Mannazhagan vs Selvaraj

B. Rajendran, J.—The Plaintiffs in O.S. No. 127 of 2008 on the file of the learned Principal District Munsif, Villupuram are the appellants in this second appeal. Though the Plaintiff''s have obtained a declaratory decree and judgment before the trial court, it was reversed by the first appellate Court at the instance of the respondent herein, which resulted in the filing of the present second appeal.

It is the contention of the plaintiffs in the plaint that the suit property and some other properties originally belonged to their father Panduranga Gounder and he was in possession and enjoyment of the same for a long time. According to the plaintiffs, their father has executed two registered settlement deeds dated 23.09.2005, marked as Exs. A1 and A2 respectively, and by virtue of such settlement deed, they are in possession and enjoyment of the suit properties. The Plaintiffs also obtained patta and adangal in their name and are also paying the kist to the authorities concerned in respect of the suit property in their name. While so, the defendant, who is a stranger to the suit property and who has no right, interest or title, has attempted to trespass into the suit property, which necessitated them to file the suit.

The suit was resisted by the defendant by contending that the suit property was never owned by Panduranga Gounder, father of the plaintiffs, as alleged. The Plaintiffs cannot assert any right or title over the suit property on the basis of the settlement deeds executed by Panduranga Gounder. The said Panduranga Gounder himself has no right to execute the settlement deeds, Exs. A1 and A2 in favour of the Plaintiffs. The documents such as Patta, Adangal and Kist receipts cannot be relied on inasmuch as they are recent documents cooked up for the purpose of filing the suit. According to the defendant, the suit properties belonged to Subbaramanya Gounder and others from whom one Abirami has purchased it for herself and for her minor Son Narayanasamy on 19.09.1980. The defendant also produced copy of such sale deed as a document before the trial court. After the death of Abirami, the defendant, as legal heir and grand son has been in continuous possession and enjoyment of the suit property. Therefore, the defendant pleaded for dismissal of the suit.

Before the trial court, on behalf of plaintiffs, Exs. A1 to A10 have been marked. The Plaintiffs examined themselves as PW1 and PW3 respectively besides one Anbalagan was examined as PW2. On behalf of the defendant, Exs. B1 to B7 were marked and the defendant examined himself as DW1 besides three other witnesses were examined as DWs 2 to 4. The trial court, after appreciating the oral and documentary evidence, decreed the suit. Aggrieved by the same, the defendant/respondent herein preferred first appeal contending that the trial court did not properly appreciate the documentary evidence marked on behalf of the defendant. The first appellate Court, taking into consideration Ex. A10, a mortgage deed dated 09.08.1975 executed by Pandurangan, father of the plaintiffs, held that such a mortgage deed, though registered, is a self-serving document and it was executed with a third party, therefore, it will not bind the defendant in any manner. Further, the first appellate Court examined the evidence of PWs 1 to 3 and concluded that the plaintiffs are not in possession of the suit property. On the other hand, it is the defendant who is in possession of the suit property and therefore, the first appellate Court reversed the decree and judgment passed by the trial Court.

The learned counsel for the appellants would contend that the first appellate Court erroneously concluded that the patta granted in favour of the plaintiff as also the adangal extract did not confer any title on the plaintiffs. The first appellate Court also disbelieved the documentary evidence Ex. A10 by holding that it was executed in the year 1975 by the father of the plaintiff to obtain a loan from a third party and it will not bind the defendant in any manner. The first appellate Court further erred in holding that the defendant has given cogent explanation as to how he obtained the suit property by relying on Ex. B1, a sale deed dated 19.09.1918 in the name of the erstwhile owner. By placing reliance on the above, the first appellate court set at naught the well considered decree and judgment passed by the trial court and he prayed for allowing the second appeal. In support of his contentions, learned counsel for the appellant also relied on the decision of the Honourable Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, to contend that if two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title.

On notice, the learned counsel for the defendant/respondent would contend that the evidence of PWs 1 to 3 itself would belie the case of the plaintiffs that they are in possession of the suit property for more than 25 years. The Plaintiffs, who have come forward with the suit, has failed to prove their own case and therefore, the first appellate Court is right in setting aside the decree and judgment of the trial court. The first appellate Court also found that in a case of this nature, the rebuttal does not arise and therefore, he prayed for dismissal of the second appeal.

