Vellusamy and Others vs Kannan and Balasubramanian

G. Rajasuria, J.—This second appeal is focussed as against the judgment and decree dated 12.11.1999 in A.S. No. 109 of 1998 on the file

of the Principal District and Sessions Judge, Ramanathapuram, confirming the judgment and decree dated 26.06.1998 in O.S. No. 49 of 1996 on

the file of the learned Additional District Munsif, Ramanathapuram.

The nutshell facts which are absolutely necessary and germane for the disposal of this second appeal would run thus:

(i) The plaintiffs who are the respondents herein filed the suit for declaration of title to the suit properties and for permanent injunction on the

ground that the plaintiffs along with other co-sharers are the absolute owners of the suit properties as originally the suit property belonged to the

first plaintiff''s father Vellaichamy Konar, and his brothers namely Murugiah Konar, Chellachamy Konar, Chithiraivelu Konar, Palani Konar.

Except, Murugiah Konar, others died. The second plaintiff is the son of the aforesaid Chithiraivelu Konar. Murugiah Konar is an aged person.

(ii) The deceased Chellachamy Konar and the deceased Palani Konar left behind their descendants. But, they are not parties to the suit. It so

happened that Samayan and his men claimed prescriptive tile over the suit properties. Thereupon, the deceased Vellaichamy Konar and

Chellachamy Konar and the second plaintiff herein instituted the proceedings by filing the suit in O.S. No. 76 of 1984 on the file of the Principal

District Munsif Court, Ramanathapuram and it was held that Samayan and others are not entitled to the suit properties. Samayan and his men were

not cultivating the land. Samayan preferred appeal and it was dismissed, as against which Samayan preferred the second appeal which was

pending.

(iii) In the meanwhile, the second defendant herein got the patta transferred in favour of himself and other defendants fraudulently. The said

Chellachamy objected before the Revenue authority who referred the parties to the civil Court. Hence, the suit.

Per contra, denying and disputing, challenging and gainsaying the allegations/averments in the plaint, the first defendant filed the written statement

which was adopted by the second defendant, with the averments which would succinctly and precisely run thus:

The defendants would narrate a different genealogy and as per which they would claim title. According to them, the patta was properly issued in

the name of the defendants.

The trial Court framed issues and during trial, on the side of the plaintiffs, the second plaintiff examined himself as P.W.1 along with P.W.2 and

Exs.A.1 to A.40 were marked and on the side of the defendants, the first defendant examined himself as D.W.1 and Exs. B.1 to B. 16 were

marked.

Ultimately, the trial Court decreed the suit.

Challenging the said judgment and decree of the trial Court, the defendants preferred the appeal, which was dismissed by the first appellate

Court.

Being aggrieved by and dissatisfied with, the judgment and decree of the first appellate Court, this second appeal is preferred on the following

main grounds:

Both the Courts below erred in shifting the burden on the defendants to prove the case. The suit is bad for want of adding the alleged other co-

sharers. Even as per the plaint averments, the suit for declaration could not be decreed. The Courts below failed to take note of the fact that

Vellaichamy being the close relative of the defendants managed the property and subsequently, he himself in Ex. B.2, admitted that the suit

properties came into his possession from his uncle. The documents filed on the side of the defendants did not co-relate the kist receipts filed, to

prove possession. Exs.A.2, A.3 and A.16, the sale deeds were relied on to prove that the appellants are having title to the suit property and they

have been in possession and enjoyment for more than hundred years by enjoying it by themselves and through their ancestors.

At the time of admitting this second appeal, the following substantial questions of law were framed:

Whether, in law, the Courts below are not wrong in relying on pattas produced by the respondents which might at the most show possession

rather than the registered sale deeds produced by the appellants and declaring the respondents title?

Whether in law, the Courts below are right in casting the onus of proving the case on the defendants and not on the plaintiffs and in omitting to

see that the plaintiffs had not attempted to prove their case?

Whether, in law, the Courts below are right in overlooking that the suit for declaration could not be maintained as the plaintiffs had not arrayed

all the alleged co-owners as parties, and did not also claim that they had authorised them to file the case and that if at all, they would be entitled to

only a fractional share?

All the points are taken together for discussion as they are interlinked with one other.

