Chellaiah and Thilagaraj vs Vanaraj

R. Mala, J.—The second appeal has been preferred against the judgment and decree dated 16.09.2003 made in A.S. No. 67 of 2002 passed by the learned Subordinate Judge, Srivilliputhur, reversing the judgment and decree dated 09.10.2002 made in O.S. No. 148 of 2000 passed by the learned Principal District Munsif, Srivillipuhur.

The gist and essence of averments in the plaint is as follows:

The plaintiff purchased first item of suit property from one Paramasivam on 15.03.1999. On 22.3.1999, he purchased second item of the property from Govindan and Annamalai. The sale deed has been registered only on 31.03.2000. The Plaintiff is enjoying the suit property by using it as a cattle shed. On 15.02.2000, the defendant has attempted to interfere his possession which was prevented by this plaintiff. So, the plaintiff is forced to put up a fence. But, it was also prevented by the defendant. The defendant had no right over the property. So the matter has been referred to Panchayat. Even though the Panchayatdars gave a warning, the defendants are continued to interfere with the possession and enjoyment of this plaintiff. Hence, he is constrained to file a suit for injunction and during the pendency of the suit, the defendant trespassed into the suit property on 30.05.2000. Hence, the plaintiff is constrained to file a suit for declaration of title and for recovery of possession.

The gist and essence of the written statement filed by the first defendant adopted by second defendant is as follows:

The first item of suit property has been purchased by the plaintiff from one Paramasivam and second item of suit property has been purchased by the plaintiff through a unregistered sale deed and it has been specifically denied. The suit properties are natham poramboke. Door No. 56 is the property situated on the northern side of the suit property is originally owned by one Petchiammal and she sold the same to one Amala Pushpam under the sale deed, dated 22.07.1981. From that date onwards, she took possession and enjoyment of the same, till she alienate the property to the defendant on 15.06.1988. From the date of purchase, the defendant is enjoying the property, since in the Door No. 56 is only a thatched house, so suit property has been used to drain the rain water and he also used the same as a cattle shed and bathroom and for keeping waste materials for more than a statutory period without any interference. So, he is enjoying the same without any interruption. In 1993, he removed the thatches and he put up tiles. Now, the tiled house is there. The Revenue Authorities have also accepted the possession and enjoyment of the defendant and patta has been issued in favour of the defendant in respect of the suit property and that Survey Number has been given as S. No. 1563/37 and its Patta number is 1468. From 1988 onwards, this defendant is in possession and enjoyment of the suit property along with the property under the sale deed dated 15.06.1988. A Commissioner has been appointed and he has already filed his report and in the report, it was stated that the suit property is in the enjoyment and possession of the defendant and the plaintiffs are their predecessors in title are not in the possession of the suit property. Hence he prays for the dismissal of the suit.

The averments in the additional written statement of the first defendant is as follows:

It is false to contend that during the pendency of the suit, the defendant trespassed into the suit property. The suit property is in possession of the defendant from 1986. The suit properties originally belonged to Nallamuthu. It is belonged to him, he was in possession till his death. It is false to contend that Muthaliyar street is not there, Now, it was renamed as Thiru.Vi.Ka. Street. In the said street, there is no such door numbers in S. No. 66, 67 and 68. Since the properties not belonged to Nallamuthu, the plaintiff has no right to acquire any right or possession to recover the suit property from anybody. So, the sale deed, dated 15.03.1999 and 31.03.2000 are sham and nominal. Neither the plaintiff nor the predecessors in title is in possession and enjoyment of the suit property. The defendant is in possession from 15.06.1988 by using the suit property as a cattle shed, bathroom and for storing waste materials. So, the plaintiff having no right over the property, filed a vexatious suit. He has not come to this Court with clean hands. He has not properly valued the suit property. Hence, he prays for the dismissal of the suit.

