AI Structured Summary
Not yet generated for this judgment
Judgment
The plaintiff, in this second appeal, has impugned the judgment and decree dated 02.12.2010 made in A.S.No.23 of 2010 on the file of the Sub
Court, Gobichettipalayam, confirming the judgment and decree dated 05.02.2010 made in O.S.No.583 of 2004 on the file of the District Munsif
Court, Gobichettipalayam.
The suit has been laid by the plaintiff for declaration and permanent injunction.
The second appeal has been admitted and the following substantial question of law is formulated for consideration in this second appeal.
Whether the courts below erred in law in dismissing the suit in the absence of any other legal evidence to deny the title of the plaintiff over new
S.F.No.377/12 especially when Ex.A1 and Ex.A2 are the oldest documents and supported by the mutation of records to prove the possession?
The plaintiff claims the suit property to be an ancestral property belonging to his great grandfather Palani Gounder. It is admitted that Palani
Gounder had two sons viz., Subanna Goundar and Kolandaiappa Gounder. It is admitted that Subanna Gounder is the grandfather of the plaintiff
and Kolandaiappa Gounder is the grandfather of the defendant. Now, according to the plaintiff, he claims title to the suit property under the
partition deeds dated 19.12.1941 and 01.05.1954 marked as Exs.A1 and 2 respectively. Now, when the plaintiff''s case is that the suit property
belonged to his great grandfather Palani Gounder, it could be seen that after Palani Gounder, the suit property would have devolved upon his two
sons Subanna Gounder and Kolandaiappa Gounder. However, according to the plaintiff, Subanna Gounder and his sons had effected partition
under Ex.A1 in respect of the suit property and in that, the suit property is described as Porepatti and according to the plaintiff, it has been allotted
to Subbanna Gounder and Nallappa Gounder (Plaintiff''s father) and Muthuvelappa Gounder and the same has been described as ""A"" schedule
property in Ex.A1. The same has been seriously disputed by the defendant. According to the defendant, the plaintiff or his ancestors have no right
over the suit property as projected by the plaintiff. On the other hand, according to the defendant, his ancestors had absolute title over the suit
property and therefore, it is contended that the plaintiff has no cause of action to maintain the suit as against the defendant.
The plaintiff having come forward with the suit seeking for specific reliefs, as rightly seen, the burden is heavy upon the plaintiff to establish that
the suit property belongs to him as pleaded. At the foremost, it has not been clearly established by the plaintiff as to how one of the sons of Palani
Gounder viz., Subbanna Gounder could have effected partition of the suit property amongst his sons excluding his brother Kolandaiappa Gounder
and the same has not been explained by the plaintiff. Further, as found by the Courts below, even the recitals found in Ex.A1 would only go to
show that the property described in ""A"" Schedule thereunder only reveals that the said property is situated to the North of Kolandaiappa Gounder
Porepatti. Therefore, it could be seen that the suit property, now described as Porepatti by the plaintiff, as such, has not been allotted to the
plaintiff''s Grandfather, the plaintiff''s father and his paternal uncle as pleaded by the plaintiff under Ex.A1. No doubt, the property described in ""A
schedule also is stated to be located with the specific boundaries inclusive of the front and backyard portions named as Porepatti,
KattuthuraiKalam. Therefore, the plaintiff has to establish that the ""A"" schedule property described in Ex.A1 relates to the suit property as
described in the plaint, however, there is no material to co-relate the same. On the other hand, as found by the courts below, the ""A"" schedule
property given in Ex.A1 is stated to be situated to the North of Kulandaiappa Gounder''s Porepatti. Now, according to the defendant, the
porepatti described to be belonging to Kulandaiappa Gounder is the property allotted to his grandfather Kulandaiappa Gounder and inasmuch as
the same had been allotted to Kulandaiappa Gounder under the Panchayat partition deed marked as Ex.B1, the same has come to be also recited
in the boundary recitals of Ex.A1''s ""A"" schedule property. No doubt, Ex.B1 has been declared to be an inadmissible document by the Courts and
therefore, no safe reliance could be attached to Ex.B1 as per law. Be that as it may, however, it could be seen that Porepatti belonging to
Kulandaiappa Gounder has been shown as one of the boundaries to the ""A"" Schedule property allotted under Ex.A1.
