Ramamirtham and Thiyanayaki vs Arunachalam Chettiar

Honourable Mr. Justice M. Venugopal

The Appellants/Defendants have filed the present Second Appeal as against the Judgment and Decree dated 26.10.1998 in A.S.No. 89 of

1998 passed by the Learned Principal Sub Judge, Mayiladuturai in confirming the Judgment and Decree dated 03.01.1995 in O.S.No. 973 of

1986 passed by the Learned District Munsif, Mayiladuturai. The 1st Appellate Court viz., the Learned Principal Sub Judge, Mayiladuturai, while

passing the Judgment in A.S.No. 89 of 1998, on 26.10.1998, has, inter alia opined that as per Ex.A.1 Sale Deed dated 26.01.1928, it is seen that

the Respondent/Plaintiff''s grandfather has half share right in the suit property and also, that as per Ex.A.3, the Town Survey Field Register Book

Extract in respect of the suit property, Subramaniya Iyyer, who has executed a sale in favour of the Respondent/Plaintiff''s grandfather, has right

and it is not established that as to how the Sambandam Pillai has executed Ex.B.1 Sale Deed dated 17.01.1955 to and in favour of Pethaperumal

Pillai in respect of the suit property and no evidence of witnesses and documents have been let in or produced to show that Pethaperumal Pillai, as

an absolute owner, has enjoyed the property purchased as per Ex.B.1 Sale Deed dated 17.01.1955 and moreover, the Appellants/Defendants

have not established that they have got full right in respect of the suit property and under this circumstance, the Respondent/Plaintiff has a right to

claim the half share in the suit property and resultantly, dismissed the Appeal with costs, thereby confirming the Judgment and Decree passed by

the trial Court in the main suit.

Before the trial Court, in the main suit, 1 to 4 issues have been framed for trial. On behalf of the Respondent/Plaintiff, witnesses P.W.1 to P.W.3

have been examined and Exs.A.1 to A.9 have been marked. On the side of the Appellants/Defendants, witnesses D.W.1 to D.W.3 have been

examined and Exs.B1 and B.2 have been marked.

The trial Court after analysing the oral and documentary evidence available on record has come to a definite conclusion that the Respondent/

Plaintiff is entitled to get the relief of his half right share in the suit property as an alternate relief and passed a preliminary decree by decreeing the

suit, leaving the parties to bear their own costs.

At the time of Admission of the Second Appeal, this Court has formulated the following substantial questions of Law:

1) Whether the Judgment of Court below is vitiated by reason of reliance upon a document which came into existence after suit?

2) Whether the court below was justified in placing the burden wrongly upon the Appellants?

3) Whether the Courts below erred in granting the relief to the Plaintiff when they have not established their vendor''s title to the property?

The Contentions, Discussions and Findings on substantial questions of law 1 to 3: According to the Learned Counsel for the

Appellants/Defendants, the Respondent/Plaintiff has failed to discharge his onus by establishing the title of his vendor Subramaniya Iyyer.

The Learned Counsel for the Appellants/Defendants submits that the Appellants/Defendants in their written statement have denied the title of the

Respondent/Plaintiff''s title vendor Subramaniya Iyyer and it is clearly stated that he has no title to convey the suit property to the Appellants as per

Ex.A.1 Sale Deed dated 26.01.1928 and that there is no evidence to show that the Respondent/Plaintiff enjoyed half of the suit property,

subsequent to Ex.A.1 Sale Deed dated 26.01.1928.

Advancing his arguments, it is the contention of the Learned Counsel for the Appellants/Defendants that Ex.A.3 Town Survey Field Register

Book Extract in respect of the suit property is not a title document and it cannot confer any title to Subramaniya Iyyer.

That apart, the Learned Counsel for the Appellants/Defendants projects a plea that Exs.A.7 to A.9 Tax Demand Notice, Order of the Assistant

Commissioner (Urban Land Tax) and Mayiladuturai Town Survey Field Register Book Extract are all subsequent to suit and ought not to have

been relied on by both the Courts. Lastly, it is the contention of the Learned Counsel for the Appellants/Defendants that both the trial Court as well

as the 1st Appellate Court have committed an error in not taking into consideration the admissions of P.W.1 and P.W.3 regarding the possession

of the Appellants/Defendants.