I heard the counsel for both sides. The following questions of law arise for consideration in this appeal-

i) Whether the first appellate Court is right in passing orders against the appellants when the patta granted by the Tahsildar and the settlement deeds registered by the Sub-Registrar stands in the name of the appellants

ii) Whether the first appellate Court is right in admitting Ex. B1, a private document which is marked by the respondent where the respondent is not a party to the document.

The question of law for consideration is whether Ex. B1, a sale deed dated 19.08.1918 will disprove the claim of the plaintiffs to assert a title over the suit properties. Ex. B1 was produced by the defendant. First of all, the defendant has not produced any legal heir certificate to prove that he is the grand son of the deceased in whose name the sale deed, Ex. B1 was made. Though the defendant makes a claim over the suit property, he has not produced any Patta, Chitta, Adangal Extract in respect of the suit property in his name. On the contrary, such documents have been produced by the plaintiffs. The Plaintiffs have not only produced kist receipt in the name of Panduranga Gounder, their father, but also produced kist receipt in their own names. Even though the defendant produced kist receipts, Exs. B2 to B6, they did not specifically say about the property to which they were issued. Therefore, Exs. B2 to B6 do not lend support to the defence projected by the defendant. The first appellate Court itself, in the impugned judgment, in para No. 23 pointed out that in the sale deed Ex. B1 of the year 1918, the survey number is mentioned as 3 and after sub-division, it is mentioned as Survey No. 3AA and the extent of the land is mentioned as 1.21 cents. But in the next paragraph, the first appellate Court found that there was no sub-division effected in the year 1918. Therefore, it was held that when there was no sub division effected during the year 1918, the survey number of the property could be treated only as ''3'' and not ''3AA''. By referring to this, the first appellate Court held that the plaintiffs have not proved their case. First of all, Ex. B1 was produced by the defendant and it is for him to prove that Ex. B1 relates to the suit property. As mentioned above, the defendant did not produce legal heir certificate to prove that he is the grand son of the person in whose favour Ex. B1 was executed.

The first appellate Court failed to take note of the fact that Ex. A10 produced by the plaintiffs is a registered sale deed. Apart from the sale deed, Exs. A1 and A2, registered settlement deeds were also produced. A comparison of Exs. A1, A2 and A10 with Ex. B1 would indicate that the plaintiffs have categorically proved and established their possession over the suit property. On the contrary, Ex. B1 does not specify or indicate the relevance to the suit property. Therefore, it has to be held that the plaintiffs have discharged their burden and it was the defendant who did not disprove the case of the plaintiffs. As mentioned above, the plaintiffs have produced patta, adangal extract and kist receipts to prove their ownership over the suit property.

As regards possession, PWs 1 to 3 have stated that the defendant is in possession. However, DW4 has stated that both the plaintiffs and defendant are in possession of the suit property. Therefore, at best, it should be stated that the plaintiffs are in occupation of some portion of the suit property. The fact remains that when the plaintiffs sought for declaration of their title, it has to be proved beyond any doubt. In this case, DW4 deposed that both plaintiffs and defendant have put up agricultural crops in the suit property. The suit property is vacant. Under those circumstances, the patta, adangal extract and kist receipt produced by the plaintiffs are relevant documents for consideration. In this context, it is necessary to extract the relevant portion of the decision of the Honourable Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, relied on by the learned counsel for the appellants wherein it was held in para-14 as follows:-

But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

The above decision squarely applies to the facts of this case inasmuch as witnesses PWs 1 to 3 states that the plaintiffs are in possession and DW4 states that both the plaintiffs and defendant are cultivating the vacant lands and are in possession of the suit properties. Further, in this case, the defendant is unable to produce any document to disprove the case of the plaintiffs. In the above circumstances, it has to be held that the first appellate Court ought not to have interfered with the decree and judgment of the trial court and consequently, both the questions of law are answered in favour of the appellants.

In the result, the second appeal is allowed and the decree and judgment passed by the first appellate Court in A.S. No. 182 of 2010 is set aside and the decree and judgment passed by the trial court in O.S. No. 127 of 2008 is restored. Resultantly, the suit in O.S. No. 127 of 2008 is decreed as prayed for by the plaintiffs. No costs. Consequently, connected miscellaneous petitions are closed.