Selvaraj v. A.Subramania Pillai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 04.08.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.894 of 2000 1.Selvaraj2.Mani3.Ramu4.Dakshinamurthy5.Dhandapani6.Sethu7.Karpagam8.Abirami9.Banu .. Appellants Vs 1.A.Subramania Pillai2.State Government of Tamil Nadu, Rep. By the District Collector, Perambalur District, at Perambalur.3.The Tahsildar, Jayamkondam, Perambalur District. .. RespondentsSECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 06.01.2000 made in A.S.No.122 of1988 on the file of Subordinate Court, Ariyalur confirming theJudgment and Decree dated 28.04.1988 made in in O.S.No.54 of 1983 onthe file of District Munsif court, Jayamkondam.For Appellants:Ms.P.T.Asha for M/s.Sarvabhauman AssociatesFor Respondents: Mr.J.R.K.Bhavanandham for Mr.P.B.Ramanujam – for R1Mr.R.Muthian, G.A.-for R2 & R3J U D G M E N T The above Second Appeal arises against the judgment anddecree in A.S.No.122 of 1988 on the file of Subordinate Court, https://hcservices.ecourts.gov.in/hcservices/ Ariyalur confirming the Judgment and Decree in O.S.No.54 of 1983 onthe file of District Munsif court, Jayamkondam.2. The legal representatives of the third defendant andthe defendants 4 and 5 are the appellants in the above second appeal.The first respondent herein is the plaintiff and the respondents 2and 3 herein are the defendants 1 and 2 in the suit. 3. The plaintiff filed O.S.No.54 of 1983 on the file ofDistrict Munsif Court, Jayamkondam for declaration, possession andfor injunction restraining the defendants 1 and 2 from issuing pattain favour of the defendants. 4. The brief case of the plaintiff in the suit is asfollows: - The suit property originally belonged to one Pappu Singh.The plaintiff purchased the suit property from one Ganesh Singh by asale deed dated 18.6.1972. The said Ganesh Singh became entitled tothe suit property through a family partition deed in the year 1967.The said Ganesh Singh's father acquired the suit property through asale deed dated 19.04.1909 and had been in possession and enjoymentof the same for about a century. The defendant's father lateKrishnan was a tenant under the plaintiff on a monthly rent ofRs.100/-. Suddenly, the said Krishnan stopped paying rent and alsoattempted to get patta in his favour. Therefore, the plaintiff filedthe suit. 5. The brief case of the defendants are as follows:(i) According to the defendants, the suit property did notbelong to Pappu Singh. The averment that after the death of PappuSingh, his three sons orally partitioned the family properties andthat the suit property was allotted to the share of Ganesh Singh isnot correct. The sale deed dated 18.6.1972 in favour of theplaintiff is not correct and not binding. The suit property is anunoccupied Natham poramboke. Pappusingh and his sons have no rightto deal with the property in any manner. (ii) The averments that before the partition deed, the suitproperty was usufructually mortgaged to one Ayyaathurai Mudaliar on22.4.1967 is also false. The alleged mortgage deed and the sale deedwill not clothe the plaintiff or his predecessors in title to anytitle to the suit property. The allegation that the plaintiff enjoyedthe property for more than 100 years openly, adversely andcontinuously is not correct. The defendants are occupying the suitproperty for a period of more than 12 years. The 3rd defendantconstructed thatched house in the suit property which was vacant landbefore. B memo has been issued to the third defendant which willclearly go to show that the plaintiff has no title over the suitproperty. There is no landlord-tenant relationship between theplaintiff and the third defendant at any time. The defendants moved https://hcservices.ecourts.gov.in/hcservices/ for assignment of the property in their names. The said proposal ispending before the defendants 1 and 2. The suit properties belongto the Government and the plaintiff has no right to question toissue of patta to anybody. Therefore, the defendants prayed fordismissal of the suit. 6. Before the trial court, on the the side of theplaintiff, 4 witnesses were examined and 14 documents Exs.A-1 toA-14 were marked. On the side of the defendants, 3 witnesses wereexamined and 13 documents Exs.B-1 to B-13 were marked. The AdvocateCommissioner's reports and plans were marked