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Judgment
K. Sampath, J.—The plaintiff in O.S.No.464 of 1981 on the file of the Principal District Munsif, Chengalput, is the appellant in the second
appeal.
He filed the suit against the respondent herein for declaration of title of his joint family and his brothers to the suit properties, and for permanent
injunction restraining the defendant/respondent from entering upon and selling the same on the following averments:
The suit properties belonged to the joint family of himself, his brothers and their father Late Neelameghachari. Neelameghachari died on
12.12.1976 leaving his widow, his sons, the plaintiff and his brothers, and his daughters as his sole heirs and legal representatives. The plaintiff was
filing the suit in his capacity as the Manager of the joint family. The family was the absolute owner of the suit lands and had been in possession and
enjoyment. Item 1 was got by Neelameghachari under a compromise decree, dt.21.9.1949 in O.S.No.139 of 1948 on the file of the District
Munsif''s Court, Chengalput. That was a suit between him and Vadivelu Mudaliar, the defendant''s father and others. Ever since the date of
compromise, Neelameghachari and the plaintiff had been in possession and enjoyment. The plaintiff had also been paying kist. Suit items 2 and 3
were the ancestral joint family properties of the plaintiff. The defendant, who had no interest whatsoever in the suit properties, taking advantage of
his local influence, had been attempting to trespass on the suit properties, and sell the same. In March 1981, when the defendant attempted to sell
the suit lands, the plaintiff issued a registered notice, dt.14.3.1981 to the intending purchasers, and there was no reply. Again, in July 1981, the
plaintiff caused a notice to another intending purchaser, for which also there was no reply. In these circumstances, the suit came to be filed.
The defence was as follows:
There was no joint family. The sons of Neelameghachari were all divided. Under Hindu Succession Act, the daughters of Neelameghachari had
also become his heirs and there could not be any joint family between the plaintiff and the daughters of Neelameghachari. The suit as prayed for
was not maintainable. Suit, O.S.No.139/1948, did not relate to the suit properties. Suit items 1 and 2 were purchased by Vadivel Mudaliar from
Rangammal, wife of Bashyachariar under a sale deed, dt.22.12.1943. In suit item 2, apart from 1.90 acres purchased by Vadivelu Mudaliar, he
owned 3.84 acres, in all 5.54 acres. He was granted patta for the entire 5.74 acres. In the suit third item, S.No.69, Vadivelu Mudaliar purchased
1.14 acres from Veeraraghavachariar under a registered sale deed, dt.27.9.1943. Patta was granted to him for the said property. The plaintiff had
not given any boundary description to the suit properties. For suit Item 3, the plaintiff had clubbed both, S.Nos.68/1 and 69, which was
unsustainable. Since the date of his purchase, Vadivelu Mudaliar had been in absolute possession of the suit properties, and cultivating the same
with Casurina. He died on 23.11.1979, and as his only son, the defendant was in possession as heir to his father. The defendant and his father
Vadivelu Mudaliar and his predecessors had acquired title to the suit properties by adverse possession and prescription. Even in the year 1969,
Vadivelu Mudaliar effected improvements in the suit lands through ""Manvelapadu Thittam of Tamil nadu"" He was making payment to the
authorities concerned for improvements effected over the suit lands. The allegation that the defendant was attempting to trespass over the suit
property, was false. He had always been in possession. He was not aware of the alleged notices, dt.14.3.1981 and 13.7.1981 by the plaintiff.
On the side of the plaintiff, he examined himself as P.W.1, two others as P.Ws.2 and 3 and marked Exs.A.1 to A.29. On the side of the
defendant, he examined himself as D.W.1, two others as D.Ws.2 and 3 and marked Exs.B.1 to B.58. On the pleadings, the trial Court framed the
following issues:
(1) Whether the plaintiff, his brothers and their father Nellameghachari constituted a Hindu joint family?
(2) Whether the family of the plaintiff had title to the suit properties?
