Somasundaram vs Durai Singh Durai Singh Vs Somasundaram

R. Mala, J.—The averments in the plaint is as follows:

The suit property originally belonged to plaintiffs grand-father Arunachala Thondaiman. He died long ago, leaving behind his four sons Subramanian, Subbiah, Chidambaram and the plaintiff's father Kannaiah as his legal heirs and they jointly inherited the property and then, they divided the property as early as in the year 1952. The suit property and other properties were allotted to this Kannaiah, who is none other than the plaintiff's father, who was in possession and enjoyment of the same. After Act 26/1948 came into force, the Settlement Officer made an enquiry for fasli 1368, patta was assigned in the name of the plaintiff's father Kannaiah and the patta number is 8. He paid the kist till his life-time. He died in the year 1987, leaving behind his wife Thangammal and sons Durai singh, Villvijayan, Arunachalam and Vijayabhaskar, they succeed the estate of the deceased including the suit property. As a manager of the joint family property, the plaintiff filed the suit and he is in possession and enjoyment of the same. The defendant has no manner of right whatsoever in the suit property with the connivance of the revenue officials and without the knowledge of the plaintiff's family got transfer of patta in his name for the suit property, as per order of the then Peravurani Tahsildar on his order P.T. No. 28/80. Thereafter, the plaintiff's father filed an application at Alangudi Tahsildar and he made an enquiry and cancelled the patta and reinstate the name of the plaintiff's father in patta number 8 for the suit property as per order in D.K.735/78, dated 11.08.1978. During the Updating Scheme, the defendant fraudulently obtained patta to the suit property in his name. After knowing the same, the plaintiff's father preferred an appeal before the Revenue Divisional Officer, Pudukkottai and obtained stay order pending disposal of the appeal. The defendants claiming title to the suit property under the sale deed dated 24.11.1921. The sale deed does not relate to the suit property. The property in the sale deed is situated only to the east of the suit survey number. There is a long enmity between the plaintiff's family with the defendants. On 15.08.1989, when the plaintiff's are about to plough the suit land, the defendant with his large men came and attempted to trespass and attempted to prevent this plaintiff from ploughing the suit land. The plaintiff with great difficulty prevented the defendant from trespassing into the suit land.

Hence, he is constrained to file a suit for declaration of title and injunction and an alternative prayer for declaration and recovery of possession and pray for a decree. During the pendency of the suit, the defendant died and his legal heir has been impleaded as a second defendant.

The gist and essence of written statement filed by the defendant is as follows:

The suit is not maintainable. The Survey No. 4/1, 4/4a, 4/4b belongs to the plaintiff's family. They sold the same to one Rengan Chettiyar of Kothamangalam. The Survey No. 4/4A is one of the eastern boundary of the suit property. The suit property has not been mentioned as a boundary in the property sold to one Rengan Chettiar of Kothamangalam. The plaintiff's father Muthuveeran purchased the suit property on the east of the suit property to the extent of 10 Ma on 24.11.1921, under registered sale deed. He died 50 years before. He is having sons Kalappan, Adaikalam, Chinnaiah/the defendants herein. Two or three years after the death of Muthuveeran, the sons of Muthuveeran orally divided the property and they are in possession and enjoyment of the property. The eastern portion allotted to Kalappan, west of the Kalappan's property has been allotted to Adaikalam and on the western side allotted to this defendant. They divide the Survey numbers. 5/2, 5/1 and 4/2 respectively. They are in possession and enjoyment of the same by way of paying tax. The west of 4/2 survey number 4/1 and 4/4a is situated and it is owned by plaintiffs. The plaintiff's father obtained patta for the suit property without the knowledge of the defendant. When the defendant came to know the same in the year 1970, subsequently Kannaiah has taken steps and obtained patta in his name. At the time, the Kannaiah demanded Rs. 500/-, but the defendants at the interference of panchayatars, paid Rs. 200/- and signed before the Peravurani Tahsildar that he has no objection for the change of patta in the name of defendant. Since, the papers were destroyed, now the plaintiff filed the suit with ulterior motive. One Pavananthan, who is the plaintiff's son paternal uncle son, who is a Village Administrative Officer has changed the patta in the name of Kannaiah without notice to the defendant. The appeal has been preferred by this defendant and the appeal has been disposed of with a direction seeking the remedy before the Civil Court. Even though the property is in the possession of this defendant, because of financial constraint, he is unable to file a suit in the year 1984 and during the UDR Scheme the Revenue Authorities recognising the possession and enjoyment of the defendant, patta has been given in his