Per contra, it is the contention of the Learned Counsel for the Respondent/Plaintiff that the trial Court clearly observed in the Suit Judgment that

based on Exs.A.1 and A.2 Sale Deeds dated 26.01.1928 and 02.12.1959 respectively, in the total extent of the suit property of 13,188 square

feet, the Respondent/Plaintiff is entitled to partition his half share because of the fact that the entire property has not been totally divided and rightly

granted the alternative relief of partition and passed a decree that the Respondent/ Plaintiff is entitled to get his half share in the suit property and

passed a preliminary decree to that effect and further, the 1st Appellate Court has also looked into the matter in a dispassionate manner and has

rightly dismissed the Appeal, which need not be interfered with, by this Court sitting in Second Appeal.

It is the evidence of P.W.1 (Respondent/Plaintiff) that originally the suit property belonged to Subramaniya Iyyer and his father has purchased

the property on 26.01.1928 as per Ex.A.1 Sale Deed and his grandfather has purchased half portion in the survey number and thereafter, their

family has partitioned the property and Ex.A.2 is the Partition Deed dated 02.12.1959 and that he is not in possession of the original Partition

Deed and as per Partition Deed, the suit property has been allotted to him and that Ex.A.3 is the Town Survey Field Extract issued by the

Municipality and the Eastern side of the property has been enjoyed by their family and that the Appellants/Defendants are the wives of

Pethaperumal and the Western side of the property has been in enjoyment of the Appellants/Defendants and that on the road side, he has put up a

fence and their enjoyment is a separate one.

It is the further evidence of P.W.1 (Respondent/Plaintiff) that in his portion there is one tamarind tree and also, in the Appellants/Defendants''

portion there is another tamarind tree and the tree in the portion of the Appellants/Defendants has been cut and he has issued Ex.A.4 Notice dated

29.01.1986 to the Appellants/Defendants and that the Appellants/Defendants, after receiving the Notice, have not given any reply and it is not

correct to state that on 17.01.1955, the entire extent in survey number has been purchased by Sambandam Pillai.

P.W.1 (in his cross examination) has deposed that he has not seen the prior document at the time of purchasing the suit property and he does

not know, who is residing on the Eastern side of the suit property and he has given instructions for the preparation of the plaint and in that Partition

Deed, four boundaries to the suit have been written and at any point of time, there has been no house in the suit property.

P.W.1 goes on to add in his evidence that in Ex.A.3, Town Survey Field Register Book Extract, it is mentioned that a house has been in

existence for which the door number is 7 and in respect of the suit, he has issued two Notices to the Appellants/Defendants.

Apart from the above, it is the evidence of P.W.1 that at the time of family partition during the year 1959, from whom, the Defendants have

purchased, he does not know and that the suit property has been purchased by the husband of the Defendants, but he does not know the year of

purchase and he does not know the extent of the property purchased by the Appellants/ Defendants'' husband. Furthermore, it is the evidence of

P.W.1 that Ex.A.7 Urban Land Tax demand Notice has been handed over to him personally and in Ex.A.7, after the signature, there is no date

and Ex.A.8 Urban Land Tax Assistant Commissioner''s Order dated 02.09.1994 has been given to him directly from the Office and he has paid

the tax. In Ex.A.9 Mayiladuturai Town Survey Field Register Book Extract, there is no seal and it is wrong to state that this document has not been

obtained properly.

P.W.2 in his evidence has deposed that in the suit property, on the Eastern side, there is a tamarind tree and on the Western side, there is

another tamarind tree and that tree has been cut and on the side of the road, there is fence.

It is the evidence of P.W.3 that the total extent of the suit property is approximately 6,000 square feet and it has been in enjoyment of one

Arunachalam Chettiar and on the Eastern side, there has been two tamarind trees and one tree has fallen down and he does not know, who is

residing on the Eastern and Western sides of the suit property.

D.W.1 (2nd Defendant''s brother) in his evidence has deposed that Pethaperumal, before marrying his sister, is a relative and he has died 22

years ago and he has no issues and it is not correct to state that half portion of the suit land has been in enjoyment of Arunachalam Chettiar and

there is no indication that the property has been divided into half.

