Ponnuswamy Goundar, Periaswamy and Madhu vs Pappathi and Muthuswamy

M. Jaichandren, J.—This second appeal has been filed against the judgment and decree, dated 1.12.1993, made in A.S. No. 173 of 1993,

on the file of the District Court, Salem, confirming the judgment and decree, dated 5.7.1993, made in O.S. No. 672 of 1986, on the file of the

Additional District Munsif Court, Salem.

The defendants 1, 4 and 5 in the suit, in O.S. No. 672 of 1986, are the appellants in the present second appeal. The plaintiff had filed the suit, in

O.S. No. 672 of 1986, on the file of the Additional District Munsif Court, Salem, praying for a declaration of title and for permanent injunction, in

respect of the suit property.

The plaintiff had stated that he had got the suit property by way of a sale deed, dated 29.12.1951. The suit property had been conveyed to the

plaintiff by the first defendant and his father on their behalf and on behalf of the third defendant who was a minor at that time. The fourth and the

fifth defendants had not been born on the said date. From the date of the sale the suit property had been in the possession and enjoyment of the

plaintiff. The plaintiff has been in enjoyment of the suit property by paying the land tax and the other dues to the Government. Apart from the

plaintiff no other person has any right in the suit property. The patta and the chitta copies have been filed along with the suit. The first defendant is

the elder brother of the plaintiff and the second defendant is his wife. Defendants 3 to 5 are the sons of the first and the second defendants. The

defendants are having more than 10 acres of land, having sufficient water supply. The defendants have been threatening the plaintiff and her

husband, demanding that they should be permitted to carry on cultivation in the suit property as well. When the plaintiff and her sons were wanting

to put up a thatched shed in the suit property, the defendants, along with some rowdy elements had entered the suit property and prevented them

from putting up the thatched shed. The plaintiff had also lodged a police complaint in this regard. Unless the defendants are prevented from

interfering with the plaintiff''s peaceful enjoyment of the suit property, by way of an injunction issued by the Court, it would cause irreparable loss

to the plaintiff.

In the written statement filed by the first defendant it has been stated that the claims made by the plaintiff in the suit are false and that they are not

sustainable. The claim of the plaintiff that she had got the suit property by way of the sale deed, dated 29.12.1951, is false. It is also false to state

that the fourth and the fifth defendants were not born at that time. The claim of the plaintiff that the suit property has been in her possession and

enjoyment from the date of the sale, is incorrect. The patta and the adangal mentioned in the plaint are of recent origin. The sale deed, dated

29.12.1951, alleged to have been executed in favour of the plaintiff, is false and unsustainable in law. It will not bind the defendants, in any manner.

The alleged sale deed had not been accepted and given effect to. In fact, the plaintiff had been sent out by her husband as she did not possess any

property. It is only the first defendant who had executed the sale deed, dated 29.12.1951, conveying a portion of the suit property to the plaintiff.

It is the first defendant who has filed the sale deed before the Court. The plaintiff has never been in possession and enjoyment of the suit property.

The defendant has got the right in the suit property by adverse possession. The plaintiff is living with her husband in another village, having released

her right in the suit property. The plaintiff, having sold her properties, along with her husband, is attempting to interfere with the defendant''s

enjoyment of the suit property. It is false to state that the defendants are interfering with the possession and enjoyment of the suit property by the

plaintiff. The plaintiff has never been in enjoyment of the suit property. It is only the plaintiff and her husband who had interfered with the enjoyment

of the suit property by the defendants. When the defendants had objected to their interference in the suit property they had caused physical injuries

to the defendants. Based on the criminal complaint given by the defendants, a criminal case had been registered and it is pending before the

concerned Criminal Court. It is false to state that the plaintiff has cultivated `cholam'' crops in the suit property. When the suit property is in the

possession and enjoyment of the defendants there is no necessity for them to encroach upon the said property. The plaintiff has made false

statements only for the purpose of the filing of the suit. The plaintiff does not have any cause of action for the filing of the suit.