name. Kannaiah objected the same and gave a petition before Peravoorani Tahsildar, that has been rejected by the Tahsildar, against that, he preferred an appeal before the Revenue Divisional Officer, Pudukkottai, which is also dismissed after his death. The plaintiff has given a false information that the appeal is pending. Sale deed of the year 1921 contained the suit property. Plaintiff's mother in possession and enjoyment of the sale deed, patta in her name, the defendant enjoying the suit property for more than 12 years with knowledge of others without any interference. Hence, they have prescribed title by adverse possession. No cause of action has been arisen for filing the suit. Hence, he prays for the dismissal of the suit.

The District Munsif, Aranthangi, after considering the averments both in the plaint and in the written statement framed issues and after considering the oral evidence of P.W.1 to P.W.3 and D.W.1 to D.W.5 and documents marked under Ex.A1 to Ex.A30, ExB1 to Ex.B26 and Ex.X1 and Ex.X2, Ex.C1 to Ex.C3, suit was decreed. Against that Appeal in A.S. No. 18 of 1996 was filed and that appeal has been remanded back to the trial court. After that the trial court has recasted issue No. 1 to 5 and considering the oral evidence of P.W.1 to P.W.4, D.W.1 to D.W.6 and documents marked under Ex.A1 to A32 and Ex.B1 to Ex.B27 and Ex.X1 to Ex.X4 and Ex.C1 to Ex.C3 and decreed the suit and granted injunction only in respect of western 62 cents, and in respect of 86 cents, the suit has been dismissed. Against that the plaintiff and defendant preferred two appeals in A.S. Nos. 110 of 1999 and 111 of 1999 and the first appellate court after considering the arguments made by both sides, dismissed the appeals and confirmed the judgment and decree of the trial court. Against that, the plaintiff has preferred a Second Appeal in S.A. No. 330 of 2003 and the second defendant has preferred a Second Appeal in S.A. No. 1059 of 2001.

This Court after considering the entire material records in S.A. No. 1059 of 2001, admitted the Second Appeal on the following Substantial questions of law:

When the document of title of the plaintiff was of the year 1921 is the learned Additional District Judge right in not applying the principle boundary prevail over extent?

When it is nobody's case that both the plaintiff and the defendant are entitled to a portion of the suit property is the learned Additional District Judge right in Seggregating the suit property between the plaintiff and the defendant?

This Court after considering the entire material records in S.A. No. 1059 of 2001, admitted the Second Appeal on the following Substantial questions of law:

When the plaintiff has established his case in toto are the courts below justified in law in granting decree to an extent of 62 cents out of 1 acre 48 cents?

Whether the judgment and decree of the Courts below are sustainable in law especially when the boundary recitals in Ex.B1 does not tally with the suit property?

For Convenience sake, the parties are called as called in the trial court.

The plaintiff has filed the suit as the Manager of the family for declaration of title and for recovery of possession Regarding Survey No. 4/2 1 acre 48 cents, stating that the property belonging to the grand-father Arunachala Thondaiman. He died intestate. He is having four sons Subramanian, Subbiah, Chidambaram and Kannaiah. Kanniah's children are the plaintiffs. In the year 1952, the suit property and other properties were orally partitioned and the suit property was allotted to the plaintiff's father and the defendants not having any right, obtained patta for the property and trespassed upon the property and filed the suit.

The defendant raised the contention that the suit property is not belonging to the family of the plaintiffs. His father Muthuveeran purchased the suit property under a registered sale deed, dated 24.11.1921 along with other properties. From that date onwards, he is in possession and enjoyment of the same. The plaintiffs'' father without the knowledge of the defendant obtained patta in his name. Now only he got the patta changed in the name of the defendant and he is in possession and enjoyment. Hence, he prayed for the dismissal of the suit.