D.W.1 (in his cross examination) has deposed that he has paid the tax demand in the name of Pethaperumal and that original Will have been

lost and he does not know, initially, as to whom the property belonged and he does not know, in whose name the 1952 document stands and

during the year 1955, the Sale Deed came into existence in the name of Pethaperumal and that he has not seen the parent document and he does

not know, as to how Sambandam Pillai has got the property and he does not know whether Sambandam Pillai is alive or not and he has not read

the two Sale Deeds and does not know about the same and there is no enmity between himself and the witnesses examined on the side of the

Respondent/Plaintiff.

D.W.2 in his evidence has deposed that he is a farm servant of the Defendants. On four sides, who are all residing, he does not know and on

the Southern side of the backyard, there is a paddy field and on the Eastern and Western sides, there is a house and he knows about the street

where the suit property is situated.

D.W.3 in his evidence has deposed that the suit property originally belonged to Muthaiya Padayachi and there has been a big tiled house in

which he has resided as a tenant approximately 45 years ago and that the suit property has been sold to driver Sambandam and even after the said

sale, he has been residing in the property and he has been paying the rent to Sambandam and Sambandam has sold the property to Pethaperumal

and he has paid the rent for six months to Pethaperumal and thereafter, the Southern side wall has fallen down and he has vacated the house 35

years ago and now, the property is a vacant site, in which there are two tamarind trees and in the suit property there is no fence and to his

knowledge, Arunachalam Chettiar has not come to the property place.

The case of the Respondent/Plaintiff as seen from the plaint is that the suit property totally measures an extent of 13,188 square feet and that

the Respondent/Plaintiff''s grandfather Arunachalam Chettiar has purchased an undivided half share in the suit property survey number on

26.01.1928 from one Subramaniya Iyyer and that the Appellants/Defendants are wives of Pethaperumal Pillai (since deceased) and that the said

Pethaperumal Pillai purchased the balance half share of the suit property subsequently and the undivided half share purchased by the

Respondent/Plaintiff''s grandfather has been allotted to the Respondent/Plaintiff in a partition that has taken place on 02.12.1959 and after the

demise of the Pethaperumal Pillai, the Appellants/ Defendants are enjoying the property.

Continuing further, the Respondent/Plaintiff has been informed by the Appellants/Defendants'' relative, who is residing opposite to the suit land

that he will put up fence, so that the suit property may not be exposed to be occupied by others, for which the Respondent/Plaintiff has agreed and

therefore, fences have been put up around the property and small fence has been put up in the front, through which the parties are having access to

reach the suit property. In order to have a clear demarcation between the Respondent/Plaintiff and the Appellants/Defendants, the Respondent/

Plaintiff requested the Appellants/Defendants to measure the plot and fix a boundary line between the properties possessed by each of them, for

which they have not taken any steps till date. Therefore, a notice has been issued to the Appellants/Defendants and they have failed to comply with

the demand of the notice, the Respondent/Plaintiff has filed the suit for demarcation of the boundary line in between the property of the

Respondent/Plaintiff and the Appellants/Defendants or in the alternative praying for passing a preliminary decree for partition in respect of the

Respondent/Plaintiff''s half share in the suit property taking into consideration of the good and bad soil, etc.

In the written statement filed by the 1st Appellant/1st Defendant (adopted by 2nd Appellant/ 2nd Defendant), it is denied that the Respondent/

Plaintiff''s grandfather Arunachalam Chettiar purchased an undivided half share in the suit property on 26.01.1928 from one Subramaniya Iyyer

and that the Subramaniya Iyyer has no possession or title over the suit property for conveying it to the Respondent/Plaintiff''s grandfather and also

that the Respondent/Plaintiff''s grandfather Arunachalam Chettiar has no title or possession of the suit property or any part of it from the vendor by

virtue of the purported Sale Deed dated 26.01.1928.

The Appellants/Defendants take a stand that their husband Pethaperumal Pillai purchased the entire extent of the suit property in Survey No.

545 as per registered Sale Deed dated 17.01.1955 executed by one Sambandam Pillai in his favour for valuable consideration and that the 1st

Appellant/1st Defendant''s husband Pethaperumal Pillai as per Sale Deed has been put up in possession of the entire suit property and he has been

in enjoyment of the suit property as an absolute owner till his demise and thereafter, the Appellants/Defendants, as his heirs, are in possession and

enjoyment of the suit property as owners thereof.