In the additional written statement filed on behalf of the defendants it has been stated that the plaintiff is the sister of the first defendant. Since the

plaintiff had wanted a land with sufficient irrigation facilities, instead of the land sold to her by way of the sale deed, dated 29.12.1951, the first

defendant had purchased a property in the name of the plaintiff and her husband, from Muthu Gounder and Arunachalam, by way of a sale deed,

dated 22.2.1971, for a consideration of Rs. 4,500/-. In view of the said purchase, the plaintiff had released her right in the suit property.

Thereafter, the plaintiff had sold the said property to a third party. Till the filing of the suit the plaintiff had not made any claim in respect of the suit

property. The plaintiff does not have any right or possession in the suit property. Since the suit is devoid of merits, it is liable to be dismissed.

In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for

consideration:

1) Whether the sale deed, dated 29.12.1951, made in favour of the plaintiff, is true and valid? Would it be binding on the defendants? Was the

sale deed given effect to?

2) Whether the defendants have established their rights in the suit property, by way of adverse possession?

3) Whether there is a cause of action for the filing of the suit?

4) Whether the description of the suit property is correct?

5) What other relief the plaintiff is entitled to?

An additional issue had been framed by the trial Court and it is as follows:

Whether it is correct on the part of the defendants to state that the plaintiff had released her right in the suit property and if so is it valid in law?

Based on the oral, as well as the documentary evidence adduced on behalf of the plaintiff and the defendants, the trial Court had come to the

conclusion that the description of the suit property is correct. It had also come to the conclusion that no evidence had been shown by the

defendants for the trial Court to come to the conclusion that the sale deed, dated 29.12.1951, executed in favour of the plaintiff, is invalid in the

eye of law. It was further held that it is for the defendants to prove that they have been in continuous possession of the suit property, to substantiate

their claim regarding adverse possession. The trial Court had also come to the conclusion that the sale deed, dated 29.12.1951, is to be taken to

be valid since it has been stated, on behalf of the defendants that they had purchased another property in the name of the plaintiff and her husband,

instead of the property sold to her earlier, by way of a sale deed, dated 22.2.1971 and that the plaintiff had released her rights in the suit property,

thereafter. The trial Court had also come to the conclusion that the defendants had not been in a position to show that the suit property has been in

their possession after its sale in favour of the plaintiff, by way of the sale deed, dated 29.12.1951. Even though the defendants had filed certain

adangals to show their possession in respect of the suit property, the trial Court had held that they would not be sufficient to prove their possession

of the suit property, since the adangals were in the name of Idumba Gounder, the father of the plaintiff and the first defendant. According to the

evidence shown on behalf of the plaintiff, the plaintiff, the first defendant and their father Idumba Gounder, had been living together in the suit

property. Further, from the Muchalika, marked as Ex.B-28, it is seen that the plaintiff has agreed to release her right in the suit property, subject to

the defendant purchasing an alternate land in her favour. However, Ex.B-28 is found to be an unregistered document and there is no date entered

in the document to show as to when it had come into existence. Therefore, the said document cannot be taken to be of sufficient evidence to

support the claims made on behalf of the defendants.

The trial Court had also held that the defendants have not been in a position to show that they have been in continuous possession of the suit

property to claim their rights in the said property, by way of adverse possession. Further, since there has been a dispute in respect of the suit

property, between the plaintiff and the defendants, there has been a valid cause of action for the plaintiff to file the suit, in O.S. No. 672 of 1986,

on the file of the Additional District Munsif Court, Salem. The claim of the first defendant that an alternate land had been purchased in the name of

the plaintiff, by way of the sale deed, dated 22.2.1971, and that the plaintiff had released her rights in the suit property thereafter, cannot be

accepted, as the defendants had made such a claim only in the additional written statement filed at the time of the trial of the suit. In such

circumstances, the trial Court had come to the conclusion that the plaintiff was entitled to the reliefs sought for by her in the suit, in O.S. No. 672 of

1986. Therefore, the trial Court had decreed the suit in favour of the plaintiff.

Aggrieved by the judgment and decree of the trial Court, dated 5.7.1993, made in O.S. No. 672 of 1986, the defendants had filed an appeal

before the District Court, Salem, in A.S. No. 173 of 1993. In view of the averments made on behalf of the appellant, as well as the respondents,

the first Appellate Court had framed the following points for consideration:

1) Whether the sale deed, dated 29.12.1951, is true and valid? Whether it is binding on the respondents and whether the sale deed had been given

effect to?

