Rengan vs Veerappan and Pichai

P.R. Shivakumar, J.—This second appeal is directed against the judgment and decree dated 31.08.1995 made in A.S.No.15 of 1995 by

the Subordinate Judge, Kulithalai, wherein and whereunder the judgment and decree of the trial Court, namely the Court of the District Munsif,

Kulithalai dated 31.10.1989 made in O.S.No.414 of 1988 were confirmed.

The sole defendant in the original suit O.S.No.414 of 1988 on the file of the trial Court is the appellant in the second appeal. The respondents

herein, by name Veerappan and Pitchai had filed the original suit O.S.No.414 of 1988 on the file of the Court of District Munsif, Kulithalai for

declaration of their title in respect of 0.70.0 hectares of land comprised in Survey No. 274/8B and 0.34.0 hectares of land comprised in Survey

No. 198/3A in Pannapatti Village, Kulithalai Taluk shown as items 1 and 2 of the suit properties. They had also prayed for a perpetual injunction

against the appellant herein who is their maternal uncle.

According to the plaint averments, the suit properties originally belonged to the father of the respondents/plaintiffs and after his death, the

respondents/plaintiffs got the same as the legal heirs of their father. They had also contended that the suit properties were in their possession and

enjoyment and that in any event, they had perfected title by adverse possession.

The suit was resisted by the appellant herein/defendant by denying the plaint averments. Besides denying the plaint averments, the

appellant/defendant had also contended that the suit properties belonged to his father (father of the appellant/defendant) and after his death, they

devolved upon the appellant/defendant and that it was he who was in possession and enjoyment of the suit properties as on the date of filing of the

suit.

The trial Court framed necessary issues and conducted trial in which P.W.1 was examined and Exs.A.1 to A.20 were marked on the side of the

plaintiffs, whereas D.Ws.1 and 2 were examined and Exs.B.1 and B.2 were marked on the side of the appellant/defendant. The trial Court, after

evaluating the evidence adduced on either side in the light of the arguments advanced by the learned Counsel appearing for both parties, held that

the respondents/plaintiffs had proved their title and possession and consequently decreed the suit in respect of both the reliefs by its judgment and

decree dated 31.10.1989. On appeal, the judgemnt and decree of the trial Court were confirmed by the learned Subordinate Judge, Kulithalai by

its judgment and decree dated 31.08.1995 made in A.S.No.15 of 1995.

The Court heard the submissions made by Mr. T.Srinivasaraghavan, learned Counsel appearing for the appellant and also by Mr.

K.Govindarajan, for M/s.Sarvabhauman Associates, learned Counsel appearing for the respondents and perused the materials available on record.

The sole defendant in the original suit, who proved to be unsuccessful before both the Courts below, is the appellant in the second appeal. As

against the concurrent judgments of the Courts below, the appellant has brought forth this second appeal. The respondents herein as plaintiffs have

traced their title to their father Karuppan Chettiar. According to them, the suit properties originally belonged to their father Karuppan Chettiar and

after his death, they succeeded to the same. In respect of their claim, they have relied on the following documents:

(i) Ex.A.1-patta pass book issued in the name of Karuppan Chettiar, the father of the respondents/plaintiffs;

(ii) Ex.A.14-UDR patta issued in the name of the respondents/plaintiffs in respect of the first item of suit properties;

(iii) Ex.A.15-UDR patta issued in the name of the first respondent/first plaintiff in respect of the second item of suit properties; and

(iv) Exs.A.2 to A.13 and A.16 to A.18- kist receipts in the name of the first respondent/first plaintiff. The first plaintiff figured as P.W.1 and

deposed in conformity with the plaint averments. On the other hand, the appellant/defendant examined himself and one Lakshmanan as D.Ws.1

and 2 and marked the certified copy of the sale deed dated 12.05.1950 executed by Velayutham Chettiar in favour of one Pitchai Chettiar,

S/o.Nallappa Chettiar as Ex.B.1, in an attempt to show that the first item of the suit properties was purchased by his father.

