John Masilamani and Others vs Y. Samuel and John Raja Pandian

A.C. Arumugaperumal Adityan, J.—The appeal has been preferred by the plaintiff in the suit. This Second Appeal has been directed against

the decree and judgment in A.S. No. 122 of 1991, on the file of the Court Subordinate Judge, Thoothukudi.

The short facts of the case of the plaintiff in the plaint relevant for the purpose of deciding this Second Appeal are as follows:

The plaint schedule property belongs to the plaintiff. The plaintiff is enjoying by cultivating the same. The plaintiff has put up fence around it. Patta

for this property stands in the name of the plaintiff. The land tax for the property is being paid by the plaintiff''s sisters by name Anna Packiam and

Inbam Annathai Ammal. On 02.04.1941, at the request of the plaintiff''s sister, the plaintiff''s mother gifted a vacant site of 12 cents in S. No.

115/5 to them for the purpose of constructing their house. At that time, the plaintiff was employed in an estate and was not aware of it. In 1959,

when the plaintiff came to the Village, one of the sister by name Anna Packiam, without disclosing the gift received from his mother, requested the

plaintiff to give a portion of the land to her as gift, for putting up a house saying that she has no house of her son and the other sister has been gifted

a site in S. No. 115/5B. The plaintiff, believing her representation, gifted 10 cents of land on 16.01.1959 in the same S. No. 115/5B and from the

date of gift, the said Annapackiam Ammal was enjoying the property till her death. It seems that she had executed a ''Will'' bequeathing the

property to her daughter Mercy Jeyabai and Thamayanthi Ebanaser and they were subsequently enjoyed the property. The defendant, who is a

stranger, wanted to purchase 10 cents of land in the schedule property, has approached the plaintiff. But the plaintiff was not willing to sell any

portion of the property. Thereafter, the defendant had purchased the property that belonged to the plaintiff''s sister Anna Packiam in S. No.

115/5B from her daughters, who became entitled to after the death of Anna Packim. On 12.10.1989, the defendant herein and three others came

to the plaint schedule property and requested the plaintiff to remove the fence put up therein claiming that they have purchased 10 cents in the

property from his sister''s daughter. When the plaintiff informed them that his sister''s land is in different survey number, they claimed that they have

purchased 10 cents in the schedule property. When the plaintiff had denied their right thereto they forcibly removed the fence and the plaintiff''s

neighbor prevented their action and they went away. Thereupon, on the next day, the plaintiff gave a complaint to the Eral Police and they sent the

defendant and others accompanying them and warned them. Thereafter, they kept quite. After sometime, the defendant sent a copy of the caveate

petition mentioning the schedule property. As this plaintiff was then not contemplating any action and as there was no further disturbance, no action

was taken. On 20.01.1990, the defendant again approached the plaintiff and requested him to agree for an exchange of a portion of the schedule

property with the property said to have been purchased by him from the plaintiff''s sisters daughter saying by mistake he had purchased another

property on the misrepresentation of its vendor. The plaintiff refused to part with any portion of the schedule property. Thereupon, just to force the

plaintiff to give a portion of his property, from 01.02.1990 the defendant and his men are trying to interfere with the plaintiff''s peaceful possession

and enjoyment of the property by threatening the coolies engaged by the plaintiff for cultivation in the property. Though elders in the village tried to

advise the defendants not to do such illegal acts, the defendant is continuing his illegal action. The plaintiff has been enjoying the property for over

several decades continuously and openly and has prescribed title by adverse possession also. Hence, the suit for declaration and also for

consequential injunction in respect of the plaint schedule property.

The defendant in his written statement would contend that the plaintiff''s father Sri John Issac died intestate. He had one son (plaintiff) and two

daughters namely, Anna Packiam Ammal and Inbam Ammal. They Subsequently died leaving their children. Hence, the children of Inbam Ammal

are necessary parties to the suit. The plaintiff is entitled to 1/3 share in the suit property. The plaintiff executed a gift deed in favour of his sister

Anna Packiam by a registered document, dated 16.01.1959, in respect of S. No. 115/1B. In the above said gift deed, the survey number was

wrongly given as S. No. 115/5B. But, the four boundaries and the extent of the land mentioned in the gift will prove that the gift is in respect of S.