2) Whether the respondents had got their rights in the suit property by way of adverse possession?

3) Whether the description of the suit property had been correctly given?

4) Whether the plaintiff is entitled to the relief of declaration?

5) Whether the plaintiff is entitled to the relief of permanent injunction?

Based on the contentions raised on behalf of the appellants, as well as the respondents, the first Appellate Court had come to the conclusion

that the sale deed, dated 29.12.1951, made in favour of the plaintiff, who is the first respondent in the first appeal, is true and valid. The appellants,

who were the defendants in the suit, had not shown sufficient evidence to prove that they were in possession and enjoyment of the suit property to

claim their rights in the said property, by way of adverse possession. Since the plaintiff has got the title in the suit property, by way of the sale deed,

dated 29.12.1951, executed in her favour by the first defendant, she has obtained valid title in the suit property. Since the plaintiff has been in

possession and enjoyment of the suit property, from the date of the said sale deed, she is entitled to the reliefs of declaration and permanent

injunction, as prayed for in the suit. Therefore, the first Appellate Court had confirmed the judgment and decree of the trial Court, by its judgment

and decree, dated 1.12.1993, made in A.S. No. 173 of 1993.

Aggrieved by the concurrent findings of the Courts below the defendants 1, 4 and 5 had filed the present second appeal, before this Court in

S.A. No. 1607 of 1995. This Court had admitted the second appeal, on the following substantial questions of law:

Whether the sale deed, dated 29.12.1951 (Ex.B-1) is a sham and nominal document not intended to be acted upon and in fact was not acted

upon?

Whether in any event, the appellants have perfected title to the suit property by adverse possession?

The appellants have stated that the trial Court, as well as the first Appellate Court, had failed to appreciate the oral, as well as the documentary

evidence adduced in their favour. The Courts below had erred in holding that the sale deed, marked as Ex.B-1, was valid, even though it was a

sham and nominal document and that it was not intended to be acted upon. The Courts below ought to have held that the plaintiff was not put in

possession of the suit property pursuant to the sale deed, dated 29.12.1951, and that she has not been in possession and enjoyment of the suit

property at the time of the filing of the suit. From the fact that the original sale deed, dated 29.12.1951, marked as Ex.B-1, has been in the custody

of the first defendant, the Courts below ought to have held that the plaintiff had not got the title in the suit property, pursuant to the said sale deed.

Sufficient weightage ought to have been given to the document, marked as Ex.B-28, according to which the plaintiff had released her rights in the

suit property, in view of the alternate property purchased in her favour, by way of a sale deed, dated 22.2.1971.

In view of the contentions raised on behalf of the appellants, as well as the respondents and in view of the evidence adduced on behalf of the

parties concerned and on a perusal of the documents available before this Court, it is clear that the appellants have not shown sufficient cause or

reason for this Court to interfere with the concurrent findings of the Courts below. Both the trial Court, as well as the first Appellate Court, had

arrived at the right conclusions based on the evidence available on record. Both the Courts below had concurrently held that the plaintiff had got

the title to the suit property by way of the sale deed, dated 29.12.1951, marked as Ex.B-1. The defendants in the suit had not been in a position to

show that the plaintiff had released her rights in the suit property after the execution of the sale deed, dated 22.2.1971. The defendants in the suit,

who are the appellants in the present second appeal, have not shown sufficient evidence to prove their claim that they have been in adverse

possession of the suit property. The Courts below had not placed reliance on the document, marked as Ex.B-28, since it was an undated and

unregistered document. Further, from the contentions raised by the learned Counsels appearing for the parties concerned, this Court is not

convinced that substantial questions of law have arisen for consideration in the present second appeal, in view of the decision of the Supreme

Court reported in Gurdev Kaur and Others Vs. Kaki and Others, . Accordingly, the second appeal stands dismissed, confirming the judgment and

decree of the trial Court, dated 5.7.1993, made in O.S. No. 672 of 1986, and the judgment and decree of the first Appellate Court, dated

1.12.1993, made in A.S. No. 173 of 1993. No costs.