Mannu Gounder v. Balasubramanian

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.12.2009CORAM:THE HONOURABLE MS.JUSTICE R.MALAS.A.No.280 of 2003Mannu Gounder .. Appellant/Respondent/PlaintiffVs.1. Balasubramanian2. Rangasamy3. Purappalammal4. Dhanam5. Jayam .. Respondents/Appellants/DefendantsSecond Appeal filed U/sec.100 of C.P.C. against the judgment anddecree dated 31.12.2002 in A.S.No.148 of 2000 on the file of theAdditional District Court, Villupuram, against the judgment anddecree dated 24.8.2000 in O.S.No.957 of 1995 on the file of thePrincipal District Munsif Court, Ulundurpet.For appellant : Mr.S.Parthasarathy, Senior Counsel for M/s.Sarvabhauman AssociatesFor respondents: Mr.N.Suresh JUDGMENTThe appellant-plaintiff has filed the Second Appeal against thejudgment and decree dated 31.12.2002 in A.S.No.148 of 2000 on thefile of the Additional District Court, Villupuram, reversing thejudgment and decree dated 24.8.2000 in O.S.No.957 of 1995 on the fileof the Principal District Munsif Court, Ulundurpet.2. The averments in the plaint are as follows:The suit property and other properties originally belonged tothe plaintiff's father Chinnakesava Gounder. Till his death, he wasin possession and enjoyment of the same. He was having two wives, thefirst wife is Chinathayee Ammal and the second wife is MarimuthuAmmal. Chinnakesava Gounder got a son by name Mannangatti Gounder,through his first wife. After the death of his first wife,Chinnakesava Gounder married Marimuthu Ammal as the second wife.Marimuthu Ammal gave birth to the plaintiff through Chinnakesava https://hcservices.ecourts.gov.in/hcservices/ Gounder. After the death of Chinnakesava Gounder, both the plaintiff-Mannu Gounder and Mannangatti Gounder are enjoying the property. Theythen divided the property by way of oral partition and they enjoyedtheir respective shares. Since Mannangatti Gounder died, his twosons, the defendants 1 and 2 are enjoying the property. The suitproperty is in possession and enjoyment of the plaintiff. The suitproperty's old Patta Number is 681 and new patta number is 1230.Since the plaintiff has been enjoying the suit property for more than31 years, he prescribed title by adverse possession. The plaintiffhas raised sugarcane crops in the suit property. Without right andinterest, the defendants attempted to interfere with the peacefulpossession and enjoyment of the plaintiff along with his brother-in-law, the third defendant, which was prevented. Hence, the plaintiffis constrained to file the suit for declaration and injunction.During the pendency of the suit, the defendants 4 to 6 were impleadedas the legal heirs of the deceased Mannangatti Gounder. 3. The gist and essence of the written statement filed by thedefendants 1 and 3 are as follows:The suit property and other properties belong to ChinnakesavaGounder and his son Mannangatti Gounder, who was born through hisfirst wife. They are enjoying the property as joint family property.Chinnakesava Gounder died intestate leaving behind the plaintiff andthe defendants and also the daughters Dhanam, Jayam and Alamelu.After the death of chinnakesava Gounder, the plaintiff-Mannu Gounder,Mannangatti Gounder, Dhanam, Jayam, Alamelu, Marimuthu Ammalsucceeded to the property and they were enjoying the property asjoint family property. In the year 1964, there was oral partitionbetween Mannangatti Gounder and the plaintiff-Mannu Gounder. But itis false to contend that the suit property has been allotted to theshare of the plaintiff. He was never in possession. In each and everyitem, half share has been allotted to Mannangatti Gounder and halfshare has been allotted to the plaintiff. In suit S.No.496/6, totalextent is 2 acres 29 cents and in that northern 1 acre 84 centsbelonged to the joint family, southern 45 cents belong to oneVedagiri Gounder, Chinnathu Gounder, Muruga Gounder, NarayanaGounder and Sanyasi Gounder and they divided the property and eachhaving 9 cents in the property. In the southern 1 acre 84 cents, 67cents have been allotted to the share of Mannangatti Gounder andnorthern 1 acre 17 cents have been allotted to the share of theplaintiff in the oral partition. Till his lifetime, MannangattiGounder was in possession and enjoyment of the southern 67 cents.After his death, his wife Purappammal and sons, who are thedefendants 1 and 2 and daughters Dhanam, Jayam are in possession andenjoyment of the same and paying the kist of the property. The suitproperty's old patta No.681 and from Fasli 1382 onwards, patta hasbeen changed, which was in the name of Mannangatti Gounder, and itstands in the name of the plaintiff's mother Marimuthu Ammal,Vedagiri Gounder and others as joint patta. The plaintiff wanted to