Admittedly, the plaintiffs'' father Karuppan Chettiar and the above said Velayutham Chettiar, the vendor under Ex.B.1, were brothers. It is the

consistent case of the respondents/plaintiffs that the ancestral family properties were divided between Karuppan Chettiar and Velayutham Chettiar

and the suit properties were allotted to Karuppan Chettiar in the said partition. The appellant/defendant also contends that there was a partition

between Karuppan Chettiar and his brother Velayutham Chettiar. But according to him, the first item of suit properties fell to the share of

Velayutham Chettiar. The Courts below, after verifying the description of property found in Ex.B.1, came to the conclusion that the said deed did

not relate to the first item of suit properties. The reasons are:

(1) boundaries do not tally; and

(ii) the property has been described to be one purchased by Velayutham Chettiar in 1945.

Of course, the parent deed was not purchased and the same was commented upon by the trial Court. In spite of the same, the appellant/defendant

did not choose to take steps to seek the permission of the lower appellate Court to produce the same as additional evidence. On the other hand,

the appellant/defendant has come forward with such an application in the second appeal belatedly and the same has been numbered as

C.M.P.No.21448 of 2003. This Court is of the opinion that the same cannot be allowed for the following reasons:

(1) the petition has been filed belatedly; and

(2) the production of the same will not in any way improve the case of the appellant/defendant.

The Courts below have concurrently held that Ex.B.1 does not relate to the first item of suit properties. Hence the production of the parent deed

of Ex.B.1 will not in any way either improve the case of the appellant/defendant or be helpful to the appellant/defendant in any manner. The above

said concurrent findings of the Courts below are based on proper reasons and the same cannot be termed perverse. The production of the parent

deed will not make such a finding either defective or infirm much less perverse. Therefore, this Court is of the considered view that

C.M.P.No.21448 of 2003 deserves to be dismissed.

The only question that was framed at the time of admission of the second appeal runs as follows:

Whether the Courts below erred in holding that the appellant has not produced any document of title when the appellant has produced Ex.B.1-the

sale deed in favour of the appellant''s father?

It has not been proved to the satisfaction of the Court on behalf of the appellant that the second appeal involves any other substantial question

of law except the one framed at the time of admission. After considering the submissions made by the learned Counsel appearing on either side,

this Court is of the considered view that the above said substantial question of law framed at the time of admission has got to be answered against

the appellant/defendant. As pointed out supra, the concurrent findings of the Courts below that Ex.B.1 does not relate to the first item of suit

properties cannot be interfered with in the second appeal, as the same has not been proved to be perverse. Further more, though the

appellant/defendant has chosen to deny the title and possession of the plaintiffs in respect of both the items of suit properties in his reply notice

marked as Ex.A.20 and in his written statement, surprisingly during trial he has admitted the title and possession of the plaintiffs in respect of the

second item of suit properties and confined his contest to the first item of suit properties alone. The evidence of D.W.2 has also been held to be

unbelievable by both the Courts below assigning valid and cogent reasons. The Courts below have come to the conclusion that Ex.B.1 does not

relate to the first item of suit properties. As a necessary corollary, the Courts below have also held that there is no other document to prove the title

of the appellant/defendant, except Ex.B.2-letter sent by the Special Tahsildar to the appellant/defendant, advising that he could approach the

Tahsildar, Kulithalai for necessary relief in connection with his application dated 06.08.1985 for grant of patta which is not enough to prove the

alleged title to the first item of suit properties. The said findings of the Courts below cannot be assailed.

For all the reasons stated above, this Court comes to the conclusion that there is no merit in the second appeal and the same deserves to be

dismissed.

Accordingly, the Second Appeal is dismissed. However, there shall be no order as to payment of costs. Consequently, connected

M.P.No.21448 of 2003 is also dismissed.