The Second Appeal has arisen out of the judgment and decree dated 27.09.2004 in A.S.No.316 of 2004 on the file of the learned Additional Subordinate Judge, Dindigul, reversing the judgment and decree dated 15.06.1999 in O.S.No.155 of 1996 on the file of the II Additional District Munsif Court, Dindigul.
2(i) The appellants, who are the plaintiffs, succeed in the trial Court and lost in the first Appellate Court. The respondents are the defendants and appellants in the first Appellate Court. The appellants filed O.S.No.155 of 1996 on the file of the II Additional District Munsif Court, Dindigul for declaration that A schedule property belongs to them, for possession of B schedule property and for permanent injunction in respect of C schedule property. According to the appellants, A schedule property originally belonged to Pithalaipatti Savari Muthu @ Sinthamani Savari Muthu Servai, S/o Pithalaipatti Arokiam, the same being his self acquired property. In the revenue records, the name of said Savari Muthi Servai is mentioned as P.Savarimuthu @ A.S.Savarimuthu. He died on 05.12.1940 leaving behind his two sons viz., Soosai Servai and Madalai Muthu Servai, who inherited A schedule property. Soosai Servai died on 28.12.1960 leaving behind the appellants 4 to 6 as his legal heirs. The appellants 4 to 6 were in possession and enjoyment of A schedule property along with Madalai Muthu Servai, second son of Savari Muthu Servai @ Sinthamani Savari Muthu Servai. Madalai Muthu Servai died on 26.12.1991 leaving behind the appellants 1 to 3 as his legal heirs. The appellants are in possession and enjoyment of the A schedule property. Patta was issued in the name of P.Savari Muthu Servai @ A.S.Savari Muthu. After his death, his sons Madalai Muthu Servai and Soosai Servai were paying kist. One Chinnaiah Servai was younger brother of Savari Muthu Servai. He did not have any property and he was maintained by Savari Muthu Servai. He died leaving behind his four sons. Neither Chinnaiah Servai nor his sons had title over A schedule property. They encroached certain portions of A schedule property on Southern and Western sides and obtained patta stating that the property is their self acquired property.
(ii) The appellants filed O.S.No.721 of 1993 against the legal heirs of Chinnaiah Servai. One Israel Duraisamy, son of Arokiam Servai and Therasammal, without any title to the suit schedule property, sold properties in S.Nos.1002 and 1022 to one K.S.O.Ponnaiya Rawuthar, who in turn settled the property in favour of his daughter viz., Noorjahan Begum, the fifth respondent in the year 1970. Even after the said sale, the suit properties are in possession of ancestors of appellants. In the year 1943, Soosai Servai and Madalai Muthu Servai, sons of Savari Muthu Servai leased the property in S.Nos.1023/1 and 1023/3 for Rs.400/- to K.S.O. Ponnaiah Rawuthar. But they continued to be in possession and enjoyment of the property. Before the death of K.S.O.Ponnaiah, in the year 1992, Soosai Servai and Madalai Muthu Servai discharged the lease and obtained receipt. Apart from this, no encumbrance was created by ancestors of appellants.
(iii) Noorjahan Begam, the fifth respondent and legal heirs of Chinnaiah Servai did not take possession of the suit properties even though the sale deeds of the year 1986. The legal heirs of Chinnaiah Servai and respondents tried to create documents as though they have title over the B schedule property, but the same was prevented by the first appellant. Without knowledge of the appellants, the respondents with the help of others, fraudulently subdivided the properties and obtained patta. The said documents are not valid and will not bind the appellants. They are in possession of the suit properties.
(iv) The respondents 4 to 6 and Madalai Muthu Servai issued a notice dated 22.03.1991 to legal heirs of Chinnaiah Servai. They sent a reply dated 14.04.1991 through their advocate containing false averments. The appellants came to know that the legal heirs of late Chinnaiah Servai obtained patta six years earlier, as though they have title over the suit properties. The first respondent tried to create a charge over the suit properties. The appellants sent a notice dated 04.04.1992 through their advocate to Syndicate Bank at Dindigul Branch and Vellode Branch.
