Chandrammal v. Jayarama Naicker

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 06.07.2009CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.561 of 2000Chandrammal .. Appellant/Plaintiff Vs Jayarama Naicker .. Respondent /DefendantSECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 6.8.1999 made in A.S.No.111 of1998 on the file of Subordinate Judge, Maduranthakam confirmingthe Judgment and Decree dated 24.09.1997 passed in O.S.No.119 of1992 on the file of the District Munsif Court, Maduranthakam. For Appellant :Mr.S.SadasivamFor Respondent : Mr.T.V.KrishnamachariJ U D G M E N T The above Second Appeal arises against the judgment and decreein A.S.No.111 of 1998 on the file of Sub Court, Maduranthakamconfirming the Judgment and Decree in O.S.No.119 of 1992 on the fileof the District Munsif Court, Maduranthakam.2. The plaintiff in the suit is the appellant in theabove second appeal. The respondent is the defendant in the suit. 3. The plaintiff filed suit in O.S.No.119 of 1992 on thefile of the District Munsif Court, Maduranthaham for declarationand injunction. 4. The brief case of the plaintiff is as follows:- The plaintiff is the absolute and exclusive owner of thesuit property measuring an extent on 0.07 cents. She purchased theproperty under a registered sale deed dated 23.1.1982. Since then,she is in absolute possession and enjoyment of the suit property.Originally one Balatherasammal's mother and one Innaiya Reddiarpurchased 0.85 cents in S.No.348/5 under a registered sale deed dated4.11.1950. The plaintiff's vendor Balatherasammal and InnaiyaReddiar entered into an oral partition and a suit property wasallotted to Ananthammal. The plaintiff's vendor Balatherasammal got https://hcservices.ecourts.gov.in/hcservices/ the property from the said Ananthammal through a settlement deed.Since then, her vendor was in absolute possession and enjoyment ofthe property. The suit property is a part of the property inS.No.348/5 measuring 0.85 cents. The plaintiff stored hayricks inthe suit property. The defendant is no way connected with the suitproperty. He is the utter stranger to the suit property. Since thedefendant tried to put up temporary hut in the suit property andalso casting cloud over the title of the plaintiff, the plaintifffiled the suit. 5. The brief case of the defendant is as follows: According to the defendant, the plaintiff is not theabsolute owner of the suit property. The plaintiff is not inpossession of the suit property. The plaintiff's house is facingwest and defendant's house is facing east. The schedule mentionedproperty has been wrongly described as 0.07 cents. The defendant isin lawful possession and enjoyment of a total extent of 0.15 cents.The defendant is living in the said property for more than 20 years.The defendant has been paying the house tax to the Panchayat Board.According to the defendant, the sale deed dated 23.1.1992 is a shamdocument. The boundaries mentioned in the suit schedule are notcorrect. The suit property is a Gramanatham land. NeitherBalatherasammal's mother Ananthammal nor Innaiya Reddiar have been inpossession of the suit property. Therefore, the defendant prayedfor dismissal of the suit. 6. Before the trial court, the plaintiff examined 2witnesses and marked 3 documents Exs. A1 to A3. On the side ofthe defendant, 2 witnesses were examined and 10 documents Exs. B1to B10 were marked. 7. The trial court, after taking into consideration theoral and documentary evidences of both the parties found that thethe plaintiff failed to prove his title and possession over thesuit property and also found that the defendant by marking Exs.B1 toB8 proved his possession and enjoyment over the suit property. Thetrial court dismissed the suit. 8. Aggrieved over the judgment and degree of the trialcourt, the plaintiff filed an appeal in A.S.NO.111 of 1998 on thefile of Sub Court, Maduranthagam.9. The lower appellate court after taking intoconsideration the materials available on record also found that theplaintiff failed to prove her title and possession over the suitproperty, since the property purchased under Ex.A1 is only aGramanatham and ultimately the lower appellate court confirmed thejudgment and decree of the trial court and dismissed the appeal. https://hcservices.ecourts.gov.in/hcservices/

10. Aggrieved by the judgments and decrees of the courtsbelow, the plaintiff has filed the above second appeal. 11. Heard Mr. Mr.S.Sadasivam, learned counsel appearingfor the appellant and Mr.T.V.Krishnamachari, learned counsel forthe respondent. 