The averments in the reply statement is as follows:

The averments made in paragraph 3 of the plaint are true. It is false to contend that the defendant had put up cattle shed and bathroom in the suit property and enjoying the same and so the suit is barred by estoppel by conduct is baseless. The suit property consist of three houses. The door numbers are 66, 67 and 68. From 1966 to 1970, the plaintiff paid the property tax. After 1978 to 1981, since the houses were demolished, it has become vacant site and no property tax has been collected from them. The suit property was originally owned by Nallamuthu, who is having one son, Arunachalam alias Mokkaiyan and a daughter Shanmugavel. Arunachalam alias Mokkaiyan''s son is one Paramasivam and Shanmugavel''s sons are Annamalai and Govindan. The first item of suit property absolutely belongs to Paramasivam. From him, the plaintiff has purchased the property. He purchased second item of property from Govindan and Annamalai, the sons of Shanmugavel, on 22.03.1999. During the pendency of the suit alone the defendant trespassed in the suit property. Hence, he prays for the decree.

The learned Principal District Munsif, Srivilliputhur after considering the averments in the plaint and written statement, additional written statement and reply statement, framed five issues and considering the oral evidence of P.Ws1 to 6, D.Ws1 to 2 and Exs.A1 to 9, B1 to B5 and Exs.C1 to C2 and come to the conclusion that the plaintiff is not the owner of the suit property and dismissed the suit. Against the said order, the plaintiff preferred an appeal in before the learned Subordinate Court, Srivilliputhur. The learned First Appellate Judge, after considering the arguments of both sides and after framing proper points for consideration, allowed the appeal and declared title of the suit property and granting relief of recovery of possession three months time has been granted. Against that the defendant come for this appeal.

The substantial questions of law arises in the Second Appeal are as follows:

Whether the first appellate Court is correct in reversing the judgment of the trial Court on the basis of Exs.A5 to A8 which do not correlate the houses bearing Door Nos. 66, 67 and 68 with the suit property a vacant site in Survey No. 689/1A?

Whether the first appellate court is correct in holding that Nallamuthu Mudaliar was the owner of the suit property without any basic document of title?

Points:

The defendants preferred this second appeal. The respondent as a plaintiff filed a suit for declaration of title and recovery of possession in respect of two items of suit property. The defendants/appellants raised a plea that the suit property is belonging to them and they are in possession and enjoyment of the same. The trial Court has come to the conclusion that the plaintiff/respondent has failed to prove the title of the suit property and hence dismissed the suit. Against that, he preferred an appeal, where the first appellate Court has come to the conclusion that the plaintiff/respondent herein has proved his title over the suit property and hence he is entitled for declaration and since the property are in possession of the respondent herein, recovery of possession was also granted and three months time was granted for handover the possession. Against the same, the appellants/defendants have come forward with the present second appeal.

The respondent/plaintiff claiming title over the suit properties which was originally owned by one Nallamuthu Mudaliar. He had two children. His son is one Arunachalam alias Mookkan. His son is Paramasivam, from whom the plaintiff had purchased the first item of suit property under Ex.A1 dated 15.03.1999. One Shanmugavel is the daughter of Nallamuthu Mudaliar. Her sons are one Govindan and Annamalai, from whom the plaintiff had purchased the second item of suit property under Ex.A2 dated 31.03.2000 and he is in possession and enjoyment of the same. He also given a application under Ex.A3 to the Collector to survey the property and to issue a patta, in turn, the Collector has given a direction to Tahsildar to look into the matter vide communication Ex.A4. The tax receipt has been marked as Ex.A5. His predecessor in title were in possession and enjoyment of the suit property, after purchase, the plaintiff/respondent has been in possession and enjoyment. So, he come forward with the suit for declaration and injunction. During the pendency of the suit, the appellant herein has trespassed into the suit property and denying his title and hence he amended the prayer for declaration and recovery of possession.

Admittedly, now as on today, the properties are in the possession of appellants. Photographs also marked as Ex.B4. It is true that the patta stands in the name of appellants herein as per Ex.B3.