(v) First appellant also gave a complaint dated 22.04.1992 to the District Collector. The first respondent encroached 23 Acres 36 cents on the Western side and planted cashew trees. The first respondent is a very influential person with men power. Therefore, the appellants are not able to take possession. The first respondent had dug a bore well in S.No.1067. In the circumstance, appellants filed O.S.No.721 of 1993 against the legal heirs of Chinnaiah Servai and first respondent.
(vi) In the earlier suit, in I.A.No.455 of 1995, an Advocate Commissioner was appointed and before the Advocate Commissioner would inspect the properties, on 11.09.1995, the first respondent cut seven mango trees in S.No.722 worth Rs.10,000/-. They obtained permission to withdraw the suit with liberty to file a fresh suit with same cause of action and filed the present suit in O.S.No.155 of 1996.
3(i). First respondent filed written statement, which was adopted by the second respondent, denying various averments made in the plaint. They denied that A schedule property belonged to Pithalaipatti Savari Muthu @ Sinthamani Savari Muthu Servai and stated that the properties in old S.Nos.1002, 1022 and 1067/1 belonged to Kombaiyanpatti Savari Muthu Servai. He purchased the said properties measuring 3 Acres 45 cents in S.No.1002 and 7 Acres 60 cents in S.No.1022 by the deed of sale dated 31.08.1903. He was already owning remaining property in S.No.1022. Savari Muthu Servai mentioned by the appellants in the plaint is not the person mentioned in the sale deed dated 31.08.1903. After his death, his son Arokiam Servai and his children sold the property measuring 2 Acres 14 Cents in S.No.1002/2, 9 Acres 10 cents in S.No.1022 and 1 Acre 98 cents in S.No.1067/1 to K.S.O.Ponnaiah Rawuthar by the deed of sale dated 17.12.1924. The property measuring 4 Acre 40 cents in S.No.1002/1 originally belonged to Elizabeth ammal as per the document dated 17.12.1924, who in turn, sold the same to Arulappan Servai, S/o.Royappan Servai by the sale deed dated 21.07.1939, who in turn sold the property to K.S.O.Ponnaiah Rawuthar by the sale deed dated 03.12.1942. The said K.S.O.Ponnaiah Rawuthar was in possession and enjoyment from the date of his purchase and by the settlement deed dated 23.09.1970, settled the property in S.Nos.1002/1, 1002/2, 1067/1 and 1022 on his daughter Noorjahan Begam/fifth respondent herein.
(ii) Fifth respondent by the deed of sale dated 22.01.1986 sold 5 Acres out of 9 Acres 10 cents in S.No.1022 to the respondents 2 to 4. Again by the deed of sale dated 31.01.1986, she sold the remaining portions to the respondents 2 to 4. Fourth respondent by the deed of sale dated 16.10.1995 sold his share to second respondent. The third respondent sold his share to the first respondent. The property in S.No.1067/2 did not belong to Savari Muthu Servai @ Sinthamani Savari Muthu Servai. The said property belonged to Chinnaiah Servai and the legal heirs of Chinnaiah Servai sold the property to the second respondent. The said property in S.Nos.1023/1, 2 and 3 belong to respondents 1 and 2 and appellants do not have any title over the suit properties. The respondents spent Rs.5 Lakhs by deepening and dug a bore well with the knowledge of the appellants. They also laid underground pipelines for agricultural purpose. Appellants did not object to the same and are estopped from claiming the property by their silence. The suit is barred by limitation.
4. Respondents 3 to 5 remained exparte.
5. Based on the pleadings, the trial Court framed necessary issues.
6. Before the trial Court, first appellant examined himself as P.W.1, second appellant as P.W.2 and marked 29 documents on behalf of the appellants. First respondent was examined as D.W.1 and marked 33 documents. Advocate Commissioner's report and plan were marked as Exs.C1 and C2.