The further case of the plaintiff is that Subbanna Goundar and his sons had again effected partition amongst the properties belonging to them
under the partition deed dated 01.05.1954 marked as Ex.A2, whereunder all the four had been allotted separate schedule comprising the
properties and it is stated that the suit property is also described as Porepatti. Therefore, it could be seen that as per the case of the plaintiff, again
Subbanna Gounder and his sons had effected partition inter alia the property described as Porepatti and according to the plaintiff''s case, it is only
the suit property, which had been partitioned amongst Subbanna Gounder and his sons. The above said partition deed Ex.A2 has been seriously
challenged by the defendant. According to the defendant, the said partition deed being a self serving document effected amongst the plaintiff''s
ancestors, would not in any manner bind the defendant and his ancestors. As found earlier, when the main case projected by the plaintiff is that the
suit property originally belonged to his great grandfather Palani Gounder and when it has not been established by the plaintiff as to how Subbanna
Gounder''s family alone had come to divide the suit property amongst themselves, it could be seen that no safe credence could be attached to
Ex.A2 or as discussed above to Ex.A1 also.
Further, according to the plaintiff, after the death of his grandfather Subbanna Gounder, his father Nallappa Gouner and his paternal uncle
Muthuvellappa Gounder had orally divided their properties allotted to them and also, the property allotted to Subbanna Gounder and according to
the plaintiff, the suit property has been allotted to his father Nallappa Gounder and the property situated in survey No.377/13 has been allotted to
his paternal uncle Muthuvellappa Gounder and therefore, now the plaintiff has projected a case of an oral partition and only on the basis of the said
oral partition, he claims that the suit property situated in Survey No.377/12 has been allotted to his father Nallappa Gounder. The same has been
vehemently protested by the defendant. However, there is no evidence to establish that such an oral partition had been effected between Nallappa
Gounder and Muthuvellappa Gounder amongst themselves and thereunder, the suit property has been allotted to the plaintiff''s father. First of all, it
has not been established as to how they would be entitled to effect partition of the suit property amongst themselves, when it is has not been
established by the plaintiff that the suit property had been allotted exclusively to Subbanna Gounder.
Further, according to the plaintiff, in order to give some explanation as to how his another paternal uncle viz., Muthukumara Gounder has been
excluded from the oral partition, his father Nallappa Gounder and his Paternal uncle Muthuvellappa Gounder had partitioned leaving Muthukumara
Gounder as he had orally relinquished his share in the properties to which he would have obtained as one of the heirs of Subbanna Gounder.
However, to establish the same, there is absolutely no material whatsoever placed by the plaintiff. Therefore, it could be seen that for tracing title to
the suit property, the plaintiff has relied upon various transactions viz., Ex.A1 partition deed, Ex.A2 partition deed and oral partition effected
thereafter and the oral relinquishment said to have been effected by one of his paternal uncles. It has not been clearly made out by the plaintiff as to
when and in whose presence the oral partition is alleged to have taken place between Nallappa Gounder and Muthuvellappa Gounder, while
dividing the property inclusive of the properties said to have been allotted to Subbanna Gounder under Ex.A1 and A2 respectively.
Though having pleaded that the plaintiff claims or trace title to the suit property under Exs.A1 and 2, mainly it could be seen that in fact the
plaintiff''s title seems to be resting on the alleged oral partition said to have been effected between his father Nallappa Gounder and Muthuvelappa
Gounder.
According to the plaintiff, accepting his title, possession and enjoyment of the suit property, the revenue authorities have also given patta to his
father and therefore, coupled with the revenue records, the plaintiff has established his title and therefore, according to him, the courts below have
erred in not placing reliance upon the revenue records projected by the plaintiff, supported by partition deeds Exs.A1 and 2. At the foremost, the
plaintiff has not made out clearly as to the properties described under Exs.A1 and 2, as such are co-related to the suit property as described in the
plaint. Further, the plaintiff has not established that his grandfather Subbanna Gounder and his sons are entitled as per law to effect partition of the
suit property excluding Kulandaiappa Gounder, Therefore, to say that the plaintiff''s case has been fortified by the revenue records projected by
the plaintiff as such cannot be readily accepted.
