Katturaja vs Balakrishnan

R. Mala, J.—The Second Appeal is filed by the defendant against the judgment and decree dated 20.2.2003 in A.S. No. 140 of 2002 on the file of the Principal District Court, Villupuram, reversing the judgment and decree dated 6.3.2002 in O.S. No. 108 of 2000 on the file of the Principal District Munsif Court, Ulundurpet.

The averments in the plaint are as follows:

The suit properties originally belong to one Rangasamy Naicker. He is junior paternal uncle of the plaintiff. When the plaintiff was minor, on 27.6.1950, Rangasamy Naicker executed a settlement deed in favour of the plaintiff and appointed his mother as guardian and the settlement deed is duly executed and validly attested and accepted and acted upon. From the date of settlement onwards, the plaintiff''s mother, on behalf of the minor-plaintiff, has taken possession. ''A'' schedule property is a thatched hut; ''B'' schedule property is a terraced building and ''C'' schedule property was treated as a garden, using the same as manure pit. After the plaintiff attained majority, he took possession of the properties and changed the patta in his name and paying kist and enjoying the properties with the knowledge of others for the past 50 years, without interruption and hence, he prescribed title by adverse possession. In the year 1985, on the east of ''C'' schedule property, 2-1/2 cents had been purchased by the plaintiff from one Sahabuddin. The defendant has no right over the properties. The defendant, claiming that they have purchased the property from Rangasamy''s wife in the year 1965 and claiming title to ''C'' schedule property, attempted to put up foundation in ''C'' schedule property, which was prevented. Since the defendant is denying the title to the plaintiff, the plaintiff is constrained to file the suit for declaration of title in respect of ''C'' schedule property and also for consequential permanent injunction and prayed for a decree.

The gist and essence of the written statement filed by the defendant are as follows:

The defendant denies the settlement deed and the enjoyment of ''A'', ''B'' and ''C'' schedule properties by the plaintiff and the mutation of revenue records by the plaintiff. He specifically denied that ''C'' schedule property is not belonging to the plaintiff. Originally, the entire east-west 24'' and south-north 150'' of suit ''A'' and ''B'' schedule properties, belong to Poorani Ammal, w/o Rangasamy, from whom the defendant''s father Pavadai Padayachi purchased the same under the sale deed, dated 25.8.1965 and from the date of purchase, he is in possession and enjoyment of the same. Then, he executed a settlement deed in favour of the defendant, when he was a minor and appointed his mother Lakshmi Ammal as guardian and executed the settlement deed on 4.7.1974, which was duly executed and validly attested and accepted and acted upon. In pursuance of the settlement deed, the defendant is in possession and enjoyment of the same. The plaintiff wantonly described the southern portion of the defendant''s property as ''C'' schedule property and filed the suit. ''C'' schedule property is not in possession of the plaintiff and so, he is not entitled to declaration of title and injunction as prayed for in the plaint. The measurements given in ''C'' schedule property are wrong. The boundaries are also not correct. ''C'' schedule property belongs to the defendant in pursuance of the sale deed, dated 25.8.1965 and settlement deed 4.7.1974. Hence, the plaintiff is not having any title or possession of ''C'' schedule property. The suit has not been properly valued. He prayed for dismissal of the suit.

The trial Court, after considering the averments, both in the plaint and in the written statement, has framed eight issues and considering the oral evidence of P.Ws.1 and 2 and D.W.1 and Exs.A-1 to A-5, Exs.B-1 to B-4, and Exs.C-1 and C-2, dismissed the suit. Against that, the plaintiff preferred appeal in A.S. No. 140 of 2002. The first appellate Court, after considering the arguments of both the counsel, has framed five points for determination and set aside the judgment and decree of the trial Court and allowed the appeal and decreed the suit as prayed for in the plaint, holding that Ex.A-1 settlement came into existence at the earlier point of time and so, the plaintiff is in possession and enjoyment of 24'' x 70''. Against that, the present Second Appeal has been preferred by the defendant.

At the time of admission of the Second Appeal, the following substantial questions of law were framed:

Whether the lower appellate Court erred in law by reversing the well considered judgment of the trial Court, ignoring the admission of the respondents herein as P.W.1 with regard to the total length of 80 ft., North to South of the property of the appellant?