(3) Whether the family of the plaintiff was in possession of the suit properties on the date of suit?
(4) Whether the defendant was in possession of the suit properties on the date of suit?
(5) Whether the plaintiff is entitled to declaration of his title?
(6) Whether he is entitled to permanent injunction?
(7) To what other relief the plaintiff is entitled?
The trial Court found that the plaintiff, his brothers, and their father Neelameghachari constituted a joint Hindu family and the suit properties
belonged to their joint family, that they were in the possession of the plaintiff on the date of suit, that the defendant was never in possession of the
suit properties, and that the plaintiff was entitled to declaration and permanent injunction. So holding, by judgment and decree, dt.31.7.1987, the
trial Court granted the prayers.
However, on appeal by the defendant in A.S.No.66/1989, the learned Subordinate Judge, Chengalput, by judgment and decree, dt.19.10.1989
allowed the appeal, set aside the judgment and the decree of the trial Court holding that the suit properties were not the joint family properties of
the plaintiff, that the plaintiff was not in possession of the suit properties, that the suit properties were the absolute properties of the defendant, and
that the defendant, in any event, had prescribed for title by adverse possession, allowed the appeal and dismissed the suit. It is as against this, the
present second appeal has been filed.
At the time of admission, the following substantial questions of law were framed for decision:
Whether the defendant is not bound by the compromise decree in O.S.No.139 of 1948 on the file of the sub-Court, Chengalput?
Whether the boundary recital in a document to which the plaintiff is not a party, is binding on him?
Mr. M.S.Subramanian, learned counsel for the appellant, submitted that the lower appellate Court clearly erred in its appreciation of the material
documents, that it had not given proper consideration to the compromise decree passed in the prior suit between the parties, that the plaintiff had
clearly shown his ownership and possession, and on the contrary, the defendant had not substantiated his case in the written statement that he got
the suit items by purchase, that, in any event, the defendant''s father, under whom the defendant claimed right, having been a party to the prior
proceedings and accepted the compromise and also pursued the same by filing E.P., it was not open to the defendant to take a stand that the suit
first item was different from the one which was the subject matter of the prior suit.
So far as suit second item was concerned, according to the learned counsel, the defendant had not shown, by any acceptable evidence, that he
had title. Even as regards possession, the defendant had not produced any material to substantiate his possession of the suit properties. As regards
Item 2, the defendant had claimed by purchase, and the sale deed in his favour did not include suit Item 2.
So far suit item 3 was concerned, the learned counsel submitted that the defendant could claim only 1.14 acres and the third item, which was
just one cent, was only a cart track, and that for access to the plaintiff''s properties, suit Item 3 was absolutely necessary.
Per contra, Mr. Nicholas, learned counsel for the respondent, submitted that the boundaries given in the various documents would clearly
falsify the case of the plaintiff, and that they would show that the suit first item was different from the properties - subject matter of the prior
proceedings. So far as suit second item was concerned, the defendant was entitled to the same in his own right, and, in any event, he had
prescribed for title by adverse possession. The learned counsel also submitted that the plaintiff had not produced any material to show that the suit
second item belonged to the family. For the suit third item, learned counsel submitted that the defendant''s father Vadivelu Mudaliar had purchased
1.14 acres and in re-survey it was found that the extent was 1.15 acres, and that suit third item absolutely belonged to the defendant.
