R. Ganesan vs K. Ramanathan

R. Mala, J.—This Second Appeal has been filed against the judgment and decree dated 07.08.2001 made in A.S. No. 15 of 2001 on the

file of the Sub Judge, Pattukottai and confirmed the judgment and decree dated 23.03.2001 made in O.S. No. 7 of 1999 on the file of the District

Munsif, Pattukottai.

The averments made in the plaint is as follows:

The extent of 50 cents which is in possession of the plaintiff. It is an ancestral property of the plaintiff. As per the Act 26/48, the old Survey No.

131/8, 50 cent has been reserved and new Survey number has been assigned as 131/7, 50 cents. Patta has been given in the name of plaintiff i.e.

patta number is 242. The plaintiff has planted coconut saplings and enjoying the fruits. To avoid the damage caused by the cattle, the plaintiff put

up the fence in the south north, he is in possession and enjoyment of the same. As per the UDR patta proceeding, the Survey No. 131/7, 50 cent

has been divided as 131/7A, 0.08.5 ares and 131/7B, 0.11.5 ares. Patta has been given in the name of plaintiff. The defendant''s name has been

included in the chitta and joint Patta has been given. Immediately, the plaintiff has given a representation before the Sub Regional Deputy Tahsildar,

Pattukottai, after enquiry, the defendant''s name has been removed and the order has been passed on 12.07.1998. The defendant has not

preferred an appeal against that order. So, the defendant is not having any right over the property and he is estoppal from claiming title. The

defendant has owning property at eastern and western side of the suit property. Since the family dispute between both the plaintiff and the

defendant, now the defendant has denying the plaintiff title to the suit property and attempted to interfere with the peaceful possession of the

plaintiff. So the plaintiff has gave a complaint before the Deputy Superintendent of Police, Pattukottai. He is apprehended that at any time the

defendant would interfere with the possession. Hence, he is constrained to file a suit for declaration of title to the suit property and also injunction

restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property and prayed for a decree.

The gist and essence of Written Statement filed by the defendant is as follows:

The suit is not maintainable both in law and on facts. The suit is barred by limitation. The suit will be dismissed in limini. The plaintiff was not given

proper and correct description of property. He has not come to the Court with clean hands. The defendant has purchased western 25 cents in the

suit Survey number from one Muthaiyan Chettiyar on 18.02.1982. In the year 1983, he planted coconut saplings and enjoying the fruits of the

trees. The plaintiff has not mentioned how many coconut trees were there and what is the age of the trees in both the items of properties. In old

Survey No. 131/7, extent is 50 cents, in that, the plaintiff and Singaram Chettiyar, who are the co-owners have each entitled 1/2 share in the

property. The defendant herein has purchased 25 cents from Muthaiyan Chettiyar. The plaintiff has obtained a Patta for 50 cents and he filed a

present suit. In pursuance of the sale deed dated 18.02.1982, the defendant is entitled western 25 cents and the plaintiff is entitled eastern 25 cents

and northern side there is a road. North of the road, the plaintiff is having property. In the sale deed, it was wrongly mentioned northern boundary

the defendant has put up live fence in his property. The defendant has enjoying this property along with Survey No. 131/5 in a single plot. The

defendant herein has obtained joint Patta on 13.04.1993 in the name of both plaintiff and defendant and the Patta number is 575. The defendant

paid kist and enjoying the same without the knowledge of the plaintiff. The plaintiff has got the Patta, to be cancelled the defendant herein has given

an appeal, which is pending before the Revenue Divisional Officer, Pattukottai. After having the knowledge about this appeal given by the

defendant, the plaintiff has come forward with this suit. The plaintiff is owner of eastern 25 cents. The defendant is owner of western 25 cents. It is

separate property. The plaintiff is in possession of eastern 25 cents. The defendant having no right over the property. He is not in possession,

likewise the western side of the property has been owned by the defendant. The defendant is in possession of the property more than 12 years.

Hence, he enjoying the property openly, continuously without intereption adverse to the interest of third parties. Hence, he prescribed title by

adverse possession. No cause of action for the suit. Hence, he prayed for dismissal of the suit.

The learned District Munsif after perusing the averments in both Plaint and Written statement and considering the oral evidence of P.Ws.1 and

2, D.Ws.1 and 2 and Exs.A1 to A16 and B1 to B9 and decreed the suit in respect of eastern 25 cents and granted declaration and injunction and

in respect of western 25 cents, the suit has been dismissed. Against that, the plaintiff preferred an appeal. The learned Subordinate Judge,

Pudukottai after framing two points for consideration and considering the arguments of both counsel, dismissed the appeal and confirming the trial

Court decree and judgment. Against that, the plaintiff has come forward with this Second Appeal.