Whether the lower appellate Court erred in law to hold that the appellant had purchased 150 ft. North to South, but actually he is in possession of 80 ft. North to South as admitted by the plaintiff as PW.1 in his evidence?

Whether the lower appellate Court erred in law to hold that on the admission of PW.1 admitting that the appellant is entitled to 80 ft. North to South, the lower appellate Court should have confirmed the judgment of the trial Court and dismissed the suit?

Substantial questions of law:

The respondent as plaintiff filed the suit for declaration of title and permanent injunction in respect of ''C'' schedule property on the basis of the settlement deed, dated 27.6.1950. The appellant as defendant resisted the suit, stating that in pursuance of Exs.B-1 and B-2, they are entitled to 24'' x 150'' and so, they are in possession. The trial Court, after framing necessary issues and considering the oral and documentary evidence, dismissed the suit. Against that, the plaintiff preferred appeal, which was allowed. Against that, the present Second Appeal has been preferred by the defendant.

Learned Counsel appearing for the appellant-defendant would contend that it is true that the entire suit properties measuring 24'' x 150'' absolutely belongs to one Rangasamy Naicker, who executed a settlement deed as per Ex.A-1 in respect of 24'' x 70'' and for the balance extent, after his death, his wife Poorani Ammal executed a sale deed in favour of the appellant''s father Pavadai Padayachi under Ex.B-1 on 25.8.1965, who in turn executed settlement deed in favour of the appellant-defendant and so, the appellant-defendant is in possession and enjoyment of the same. Patta has also been issued in his name as per Ex.B-3 and Ex.B-4 encumbrance certificate has also been filed. So, the appellant-defendant is the owner of ''C'' schedule property. The first appellate Court has committed error. There is no dispute with regard to ''A'' schedule property, which is a hut and ''B'' schedule property, which is a terraced building. ''C'' schedule property is only east-west 21-1/2'' x 20'', which is disputed. The trial Court has considered these aspects in proper perspective and came to the correct conclusion, but whereas the first appellate Court, without assigning proper reasons, set aside the judgment and decree of the trial Court, which is against law. He prayed for allowing the Second Appeal.

Per contra, learned Counsel for the respondent-plaintiff would contend that admittedly, the dispute is only in respect of ''C'' schedule property, that too only north-south measurement and there is no dispute in respect of east-west measurement. The southern portion belongs to the respondent-plaintiff and the northern portion belongs to the appellant-defendant. The total extent is 137-1/2'' as per the Commissioner''s report. As per Ex.B-1, the appellant''s father Pavadai Padayachi has purchased the property and in that, it was mentioned that 24'' x 150'' and so, the first appellate Court has come to the correct conclusion that in Ex.A-1, on 27.6.1950, the settlement deed has been executed in respect of 24'' x 70'' and the remaining portion is only 80'', but whereas, as per the Commissioner''s report, the total extent is only 137-1/2'' and in pursuance of Ex.A-1, the respondent-plaintiff is in possession of 70'', which has been fortified by the Commissioner'' report. So, the first appellate Court has considered all these aspects, even though in Ex.B-1, it has been mentioned as 150'', but in the ground, only 137-1/2'' alone is in existence. So, there is no illegality or irregularity committed by the first appellate Court. Hence, he prayed for dismissal of the Second Appeal.

The admitted facts are as follows:

In R.S. No. 108/1, 24'' x 150'' absolutely belong to Rangasamy Naicker and his wife Poorani Ammal. During the lifetime of Rangasamy Naicker, he executed the settlement deed in favour of the respondent-plaintiff and under Ex.A-1 on 27.6.1950. In that, he has stated the extent as north-south 70'' and east-west 24'', but even though in Ex.A-1, the east-west measurement has not been clear, but there is no dispute in respect of east-west measurement. After the death of Rangasamy Naicker, his wife, Poorani Ammal executed Ex.B-1 in favour of Pavadai Padayachi, the father of the appellant-defendant. In that document, Ex.B-1, she has mentioned the entire extent as east-west 24'' and north-south 150'' and in turn, the father of the appellant-defendant has executed Ex.B-2 settlement deed. He also mentioned the same extent. So, on the date of Exs.B-1 and B-2, Poorani Ammal has not owned the entire 150'' north-south. As per principle "Nemo dat quid non habet", which means, "no one can give who does not possess", since on the date of execution of Ex.B-1, Poorani Ammal is not the owner of entire 150'' north-south, she has no right to execute the sale deed for the entire 150''. The right conferred is only excluding the property settled under Ex.A-1.

