Govindammal (died) and 3 others vs Arumugham

D. Raju, J.—The second appeal has been filed by the defendant in O.S.No.53 of 1979 on the file of the District Munsif, Thiruvaiyaru, who

succeeded before the learned Trial Judge, but lost before the learned Sub-ordinate Judge at Thanjavur in A.S.No.18 of 1983, challenging the

judgment and decree passed by the learned first appellate judge.

The suit has been filed by the respondent/plaintiff for more recovery of possession as per plaint plan ABCB after removing the shed and fence.

The case of the plaintiff is that based on the purchase said to have been made under Ex.A.1 and A2 the defendant contested the claim and

disputed the right of the plaintiff for the relief of recovery of possession asserting title in himself by virtue of the sale deed marked as Ex.B2. A

commissioner was also appointed and there are more than one report and plan submitted and they were marked as Exs. C1 to C5. Oral and

documentary evidence have been adduced on either side and the Commissioner also was examined as Court witness.

The learned trial Judge was of the view that the plaintiff''s documents particularly Ex.A1 and A2 do not relate to the property actually in dispute

and he has not shown title to the said disputed property and at any rate, the defendant has by his continuous possession and enjoyment has

perfected title and the plaintiff has lost his title by adverse possession. On the above conclusion the suit came to be dismissed.

The plaintiff pursued the matter on appeal before the Sub-Court, Thanjavur. The learned Subordinate Judge, Thanjavur, has chosen to re-

appreciate the materials on record and came to the conclusion that the plaintiff is the owner of the disputed portion of the property in question and

entitled to recovery of possession and the plea of adverse possession has no merit.

Aggrieved against the same, the defendant has filed the above second appeal. The main challenge to the judgment of the learned first appellate

Judge in this second appeal as could be seen from the memorandum of grounds of appeal filed in this Court in the second appeal as also the

substantial question of law attempted to be formulated is projected on the basis that originally the property belonged to one owner and the same

got divided among three sharers and that the first appellate Court could not have preferred the sales in favour of the plaintiff over and above that of

the defendant. It is on such submissions made, apparently, the learned Admission Judge, who dealt with the appeal initially formulated the following

substantial question of law as arising for consideration in the second appeal.

Whether the lower appellate Court has misconstrued the evidence regarding the partition pleaded by the appellant and erred in holding that the

plaintiff has title to the suit property?

Heard Mr. K. A. Ravindran, the learned counsel for the appellant and Mr. S. Parthasarathy, learned counsel for the respondent. The learned

counsel appearing on either side submitted elaborate and lengthy arguments reiterating repeatedly the same claims and invited my attention to one

or other portion of the conclusion and findings arrived at by the respective judges of the Courts below in favour of the respective parties.

I have carefully considered the submissions of the learned counsel appearing on either side in the light of the judgments of the Courts below and

the conclusion recorded by them. Having regard to the observation found in paragraph 7 of the judgment of the Trial Judge. I looked into the

documents Exs.A1 and A2 as also Ex.B2 and the evidence of PW 1 to find out the veracity or correctness of the statements found made and

noticed in the judgment of the learned Trial Judge on the basis of those documents. A careful, analysis would go to show that the suit for recovery

of possession straightaway itself is a misconceived remedy in the facts and circumstances of the case and it was in-appropriate also for the learned

trial judge as also the first appellate judge, who have chosen to deal with the claim of the parties as though it is for declaration of title when it was

only a bare suit for recovery of possession in which the question of prima facie title alone can be gone into incidentally. No final adjudication or

declaration of title can be made.

The learned counsel appearing on either side could not succeed insufficiently explaining before this Court on the basis of the materials as to the

manner of partition of the property, though it is admitted even by the plaintiff that the original owners and their successors-in-interest got the

property divided into three shares. Except, the conflicting oral evidence and recitals in one or other of the documents, there is absolutely no

documentary evidence to prove the divisions by metes and bounds and any proof of such divisions fixing up of boundaries for their respective

portion. In the above circumstances their rights would and could be got indicated by having recourse to a suit for partition only wherein the claims

of both parties could be effectively adjudicated. If any such suit for partition is filed, the court dealing with the same shall consider the same and

adjudicate the issue raised in such proceedings on the materials placed before it and in accordance with the law uninfluenced by the observations

made in judgments of the Courts below. If the property has been so got divided into three shares, the parties on either side can claim possession

from one or other of the three shares.

The said Court dealing with any such claim of party also, if need be direct is and to the extent permissible in law to work out the equities also

wherever found necessary. Whatever may be the justification for the parties to do so, there is no justification to countenance the claim for recovery

of possession straightaway in the teeth of the seriously disputed facts relating to the enjoyment of both parties to any specified shares by the other

party as claimed by the respective parties.

The learned first appellate Judge, in my view, has miserably failed to properly come into the grips of the issue and committed a grave error of

law in entering into an adjudication of tide without confining himself to find prima facie title only for the limited purpose of granting or refusing the

relief of recovery of possession. In my view, the judgment and decree passed by the trial judge is more in consonance with the principles of taw

governing then matter in issue then that of the learned first appellate judge. The judgment of the first appellate court, is therefore set aside. The

second appeal is allowed and that of the learned trial judge dismissing the suit is restored with liberty to the parties to file a suit for partition to settle

their rights once and for all with liberties and reservation for the same as indicated supra in the earlier part of this order. No costs.