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

Whether in law the Courts below are right in overlooking that Ex. B2 partition deed being unstamped and unregistered, could not be admitted in

evidence and looked into for any purpose in view of Section 2(15) and 35 of the Indian Stamps act and Section 17 of the Indian Registration Act?

Whether in law the Courts below are not wrong in concluding that Ex. B2 could be relied on for providing a collateral purpose especially when

the respondent''s vendor''s title depend on it and 2001 1 MLJ 1 DB clearly prohibits reliance on it for any purpose?

Whether in law the appellate Court was right in merely paraphrasing the facts and oral evidence without an independent assessment as

mandated u/s 96 CPC?

The appellant as a plaintiff filed a suit for declaration of title in respect of suit property bearing Survey No. 131/7A, 0.08.5 ares and 137/7B

0.11.5 ares totally 0.20.0 and for injunction stating that the suit properties as an ancestral property. He is in possession and enjoyment of the same.

The respondent herein has no right over the property, but he attempted to interfere with his possession hence he prayed for declaration of title and

for injunction. But, the respondent herein has stated originally the suit Survey No. 131/8, subsequently it was resurveyed as 131/7, that has been

sub-divided in 131/7A and 131/7B. The appellant herein has entitled 0.25 cents out of 50 cents. He is not in a owner of entire extent of 0.50

cents, the trial Court and the first appellate Court have considered all the aspects in proper perspective and granted declaration and injunction in

respect of eastern 25 cents and in respect of western 25 cents, the suit has been dismissed.

The learned appellant counsel would contend that in Ex. B1, the suit property has been shown as a boundary. The appellant counsel would

contend that as per Ex. A1, on 15.10.1958, the plaintiff has received a survey notice. In pursuance of that, patta has been issued as per Ex. A2.

After UDR Survey, Patta has been given as per Ex. A3 on 12.07.1998. Since joint patta has been issued in the name of both appellant and

respondent, the appellant made an objection, then, joint patta has been cancelled as per Ex. A4. Patta Book has been marked as Ex. A5. Kist

receipt has been marked as Exs.A6 to A11. Hence he is in possession and enjoyment. Hence, he prays for decree as prayed for in the plaint and

allowing the appeal.

Originally the property has been owned by one Thirupathi Chettiyar. Thirupathi Chettiyar having three sons, they are Rangan, Govindan, and

Veerappan. Rangan''s son is plaintiff. The plaintiff herein has given notice to his paternal uncle Veerappan for claiming partition in some properties.

Veerappan gave a reply as per Ex. A12 on 23.05.1961, he also claimed partition of some other properties including the suit property. In Ex. A12

it was stated Survey No. 131/7, 50 cents. On 30.03.1967, Veerappan and his son Thangaraj-P.W.2 relinquish his right in joint family properties

as per Ex. A13. In that, in Survey No. 131/8, entire 50 cents, so the plaintiff/appellant is entitled 50 cents in the suit property. Hence, he is the

owner of entire 50 cents. So, the trial Court is wrong into come to the conclusion that western 25 cents is belonging to the respondent and

dismissed the suit. Moreover, he has contended that the respondent herein has filed a partition chit i.e. marked as Ex. B2, which is inadmissible in

evidence. Because, it is unregistered partition receipt, hence it is hit by Section 17 of Registration Act. Judgment reported in (2001) 1 M.L.J 1, has

clearly stated the document cannot be relied upon, but both the trial Court and first appellate Court have relied upon Ex. B2 for collateral purpose.

Hence, he prayed for allowing of this appeal.

The learned respondent counsel would contend that the appellant is owner of only eastern 25 cents and western 25 cents have been purchased

by him under Ex. B1 on 18.02.1982 from Muthiyan and others. They obtained the same under Ex. B2-the partition receipt. They are in possession

and enjoyment of the same by changing their patta. Patta number is 756 i.e. Ex. B6. The appellant also accepting the partition. He also purchased

some of the properties from one of the sharer Murugiyan under Ex. B7. Hence, he prayed for dismissal of the appeal.

This Court has to consider whether Ex. B2 is admissible in evidence? whether it can be relied upon? It is true that the document is unstamped

and unregistered document. As per Section 35 of the Indian Stamp Act, instrument is not duly stamped. It is not registered as per Section 17 of

the Registration Act 1908. At this juncture, this Court has considered the decision reported in A.C. Lakshmipathy and another Vs. A.M.

Chakrapani Reddiar and five others, . In the citation.