It is appropriate to consider the Commissioner''s report. The Commissioner''s report and plan have been marked as Exs.C-1 and C-2. As per Exs.C-1 and C-2, the total extent of the properties is situated in between Va.Oo.Si. Street and Jubilee Street, which is 137-1/2'' and the respondent-plaintiff was given the settlement in respect of the property facing Jubilee Street 70'' and the remaining portion alone facing Va.Oo.Si. Street has been sold to the appellant''s father. Ex.A-1 has come into existence at the earlier point of time. As per the Commissioner'' report, the appellant-defendant is in possession of 65''. Admittedly, there is no dispute in respect of ''A'' and ''B'' schedule properties. ''C'' schedule property is 21-1/2'' x 20''. As per the Commissioner''s report, the appellant is in possession of only 65''. So, the appellant''s counsel would contend that since the total extent is 150'', the settlement deed was only for 70'', the remaining 80'' is purchased by the father of the appellant herein and so, the appellant-defendant is entitled to 15'' (80'' minus 65''). It is forming part of ''C'' schedule property. Hence, the appellant-defendant is entitled to ''C'' schedule property. The respondent-plaintiff is not entitled to any decree in respect of ''C'' schedule property. The above argument does not hold good, because, Ex.A-1 came into existence on 27.6.1950. As per the Commissioner'' report, the total extent is 137-1/2''. 70'' has been settled in favour of the respondent-plaintiff on 27.6.1950. So, the remaining portion 67-1/2'' alone is inherited by Poorani Ammal and she sold the same under Ex.B-1. So, even though in Exs.B-1 and B-2, it has been mentioned as 150'', they have not been specifically mentioned as north-south measurement.

Even though P.W.1 has admitted that the appellant-defendant is entitled to 80'', it will not confer title to the appellant-defendant, because, on the basis of Exs.C-1 and C-2, the total measurement is 137-1/2'' north-south. As per Ex.A-1, the respondent-plaintiff has been given 70'' and the balance alone has been inherited by Poorani Ammal after the death of her husband Rangasamy Naicker. So, she has inherited the balance property, and she has every right to alienate the same. Even though in Ex.B-1, she has alienated 150'', she is not the owner and does not possess the same, and as per principle "Nemo dat quid non habet", which means, "no one can give who does not possess", since she does not possess 150'', the appellant-defendant is only entitled to the balance 67-1/2''. But, as already stated, Ex.A-1 came into existence on 27.6.1950 and from that date, the respondent-plaintiff is in possession and enjoyment of 72-1/2'' and the appellant-defendant and his predecessor-in-title is only entitled to the possession of 65'' north-south and hence, the mere admission made by P.W.1 (respondent-plaintiff) will not confer title on the appellant-defendant for 80'' north-south. The substantial questions of law are answered accordingly.

In the above said circumstances, the first appellate Court in its judgment at paragraph 10, has clearly discussed and came to the correct conclusion that the very ''C'' schedule property was in possession and enjoyment of the respondent-plaintiff from 1950, i.e. on the date of execution of Ex.A-1 and the remaining portion alone the appellant-defendant is entitled to.

So, the first appellate Court has considered these aspects in proper perspective and came to the correct conclusion that the respondent-plaintiff is entitled for declaration of ''C'' schedule property and the consequential permanent injunction.

I do not find any irregularity or infirmity in the judgment and decree passed by the first appellate Court. Hence, I am inclined to concur with the findings of the first appellate Court. The Second Appeal is liable to be dismissed.

In fine, the Second Appeal is dismissed. The judgment and decree of the first appellate Court are confirmed. C.M.P. is closed. No costs.