L.Pushpalingam v. R.Arumugam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.Nos.1205 & 1206 of 2008and M.P.No.1 of 20081. L.Pushpalingam2. L.Pushpa3. L.Radha(deceased)... Appellants/Defendants in(cause title accepted vide both the Second Appealsorder of Court dated 20.08.2008made in MP.No.1/08 in SA.SR.13393/08)vs.R.Arumugam.. Respondent/Plaintiff in both the Second AppealsS.A.No.1205 of 2008 is filed against the judgement and decreedated 20.10.2006 passed by the Additional District Judge, Fast TrackCourt No.II, Chennai, in A.S.Nos.327 of 2005, reversing the judgementand decree dated 24.9.2004 passed by the XIII Assistant City CivilCourt, Chennai, in O.S.No.3525 of 1981.S.A.No.1206 of 2008 is filed against the judgement and decreedated 20.10.2006 passed by the Additional District Judge, Fast TrackCourt No.II, Chennai, in A.S.No.330 of 2006, confirming the judgementand decree dated 24.9.2004 passed by the XIII Assistant City CivilCourt, Chennai, in O.S.No.3525 of 1981.For Appellants : Mr.M.VivekanandanFor Respondent : Mr.K.P.Gopalakrishnan COMMON JUDGMENTThe respondent in both the second appeals, namely, Arumugam, asplaintiff, filed the original suit, initially for declaration, so asto get declared that he was entitled to 5 cents of land. But,subsequently, the plaint got amended so as to get declared that theplaintiff was entitled to an extent of 5.75 cents of land. https://hcservices.ecourts.gov.in/hcservices/

2. The trial Court decreed the suit partly by declaring that theplaintiff was entitled to an extent of 5 cents of land in the "A"scheduled property and also ordered injunction in respect of theentire "A" scheduled property and dismissed the suit in respect ofthe rest of the prayer, which was one for recovery of possession ofthe "B" scheduled property measuring an extent of 0.75 cents of land.3. Being aggrieved by the judgement of the trial court both theplaintiff and the defendants preferred appeals. The plaintiffpreferred appeal A.S.No.327 of 2005 as against the dismissal of theprayer relating to "B" scheduled property, whereas the defendantsfiled the appeal A.S.No.330 of 2006 even relating to grant of reliefin respect of the said 5 cents of lands. The Appellate court by itscommon judgement, dismissed the appeal filed by the defendants andallowed the appeal preferred by the plaintiff, by holding that theplaintiff was entitled to the reliefs in toto as prayed for in theplaint.4. Being disconcerted and aggrieved by the common judgementrendered by the first Appellate Court, these two second appeals havebeen focussed by the defendants on various grounds including thecommon following proposed substantial questions of law."a) Whether the judgement of the lower appellate Courtin reversing the judgement of the trial Court bymisconstruing Ex.B3 as title document in favour of theplaintiff is maintainable in law?b) Whether the respondent is entitled for adeclaration and permanent injunction in respect of 'A'schedule property based on the mere fact that therespondent mother same found in the list of occupants asagainst the land owner who is not at all party to the suit.c) Whether the respondent his entitled for mandatoryinjunction with respect of 'B' schedule property which isnot a part of Ex.B3 document?d) Whether Ex.P1 settlement deed for 5.75 cents infavour of respondent son is valid in the eyes of law?e) Whether the lower appellate Court is right in notdiscussing the case of the appellants in its judgement andstate the reasoning for the decree?f) Whether the lower appellate Court is right inreproducing the written arguments filed by the respondentcounsel as judgement? https://hcservices.ecourts.gov.in/hcservices/

5. After hearing for some time the arguments on both sides, thisCourt felt that with the consent of both sides, both these matterscould be disposed of finally by framing the following substantialquestions of law. 1. Whether the First Appellate Court was justified ingiving a finding that plaintiff is entitled to 5.75 centsas against 5 cents of land contemplated in Ex.A3?2. Whether the First Appellate Court correctlyunderstood the concept burden of proof and applied the samein adjudging the appeals?3. Whether the plaintiff's plea that the defendant isnot entitled to S.No.54 and therefore the defendant was notjustified in taking defence as against the plaintiff wascorrectly appreciated by the First Appellate Court?4. Whether the judgements of both the Courts below arefraught with perversity?Heard