P. Thangadurai and Others vs S. Janarthanan and Others

P.R. Shivakumar, J—The Second Appeal is listed today for admission. The arguments advanced by Mr. C. Vakeeswaran, learned counsel for the appellants are heard. Copies of the judgements of the Courts below and copies of other documents produced in the form of typed-set of papers are perused. This Court bestowed its attention to the above said documents.

The appellants filed a suit in O.S. No. 500 of 2001 on the file of the Additional District Munsif, Madurai against the respondents herein for the following reliefs:

(1) for declaration declaring the alleged absolute title of the Plaintiffs in respect of the suit property and a consequential direction directing the second respondent to retransfer the possessory right to the Plaintiffs;

(2) for a perpetual injunction against the respondents not to alienate or encumber by way of sale or mortgage in favour of any person; and

(3) for costs.

The suit was resisted by the respondents 1 and 2 herein/defendants refuting the claim of the appellants/Plaintiffs that they are the absolute owners of the suit property and they are entitled to recovery of possession and the relief of injunction as sought for.

The third respondent got impleaded as third defendant on the premise that the respondents 1 and 2, being the real owners of the property had mortgaged the property in favour of the third respondent/Bank and that in order to defeat the rights of the bank, the suit came to be filed.

After framing of necessary issues, the trial Court conducted the trial and at the end of the trial and on appreciation of evidence, the learned Trial Judge came to the conclusion that the appellants herein/Plaintiffs failed to prove their title, on the other hand, preponderance of probabilities, the respondents/defendants were able to prove that the property belonged to the respondents 1 and 2 and that they have exercised the right of ownership all along including the creation of mortgage in favour of the third respondent. Accordingly, the learned trial Judge non-suited the appellants/Plaintiffs for any of the reliefs sought for in the plaint. On appeal, in A.S. No. 21 of 2008 on the file of the IV Additional District Court, Madurai, the learned Lower Appellate Judge concurred with the findings of the trial Court in all respects and dismissed the appeal by judgement and decree dated 8.12.2014 confirming the decree of the trial Court dismissing the suit. It is as against the said decree of the lower appellate Court dated 8.12.2014 made in A.S. No. 21 of 2008, the present Second Appeal has been filed.

No substantial question of law is shown to have arisen for consideration in this Second Appeal. The following questions have been formulated and incorporated in the memorandum of grounds of Second Appeal as the Substantial Questions of law, according to the appellants, that have been arisen for consideration in the appeal:

Whether the Courts below are right in concluding that the Plaintiffs have not produced the title to the document of the suit property except Ex. A2 the Settlement Patta and not proved the relief of declaration, when the defendants have only produced the Ex. B2, the Partition deed as a title to the document of the suit property, warrants interference ?

Whether the Courts below are right in appreciating the Ex. B2 the Partition Deed as a title to the documents of the suit property, with out producing the sale deed of the earlier vendor, warrants interference ?

Whether the Courts below right in appreciating that the patta does not confers the title to the suit property and the Plaintiffs have not proved the case in the absence of the title to the suit property, the patta which confers title to the suit property or not, warrants interference ?

In effect, all the said questions can be condensed into a single question, namely ''''whether the finding of the Courts below regarding the proof of title is perverse?'''' The appellants/Plaintiffs simply relied on Ex. A2-Town Survey Register Extract in support of their claim of title to the suit property. It is trite that in respect of the properties assessed to tax not being the properties being assigned by the Government, patta or revenue records shall not be construed to be the title deeds. Excepting the Town Survey Register Extract, no other document has been produced by the appellants/Plaintiffs to show that they have got title. Except some tax receipts, obtained as a prelude to the filing of the suit, they are not in a position to trace their title of any one from whom they derived it. On the other hand, the title of the respondents 1 and 2 came to be traced to an ancient document of the year 1919. The said document has been produced as Ex. B2. Of course, an intermediary document, namely a partition deed of the year 1933, relied on by the respondents/defendants has not been produced. But the sale deeds of the year 1978 produced as Ex. B7 and Ex. B8 refer to the said document. Hence the respondents have clearly traced their title right from the year 1919.

It is not the case of the appellants/Plaintiffs that they derived title from any of the parties to the document of the year 1919, in which event alone, they can take advantage of the non-production of the partition deed of the year 1933. Apart from the fact that the respondents/defendants clearly traced their title, the possession is not only proved to be with the respondents 1 and 2 but also admitted by the appellants by seeking a prayer for retransfer of the possessory title to the appellants/Plaintiffs. With a clear vision and a correct understanding of the principles of law, both the Courts below have rendered a finding on appreciation/re-appreciation of evidence, to the effect that the appellants herein/plaintiffs miserably failed in their attempt to prove their alleged title in respect of the suit properties and that therefore they were not entitled to any of the reliefs sought for in the plaint. The said finding, being a finding of fact, cannot be said to be perverse because it cannot be projected as a finding based on no evidence or inadmissible evidence or without considering the admissible piece of evidence. Such a finding on preponderance of probabilities also cannot be termed as one that could not have been taken based on the available materials by any reasonable reason.

For the said reasons, this Court comes to the conclusion that the finding sought to be assailed as perverse miserably fails and that the Second Appeal deserves to be dismissed. The Second Appeal does not even merit admission and the same deserves dismissal at the threshold.

Accordingly, the Second Appeal is dismissed. Consequently, connected Miscellaneous Petition is dismissed. There is no order as to costs.