The Defendant in O.S.No.60 of 2006 is the appellant before this Court. O.S.No.60 of 2006 has been filed by the respondent/plaintiff for declaration and injunction.
2.The case of the plaintiff in O.S.No.60 of 2006 is that the plaintiff and the defendant are brothers. The suit property is in a Grama Natham. Originally, the suit property belonged to the father of the plaintiff and the defendant, namely Sepasthiyan. The said Sebasthiyan executed a settlement deed dated 18-03-1993 settling the suit property and other properties in favour of the plaintiff and since then, the plaintiff has been enjoying the suit property along with other properties. Thus the plaintiff alone is in possession. Further, the plaintiff has been keeping the suit property as a vacant land for keeping his cattles and also using it as Kalam. The plaintif's father died on 18-07-1994. After his death, he has allowed the defendant to take one property and the defendant has also been enjoing the same.
3.It is the case of the plaintiff that the defendant is also using his land by encroaching upon the West of the suit property which is a lane. When the said encroachment was objected to by the plaintiff, the defendant turned a deaf ear. That apart, the defendant threatended that he would put up a construction in the encroachment. Hence, the above suit for the aforesaid relief.
4.The said suit was resisted by the defendant/appellant herein. While denying the averments made in the plaint, the defendant submitted through his written statement that the suit property was not settled by their father to the plaintiff. He has also referred to earlier proceedings in O.S.No.330 of 1978 between their father and one Francis filed before the District Munsif Court, Sivaganga and later on an appeal was filed before the Sub-Court in A.S.No.40 of 1981 and before this Court in S.A.No.1952 of 1990 and in those proceedings, the plaintiff is not a party, but only the defendant and his brother Jesuraj, were alone the parties. So, according to the defendant, his father did not settle the property in favour of the plaintiff and the plaintiff by himself occupied the property and enjoing the same without any right. Further more, it was his case that the suit property was an ancestrol property and their father had no right to settle the same in favour of the plaintiff alone and it was his further case that the settlement deed was not given effect to. He has also denied about the existing lane in common between the properties. According to the defendant, the plaintiff is living one kilometer from the South of the suit property. The plaintiff has been in un-lawful occupation and enjoyment of the suit property. He is attempting to occupy the property which has been under the control and enjoyment of the defendant since 1985. Therefore, he has also become the owner of the same by adverse possession. Furthermore, the suit was barred by limitation also. It is his further case, that the suit boundaries extent were not given correctly. He has also referred to earlier proceedings between himself and another brother Jesuraj in O.S.No.149 of 2001, wherein it has been declared that the suit property belongs to the defendant on 27-01-2003. Despite that and suppressing the earlier proceedings, the plaintiff filed the above suit and therefore, he prayed for dismissal of the suit.
5.On the above said pleadings the trial Court framed the following issues:
1)Whether the gift deed is true and valid in law?
2)Whether the plaintiff is entitled to the declaration and injunction as prayed for?
3)What other relief the plaintiff is entitled to?
6.The trial Court after finding that the settlement deed dated 18-03-1993 was validly executed and the plaintiff is in possession of the suit property decreed the suit as prayed for. Aggrieved by the same, the defendant filed A.S.No.14 of 2007. The lower appellate Court after re-valuating the evidence concurred with the findings of the trial Court that the settlement deed was validly executed and the plaintiff is in possession of the property. Hence, the appeal was dismissed. Aggrieved by the concurrent judgements of both the Courts below, the defendant in the suit filed the above appeal under Section 100 CPC with the following substantial questions of law:-
1)When there is a dispute with regard to identity of property impugned, the Court can reject the application for appointment of Advocate Commissioner merely by stating that the same cannot be done to gather evidence?
2)Are not the courts below bound to take note of the clear admissions in cross-examination and non consideration of the same is perverse.?
3)Are not the courts below erred in disposing the suit without ascertaining as to how the manipulations, over writings and corrections in a particular deed are in existence and especially the boundary differs in the plaint?
4)Is not the party to remove surrounding circumstances to prove the validity of the settlement deed especially when there are disputes about the existence of the same?
5)Whether the Courts can come to the conclusion that in Christian law, the question of ancestral property or self earned property does not arise when the same is encumbered?
7.I have heard the learned counsel appearing for the appellant and also the leanred counsel appearing for the respondent. I have also gone through the documents in support of the appeal.
8.The learned counsel for the appellant submits that both the Courts below have wrongly held that the settlement deed was proved which was not referred to any other earlier proceedings. He further pointed out that when there is no dispute regarding the identity of the property, the lower appellate Court wrongly dismissed the I.A.293/07, filed by the appellant herein for appointment of Advocate Commissioner. Hence, he prayed for setting aside the judgments of both the Courts below.
9.Per contra, the learned counsel for the respondent drew the attention of this Court to the specific findings of both the Courts below to show that the settlement deed dated 18-03-1993 was validly executed and no evidence was adduced on the side of the defendent to disprove the valid execution of the settlement deed. Further, the documents marked on the side of the defendant i.e., B1 to B7 were not of recent origin namely, kist receipts and the same was not substantiated. Therefore, the learned counsel for the respondent/plaintiff would submit that the factual findings rendered by both Courts below cannot be interfered with.
10.I have considered the rival submission carefully.
11.The case of the plaintiff is that his father settled the suit schedule property along with other properties in his favour by settlement deed dated 18- 03-1993. But the defendant, who is his brother, encroached upon the lane and when objected to by him, the defendant threatened that he would put up a construction in the suit schedule property, which is a vacant land. The defendant denied the execution of the settlement deed and claimed ownership of the suit schedule property. Before the trial Court, the settlement deed was marked as Ex.A1. One of the attesting witnesses was also examined (as PW.2) on the side of the plaintiff to prove the execution of the settlement deed. On the basis of the evidence adduced, the trial Court came to the conclusion that the settlement deed is true and valid in law. The trial Court has also adverted to the fact that the defendant himself(DW.1) in his deposition admitted that the plaintiff is in enjoyment of the other lands shown in the settlement deed. Further it was not established before the trial Court by the defendant as to how he is having the title and how he came into possession of the property. The documents filed by the defendant to prove his case were found to be not related to the suit property. After finding, that there is no dispute with regard to identity of the property as contended by the defendant, the trial Court decreed the suit as prayed for.
12.The lower appellate Court while re-evaluating the evidence held that the settlement deed was proved by the plaintiff and the defendant could not let in legally acceptable evidence to discredit the settlement deed. Before the lower appellate Court, the defendant filed I.A. No.293/07 for appointment of an Advocate Commissioner for the purpose of deciding the boundary dispute. The lower appellate Court after finding the evidence of DW.1 in his cross- examination, accepted the findings of the trial Court that there is no dispute with regard to identity of the suit property. Hence, it dismissed I.A.No.293/07. Thus the lower appellate Court found that the plaintiff established his case and accordingly dismissed the appeal.
13.A perusal of the judgment of the lower appellate Court confirming the judgment of the trial Court would show that proper issues were framed on the basis of the pleadings and the evidence and findings were given for the framed issues, which cannot be said to be perverse or unreasonable.
14.Therfore I do not find any question of law much less the substantial questions of law arising for consideration in the second appeal. Eventhough, a number of substantial questions of law are raised in the memorandum, in my view, they are not really substantial questions of law.
15.Hence, I do not find any merits in the second appal and the same is dismissed. No costs. Consequently connected M.P.No.1 of 2009 is also dismissed.
gsr To
1.The District Munsif, Sivagangai.
2.The Suordinate Judge, Sivagangai.