The learned Counsel for the defendants would develop his argument to the effect that admittedly the first defendant''s paternal grandfather,

Andikonar, was the original owner of the suit properties by virtue of Ex. B.2, the sale deed dated 13.09.1888 and that the plaintiffs are having no

right over the suit property. The perusal of Ex. B.2, which is an ancient document would show that it refers to landed property which was

purchased by Andikonar. Ex. B.1, the order passed by the Tahsildhar referring the parties to the Civil Court for getting their title declared over the

suit property, would also refer to the fact that the said Vellaichamy Konar himself alleged as though he derived his title from his father-in-law.

According to the defendants, the said Vellaichamy Konar married one Parvathi, the daughter of Muthiah, S/o. Andi Konar. Before relying on

the alleged admission of Vellaichamy Konar, in the proceedings before Tahsildar relating to Ex. B.1, the necessary deposition or version of

Vellaichamy Konar before Tahsildar, has not been produced as evidence. Prior admission would become evidence if at all it is put in evidence as

otherwise, simply the Tahsildhar''s reference in Ex. B.1 to the stand of Vellaichamy Konar, cannot be taken as conclusive. Based on sound

reasoning alone, the Civil Court could arrive at a decision relating to the title.

The defendants oblivious of Ex. A.1, the sale certificate issued by the Court, would simply rely on Ex. B.2. Ex. A.1 is the sale certificate issued

by the Court concerned in E.P. No. 201/35 in C.S. No. 125/34 and it refers to ten items of properties which includes the suit properties, as per

which Muthiah Konar, the grandfather of P.W.1 purchased those suit properties in the Court auction sale. Based on which, the group patta Nos.

1, 97, 177, 239, 245, the suit properties in Devipattinam, stood in the name of Vellaichamy Konar and his four brothers as the Pattadars being the

descendants of Muthiah Konar. Exs. A.2 to A.8, the patta passbook, the pattas of the suit properties stood in the name of the plaintiffs'' ancestors.

P.W.1 based on such clinching documentary evidence deposed before the Court. P.W.1 would also narrate as to how the Court auction sale

came to be effected. One Veerapathiran, S/o. Muthukaruppan Servai, who is the ancestor of the defendants herein mortgaged the suit properties

in favour of the plaintiffs'' ancestor, the said Muthiah Konar and since the mortgagor committed default in discharging the debt, the said suit

properties were brought for sale, which were purchased by Muthiah Konar in the Court auction sale as revealed by Ex. A.1. In Ex. A.1, the said

Veerapathiran was described as the son of Muthukaruppan Servai. It is therefore clear that the trial Court relying on the deposition of P.W.1

coupled with Ex. A.1 and Exs. A.2 to A.8, the pattas which emerged thereon, in paragraph No. 6 of the printed judgment, clearly and

categorically gave a factual finding that the said Muthiah Konar, the plaintiffs'' ancestor, was the absolute owner of the suit properties.

The trial Court also gave a finding that the properties referred to in Ex. A.1 are the suit properties. It is a pure question of fact and the first

appellate Court confirmed it. In such a case, this Court while exercising its power u/s 103 of the Code of Civil Procedure, cannot reappreciate

those factual aspects. Nothing has been shown that both the Courts below mistook the properties in Ex. A.1 as the suit properties.

Hence, in such a case, the defendants cannot be heard to contend that they are the owners under Ex. B.2, the sale deed of the year 1888

which contains only a vague description of property.

Ex. A.39, the certified copy of the judgment passed by the District Munsif, Ramanathapuram, dated 11.12.1985, in O.S. No. 76 of 1984

which was filed by Vellaichamy Konar, Chellasamy Konar and Balasubramanian, the ancestors of the plaintiffs as against Murugiah,

Sethumanickammal, Samayan, Arugmugam and Thangavelu. Ex. A.40, is the certified copy of the judgment passed by the Additional District

Judge, Ramanathapuram, dated 27.09.1989, in A.S. No. 129 of 1986. Ex. A.9, is the certified copy of the decree passed in A.S. No. 129 of

1986, confirming the judgment in Ex. A.39. It could be understood that the original suit in O.S. No. 76 of 1984 was filed in the District Munsif

Court, by the said Vellaichamy Konar and his Pangalis as against the defendants 1 and 2 who are also Pangalis for partition and the defendant No.

3, Samayan and his sons, the defendants 4 and 5 were cited as tenants, causing trouble and the suit was decreed relating to the same suit

properties herein.