No. 115/1B. The said Anna Packiam Ammal was enjoying a specific portion in S. No. 115/1B. Since the plaintiff is the only male member of the

family, he was paying kist to the suit property. The remaining 1/3 share of the said Anna Packiam in S. No. 115/1B also jointly enjoyed by her and

after her death by her heirs. After the death of the said Annapackiam, this property was allotted to the share of her daughters Mercy Jeyabai and

Dhamayanthi Ebenser. This 10 cents in S. No. 115/1B bounded on the north and south by the plaintiff''s land, east by road and west by Manuel

Nadar Vahaira was purchased by this defendant by a registered sale deed, dated 26.04.1989 and was in possession and enjoyment of the

defendants. This defendant and his predecessor in title are in possession and enjoyment of 10 cents in the middle of S. No. 115/1B for more than

the statutory period and completed their title by way of adverse possession. The above piece of land subsequently subdivided into S. No.

115/1B7. The plaintiff also admit the sub-division and paying kist for S. No. 115/1B4 and S. No. 115/1B8. It is true that the plaintiff gave a

complaint to the Police and the Police visited the place and found the separate enjoyment and separate crop cultivation of the defendant in S. No.

115/1B7 and advised the plaintiff to go to the Court. The allegation that the defendant approached the plaintiff to sell the suit property is false. This

defendant''s vendor has no separate enjoyment of 10 cents in S. No. 115/5B. The above facts will prove that the case of the defendant is true. The

allegation that the plaintiff is in enjoyment of the entire 64 cents in S. No. 115/1B given in the schedule is false. Hence, the suit is liable to be

dismissed.

The learned trial Judge on the above pleadings has framed four issues for trial. Before the trial Court, the plaintiff was examined as P.W.1

besides examining another witness as P.W.1 and exhibited Exs.A1 to A7. On the side of the defendant, the defendant has examined himself as

D.W.1 besides examining one M.S.John as D.W.2. Exs.B1 to B6 were marked on the side of the defendant.

After going through the evidence both oral and documentary, the learned trial Judge finding no material to decree the suit, had dismissed the suit.

Aggrieved by the findings of the learned trial Judge, the plaintiff preferred an appeal before the first appellate Judge in A.S. No. 122 of 1991 on

the file of the Court Subordinate Judge, Thoothukudi. The learned Subordinate Judge, after giving due deliberation to the submissions made by the

learned Counsel on both sides and after meticulously going through the evidence both oral and documentary, has allowed the appeal, thereby

setting aside the decree and judgment of the learned trial Judge thereby dismissed the suit in O.S. No. 95 of 1990, which necessitated the plaintiff

to approach this Court by way of this Second Appeal.

The Substantial Questions Law involved in this Second Appeal are:

Whether the finding of the lower appellate court that the property conveyed under Ex.B1 is the suit property (i.e.) in S. No. 115/1-B when the

parent document Ex.B6 under which the mother of Vendors under Ex.B1 got the property clearly refers only to S. No. 115/5?

Whether Ex.B2 the rectification deed under which the S. No. 115/5 is correct to S. No. 115/1-B and the total area is correct from 1.63 acres

to 1.92 cents will do the vendors under Ex.B.1 the right to sell the suit property especially when the parent document Ex.B6 remains unaltered?

Whether the acceptance of oral evidence to show that what was conveyed under Ex.B6 is the suit property contrary to recitals under Ex.B.6 is

legal and proper?

Whether the finding of the lower appellate court on adverse possession is proper since it does not satisfy requirements indicated in the rulings of

the Apex Court?

Substantial Questions of Law 1 to 3:

The plaint schedule property is in S. No. 115/1B4 measuring 0.28.5 ares. The four boundaries for the plaint schedule property has also been given

to the plaint schedule. As per the four boundaries to the plaint, east of the plaint schedule property lies the road and south of the plaint schedule

property lies S. No. 115/1B5 and the north of the plaint schedule property lies S. No. 115/1B2. The total extent of the plaint schedule property is

stated as 0.28.5 ares. But, while giving the equivalent extent in cents, the plaintiff has stated in the plaint schedule, the extent of the plaint schedule

property as 64 cents instead of 70 cents. According to the plaintiff, the total extent of the plaint schedule survey number property is 1 acre 92

cents and that he and his brothers are entitled to the suit property and that he had purchased the share of his brother and that Ex.A1 is the patta in

his name and Ex.A2 is the land tax receipts. He would admit that his sisters are Anna Pakiam Ammal and Inbam Annathai Ammal and out of his

property he had donated 10 cents to his sister under Ex.A3. But he would state that the said 10 cents was in S. No. 115/B, even in Ex.A3 survey

number for the property gifted under Ex.A3 is given as 115/5B. According to the plaintiff, the defendant had purchased the said 10 cents from the

daughter of his sister Anna Pakiam Ammal under Ex.A4. Even in Ex.A4, the survey number for the property sold under Ex.A4 is shown as S. No.