The family arrangement can even be made orally and in which obviously the question of registration does not arise. What is required to be seen is

whether the family settlement is a bona fide one so as to resolve family dispute and rival claims at a fair and equitable decision or allotment of

properties between the various members of the family. Similarly, the family arrangement should not be result of any fraud or undue influence etc.

played on the member/members of the family. In other words, such a family arrangement must be voluntary and entered into by the parties on their

own accord and free Will. It is only when the family arrangement is reduced into writing with the purpose of using that writing as proof of what they

had arranged and where the arrangement is brought about by the document as such, that the document requires registration, then it would amount

to a document of title declaring for future what rights and what properties the parties to possess.

Family arrangement which is compulsorily registrable if not registered, the same can be looked into by the Court for collateral purpose.

The Courts in various rulings, interpreted the section to mean that if a family arrangement which is compulsorily registrable is not stamped, then the

same cannot be looked into for any purpose including for collateral purposes.

In the present case, the document in question is a family arrangement under which the parties claim their rights. The said document being

unstamped and unregistered, the same cannot be looked into for any purpose. Similarly oral evidence cannot be let in about the contents of the

said document.

While considering the citation, the family arrangement which is compulsorily registrable if not registered, the same can be looked into the

document for collateral purpose. Family arrangement under which the parties claim their rights, the said document being unstamped and

unregistered, the same cannot be looked into for any purpose. Similarly, oral evidence cannot be let in about the contents of the said document.

Here, the above citation is squarely applicable to the facts of this case. Because the respondent herein has claiming title under Ex. B1 i.e.

purchased the property from Muthiayan and his sons, who are claiming title under Ex. B2-unstamped and unregistered partition chit/family

arrangement.

Muthian is son of Singaram, he is also known as Singaravelu. Singaravelu''s father is Appavoo. He is none other than brother of Thirupathi,

who is the pangali of appellant herein. That appellant herein also purchased the property from Murugiyan, one of the son of Singaram. Hence, the

respondent counsel would contend that Ex. B2 is admissible. It can be relied for the collateral purpose. But as already discussed, as per the

decision reported in (2001) 1 MLJ 1, this document cannot be acceptable and reliable. Because here, the respondent herein has claiming title

under Ex. B2. Under such circumstances, it is not a collateral purpose, even it is for collateral purpose, the unstamped and unregistered family

arrangement cannot be relied upon. So, the trial Court has committed error to rely upon Ex. B2 for a collateral purpose.

Without Ex. B2 whether the respondent herein has proved his title to 25 cents? As already stated one Thirupathi and Ayyavu are brothers.

Thirupathi having three sons, by name Rangan, Govindan and Veerappan. Rangan''s son Ganesan is plaintiff/appellant. Govidan having three sons

by name Chidambaram, Ramanathan and Krishnan. That another son Veerappan having one son Thangaraj, he is P.W.2. Ayyavu having son by

name Singaravelu @ Singaram, his children are Muthiyan, Murugian and Selvam.

The learned appellant counsel would contend that as per Ex. A12 dated 23.05.1961 the entire suit property 50 cents is belonging to the family.

In that it was stated Survey No. 131/8, 50 cents. New Survey number is Ex. A1 131/7 and old Survey No. 131/8, 131/7=131/8, 50 cents. Patta

has been given in the name of Ganesan in the year 15.10.1958 as Ex. A1. Then only survey notice has been issued, ''A'' Register has been marked

as Ex. A2, in ''A'' Register, it was stated new Survey No. 131/7 and old Survey No. 131/8, 50 cents patta No. 242 is in the name of Ganesan

Chettiyar/the plaintiff herein. In fasli 1394 revised patta number has been given in respect of S.Nos. 131/7B 0.11.5, 131/7A 0.08.5 in the name of

appellant herein. The joint patta has been given in the name of respondent herein along with the appellant. The appellant have given a

representation on 17.04.1998. In that Zonal Deputy Tahsildar has passed an order and cancelled the joint patta in the name of the respondent in

patta No. 575. The order has been marked as Ex. A4=Ex. B5. Then patta has been given as per Ex. A5. In Survey Nos. 131/7A, 0.08.5 ares

and 131/7B, 0.11.5 ares in patta No. 575 in the name of appellant. Kist receipts have been marked as Exs.A6 to A11. Appellant herein has

executed a mortgage deed in favour of Periyathambi in respect of Survey No. 131/7, 50 cents under Ex. A14 on 19.03.1964. That mortgage has

been discharged as per Ex. A15. Then only Ex. A13 came into existence. The clinching document is Ex. A13.

It is true the property is belonging to children of Thirupathi i.e. Rangan, Govindan and Veerapan. Since the appellant herein has given notice for

demanding partition in joint family properties, in turn Veerappan has given reply as per Ex. A12 on 25.3.1961, as per Ex. A13 on 30.03.1967,

Veerappan Chettiyar and his son Thangaraj executed a release deed in respect of share in family properties, including suit property. To prove Ex.