The perusal of Ex. A. 39, the judgment in O.S. No. 76 of 1984, would reveal that Vellaichamy Konar, Chellasamy Konar and

Balasubramanian (P.W.1 herein), filed the suit as against Murugiah, Sethumanickammal, Samayan, Arugmugam and Thangavelu for partition of the

suit properties herein by pleading that the said plaintiffs three in number, namely Vellaichamy Konar, Chellasamy Konar, Balasubramanian and the

defendants Murugiah and Sethumanickam Ammal are the co-sharers of the suit properties and that D.3 Samayan and his sons D.4 Arumugam and

D.5 Thangavelu, having no right indulged in causing trouble and that the third defendant being a tenant failed to give rent for about three years. The

fact remains that Samayan and his sons, as per the defendants herein, who are the descendants of Andi Konar, have not disputed the title of the

plaintiffs in that previous suit, who are the ancestors of the plaintiffs herein.

On the defendants'' side, it is argued that such a judgment is not binding on the present defendants as they were not parties in those

proceedings. It is a trite proposition of law that in civil matters of this nature, the judgments passed are judgments in personam and not the

judgments in rem. Even then, it is clear from the narration of facts and the deposition of P.W.1 that there is no shadow fight between the Pangalis

of the defendants herein and the ancestors of the plaintiffs herein and in that, Samayan and others lost their claims. In such a case, whatever be the

binding effect of those judgments in the earlier proceedings before the Court relating to the same properties, they are having probative force of its

own to infer that the plaintiffs'' ancestors had title and possession over the suit properties.

Owing to misconception of factual circumstances including emergence of Ex. A.1 in favour of the plaintiffs'' ancestors, the defendants by

themselves and through their relatives in piecemeal litigating as against the plaintiffs.

The trial Court dealt with the factual aspects in detail. In the printed judgment at page Nos.4 and 5, the trial Court referred to Ex. B.2, the sale

deed dated 13.09.1988 in the name of Andi Konar which refers to an extent of 2 1/2 ''kurukkam'' of land. As per Ex. B.3, one teacher

Subramaniam sold an extent of land in favour of Andi Konar and Muthukaruppan Servai and also 130 palmirah trees under that deed.

Ex. B.4 is the sale deed dated 19.07.1962 executed by Pitchai Thambi in favour of Annapoornam Ammal a property and in that,

Muthukaruppan Servai''s land has been shown as northern boundary. The first appellate Court relating to the defendants'' documents clearly held

that there was no clarity in those documents and furthermore simply because, Muthukaruppan Servai, ancestor of the defendants is referred to as

the person owning on the north in Ex. B.4, it cannot be presumed as though Muthukaruppan Servai was the owner of that land. The fact remains

that in Ex. A.1, the sale certificate, Veerapathiran is referred to as the son of Muthukaruppan Servai and as such, Veerapathiran lost his property in

the Court auction sale. In such a case, suppressing all these facts, the defendants by putting jumble of facts here and there, attempted to sidetrack

the issue. However, both the Courts below without allowing themselves to be sidetracked by such attempts correctly arrived at the conclusion that

the plaintiffs have proved their title over the suit properties and the defendants have not shown any title over it.

The trial Court also adverted to the fact that Exs. B.5 to B.15 tax receipts were in the name of Vellaichamy Konar, the ancestor of the plaintiffs

and not in the name of the ancestors of the defendants and simply because, they are in possession of those tax receipts standing in the name of

plaintiffs'' ancestors, there is no presumption enures to the benefit of the defendants.

The trial Court also correctly commented upon the fact that the defendants have not proved that Vellaichamy was the power agent of the

defendants'' ancestors and that he cheated them.

The learned Counsel for the defendants would submit that the suit for declaring the title of the plaintiffs and for other co-sharers are not parties,

is not tenable. Here, my above discussion would show that it is a peculiar case by itself wherein the defendants after failing in their attempts earlier

to establish their title clearly at the instigation of their relatives, have chosen to give disturbance to the plaintiffs'' right over the suit properties. In

such a case, non-joinder of other co-sharers cannot be taken as a material flaw affecting the very institution of the suit.

Accordingly, all the questions of law are answered as against the appellants/defendants and no interference with the judgments of both the

Courts below is required.