Added further, the Appellants/Defendants have mentioned in their statement that mere mention of the suit property in the Respondent/

Plaintiff''s Partition Deed does not create any title in respect of the Respondent/Plaintiff and further, the Respondent/Plaintiff has not enjoyed the

usufructs of any of the tamarind trees in the suit property and till recent years, there has been a old tiled house in the suit property and it got

dilapidated and fell down and the suit house has been used by the Appellants/ Defendants till it has fallen down.

The Appellants/Defendants or their husband, at any point of time, has agreed to get the suit property demarcated or divided and they have

been advised to ignore the notice sent by the Respondent/Plaintiff. The Respondent/Plaintiff is endeavouring to take advantage of the erroneous

mention of the suit survey number in the documents, which are mere paper transactions, obviously intended to grab at other peoples property.

Ex.A.1 is the Sale Deed dated 26.01.1928 wherein the Respondent/ Plaintiff''s grandfather Arunachalam Chettiar has purchased an undivided

half share in the plaint schedule property from one Subramaniya Iyyer. A perusal of the said Sale Deed shows that the vendor Subramaniya Iyyer

has stated that the property belongs to him ancestrally and that he has been in enjoyment of the Nanja, punja, Jari site, etc. Ex.A.2 is the Partition

Deed dated 02.12.1959 in and by which the undivided half share purchased by the Respondent/ Plaintiff''s grandfather has been allotted to the

Respondent/Plaintiff in the partition. In Ex.A.3, the Extract from Town Survey Field Register in Mayuram - Town, Thanjavur Dist. in respect of the

Survey No. 545 (Old No. 53AE) measuring an extent of 0.13188. In the Municipal Register, the names of (1) Subramaniya Iyyer and (2)

Gurusamy Iyyer (Kadhiresa Pady) are seen. In Adangal, the name of M.Subramaniya Iyyer is found. In Ex.A.3, the Town Survey Field Register

Book Extract, the building is said to have been utilised as house. Ex.A.7 is the Form 4-C Notice issued u/s 11(1) read with Section 7-D and 40-A

of the Tamil Nadu Urban Land Tax Act, 1966, wherein the survey number is mentioned as 545 bearing Ward No. 1, Block No. 17 in

Mayiladuturai Town and the extent mentioned therein is 13,188 square feet. The market value per ground is mentioned as Rs. 7,200/- .

Ex.A.7 Urban Land Tax demand Notice has been issued to Respondent/Plaintiff calling upon him to furnish a statement in writing of his

objections, if any, to the assessment made in respect of the urban land under the provisions of the Amendment Act, 1991 and also, it has been

made mention of that it is proposed to impose a penalty not exceeding half of the amount of Urban Land Tax for his failure to file the return as per

Section 7-D of the Act. The objections also to be heard into on 29.08.1994 at 11.00 a.m. and he has been required to appear in person or by his

authorised agent and to adduce any oral and documentary evidence in support of his objections. In Form 5-G, Order of assessment of the

Assistant Commissioner, it is mentioned that in Survey No. 545 bearing Town No. 1, Block No. 17 in Mayiladuturai Village, extent of ground is

2.1794/6594 square feet and the market value determined per ground is mentioned as Rs. 7,200/- and the Urban Land Tax, as determined by the

Assistant Commissioner, has been mentioned as Rs. 38/- to be paid from Fasli 1401. As per Ex.A.1 Sale Deed dated 26.01.1928, the

Respondent/Plaintiff''s grandfather has purchased an undivided half share in the suit plaint scheduled property. In the instant case, it is not

established as to how Sambandam Pillai has got right to sell the property to the Appellants/Defendants as per Ex.B.1 Sale Deed 17.01.1955. No

acceptable and convincing evidence or documents have been let in or produced on behalf of the Appellants/Defendants to exhibit as to how

Pethaperumal has enjoyed the entire extent of property of 13,188 square feet. In Ex.A.3, the Town Survey Field Register Book Extract, it is

mentioned that there is a house. In regard to the payment of house tax receipts, the same has not been filed on behalf of the Appellants/Defendants.

But the Appellants, through D.W.1, has deposed that the Sale Deeds have been misplaced and that she has paid the tax. If really Pethaperumal

has enjoyed the entire extent of the property, at least some tax payment receipts would have been filed on the side of the Appellants/Defendants

before the trial Court.