12. At the time of admission of the above Second Appeal,the following substantial questions of law arose for consideration:-i) Whether the courts below were right inrecording a finding too the effect that the respondentherein had title tot he suit property placing relianceon the revenue records being Exs. B1 to B10 which weremarked as exhibits during trial by the respondentherein, as against the registered documents of titlebeing registered deeds of sale which were marked asExs. A1 and A2 on behalf of the appellant herein?ii) whether he courts below were right indismissing the ;suit filed by the appellant herein onthe ground that the appellant had not proved bypositive evidence that she was in possession of thesuit property albeit the fact that Exs.A1 and A2.Deeds of sale proved the appellants title tot he suitproperty?iii) Whether the courts below were right inconcluding that the appellant herein was to be non-suited on the ground that the revenue records relatingto the suit property were not field in court, in theteeth of the fact that the appellant had adducedunimpeachable evidence to prove her title in the formof deeds of sale3 being exs.A1 and A2 relating to thesuit property?iv) Whether the trial court was right in reachingthe conclusion that the appellant was not entitled to adeclaratory relief relating to the suit propertyinasmuch as the appellant had not proved by acceptableevidence that either the appellant or her predecessorsin title were in possession and enjoyment of the suitproperty?v) Whether the trial court was right in itsconclusion that the appellant had to prove by evidencethat the patta and tax receipt submitted on behalf ofthe respondent herein and marked as Exs.B1 to B10 did https://hcservices.ecourts.gov.in/hcservices/ not relate to the suit property, thereby wronglyplacing the burden of proof on the appellant?" 13. Learned counsel for the appellant relied on a judgmentreported in 1996 AIR SCW 3613(Sawarni v. Inder Kaur and others),which reads as follows: "The lower appellate court did not come to any positivefinding that defendant was the daughter of plaintiff'sfather. The appellate court could not reverse the decreeof the trial court merely on ground of mutation entry infavour of the defendant. Mutation of a property in therevenue records n does not create or extinguish title norhas it any presumptive value on title. It only enable theperson in whose favour mutation is ordered to pay the landrevenue in question. Mutation entry in favour of thedefendant did not convey any title in her favour. Non-consideration of oral evidence by the appellate court alsovitiated its judgment."14. Learned counsel for the appellant also relied on a judgmentreported in AIR 1997(7) SCC 137 (Balwant Singh and another v. DaulatSingh (dead) by Lrs. and others), which reads as follows:"21.We have considered the rival submissions and weare of the view that Mr.Sanyal is right in his contentionthat the courts were not correct in assuming that as aresult of Mutation No.1311 dated 19.7.1954, Durga Devi losther title from that date and possession and was given tothe persons in whose favour mutation was effected. InSawarni case Pattanaik, J., speaking for the Bench hasclearly held as follows: (SCC p. 227, para 7)"7.. Mutation of a property in the revenue recorddoes not create or extinguish title nor has it anypresumptive value on title. It only enables the person inwhose favour mutation is ordered to pay the land revenue inquestion. The learned Additional District Judge was whollyin error in coming to a conclusion that mutation in favourof Inder Kaur conveys title in her favour. This erroneousconclusion has vitiated the entire judgment." The above referred judgments do not apply to the facts andcircumstances to the case on hand.15. On a careful consideration of the materials availableon record and the submissions made by both the learned counsel, itcould be seen that under Ex.A2 dated 3.11.1950, Anandathmal andInnaiyan Reddiar purchased the property in S.No.348/5. Under Ex.A3 https://hcservices.ecourts.gov.in/hcservices/ Ananthammal executed a deed of settlement in favour ofBalatherasammal under Ex.A3 dated 14.4.1997. The appellant underEx.A1 dated 23.1.1992 purchased a portion of land in S.No.348/5 fromBalatherasammal. The respondent marked Exs.B1 Thoraya patta andhouse tax receipts Exs.B2 to B8. Ex.B9 is the ration card issued tothe respondent. It could be seen from the documents marked on theside of the respondent that the respondent is in possession andenjoyment of the property. On the contrary, the appellant did notproduce any document to prove his possession over the suit property.The suit property in S.No.348/5 is a Grama Natham. The appellantalso did not produce the patta standing in her name. Further, theappellant failed to produce any document to prove her possession andenjoyment over the suit property. Even in the document Ex.A1 and A3,the suit property has been mentioned only as Gramanatham. Thecourts below after taking into consideration the oral and documentaryevidences of both the parties have correctly came to the conclusionthat the appellant/plaintiff failed to prove her case by producingany acceptable evidence. 16. Therefore, I find no ground much less substantial questionsof law to interfere with the findings of the courts below. Thesecond appeal is liable to be dismissed. Accordingly, the SecondAppeal is dismissed. However, there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrjTo1.The Subordinate Judge, Maduranthakam 2.The District Munsif Court, Maduranthakam.3.Record Keeper, V.R.Section, High Court, Madras.1 cc To Mr.S.Sadasivam, Advocate, SR.290381 cc To Mr.T.V.Krishnamachari, Advocate, SR.29106 S.A. No.561 of 2000mbs(co)pmk.18.8.2009.