The trial court has decided the matter and against that Appeal in A.S. No. 18 of 1996 was filed and that appeal has been remanded back to the trial court. After that the trial court has recasted the issue No. 1 to 5 and considering the oral evidence of P.W.1 to P.W.4, D.W.1 to D.W.6 and Ex.A1 to A32 and Ex.B1 to Ex.B27 and Ex.X1 to Ex.X4 and Ex.C1 to Ex.C3 and decreed the suit only in respect of western 62 cents and in respect of 86 cents, the suit has been dismissed. Against that the plaintiff and defendant preferred two appeals in A.S. Nos. 110 of 1999 and 111 of 1999 and the first appellate court after considering the arguments made by both sides, dismissed the appeals and confirmed the judgment and decree of the trial court. Against that the plaintiff has preferred a Second Appeal in S.A. No. 330 of 2003 and the second defendant has preferred a Second Appeal in S.A. No. 1059 of 2001.

The learned Counsel for the respondent would contend that the suit property is situated in S. No. 4/2 1 acre 48 cents. The plaintiffs family owns properties situated in S. No. 4/1,4/4A and 4/4B. Eastern side of S. No. 4/4A is belonging to the defendants. The defendants father Muthuveeran purchased this property and other properties under Ex.B1 on 24.02.1921 10 Mas. Muthuveeran have three sons Adaikalam, Kalappan and Chinniah. Chinniah is the first defendant. In Partition, the suit property in S. No. 4/2 has been allotted to him. In Ex.B2, this property is not shown as boundary. Patta has been given as per Ex.A2 and it stands in the name of Kannaiah. Kist receipts are marked as Ex.A12 to Ex.A24. Ex.A27 is F.M plan for Survey No. 4/4A. ""A"" Register has been marked as Ex.A28. In Ex.A29, dated 24.05.1965 sale deed in respect of S. No. 4/1, the boundary recital has been mentioned as Kannaiah's land. One Rangan Chettiar purchased the said land from Subramania Thondaiman. They sold the property in S. No. 4/1 94 cents. The genuiness of Ex.A27 and Ex.A29 are not disputed. So the plaintiffs are not in possession of the entire property. The trial court and the first appellate court after considering the entire material records granted decree only in respect of western 0.62 cents and prayed for a decree as prayed for in the plaint.

The learned Counsel for the defendants would contend that his father Muthuveeran has purchased the property under Ex.B1 on 24.02.2001 from one Muthukaruppan Ambalakarar 10 Mas and from that date onwards, he is in possession and enjoyment of the same. Patta also stands in the name as per Ex.B4. Patta Number is 324. Adangal has been marked as Ex.B7 to Ex.B11. Kist receipts have been marked as Ex.B12 to Ex.B18. After his death, the second defendant has paid kist and the same is marked from Ex.B19 to Ex.B23. So, they are in possession and enjoyment of the same. So, the trial court after considering all the aspects granted decree only in respect of west 0.62 cents is not correct and prayed for dismissal of the suit and allowing of the appeal.

Upon hearing the arguments made by both sides and a perusal of documents, admittedly, total extent in S. No. 4/2 is 1 acre 48 cents. The case of the plaintiffs is that it is owned by their grand-father Arunachala Thondaiman. He is having four sons, namely, Subramanian, Subbiah, Chidambaram and Kannaiah. Kanniah's son is the plaintiff herein. He marked Ex.A1 Settlement Notice, Patta No. 3 in the name of Kanniah/plaintiff's father in respect of 1 acre 48 cents in S. No. 4/2 along with other properties. As per Ex.A2, patta has been issued in respect of

S. No. 4/2, 1 acre and 48 cents. Patta Pass Book is marked as Ex.A3. In that, it is stated that it is a dry land 1 acre and 48 cents. The Adangal copy is also marked as Ex.A2 to Ex.A4 in respect of S. No. 4/2. It stands in the name of the plaintiff's father. It is pertinent to note that Ex.A1 is an old document. It has been issued by the Government for Fasli 1367. They mentioned the property in S. No. 4/2 1 acre 48 cents. Tahsildar had signed the same. He mostly relied upon the document in Ex.A1 and it came into existence prior to the dispute in respect of 1 acre and 48 cents. It is pertinent to note that both the plaintiff and the defendant have filed kist receipts. The plaintiffs kist receipts has been marked as Ex.A4 to Ex.A6 from Fasli 1388 to 1394 Adangal is marked as Ex.A7. The defendant filed the Adangal marked as Ex.B7 to Ex.B11 for the fasli 1395 to 1399.

Kist receipts also marked by the plaintiffs under Ex.A12 to Ex.A24 and the defendants also marked kist receipts under Ex.B12 to Ex.B23. The crucial question that has to be decided is that who is the owner of the S. No. 4/2, 1 acre and 48 cents.