The Appellants/Defendants have not examined themselves as witnesses before the trial Court. Based on Exs.B.1 and B.2 Sale Deeds dated

17.01.1955 and 13.08.1952 respectively, one cannot safely come to the conclusion that the Appellants/Defendants have acquired right and

enjoyment of the property, which is the subject matter in issue. Even before filing of the suit, Ex.A.7 Urban Land Tax demand Notice has been

issued by the Respondent/Plaintiff to the Appellants/Defendants. As far as the present case is concerned, the Respondent/Plaintiff has filed, on his

side, Ex.A.1 Sale Deed dated 26.01.1928, which is more than 30 years old document and also, he has filed another document Ex.A.2 Partition

Deed dated 02.12.1959 to show that his grandfather has purchased the undivided half share and the same has been allotted to him in the partition.

In Ex.A.1 Sale Deed dated 26.01.1928, it is clearly mentioned that the undivided half share has been purchased by the Respondent/Plaintiff''s

grandfather from one Subramaniya Iyyer. Moreover, in the said document, it is mentioned that Subramaniya Iyyer has got the property right

ancestrally. But, there is no plausible, convincing and acceptable evidence on the side of the Appellants/Defendants to show as to how

Sambandam Pillai has sold the property as per Ex.B.1 Sale Deed dated 17.01.1955 to Pethaperumal Pillai viz., the husband of the

Appellants/Defendants.

Ordinarily, the Urban Land Tax assessment order will be issued to the concerned person only in respect of the actual extent of property

enjoyed by a person, who is in possession and occupation of the same. Even though Ex.A.7 Urban Land Tax demand Notice is not a title deed,

yet, the same cannot be brushed aside easily. Inasmuch as the recitals of Ex.A.2 Partition Deed dated 02.12.1959 unerringly point out the

undivided half share has been allotted to the Respondent/Plaintiff in partition, which has been purchased by his grandfather, it is clear that the

Respondent has prima facie established that his grandfather has purchased the property from Subramaniya Iyyer and therefore, the

Respondent/Plaintiff in law, has every right to claim the relief of partition in respect of the suit schedule property, in the considered opinion of this

Court.

Per contra, the Appellants/Defendants have not established as to how Sambandam Pillai has right to sell the property to their husband as per

Ex.B.1 Sale Deed dated 17.01.1955. In a suit for partition, the Plaintiff is a Defendant and the Defendant is a Plaintiff. Therefore, in partition suits

the burden to prove will note remain static. It swings from one position to another after the Plaintiff or Defendant has discharged their onus.

Although, the Respondent/Plaintiff has not marked any documents on his side as to how Subramaniya Iyyer got the property and the earlier

documents have not been marked, yet, the fact remains that the Respondent/Plaintiff has traced his source of title by producing Exs.A.1 and A.2

and the absence of their vendor''s title to the property is not fatal to the case of the Respondent/Plaintiff, in the considered opinion of this Court.

Undoubtedly, in the present case, the Respondent/Plaintiff has proved his prima facie claim of ownership of undivided half share in the suit

property and both the Courts below have dealt with the subject matter in dispute between the parties in a proper and convincing fashion and they

have not committed any material irregularity or patent illegality in passing the preliminary decree of partition in favour of the Respondent/Plaintiff

and dismissed the Appeal in right earnest, which in the considered opinion of this Court requires no interference and also that it cannot be said that

the Courts below have wrongly placed the burden on Appellants/Defendants to prove their case and also that the Judgment and Decree of the trial

Court as well as the Appellate Court in the main suit and in the 1st Appeal are not vitiated because of placing reliance on document, which has

come into existence after the suit and accordingly, the substantial questions of law 1 to 3 are answered against the Appellants/Defendants. As such,

the Second Appeal fails. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and

Decree of the 1st Appellate Court viz., the Learned Principal Sub Judge, Mayiladuturai in A.S.No. 89 of 1998 dated 26.10.1998 and the

Judgment and Decree of the trial Court viz., Learned District Munsif, Mayiladuturai in O.S.No. 973 of 1986 dated 03.01.1995 are affirmed by

this Court for the reasons adumbrated in this Appeal.