https://hcservices.ecourts.gov.in/hcservices/ grab the property and he got patta in his name in the patta under theLand Possession Registration Welfare Scheme. So, the first defendanthas given petition before the Deputy Tahsildar and then only pattahas been changed in the name of the plaintiff, first defendant andothers. So, the plaintiff is never in possession of the suit propertyfor the past 31 years. He has not prescribed title by adversepossession. The plaintiff has obtained interim order of injunctionand he is in possession and after the injunction has been vacated,the defendants 1 and 2 recovered the possession of 67 cents and theyare in possession and enjoyment of the same. So, there is no cause ofaction for the suit. The document filed for raising of sugarcanecrops is not pertaining to the suit property. The second defendant ismentally challenged person and so, the suit against him is void. Thethird defendant is unnecessary party for the proceeding and so, thesuit is barred for misjoinder of necessary party. Hence, thedefendants 1 and 3 prayed for dismissal of the suit.4. The trial Court, after considering the averments, both in theplaint and in the written statement, has framed 11 issues andconsidering the oral evidence of P.Ws.1 and 2, D.Ws.1 and 2, Exs.A-1to 30 and Exs.B-1 to B-8, decreed the suit as prayed for in theplaint. Against that, the defendants preferred A.S.No.148 of 2000.The learned Principal District Judge, Villupuram, after hearing thearguments, framed two points for determination and allowed the appealand set aside the judgment and decree passed by the trial Court.Against that, the present Second Appeal has been preferred by theappellant-plaintiff.5. At the time of admission of the Second Appeal, the followingsubstantial questions of law were framed for consideration: "(i) When the oral partition is not disputed, whetherthe lower appellate Court is correct in reversing thejudgment of the trial Court which has been based uponcorrect application of law of evidence relating to burdenof proof?(ii) Whether in law the plaintiff can be non-suitedwithout the defendants proving their case upon whom theburden and onus of proof lay?(iii) Is not the judgment of lower appellate Courtvitiated on account of misapplication of law relating toburden and onus of proof?(iv) Whether in law the lower appellate Court canignore the well established principle in law that in civilcases importance should be given to probabilities of thecase especially when the defendants have not let into provetheir case?"6. The appellant as plaintiff filed the suit for declaration oftitle and injunction in respect of the suit property inS.No.496/2006, stating that originally, the property belonged to one https://hcservices.ecourts.gov.in/hcservices/ Chinnakesava Gounder. He was having two wives, first wife isChinnathayee Ammal and her son is Mannangatti Gounder and the secondwife is Marimuthu Ammal and the appellant-plaintiff is the son ofMarimuthu Ammal and after the death of Chinnakesava Gounder, therewas oral partition between Mannangatti Gounder and Mannu Gounder. Inthe oral partition, his share of the property has been allotted tohim and from the date, he was in possession and enjoyment of thesame. Since the defendants who are the children of the deceasedMannangatti Gounder and wife Purappal Ammal, had attempted tointerfere with the possession and denied his title, he has comeforward with the suit for declaration and injunction. 7. The respondents as defendants resisted the suit stating thatit is true that the total extent of the suit survey number is 2 acres29 cents, which have been divided among the family members andothers. In the oral partition, northern portion has been allotted tothe plaintiff-Mannu Gounder, the appellant herein and so, thedefendants are in possession of the suit survey number and prayed fordismissal of the suit.8. The trial Court, after framing necessary issues andconsidering the oral and documentary evidence, decreed the suit.Against that, the defendants preferred appeal. The learned firstappellate Judge has come to the conclusion that in the evidence ofP.W.1, Mannu Gounder, he himself admitted that in the oral partition,each was given their respective shares. He also fairly conceded andfiled documents. His mother has executed a settlement deed as perEx.A-2 in favour of his children in respect of 50 cents. Out ofremaining cents, 45 cents belong to Vedagiri Gounder and others,which was divided among them equally. So, considering the evidence,the first appellate Court has set aside the judgment and decreepassed by the trial Court, allowed the appeal and dismissed the suit.Against that, the present Second Appeal has been preferred by theappellant-plaintiff.9. Learned Senior