The appellant seems to base his case apart from title deeds marked as Exs.A1 and 2, only on the revenue records produced by him. It is
argued that accepting the appellant''s title, possession and enjoyment of the suit property, patta and other revenue records have been issued in
favour of the appellant and on the basis of the same also, the Court should uphold the plaintiff''s title and therefore, argued that the Courts below
have erred in discrediting the revenue records projected by the plaintiff. However, the above contention does not merit acceptance. It could be
seen that as observed by the first appellate court that the defendant has also thrown a challenge against the revenue records being mutated in
favour of the appellant and it is also noted that the proceedings with reference to the same are still pending before the revenue authorities. Be that
as it may, from the evidence adduced in the matter, it could be seen that the revenue records such as patta etc., have been issued in favour of the
plaintiff based upon the Will said to have been executed by his father Nallappa Gounder and the Will has been marked as Ex.A33. However, as
rightly found by the Courts below, a perusal of Ex.A33 does not indicate that the suit property has been included therein. Therefore, to say that the
revenue authorities have issued the revenue records in favour of the appellant based upon Ex.A33 Will and when the suit property is found to be
conspicuously absent in Ex.A33, it does not stand to reason as to how on the basis of Ex.A33, the revenue records would have been mutated in
favour of the plaintiff. So holding, it could be seen that the courts below have also correcty not inclined to place reliance on the revenue records
projected by the plaintiff to uphold his title. The above findings of the courts below cannot be said to be erroneous either in law or on facts.
It is also argued by the plaintiff''s counsel that in respect of a Pathway, the plaintiff has laid a suit against the defendant in O.S.No.75 of 1965
and in the said suit, the suit property has been described to be situated adjacent to survey No.43 and in the said suit, up to the second appeal the
plaintiff''s case has been upheld and therefore, it is contended that impliedly, the defendant has admitted the title of the plaintiff over the suit
property. But the courts below have negatived the above contention of the plaintiff. It could be seen that O.S.No.75/65 pertains to the pathway
situated in survey No.377/4 and to the south of the same survey No.377/5 is situated and to east of the same Survey No.43 is situated. In such
circumstances, the courts below have found that the vacant space denoted in O.S.No.76 of 65 cannot be taken to be pointing to the suit property
as put forth by the plaintiff. If that be so, the vacant space would have been specifically noted as the plaintiff''s property. Even in the plaint plan,
filed in the above suit marked as Ex.A34, there is no indication that the vacant space is belonging to the plaintiff. On the other hand, it has been
only mentioned as vacant space. Therefore, the argument put forth by the counsel that the plaintiff''s title to the suit property has been upheld in
O.S.No.75 of 1965 as such cannot be readily accepted. If that be so, then why there is need for the present suit for declaration by the plaintiff in
respect of the suit property has not been explained.
It is further argued by the plaintiff''s counsel that inasmuch as the defendant without any authority in law heaped out waste materials in the
property belonging to the plaintiff, the plaintiff has laid a suit against the defendant in O.S.No.41 of 2003 for the relief of permanent injunction and
in the said suit, in I.A.No.219 of 2003, the defendant has agreed to not to put any waste materials or building materials on the property belonging
to the plaintiff and therefore, it is contended by the plaintiff''s counsel, the defendant has admitted the title of the plaintiff in respect of the suit
property and on that basis also, the plaintiff''s title should be accepted. As rightly found by the courts below, merely because, the defendant has
admitted that he would not put waste materials on the southern vacant space of the suit property comprised in O.S.No.41 of 2003, it could not be
construed that the defendant has admitted the title of the plaintiff in respect of the suit property. Further, it is also found by the courts below that the
vacant space situated on the southern side of the subject matter of O.S.No.41 of 2003 is only Survey No.377/5 and only to the west of the same
the suit property lies. In such circumstances, the courts below have held that the undertaking given by the defendant in the said suit would not in
any manner be construed as the defendant accepting the title of the plaintiff over the suit property. The above approach of the courts below, could
not be in any manner stated to be misdirected or erroneous in law or on facts. In such circumstances, I am unable to place acceptance to the
above contention of the plaintiff''s counsel that the defendant has admitted the title of the plaintiff in respect of the suit property in O.S.No.41 of
2003. As rightly found by the courts below, the issue in the above suit is not with reference to the title of the suit property and on the other hand, it
is only with reference to the preventing the defendant from putting up construction, facing the windows of the plaintiff''s house.