both sides on these substantial questions of law.6. A bare poring over and perusal of the typed set of papers,including the copies of the judgements of both the Courts below,would display and demonstrate, highlight and spotlight the fact thatthe plaintiff-Arumugam filed the suit on the main ground that byvirtue of Ex.A1-the settlement deed dated 17.02.1973 executed by hismother-Kuppammal in his favour, on the strength of the Settlementrecords, he is the absolute owner of the suit property; in fact inpara No.3, the precise contention of the plaintiff was thatoriginally the suit property, which is described as "A" Scheduledproperty, which is extracted here under: "House and ground bearing Door No.8/1, VinayagarkoilStreet, Velachery Road, Guindy, Madras-32, measuring Northto South on the Eastern side 26" and on the Western side20'6". East to West on the Northern side 104" and on theSouthern side 108" admeasuring 2464 sq.ft.bounded on theNorth by land belonging to David, Devanesan and Lakshmananand the South by Muthumari Ammal Koil Street Lane, on theEast by Government poramboke land, the West by VinayagarKoil Street, situated in T.S.No.54, Block No.3 of AdyarMadura Venkatapuram Village, Corporation Division No.119,within the Saidapet Sub Registration District, https://hcservices.ecourts.gov.in/hcservices/ originally belonged to his father and it devolved upon his motherKuppammal, who in turn, executed the deed of Settlement dated17.02.1973-Ex.A1 in favour of the plaintiff; according to theplaintiff, the defendants encroached into the "B" scheduled property,which is described here under:"All that piece and parcel of vacant land measuring5.5. feet North to South and 32.5 feet east to west boundedon the east, south west by the plaintiff's property andnorth the property bearing the present door number 11 ofVinayagar Koil Street and forming part of the landmorefully described int he Schedule "A" hereinabove."The B scheduled property, as per plaintiff's version, forms part ofthe "A" scheduled property.7. The main contention of the defendants is that at no point oftime, the plaintiff or his mother owned and enjoyed an extent of 5.75cents of land as found described in the "A" schedule of the plaintand consequently, there cannot be any "B" schedule of property atall, over which, the plaintiff could claim right.8. The learned counsel for the defendants also wouldconvincingly and appropriately draw the attention of this court toEx.A3, the Proceedings of the Assistant Settlement Officer, Madras inSR.Nos.1 to 32 of Block Nos.3 and 6/Zamin Venkatapuram Village,dated 11.5.1959. In the said proceedings, there is not even anyreference that Kuppammal had any right over the suit property.However, there is an indication that Kuppammal was in possession ofSurvey No.54 measuring an extent of 5 cents, over which a thatchedroof house was found existing. Learned counsel for the defendantswould submit that at the most, the plaintiff could lay claim over thesaid 5 cents of land and not to an extent of 5.75 cents of land. Inother words, there could not be any claim over the "B" scheduledproperty referred to supra.9. Whereas the learned counsel for the plaintiff would advancehis argument to the effect that the plaintiff's mother Kuppammal wasin possession and enjoyment of an extent of 5.75 cents of land and itis fortified by Ex.A3. However, in Ex.A3, the extent mentioned isonly 5 cents and not 5.75 cents. This is a crucial fact. By way ofexpounding and explaining away the discrepancy on the plaintiff'sside, it was contented as though the defendants had no right at allin Survey No.54, over which Kuppammal's right was recognised as anoccupier even in Ex.A3-the settlement proceedings. No doubt, from adeep analysis of the records as well as the arguments advanced on theside of the defendants, it could be understood that there is norecord to demonstrate that the defendants had any right over survey https://hcservices.ecourts.gov.in/hcservices/ No.54. But, they had right over the land in survey No.53, which isadjacent to the survey No.54.10. The learned counsel for the defendants, by drawing theattention of this Court to Ex.B1- the previous proceedings filedbefore the City Civil Court, Madras, in E.P.No.283/73 in O.S.No.3951of 1964, which emerged between the following parties, viz.,M.Lakshmanan by L.Rs. 1.L.Pushpalingam, 2.L.Saraswathi,3.L.Radha and 4.L.Pushpam and1.Kuppammal, 2.M.Devanesan by L.Rs. 3.Dhanalakshmi,4.Jayaraman, 5.Daya Nidhi, 