Learned appellant counsel would contend that the plaintiff/respondent has not proved his title to the suit property, the suit properties are natham poramboke, on the north side of the suit properties, a house in Door No. 56 is there, which was already owned by one Petchiammal. From Petchiammal, Amalapushpam has purchased on 21.07.1981 under Ex.B1, it is pertinent to note Ex.B1, he is in possession since the suit properties are grama natham, they are enjoying the properties even before filing of the suit, the respondent/plaintiff has not proved his title and hence he prayed for allowing of appeal and dismissal of the suit.

Per contra, the learned respondent counsel would contend that the old survey number of the suit properties is 689/1. The new survey number is 1563/37, that has been evident from Ex.B3, he has examined P.W.6 Govindan, who is one of the vendor under Ex.A2 and proved that the suit property owned by Nallamuthu, after his death, his children Arunachalam and Shanmugavel succeeded the property. They divided property. Half portion has been succeeded by Annamalai and Govindan, who are the sons of Shanmugavel, the plaintiff has purchased the same under Exs.A1 and 2, he had taken steps for transferring the patta to his name, he also paid property tax under Ex.A5, survey plan also has been marked as Ex.A7. So, the plaintiff had proves that he is the owner of the properties and the first Appellate Court has considered all the documents in a proper perspective and came to a correct conclusion and there is no infirmity in the judgment passed by the first Appellate Court. Hence, he prayed for the dismissal of the appeal.

The plaintiff has succeeded on the strength of his own case and not on the basis of any weakness found in the defendants'' case. So, burden is upon the respondent to prove that he is the owner of the suit property. To prove the same, the respondent has filed A1 and A2. The vendor of Ex.A2, by name Govindan has been examined as P.W.6. In his evidence, he has clearly deposed about who is the owner of the property, how they succeeded the property and partition of the property and how they enjoyed the properties. There is no reason for discarding his evidence. It is trustworthy and reliable. As per his evidence the property has been owned by Nallamuthu Mudaliar. After his death, respondent herein purchased the properties from the heirs of Nallamuthu Mudaliar. Ex.A3 has been given by the respondent herein to the Collector for surveying the suit properties. In Ex.A3, he had stated that he had purchased the property and he put up a thatched house and since he is in possession and enjoyment of the suit property, he wanted to survey the property and issued patta in his favour. The Collector has received the same on 14.02.2000 and as per Ex.A4, he sent an official memorandum to Tahsildar, Srivilliputhur to take necessary action in favour of the petition.

Ex.A5 is the property Tax Register, which stand in the name of Nallamuthu Mudaliar. From the year 1996-67 till 1969-70, he has paid house tax for the door No. 66 to 68. On that basis only Ex.A6 has been given by P.W.2. P.W.4 has been examined and that the properties are situated at Mudaliar Street, which was now renamed as Thiru.vee.ka Street. The resolution copy has been marked as Ex.P8 through P.W.4, who is the Town Panchayat Clerk of V. Pudupatti. In Ex.A6, it was stated that Mudaliar Street has been renamed as Thiru.Vee.Ka. Street the same has been fortified by P.W.4 by way of filing Ex.A8. Ex.A7 is the plan which has clearly proved that the property is not a Government poramboke. Ex.A9 has been marked through D.W.1. It is a settlement deed in respect of Door No. 681/A.

Per contra, on the side of the defendant sale deed (Ex.B1) in favour of one Amalapushpam has been marked. But Ex.B2 is an unregistered deed. It is not admissible. Hence, it cannot be looked into. The trial Court itself has not taken the same for consideration. It is true patta stands in the name of appellants/defendants. It is well settled principle of law that patta will not confer any title. It is only show the possession. In above circumstances, merely because the appellants/defendants having patta, it will not confer title on him He filed Ex.B5, the complaint which was given by the second defendant before the police against the respondent/plaintiff. So, while considering the evidence of P.W.6 Govindan, he has stated that the properties were owned by his grand father Nallamuthu. As per Document Ex.B3 and survey plan Ex.A7 have clearly proved that the suit property is not a Government natham. It is only a patta land and the same had been enjoyed by Nallamuthu Mudaliar. He died intestate. His two children by name Arunachalam @ Mookan and Shanmugavel had succeeded the property. The divided the property themselves. Then one Paramasivam Son of Arunachalam executed the sale deed as per Ex.A1 in respect of first item of suit property. Shanmugavel''s heirs Govandan and Annamalai exeucted the sale deed as per Ex.A2 in respect of the second item of suit property. So, the respondent has proved that he is the owner of the suit properties and hence the first appellate Court has come to the correct conclusion that the respondent herein is the owner of the property.