It is pertinent to note that in Ex.B1, the survey number has not been mentioned, because it is of the year 1921. Either side has not examined the Village Administrative Officer or filed ""A"" Register for correlating the suit property. But, they filed the revenue records to show that S. No. 4/2, 1 acre 48 cents stands in the name of the plaintiff as per Ex.A3, Ex.A27-FMB Sketch and Ex.A31-Village Survey plan Ex.A25 is dated

31.03.1986. Since, in Ex.A24 there is a correction in the name, this Court is not placing any reliance on the document. Ex.A31 is the Village Measurement Plan, but, it is not helpful and ""A"" Register alone has contained the name of Pattadar. But Ex.B5 is a document dated 22.11.1980, the letter communicated to the first respondent by the Revenue Divisional Officer, Pudukkottai. In that, it was stated that both the plaintiff's father Kanniah and first defendant and the second defendant's father Chinniah always made a claim in respect of S. No. 4/2. Hence, the Revenue Divisional Officer has given an advise to seek remedy in a Civil Court. Even though it has been received by Chinniah, he has not preferred any suit.

The plaintiff after the death of Kanniah on behalf of the legal representatives filed a suit. In the suit, he has put forth his claim. Since the documents were filed without survey number, a Commissioner has been appointed by the trial court and directed the Commissioner to identify the property with the document filed by parties.

It is pertinent to note that under Ex.B27, the plaintiffs junior paternal uncle execute a sale deed in favour of one Ramasamy under Ex.B27. He has stated that he sold 1 acre 67 cents. But no survey number is there. That the plaintiff's senior paternal uncle sold the property to Rengan Chettiar under Ex.A29 on 24.05.1965 in respect of Survey No. 4/1 94 cents. In turn, Rengan Chettiar sold the same to Paneerselvam under Ex.A30 on 27.02.1984 in the same survey number. The plaintiff herein has sold 84 cents in S. No. 4/4, out of 3 acre 74 cents to Rengan Chettiar and his another brother Subbiah and Chidambaram sold 1 acre and 58 cents, out of 3 acre 74 cents in S. No. 4/1. The learned Counsel for the defendant would contend that the family has owned only property under S. No. 4/4. They are not having any property in survey number 4/2.

Before Inam Abolition Act, the revenue records has shown that the appellant is in possession of survey number 4/2. The ancient document in Ex.A1-Settlement Notice, it was mentioned as survey number 4/2, 1 acre 33 cents and patta issued under Ex.A2 for the same. The Commissioner has considered all the documents and identified the properties. But none of the document has been related to S. No. 4/2. On the basis of the oral evidence, the trial court has come to the conclusion that they are in possession of 62 cents.

Since Ex.B1 has not contained the Survey Number, there was a dispute between the plaintiff and defendant's father for mutation of revenue records then and there. Then only, the Revenue Divisional Officer has given an advise under Ex.B5 that since there was a dispute in respect of S.

No. 4/2, 1 acre 48 cents to work out the remedy before a Civil Court. But the defendant has not preferred any suit. The plaintiff has come forward with a suit. The revenue records are not document of title. It will not confer or extinguish title to the parties. In the above said circumstances, plaintiff has not filed any document. But they pleaded it as ancestral property.

Even though the plaintiff is claiming title over the suit property in S. No. 4/2, 1 acre 48 cents, stating that it is an ancestral property and they inherited the property by succession. But the defendant herein is claiming title under Ex.B1. As per Ex.B1, he has purchased 10 Mas and that property is named as "Pattari Punjai", 10 Mas,i.e.,3 acre and 33 cents. It has been purchased by the second defendant's grand-father Muthuveeran. But it contains present survey number S. No. 4/2,5/2 and 5/1. So the S. No. 5/2 and 5/1 contains 2 acres and 47 cents. The balance is 86 cents. So the defendant is entitled to 86 cents. The remaining 62 cents alone belonging to this plaintiff. So, the trial court and the first appellate court has considered all the documents in proper prospective and come to the correct conclusion that the plaintiff is entitled to western 62 cents. Since he is entitled to declaration and injunction in respect of eastern 86 cents, the plaintiff is not entitled to any decree.

For the foregoing reasons, the decree and judgement of the trial court and the first appellate court is liable to be confirmed and the second appeals are liable to be dismissed.

In fine, the Second Appeals are dismissed. The judgments and decrees of the trial court and the first appellate court are hereby confirmed. No costs.