Counsel appearing for the appellant-plaintiffwould contend that the suit property and other properties originallybelonged to Chinnakesava Gounder and he was having his first wifeChinnathayee. It is admitted fact that after the death of the firstwife-Chinnathayee, Chinnakesava Gounder married Marimuthu Ammal andthrough him, she gave birth to Mannu Gounder, the appellant-plaintiff. The learned Senior Counsel for the appellant-plaintiffwould further contend that there was oral partition among the familymembers. The appellant-plaintiff is in possession and enjoyment ofhis share of the property from the date of partition. The appellant-plaintiff also filed joint patta Ex.A-3, standing in the name ofmother and in that, it was stated that the property is hereditary andthe appellant-plaintiff filed kist receipts Exs.A-4 to A-6 and Exs.A-10 to 13, all standing in the name of Mannu Gounder, the appellant-plaintiff. Exs.A-7 to A-9 kist receipts stand in the name of https://hcservices.ecourts.gov.in/hcservices/ Marimuthu Ammal, who is none other than the mother of the appellant-plaintiff. 'A' register has been marked as Ex.A-14. In that, it wasstated that the entire extent belong to Sanyasi and Mannu and pattahas been changed to No.1230. The appellant-plaintiff also paid kist,and the kist receipts have been marked as Exs.A-15 and 16. Adangalalso has been marked as Ex.A-29. He raised sugarcane crops in theproperty. He sent the sugarcane to the Mill. The receipts ofsugarcane sent have been marked as Exs.A-17 to 28. The trial Courthas considered all these aspects in proper perspective and decreedthe suit, whereas the first appellate Court has miserably failed toconsider the adangal and Exs.A-3 to A-30 and dismissed the suitstating that the appellant-plaintiff has not proved his title to thesuit property. Learned Senior Counsel appearing for the appellant-plaintiff submitted that the judgment and decree of the firstappellate Court are perverse and prayed for setting aside thejudgment and decree passed by the first appellate Court.10. Per contra, learned counsel for the respondents-defendantswould contend that it is true that originally, the property belongedto Chinnakesava Gounder and after his death, as per Ex.A-1,Marimuthu Ammal has executed a release deed and she retained 'A'schedule properties. In 'A' schedule properties, she retained 50cents in suit S.No.496/6 out of 2 acres 29 cents and subsequentlyshe executed a settlement deed in favour of children of Mannu Gounderunder Ex.A-2 out of the remaining 1.79 cents, Vedagiri Gounder andothers are having 45 cents. In Ex.A-14--'A' register, it was statedthat the property stands in the name of Sanyasi and Mannu. Balance1.34 cents had been divided equally between Mannangatti Gounder, thefather of the respondents and Mannu Gounder, the appellant-plaintiff.So, each is entitled to only 67 cents. Ex.A-29 is for the Fasli 1383to 1403 and it stands in the name of Kesava Gounder, Marimuthuammaland Sanyasi, for the respective Faslis. Moreover, P.W.1, theappellant-plaintiff in his evidence has fairly conceded that theyhave divided the property equal half share and so, the firstappellate Court has considered these aspects in proper perspectiveand came to the correct conclusion. Learned counsel for therespondents-defendants relied upon the decision of this Courtreported in 2000 MLJ 118 (Ravi Vs. Vellathan). He prayed fordismissal of the Second Appeal.11. It is relevant to note the genealogy between the parties asfollows: Chinnakesava Gounder|| |-------------------| | | ChinnathayeeMarimuthu Ammal | | https://hcservices.ecourts.gov.in/hcservices/ | | Mannangatti Mannu Gounder (plaintiff) =Purappal Ammal |D4 | |--------------------------------------------------- | | | || Balasubramanian Arumugam Rangasamy Dhanam Jayam D1 D2 D3 D5 D6 12. It is true that other than the suit property, the familyowns some other properties. Admittedly, as per Ex.A-1, 'B' Scheduleproperties have been given to Mannangatti and Mannu Gounder byMarimuthu Ammal. She retained 'A' schedule properties. In 'A'schedule properties, one of the items is in the suit propertyS.No.496/6, 50 cents, out of 2 acres 29 cents. Subsequently, sheexecuted a settlement deed in favour of her grandsons through MannuGounder on 3.5.1980 in respect of 'A' schedule property mentioned inEx.A-1. Ex.A-3 patta stands in the name of Marimuthu Ammal as perwhich, it was patta No.681. In that, it was stated that it washereditary property.13. Learned counsel for the respondents-defendants relied uponthe decision of this Court reported in 2000 MLJ 118 (cited supra),wherein, it was held as follows:"7. The Apex Court had an occasion to deal withsimilar issue in Ram Saran v. Ganga Devi, A.I.R. 1972 SC2685, and in Vinay Krishna v. Keshav Chandra, A.I.R. 1993S.C. 957. In these decisions, the Apex Court has come tothe conclusion that where the defendant is in possession ofsome of the suit properties and the plaintiff in his suitdoes not seek possession of those properties but merelyclaims a declaration that he is the owner of the suitproperties, the suit is not maintainable." 