The learned Counsel for the appellant would contend that they are enjoying the properties putting up with thatched shed and toilet from time immemorial since it is a grama natham adjacent to their property. It is true that the respondent/plaintiff has proved his case. In the above said circumstances, the burden is shifted to the appellant/defendant to prove the suit property is only grama natham. He has not filed any single document to show that the suit properties are grama natham/government poramboke. In the above said circumstances, the argument advanced by the learned Counsel for the appellant that the suit properties are grama natham does not merit acceptance.

In this case, an Advocate Commissioner has been appointed. He inspected the property and filed a report and plan under Exs.C1 and C2. Exs.C1 and C2 show that the appellant is in possession of the suit properties. But, the plaintiff/respondent has proved that he is the owner of the property. Hence, it is clearly proved that appellant has trespassed in to the suit properties and constructed a house and enjoying the suit properties. In the above said circumstances, the respondent herein is entitled for recovery of possession.

The learned Counsel appearing for the appellant relied upon the decision reported in 2004 (1) L.W.706 (Bondar Singh and Ors. v. Nihal Singh) and argued that unregistered sale deed cannot be relied up even for collateral purposes. As already stated that Ex.B2 is unregistered sale deed the same was not relied upon by either trial Court or first Appellate Court. So, the above citation is not relevant for the purpose of this case.

The learned Counsel appearing for the appellant would rely upon the decision reported in Tayub Khan alias Tayub Sultan Vs. Hairunnissa Beevi, Zainul Arab Begum, Samsiya Begum and Hajee Mohamed Zackariya, and argued that adverse possession implies that the possession commenced in wrong and maintained against right corpus juris. It is true that there is no quarrel over the prepositions. But, as already stated that the respondent herein has proved that the appellants trespassed into the property. The case of the appellants is that after he purchased the property under Ex.B1, he has been enjoying the suit property. But, he has not filed any document to show that he purchased the property. Since there is no evidence to show that the appellants/defendants purchased the property, in the written statement, the defendants are pleading that the suit properties are only government poramboke and they are enjoying the property. In the above said circumstances, the above citation is not relevant for the purpose of this case.

The same preposition of law, the learned respondent counsel relied on the decision reported in 2004 2 L.W.623 (Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors.) and urged that law does not intend to confer any premium on the wrong doing of a person in wrongful possession. So the appellants herein are in wrongful possession of the suit property belonging to the respondent and hence they are not conferred any title over the property and thus he prayed for the dismissal of appeal.

It is true as per the citation, adverse possession is means only wrong doer has asserts his rights and claiming possession to the property. But, here the defendants herein have not pleaded adverse possession. In the above said circumstances, the above citation is irrelevant to the facts of this case.

As narrated above, the respondent herein had proved that originally the properties are owned by Nallamuthu Mudaliar. From his legal heirs, the respondent had purchased the suit properties under Exs.A1 and A2 and he has been enjoying the suit properties. But, the defendants/appellants had interfered the possession and enjoyment of the respondent/plaintiff over the suit property and trespassed in to the same. Hence, the respondent/plaintiff amended the prayer for declaration and recovery of possession. Since, he has proved the title to the suit properties, he is entitled for recovery possession also. Hence, I am of the opinion that the first appellate Court has come to the correct conclusion that the respondent is the owner of the suit properties and he is entitled for recovery of possession and the judgment and decree of the first appellant Court does not warrant interference and the same is liable to be confirmed.

In fine, the Second Appeal is dismissed and the judgment and decree dated 16.09.2003 made in A.S. No. 67 of 2002 on the file of the learned Subordinate Judge, Srivilliputhur is confirmed. The appellants are directed to pay the cost throughout to the respondent. Three months time granted for recovery possession.