So far as suit first item is concerned, the basis of the plaintiff''s claim is Ex.A.1. Ex.A.1 is the compromise decree in O.S.No.139/1948 on the
file of the District Munsif''s Court, Chengalput. The plaintiff''s father Neelameghachari and his cousin one Veeraraghavachari were the plaintiffs in
that suit. The defendant''s father Vadivelu Mudaliar was the fourth defendant therein. The suit was for recovery of possession of A.1 to A.5
schedule properties from the defendant''s father Vadivelu Mudaliar and others, and for future mesne profits. The present suit item 1 is Ex.A.2
schedule item 4. As per the terms of the compromise, the plaintiffs were to be given possession of the present suit item 1 and other items by the
respective defendants on the very day the compromise was entered into, namely 21.9.1949 and the respective defendants were to be paid various
amounts and it is also recited in the compromise memo as follows:
@nkw;go brhj;Jf;fis me;je;j gpujpthjpfsplkpUe;J thjpfs; ,d;nw RthjPdk; bgw;Wf; bfhz;lhh;fbsd;Wk;. mtrpakhdhy; thjpfs; brytpy; nfhh;l; K:yk; ,e;j
of;fphp Kd;dpiyf;F blypthp bgw;Wf;bfhs;syhbkd;Wk;/ @;///////////////@////// /@
From the above recitals, it would be clear that the possession of the properties, covered by the compromise decree, had been given to the
plaintiffs on the very day. This was followed by an Execution Petition in E.P.No.896/1951 filed by the assignee from defendant''s father Vadivelu
Mudaliar for the money agreed to be paid under the compromise decree to him in lieu of giving up his claim in the property. Full Satisfaction
Memo, dt.15.10.1952 was also filed into Court. Certified copy of the same has been marked in the present suit as Ex.A.2. This would clearly
show that the plaintiff''s father and the other plaintiffs in the earlier suit had taken possession of all the properties including the present suit item 1 on
21.9.1949 as recited in the compromise decree. The compromise decree/Ex.A.1 and the Full Satisfaction Memo/Ex.A.2 were accepted by the
trial Court. The trial Court read the recitals properly and held that the present suit item 1, which was also subject matter of the earlier suit, had
been taken possession of by the plaintiff''s father and his cousin as early as 21.9.1949. It relied on Ex.A.7 also, order in a claim reference under
Sec.30 of the Land Acquisition Act, in which both, plaintiff''s family and the defendant''s father, were parties and the compromise under Ex.A.1
was accepted and the reference decided on that basis. However, the lower appellate Court made a serious error in holding that the plaintiff had not
established that the possession was taken as per the decree. According to the learned Subordinate Judge, the decree contemplated further
proceedings for delivery. The learned Subordinate Judge has clearly misread the recitals in the compromise decree and has not given adequate
consideration to the effect of the Full Satisfaction Memo/Ex.A.2. This has led to the learned Subordinate Judge holding that the plaintiff had not
taken possession of the present suit item 1.
Though it was pleaded in the written statement that the present suit item 1 is different from the suit item covered in the earlier suit, the same has
not been substantiated and it was not pursued before the Courts below. Therefore, the finding by the lower appellate Court regarding suit Item 1,
cannot at all be sustained.
So far as items 2 and 3 are concerned, the plaintiff''s case is that they were the ancestral joint family properties. To substantiate that they were
ancestral joint family properties, Ex.A.28/Settlement Register has been produced. It is seen from Ex.A.28 that these items have been shown as the
properties of the ancestors Gopalachariar and four others, Gopalachariar being the plaintiff''s grandfather. In respect of ancestral properties, one
cannot have regular title deeds. This has been totally lost sight of by the lower appellate Court. The case of the defendant is that items 1 and 2
were purchased by his father from Rangammal, wife of Bashyachariar. The sale deed/Ex.B.1, dt.22.12.1943 deals only with the present suit Item
Suit Item 2 is not the subject matter of Ex.B.1. There is nothing to show that Vadivelu Mudaliar ever owned suit item 2. Ex.B.2, dt.5.1.46 is a
sale deed by one Rukmani to Vadivel of 1.25 acres, but the survey number given is 66/1. That has nothing to do with suit item 2. So far as suit
item 3 is concerned, the defendant claims to have purchased 1.14 acres on 27.9.1943 under the original of Ex.B.3. It is in S.No.69/1. In
Ex.B.48/Patta issued on 28.3.1978 an extent of 1.15 acres in S.No.69/1 has been shown to be Vadivelu Mudaliar''s property. Suit Item 3 is only
an extent of one cent and from the Plan, Ex.A.27, it appears that this property is the only access to the plaintiff''s other two items, and it is also
found in Ex.A.28/Settlement Register. Suit item 3 is shown in Ex.A.28 as cart track and it has not been shown by the defendant that apart from the
patta issued to him which was in respect of 1.15 acres though he had bought only 1.14 acres on 27.9.1943 under the original of B.3 that he had
any right in suit item. Thus, in my considered view, title to all the three items in the suit has been clearly established in favour of the plaintiff.
