections, if any, to the assessment made in respectof the urban land under the provisions of the Amendment Act, 1991 andalso, it has been made mention of that it is proposed to impose apenalty not exceeding half of the amount of Urban Land Tax for hisfailure to file the return as per Section 7-D of the Act. Theobjections also to be heard into on 29.08.1994 at 11.00 a.m. and hehas been required to appear in person or by his authorised agent andto adduce any oral and documentary evidence in support of hisobjections. In Form 5-G, Order of assessment of the AssistantCommissioner, it is mentioned that in Survey No.545 bearing TownNo.1, Block No.17 in Mayiladuturai Village, extent of ground is2.1794/6594 square feet and the market value determined per ground ismentioned as Rs.7,200/- and the Urban Land Tax, as determined by theAssistant Commissioner, has been mentioned as Rs.38/- to be paid fromFasli 1401. As per Ex.A.1 Sale Deed dated 26.01.1928, theRespondent/Plaintiff's grandfather has purchased an undivided halfshare in the suit plaint scheduled property. In the instant case, itis not established as to how Sambandam Pillai has got right to sellthe property to the Appellants/Defendants as per Ex.B.1 Sale Deed17.01.1955. No acceptable and convincing evidence or documents have https://hcservices.ecourts.gov.in/hcservices/ been let in or produced on behalf of the Appellants/Defendants toexhibit as to how Pethaperumal has enjoyed the entire extent ofproperty of 13,188 square feet. In Ex.A.3, the Town Survey FieldRegister Book Extract, it is mentioned that there is a house. Inregard to the payment of house tax receipts, the same has not beenfiled on behalf of the Appellants/Defendants. But the Appellants,through D.W.1, has deposed that the Sale Deeds have been misplacedand that she has paid the tax. If really Pethaperumal has enjoyed theentire extent of the property, at least some tax payment receiptswould have been filed on the side of the Appellants/Defendants beforethe trial Court. 30.The Appellants/Defendants have not examined themselves aswitnesses before the trial Court. Based on Exs.B.1 and B.2 Sale Deedsdated 17.01.1955 and 13.08.1952 respectively, one cannot safely cometo the conclusion that the Appellants/Defendants have acquired rightand enjoyment of the property, which is the subject matter in issue.Even before filing of the suit, Ex.A.7 Urban Land Tax demand Noticehas been issued by the Respondent/Plaintiff to theAppellants/Defendants. As far as the present case is concerned, theRespondent/Plaintiff has filed, on his side, Ex.A.1 Sale Deed dated26.01.1928, which is more than 30 years old document and also, he hasfiled another document Ex.A.2 Partition Deed dated 02.12.1959 to showthat his grandfather has purchased the undivided half share and thesame has been allotted to him in the partition. In Ex.A.1 Sale Deeddated 26.01.1928, it is clearly mentioned that the undivided halfshare has been purchased by the Respondent/Plaintiff's grandfatherfrom one Subramaniya Iyyer. Moreover, in the said document, it ismentioned that Subramaniya Iyyer has got the property rightancestrally. But, there is no plausible, convincing and acceptableevidence on the side of the Appellants/Defendants to show as to howSambandam Pillai has sold the property as per Ex.B.1 Sale Deed dated17.01.1955 to Pethaperumal Pillai viz., the husband of theAppellants/Defendants. 31.Ordinarily, the Urban Land Tax assessment order will be issuedto the concerned person only in respect of the actual extent ofproperty enjoyed by a person, who is in possession and occupation ofthe same. Even though Ex.A.7 Urban Land Tax demand Notice is not atitle deed, yet, the same cannot be brushed aside easily. Inasmuch asthe recitals of Ex.A.2 Partition Deed dated 02.12.1959 unerringlypoint out the undivided half share has been allotted to theRespondent/Plaintiff in partition, which has been purchased by hisgrandfather, it is clear that the Respondent has prima facieestablished that his grandfather has purchased the property fromSubramaniya Iyyer and therefore, the Respondent/Plaintiff in law, hasevery right to claim the relief of partition in respect of the suitschedule property, in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/

32.Per contra, the Appellants/Defendants have not established asto how Sambandam Pillai has right to sell the property to theirhusband as per Ex.B.1 Sale Deed dated 17.01.1955. In a suit forpartition, the Plaintiff is a Defendant and the Defendant is aPlaintiff. Therefore, in partition suits the burden to prove willnote remain static. It swings from one position to another after thePlaintiff or Defendant has discharged their onus. Although, theRespondent/Plaintiff has not marked any documents on his side as tohow Subramaniya Iyyer got the property and the earlier documents havenot been marked, yet, the fact remains that the Respondent/Plaintiffhas traced his source of title by producing Exs.A.1 and A.2 and theabsence of their vendor's title to the property is not fatal to thecase of the Respondent/Plaintiff, in the considered opinion of thisCourt. 33.Undoubtedly, in the present case, the Respondent/Plaintiff hasproved his prima facie claim of ownership of undivided half share inthe suit property and both the Courts below have dealt with thesubject matter in dispute between the parties in a proper andconvincing fashion and they have not committed any materialirregularity or patent illegality in passing the preliminary decreeof partition in favour of the Respondent/Plaintiff and dismissed theAppeal in right earnest, which in the considered opinion of thisCourt requires no interference and also that it cannot be said thatthe Courts below have wrongly placed the burden onAppellants/Defendants to prove their case and also that the Judgmentand Decree of the trial Court as well as the Appellate Court in themain suit and in the 1st Appeal are not vitiated because of placingreliance on document, which has come into existence after the suitand accordingly, the substantial questions of law 1 to 3 are answeredagainst the Appellants/Defendants. As such, the Second Appeal fails.34.In the result, the Second Appeal is dismissed, leaving theparties to bear their own costs. Resultantly, the Judgment and Decreeof the 1st Appellate Court viz., the Learned Principal Sub Judge,Mayiladuturai in A.S.No.89 of 1998 dated 26.10.1998 and the Judgmentand Decree of the trial Court viz., Learned District Munsif,Mayiladuturai in O.S.No.973 of 1986 dated 03.01.1995 are affirmed bythis Court for the reasons adumbrated in this Appeal.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.va https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sub Judge, Mayiladuturai.2. The District Munsif, Mayiladuturai.3. The Section Officer, VR Section, High Court, Madras.+ 1 CC To Mr.S.Sounthar Advocate SR NO.12139+ 1 CC To Mr.A.Muthukumar Advocate SR NO.11663S.A.No.772 of 1999TRM(CO)ABH/16.04.2012