The plaintiff/appellant in this second appeal has preferred an application in CMP No.17099/2016 to mark an additional document in support
of his case under Order 41 Rule 27 CPC. According to the plaintiff, he has recently come to know that the defendant and his brother while
effecting partition of their properties under the partition deed dated 17.06.1982 has shown the suit property situated on the east-west and south
side and therefore, according to the plaintiff, the said document thereafter is essential and material for adjudicating the issues involved in this matter
and therefore, the need for the reception of the same as additional evidence. The above application is opposed tooth and nail by the defendant.
According to the defendant, the additional document now sought to be projected has nothing to do with the subject matter of the suit and
therefore, when the basis for the reception of the additional evidence is no where pleaded in the plaint and also, not projected during the course of
the evidence and when it is also germane for the disposal of the appeal, according to him, the application deserves rejection straightaway and does
not merit consideration.
The plaintiff has not placed acceptable reson as to why he has not chosen to produce the additional evidence now sought to be projected
during the course of trial. According to the plaintiff, he had come to know about the existence of the document recently. However, the above
contention cannot be accepted. It is not the case of the plaintiff that he had placed reliance for claiming title to the suit property on the basis of the
additional evidence now sought to be projected. On the other hand, as adverted to earlier, he seems to have placed reliance for claiming title to the
suit property based upon Exs.A1 and A2 partition deeds and the revenue records. Those documents are found to be not acceptable and also not
pertaining to the suit property as described in the plaint. Nowhere the plaintiff has pleaded about the additional evidence now sought to be
projected in the plaint and it is also further seen that the plaintiff has also not established that the additional document would be essential and
germane for the disposal of the controversy between the parties. It is argued that the boundary recital in the partition deed of the projected
additional evidence would clinch the issue. However, as rightly argued by the defendant counsel, the boundary recital would not in any manner, be
the sole factor for upholding the title to the suit property. In this regard, he has also placed reliance upon the decision reported in 1999 M.L.J
(Supp.) 456 (Ponnusamy and others Vs. Annamalai Chettiar and another).
Inasmuch as the plaintiff has not pressed his claim to the suit property based upon the additional evidence sought to be projected and when the
additional document is found to be not required for deciding the issues involved between the parties and when sufficient cause has not been
projected by the plaintiff for not marking the document before the lower courts during the course of trial and the plea of the plaintiff that he has
come to know about the additional evidence only recently not being acceptable and further when the application filed by the plaintiff for the
reception of the additional evidence does not conform to the essential requirements stipulated under Order 41 Rule 27 CPC, in my considered
opinon, the application does not merit acceptance.
The counsel for the plaintiff placed reliance upon the decision reported in (2014) 16 Supreme Court Cases 422 (Rukaiyabibi Ahmed Ali Ismail
And others Vs. Musa Ismail Mahmed Khusal and others) and (2015) 1 Supreme Court Cases 677 (Wadi Vs. Amilal and others). Further, the
counsel for the respondent also placed reliance upon the decision reported in AIR 2014 Supreme Court 937 (Union of India Vs. Vasavi Co-op.
Housing Society Ltd and others). The principles of law outlined in the above said decisions are taken into consideration and followed as applicable
to the facts and circumstances of the case at hand.
At the end, the contention of the appellant''s counsel that the courts below have erred in dismissing the suit in the absence of other legal
evidence to deny the title of the plaintiff vis a vis Exs.A1 and 2 and the revenue records is rejected. The plaintiff having come forward with the suit
seeking the reliefs of declaration and permanent injunction has to stand or fall on the strength of his own case. The plaintiff cannot be allowed to
pick holes in the defendant''s case and thereby contend that his case should be accepted irrespective of the proof or evidence.
In such view of the matter, the substantial question of law formulated for consideration in this second appeal is answered against the appellant
and in favour of the respondent.
In conclusion, the second appeal is dismissed as devoid of merits. No costs. Consequently, connected Civil Miscellaneous Petition is
dismissed.