The next question is one relating to possession. To show the plaintiff''s possession of the suit items, Exs.A.6 and A.29 have been produced. It
appears that some time in 1970, the defendant''s father Vadivelu had got the suit items transferred to his patta in Patta No.43 as evident from
Ex.B.48. The plaintiff addressed a letter to the Tahsildar, Chengalput and the Tahsildar sent a communication under Ex.A.6 retransferring the
properties in S.Nos.68/1 and 69/1 to Patta No.1 jointly in the names of Neelameghachari and others, as it was originally found in the village
accounts, and directing status quo to be maintained, before the wrong transfer of registry was effected. Exs.A.8 to A.15 kist receipts show
plaintiff''s possession from 1975 to 1986. Exs.A.19 to A.25 show his possession from 1965 to 1973. The possession of the plaintiff in respect of
suit items has been proved to the hilt. Neither the title nor the possession of the defendant to the suit items was established by him. If we have a
look at the documents on the side of the defendant, the conclusion reached will be only reinforced. Ex.B.1 is the sale deed in favour of defendant''s
father Vadivelu of item 1 and the sale deed got superseded by the compromise decree and the subsequent FS Memo. Ex.B.2 does not relate to
suit item 2. Under Ex.B.3 only an extent of 1.14 acres in S.No.69/1 is purchased. It does not take in item 3 of the plaint schedule. Ex.B.4 is a
consolidated receipt for payment of kist during the period 3.1.1926 to 23.4.1937. Muthu Mudaliar, father of Vadivelu, is shown to have paid kist
for patta No.1 which includes suit survey numbers. Patta No.1 is a joint patta. Plaintiff''s predecessors had paid kist for the said patta. As already
noted, suit survey numbers are found in Ex.A.28 settlement register and plaintiff''s forebears are shown as joint pattadars. Exs.B.5 to B.33 show
payment of kist for patta No.1 by defendant''s grandfather and father for various faslis. In 1974, the mischief starts. Items 1 to 3 are shifted to
patta No.43 without reference to plaintiff''s family. This is objected to and under Ex.A.6 the status quo ante is restored and the suit properties are
sent back to patta No.1. Ex.B.34 to B.45 are further receipts, but, they do not in any way advance the case of the defendant. The other
documents also do not prove defendant''s possession in any manner whatsoever. The entire approach by the lower appellate Court is clearly
erroneous, and it has proceeded on wrong assumptions with regard to Ex.A.1/compromise decree. It has also clearly over looked the impact of
Ex.A.2/Full Satisfaction Memo, the retransfer of patta in favour of the plaintiff under Ex.A.6, the probative value of Ex.A.28/Settlement Register,
and the various kist receipts produced, showing the payment of land revenue by the plaintiff. In the total absence of any material whatsoever on the
side of the defendant, the learned Subordinate Judge has misdirected himself misconstrued the documents and erroneously held in favour of the
defendant. The judgment of the lower appellate Court is perverse based as it is on mere surmises and conjectures. By reason of misreading and
misconstruction of the oral and the documentary evidence by the lower appellate Court, there has been miscarriage of justice and this Court is
entitled to interfere. Accordingly, the substantial questions of law are answered in favour of the appellant. The second appeal succeeds. The
judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. No costs.