as Exs. C1 to C6.7. The trial court after taking into consideration the oraland documentary evidences of both the parties, decreed the suit asprayed for. 8. Aggrieved over the judgment and degree of the trialcourt, the legal representatives of the 3rd defendant and defendants 4& 5 filed appeal in A.S. No.122 of 1998 on the file of SubordinateCourt, Ariyalur and the lower appellate Court after considering thematerials available on record confirmed the judgment and decree ofthe trial court and dismissed the appeal.9. Aggrieved over the judgment and decree of the courtsbelow, the legal representatives of the third defendant anddefendants 4 & 5 have filed the above second appeal. 10. Heard Ms.P.T.Asha, learned counsel for the appellantsand Mr.J.R.K.Bhavanandham, learned counsel for the first respondentand Mr.R.Muthaiah, learned Government Advocate for the respondents 2and 3. 11. At the time of admission of the above second appeal,the following substantial questions of law arose for consideration:-" Whether both the courts below misconstrued inappreciating the probative value of Exs.P1 and P2 andEx.A1 and whether this has resulted in miscarriage ofjustice?" 12. On a careful consideration of the materials available onrecord and the submissions made by both the learned counsel, itcould be seen that the property conveyed under Ex.A1 sale deeddated 18.6.1972 is in Survey No.162. But according to the firstrespondent/plaintiff by oversight, in the sale deed, it has mentionedas Survey No.185. Ex.A2 mortgage deed dated 22.4.1967 was executedin favour of Ayyadurai Mudaliar by Ram Singh, Balaji Singh and GaneshSingh. Ex.A9 Sale deed dated 11.10.1972 was executed by Balaji Singhas guardian of his minor sons Gajendran, Jothi and Srinivasan infavour of one Neelavathi Ammal. Ex.A10 is the sale deed executed by https://hcservices.ecourts.gov.in/hcservices/ Subbu Singh in favour of Thangaraj. Ex.A11 is the sale deed dated30.10.1979 executed by R.Mohan Singh in favour of Thangaraj.Ex.A12 sale deed dated 19.4.1909 was executed by Samabai Ammal infavour of Pappu Singh. Further, the first respondent has alsoproduced tax receipts pertaining to the suit property. The taxreceipts were produced from the year 1978-79. Ex.B4 is the Watercharges receipt produced by the appellants. The said document isdated subsequent to the filing of the suit. Even Ex. B3, B memo isalso subsequent to the filing of the suit. From Ex. A12, it is clearthat the first respondent/plaintiff and his predecessor in title arein possession and enjoyment of the suit property for more than 100years. Ex. A2 mortgage deed is also support the case of firstrespondent. The first respondent also obtained the electricityconnection for the suit property. The Advocate Commissioner'sreports and plans marked as Exs.C3 to C6, also supports the caseof the first respondent/plaintiff. The Advocate Commissioner's plansExs.C5 and C6 tallies with the measurements found in Ex.A12 sale deeddated 19.4.1909. Exs. A1, A9 to A11 and A13 supports the case ofthe first plaintiff. Therefore, it is clear that the suit propertyoriginally belonged to Pappu Singh. By examining P.W.1 to P.W.4, thefirst respondent also proved that the 3rd defendant in the suit wasa tenant under him. 13. From the perusal of the documents marked on the side ofthe first respondent/plaintiff, it could be seen that the surveynumber mentioned in Ex.A1 sale deed has been wrongly mentioned asSurvey No.185 instead of No.162. The courts below have concurrentlyfound that the first respondent is the absolute owner of the suitproperty and the appellants are in occupation of the suitproperty as tenants under the first respondent. 14. Therefore, I find no ground much less substantialquestion of law to interfere with the concurrent findings of thecourts below. Therefore, the above second appeal is liable to bedismissed. Accordingly, the Second Appeal is dismissed. However,there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrjTo1.The Subordinate Court, Ariyalur. https://hcservices.ecourts.gov.in/hcservices/

2.The District Munsif court, Jayamkondam.3.The Section Officer, VR Section, High Court, Madras.1 cc To M/s.Sarvabhauman Associates, SR.354631 cc To Mr.P.B.Ramanujam, Advocate, SR.355961 cc To The Special Government Pleader, SR.35738S.A.No.894 of 2000CKN(CO)SRA(21/08/2009)