115/5B. In the cross examination P.W.1 would admit that the defendant has been granted patta in S. No. 115/1B7 for an extent of 10 cents. The

survey number for the property dealt with under Exs.A5 and A6 by the mother and sister of the plaintiff also, the survey number was shown as

115/5B. Ex.A7 is the sale deed, dated 25.01.1973, under which the brother of the plaintiff has sold his share in the plaint schedule property. But

under Ex.A7, the survey number for the property sold under Ex.A7 was given as S. No. 115/1B and not as S. No. 115/5B. The dispute in the suit

is only in respect of 10 cents in the plaint schedule property, whether the said 10 cents comes within S. No. 115/1B or as contended by the

plaintiff, it comes under S. No. 115/5B, is the point to be decided in this suit. But, before the trial Court, no steps were taken to appoint an

Advocate Commissioner to identify the plaint schedule property as to the fact whether it comes within S. No. 115/1B or it comes within S. No.

115/5B. DW1 in his evidence would depose that at the time when he purchased his 10 cents from the daughter''s of Anna Pakiam Ammal, the

sister of the plaintiff, he came to know that instead of mentioning S. No. 115/1B, by mistakenly the survey number in Ex.B1, sale deed, dated

26.04.1989. The survey number has wrongly been mentioned as S. No. 115/5B instead of S. No. 115/1B. So, immediately he got Ex.B2,

rectification deed and also applied for sub-division. Under Ex.B3, order, the property purchased by him under Ex.B1 was sub-divided and

assigned as S. No. 115/1B4. In the plaintiff''s property on the north of his 10 cents was sub-divided and assigned as S. No. 115/1B48. On the

north and also on the south was also assigned S. No. 115/1B48. D.W.2 is the husband of one of the vendors Mercy Jeyabai under Ex.B1. He

would admit in his evidence that a rectification deed under Ex.B2 was executed by them in favour of the defendant. Since there was no material

placed before the trial Court to identify the plaint schedule property and to show whether it comes within S. No. 115/1B4 or within S. No. 115/5,

a direction was given by this Court to the learned trial Judge to appoint an Advocate Commissioner and to identify the suit property with the help

of a taluk Surveyor. Accordingly, the learned trial Judge has appointed an Advocate Commissioner with a direction to identify the plaint schedule

property with the help of a Taluk Surveyor. The Commissioner has filed Ex.C1, report, and Ex.C2 plan. In Ex.C1, report, the learned Advocate

Commissioner has stated that he has identified the plaint schedule property as S. No. 115/1B4 measuring 70 cents and the 10 cents purchased by

the defendant from the daughter of Anna Pakiam Ammal under Ex.B1 is under S. No. 115/1B47 in the plaintiff''s property in S. No. 115/1B48.

The Commissioner has categorically stated in Ex.C1 that the 10 cents mentioned in the gift deed dated 16.01.1964 does not come under S. No.

115/5B but it comes only under S. No. 115/1B4, which was identified in Ex.C2 plan as S. No. 115/1B47 and has also identified the plaintiff''s

property as S. No. 115/1B48 in Ex.C2 plan. Under such circumstances, the plaintiff is not entitled to the declaration of the entire extent of 0.28.5

ares but only to 0.24.5 ares only as per Ex.B3, as identified by the learned Advocate Commissioner under Ex.C2. Substantial Questions of Law

No. 1 to 3 are answered accordingly.

Substantial Question of Law No. 4:

The plaintiff admits that 10 cents in the plaint schedule property was already gifted by his mother in favour of his sister Anna Pakiam under Ex.A3

and from the daughter of Anna Pakiam viz., Mercy Jeyabai and Thamayanthi Ebanaser. The defendant had purchased the said 10 cents under

Ex.B1, dated 26.04.1989. Apart from these documents, neither the plaintiff nor the defendant have produced any other exhibits for the said

disputed 10 cents to show that they have prescribed title by way of adverse possession either against the plaintiff or against the defendant. Under

such circumstances, the plea of adverse possession putforth both by the plaintiff as well as by the defendant is not proved by any evidence in this

case. Substantial Question of Law No. 4 is answered accordingly.

In fine, the appeal is allowed and the decree and judgment in A.S. No. 122 of 1991 on the file of the Court of Subordinate Judge, Tuticorin, is

set aside and the suit in O.S. No. 95 of 1990 is decreed in respect of 0.24.5 ares in S. No. 115/1B4 as per Ex.B3 and as identified by the learned

Advocate Commissioner in Ex.C2, Plan. In other respects, the decree of the learned first appellate Judge in A.S. No. 122 of 1991 is confirmed.

Ex.C2, Plan, will form part of the decree. No costs.