A13, P.W.2 has been examined. In Ex. A13, it was stated Survey No. 131/8, 50 cents i.e. Survey No. 131/7, 50 cents. But, 25 has been altered

as 50. To prove the same, the respondent herein has filed an Ex. B8 i.e. Registration Copy of Ex. A13. In that, it was clearly stated Survey No.

131/8 25 cents out of 50 cent new Survey number is 131/7. So, as per Ex. A13, the appellant is entitled only 25 cents. So, the trial Court has

accepted the eastern 25 cents belonging/owned by the appellant and granted decree in favour of this appellant. This appeal is only in respect of

western 25 cents in Survey No. 131/7.

The appellant herein has claiming title over the property. It is well settled principles of law, the plaintiff must prove his case. But here, the

plaintiff even though he filed the document Exs.A1 to A11, are the revenue records. It is well settled principles of law, revenue records are not

create or confer or extinguish the title to property. Even though he filed Exs.A12 and A14, the document entire extent in 131/8 = 131/7 has been

mentioned. But in release deed is Ex. A13, which is came into existence latter point of time i.e.1967, it is a vital document. In that, only 25 cents

alone has been mentioned.

Per contra, the respondent herein has filed document sale deed-Ex. B1 dated 18.02.1983, he purchased the suit property from Muthiyan and

his sons, Muthian is one of the sons of Singaravel, who is the son of Iyyavu. Iyavvu is none other than the brother of Thirupathi, who is the

grandfather of appellant herein. To prove the title to the Muthiyan, the respondent herein has filed Ex. B2. As already discussed, Ex. B2-Partition

Chit is not admissible in evidence, as per decision reported in 2000 1 MLJ 1. So, no reliance can be placed under Ex. B2.

Now, the Court has to see whether there is any clinching evidence that the respondent has proved that he is the owner of western 0.25 cents.

The learned respondent counsel would contend that the appellant herein has purchased some property from Murugian, who is the brother of

Muthiyan, as per Ex. B7. In that he has stated they obtained property from oral partition. In that it was stated there is a oral partition on

22.03.1974. So, the respondent counsel relied upon this recital. But, as already stated, oral partition is entirely different from written partition

receipt. Because, as per the partition receipt, it will create and confer title to the parties concern so it requires duly stamped and properly

registered. But, Ex. B2 is unstamped and unregistered document. So, it is not reliable. But, the respondent herein has proved that after purchase,

he changed his patta and enjoying the same by way of paying kist and he also filed an adangal. In such circumstances, the appellant herein has

failed to prove that he is the owner of western 25 cents.

Now the Court considering the oral evidence, the appellant herein has fairly conceded that he put up fence in between eastern and western

portion of 0.50 cents. The property on the western portion is belonging to defendant''s father Karuppiah Chettiyar. The defendant has put up fence

including his father Karuppiah Chettiyar''s property, which shows that the respondent has in possession of 25 cents along with his property owned

by father Karuppiah. While considering the evidence of P.W.1 he himself fairly conceded the coconut trees in the side of eastern portion is

somehow elder than in western portion. So considering the evidence of P.Ws.1 and 2 and D.W.1, which is clearly shows the western portion of

25 cents is not in a possession of this appellant herein. If really he is the owner of 50 cents, what is the necessity to divide the property into two

halves, each contains 25 cent as eastern and western portion had put up fence in between two. Which has create doubts in the minds of the Court.

As already discussed, in his oral evidence, he himself has fairly conceded the western 25 cents and respondent''s father Karuppiah''s property are

forms one plot, it was guarded by fence. So it is clearly proved that the respondent is in possession of western 25 cents. So the appellant herein

has failed to prove that he is the owner of western 25 cents and in possession of western 25 cents, even though Ex. B2 has not been relied upon.

But, the appellant herein has failed to prove that he is the owner of western 25 cents and possession of the disputed property. It is also well settled

principles of law, a person claiming the discretionary relief of injunction to come to the Court with clean hands. But here, in Ex. A.13 he made

some corrections in the extent. So it clearly proved the appellant herein has not come to the Court with clean hands. Considering all these aspects

and the oral and documentary evidence, the trial Court and first appellate Court have come to the correct conclusion the appellant is not entitled

declaration of title and injunction in respect of western 25 cents and dismissed the suit and the appeal.

As already stated, the judgment and decree of the trial Court and the first appellate Court does not suffer any infirmity. So, it does not

warranted any interference. Hence, it is hereby confirmed and the Second Appeal is dismissed with cost. Consequently, connected Miscellaneous

petition is also closed.