6.Santhi and 7.Kasturiwould develop his argument that Kuppammal was very much a party inthat proceeding and as per Ex.B2-Sketch, Kuppammal was evicted fromher holding in that E.P.scheduled mentioned property, which isdescribed here under: "Piece or parcel of land in 8, Vinayagar Koil Street,Guindy, Madras measuring East to West 60' and North to South10' bounded on the North by vacant land South by portionallotted to Devanesan East by Vinayagar Koil Street, West byOpen space and vacant land and situated within theregistration Sub-District of Saidapet and Reg.District ofMadras."11. The learned counsel for the defendants would point out thatthe said E.P.scheduled mentioned property was in survey No.53 and thesouthern boundaries are mentioned as 'the south by Survey No.54' andthere is some discrepancy in describing the property. However, hewould clarify that in Ex.B4-the lawyer's notice, Kuppammal's Advocatehimself sets out the following boundaries:"2. That the said Lakshmanan filed a suitO.S.No.3951/64 on the file of VI Assistant City Civil Judge,Madras, against my client and M.Devanesan for a partition ofthe property, i.e. premises bearing door No.8, VinayagarKoil Street, Velachery Road, Guindy, Madras-32, bounded onthe West by the Street, on the North by Vinayagar Koil, onthe East by Poramboke Land of Mariamman Koil and on theSouth by Pavalakodi Ammal's House and measuring North toSouth 40' and East to West and comprised in S.No.53 in BlockNo.3 and situate within the Registration Sub-District ofSaidapet and the Registration District of Madras,Chingleput." https://hcservices.ecourts.gov.in/hcservices/ relating to the said E.P.mentioned property. It is therefore clearthat in the previous proceedings, it is shown that South of surveyNo.53 was survey No.54.12. The learned counsel for the defendants would invite theattention of this Court to paragraph 19 of the judgement of the firstappellate Court and submit that the lower Court was wrong inconstruing as though as per Ex.A3, Kuppammal was entitled to anextent of 5.75 cents of land in Survey No.54. Paragraph 19 of thefirst appellate Court's judgement is extracted here under for readyreference:"19. The land covered by Survey No.54 has been clearlyshown to be in the possession of the plaintiff's motherKuppammal even prior to 23.12.1958, the date of commencementof enquiry by the Assistant Settlement Officer, Madras asevidenced by Ex.A3. All along it had been alleged by thedefendants that there is no land available to Kuppammal, theplaintiff's mother in and around the suit, except the landcovered by the Old Suit O.S.No.3951/64. Having realisedthat the plaintiff is able to prove his right over the suitproperty through his mother Kuppammal under Ex.A3, thedefendants have now shifted their defence that the plaintiffhas got to approach Jaganatha Babu Naidu and Sundara BabuNaidu for his relief."13. A plain reading of the above excerpt would clearly indicateand exemplify as to how the first appellate Court misdirected itselfin understanding as though Kuppammal, the plaintiff's mother, washeld to be in possession of 5.75 cents of land, as per Ex.A3, whenEx.A3 contemplates only 5 cents of land and not 5.75 cents of land.14. It appears, the first appellate Court has not takeninitiative to verify Ex.A3, which speaks of Kuppammal's possession inan extent of 5 cents alone. The first appellate Court, in paragraph25 of its judgement, placing reliance on the Commissioner's reportand sketch, held that the defendants are in occupation of the 'B'Scheduled property, which is in Survey No.54, over which, thedefendants are having no right. 15. The approach of the first appellate Court is basicallyerroneous, on this aspect. It is a trite proposition of law that theplaintiff has to prove his case. "Possession is nine points in law"is the maxim. Here, the plaintiff alone seeks to obtain possessionof the 'B' scheduled property, over which, the defendants are inoccupation. https://hcservices.ecourts.gov.in/hcservices/