14. It is admitted fact by both sides that there was a partitionbetween both families in the year 1964. So, in that partition, 67cents have been allotted to Mannangatti Gounder, who in turn executeda settlement deed in favour of the first respondent under Ex.B-1 on25.10.1972. The remaining 67 cents alone are in possession andenjoyment of Mannu Gounder. The respondents-defendants also filedEx.B-2 which related to the period from Fasli 1382 to 1398. In that,Faslis 1382 to 1394, it stands in the name of Kesava Gounder and 1395to 1398 stands in the name of Sanyasi. The respondents-defendantsfiled document Ex.B-3 patta transfer order. In that, the name hasbeen given as Sanyasi, S/o Chinnathu Gounder, Mannu S/o Kesavan andV.Kuppasamy. The kist receipts have been marked as Ex.B-4 to B-8. https://hcservices.ecourts.gov.in/hcservices/ Even though the trial Court came to the conclusion that theappellant-plaintiff is the owner of the property, but the firstappellate Court, on appeal, has considered the evidence of P.W.1 andcame to the conclusion that the entire suit 1 acre is not allotted tohim in the oral partition. 15. It is pertinent to note that P.W.1 in his evidence, at page5, has fairly conceded as follows:@//// vdf;Fk;. kz;zh';fl;of;Fk;. FLk;g brhj;Jfs; rk;ge;jkhf ele;j tha;bkhHpghfg;gphptpidapy; FLk;g brhj;Jf;fspy; vdf;Fk;. kz;zh';fl;of;Fk; rhpghjpahf gphpj;Jtpl;lhh;fs;/kz;zh';fl;o ft[z;lh; ,we;J 15 tUl';fs; MfpwJ/ ///@ Further, he fairly conceded that he has not filed any document toshow that he is in possession and enjoyment of 1 acre. In hisevidence, he has further stated as follows:@/// 1 Vf;fiu ehd; jhd; mDgtpj;J tUfpnwd; vd;gjw;F ml';fy; vJt[k; jhf;fy;bra;atpy;iy/ ////@In his evidence, he has fairly conceded that after partition,Mannangatti Gounder has executed the settlement deed in respect of 67cents in the suit survey number, which came into existence afterpartition between both. He further stated that, @/// tHf;F rh;nt bek;ghpy; 67brz;il kz;zh';fl;o ft[z;lh; Kjy; gpujpthjpf;F brl;oy;bkz;l vGjpitj;Js;shh;/ me;j brl;oy;bkz;l;Vw;gl;lJ vdf;Fk; kz;zh';fl;of;Fk; ghfk; gphpe;j gpwF Vw;gl;ljhFk; /////@ Even though in hisevidence he has stated that in suit survey number, no extent has beengiven, P.W.1 Mannu Gounder (plaintiff) himself admitted thatMannangatti has executed the settlement deed in favour of his sonBalasubramanian, the first respondent-first defendant in the year1972. But till the appellant-plaintiff filed the suit, he has nottaken any steps to file the suit for declaration. But he filed thesuit only in the year 1995. It is pertinent to note that Exs.B-5 toB-8 came into existence after the suit, but Ex.A-29 adangal shows thename of Kesava Gounder and Sanyasi. The appellant-plaintiff examinedP.W.2 and his evidence is not helpful.16. Per contra, the respondents-defendants have examined twowitnesses, one Rangasamy was examined as D.W.1 and the firstdefendant was examined as D.W.2. They fairly conceded the partitionand considering the evidence of witnesses and documentary evidence,it clearly shows that during the partition, only 67 cents in northernportion alone have been allotted to the share of the appellant-plaintiff. In the above circumstances, the appellant-plaintiff hasnot proved that he is the absolute owner of the suit property, i.e.one acre and he also failed to prove his possession. It is wellsettled principle of law that the plaintiff must prove his case.Here, the plaintiff has not proved his case. Hence, the firstappellate Court has considered all the aspects in proper perspective https://hcservices.ecourts.gov.in/hcservices/ and came to the correct conclusion that the appellant-plaintiff hasfailed to prove his title to the suit property and also thepossession. Hence, the judgment and decree of the first appellateCourt do not warrant any interference and they are unassailable andliable to be confirmed. 17. In the result, the Second Appeal is dismissed. The judgmentand degree passed by the first appellate Court are hereby confirmed.The suit in O.S.No.957 of 1995 is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The Additional District Judge, Villupuram.2. The Principal District Munsif, Ulundurpet.3. The Section Officer, V.R. Section, High Court, Madras.1 cc To Mr.N.Suresh, Advocate, SR.712351 cc To M/s.Sarvabhauman Associates, SR.71111S.A.No.280 of 2003SSN(CO)sra 19.01.2010