16. The first appellate Court was not justified in expecting thedefendants to prove the title over the 'B' Scheduled property. Eventhough the defendants have not established their right over the 'B'scheduled property, nonetheless the records would demonstrate thatthey have been in possession of the said property. Absolutely thereis no clarity as to when the defendants precisely encroached into the'B' Scheduled property. The plaint is silent about it. 17. A perusal of the plaint would not in any way highlight andspotlight, clarify and enlighten as to when the defendants trespassedinto the 'B' Scheduled property and raised the construction.18. The first appellate Court, by referring to the proceedingsunder the earlier partition suit O.S.No.3951 of 1964, would misdirectitself and arrive at the conclusion that because the defendants arehaving no right to occupy any portion in Survey No.54, they should bedispossessed as prayed for by the plaintiff. As has been alreadyhighlighted supra, I would like to, without being tautologous, pointout that the plaintiff should prove his right over the 'B' scheduledproperty, which admittedly and indubitably according to the finding,is in Survey No.54. The earlier proceedings in O.S.No.3951/64, evenas per the finding of the first appellate Court, were relating toSurvey No.53 and not relating to Survey No.54. 19. The trial Court's judgement clearly highlights thatKuppammal-the mother of the plaintiff, was in occupation of 5 centsof land in Survey No.54. The trial Court correctly raised the queryas to how Kuppammal could have settled validly an extent of 5.75cents in favour of the plaintiff, as per Ex.A1, and absolutely thereis no answer to that pertinent question raised by the trial Court bythe first appellate Court, which reversed such finding of the trialCourt. 20. It is a rudimentary principle of law that the firstappellate Court being the last Court of fact, was expected to delvedeep into the evidence, both oral and documentary and in the event ofintending to reverse any finding of the trial Court, reasons shouldbe assigned. But in this case, the first appellate Court, wronglyassumed and presumed as though Ex.A3 recognised Kuppammal was inpossession of 5.75 cents of land. In such a case, the first appellateCourt should have raised the point as on what ground Kuppammal couldclaim right over 'B' Scheduled property herein. Without addressingitself to the main issue, based on burden of proof, the firstappellate Court, simply by picking holes in the case of thedefendants, allowed the appeal filed by the plaintiff, warrantinginterference by this Court in the second appeal. https://hcservices.ecourts.gov.in/hcservices/

21. As such, the first substantial question of law is answeredto the effect that even though Ex.A3 contemplates the plaintiff'smother-Kuppammal having been in possession of an extent of 5 cents inSurvey No.54, the first appellate Court wrongly held as though herpossession was recognised in respect of 5.75 cents of land, includingthe 'B' scheduled property, and consequently the first appellateCourt wrongly decided the appeal filed by the plaintiff.22. The learned counsel appearing for the plaintiff woulddevelop his argument that the defendants, without in any wayestablishing their right to occupy the suit property, whether couldget the suit of the plaintiff dismissed. Such an argument isuntenable in view of my discussion supra.23. Even though the learned counsel for the defendants would tryto put forth an argument to the effect that the entitlement of thedefendants under the earlier suit 3951/64 was in Survey No.53,measuring an extent of 40 feet width, it was shown as only 31 feet inthe Commissioner's report, which emerged in the present suitconcerned. In my opinion these are all farfetched arguments, whichcan not be considered in this second appeal, in view of my discussionsupra.24. Accordingly, the substantial question of law No.3 isanswered to the effect that the plaintiff has to stand or fall on thestrength of his own pleadings and evidence and not by picking holesin the evidence of the defendants.25. In view of the ratiocination adhered to above, the secondappeal No.1206 of 2008, which was filed as against the dismissal ofthe first appeal, by the defendants, is dismissed. Whereas, thesecond Appeal No.1205 of 2008 is allowed, setting aside the judgementand decree of the first appellate Court dated 20.10.2006 passed bythe Additional District Judge, Fast Track Court No.II, Chennai, inA.S.Nos.327 of 2005 and the judgement and decree of the trial Courtis restored. No costs. Consequently, connected miscellaneous petitionis closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional District Judge, Fast Track Court No.II, Chennai.2.The XIII Assistant Judge,City Civil Court, Chennai.Copy toThe Section Officer,V.R.Section,High Court, Madras.2 cc To Mr.K.P.Gopalakrishnan, Advocate, SR.10461.S.A.Nos.1205 & 1206 of 2008CK(CO)RVL 21.04.2009