7. The learned trial Judge considering the pleadings, oral and documentary evidence and arguments of learned counsel for the parties, decreed the suit holding that the grand father of appellants viz., Savari Muthu Servai originally owned S.Nos.1002, 1022 and 1023. So far as S.No.1067 is concerned, dismissed the suit holding that the appellants did not file any document to prove their title and directed the respondents to deliver the possession of the property to the appellants in S.Nos.1002, 1022 and 1023/1A within two months and granted permanent injunction in respect of the said properties and directed the respondents to pay Rs.10,000/- as damages and gave liberty to the appellants to take proceedings under Order 20 Rule 12 C.P.C. for future damages.
8. Against the said judgment and decree dated 15.06.1999, respondents 1 and 2 filed A.S.No.316 of 2004 on the file of the learned Additional Subordinate Judge, Dindigul. The learned Additional Subordinate Judge framed necessary points for consideration and independently considering the pleadings, oral and documentary evidence, judgment of the trial Court and arguments of counsel for the parties, allowed the appeal and held that the appellants have not proved the title of their grand father based on the sale deed of the year 1903 and death certificate. The contention of the appellants that they are the legal heirs of Savari Muthu Servai cannot be accepted and that the respondents have mentioned transaction from the year 1903 and marked documents to substantiate their case and held that from the pleadings, oral and documentary evidence let in by the appellants, they have not proved their title to the A schedule property and respondents have proved their title in respect of items 1 to 3 in A schedule property.
9. Against the judgment and decree dated 27.09.2004 made in A.S.No.316 of 2004, the present second appeal is preferred.
10. At the time of admission, the following substantial questions of law were framed:
?(i) Whether the Lower Appellate Court are right in shifting the burden of proof upon the plaintiff, when the defendant wishes the Court to believe that the said Savarimuthu as mentioned in the original sale deed is not the one whom the plaintiff mentions?
(ii) Whether the Lower Appellate Court are right in calculating the period of Limitation, ignoring the earlier suit filed and dismissed with an liberty to file a fresh suit with same cause of action, which was cumulatively within the period of Limitation?
(iii) Whether the Lower Appellate Court was right in setting aside the Trial Court's order in respect to the possession and Mense profit relating to Survey No.1023, for the reason that the defendant himself has not specifically denied the encroachment of the same?
(iv) Whether the Lower Appellate Court was right in rejecting the sale deed relied by the plaintiff, which is of the year 1903, when the sale deed relief by the defendant was only of the year 1906?
(v) Whether the Lower Appellate Courts are right in tracing the title to the property merely by relying the version of the defendant, instead of relying the available documentary evidence?
(vi) Whether the Lower Appellate Courts were right in ignoring the unregistered redemption receipt as collateral evidence to prove the existence of lease in tracing the title?
(vii) Whether the Lower Appellate Court are right in deriving and acknowledging the title to the defendant for the only reason that with regard to the suit property, they have filed so many documents showing subsequent transactions from the earlier sale deed?
(viii) Whether the Lower Appellate Court was right in reserving the order of the Trial Court in awarding Rs.10,000/- as damages in spite of the open admission by the defendant that they have removed the trees and in spite of the report of the Commissioner revealing the mischief of the defendant?
(ix) By the reversing order of the Lower Appellate Court, whether the Lower Appellate Court has avoided the decided principle of Law reported in 2004 (1) L.W.612, that if plaintiff proves his title he need not prove that he was in possession within 12 years from the date of filing the suit? ?
11. The learned counsel for the appellants submitted that the first Appellate Court is not correct in holding that:
(i) Savari Muthu Servai mentioned in the sale deed is not a grand father of appellants and they are not legal heirs of said Savari Muthu Servai;
(ii) The first Appellate Court misconceived the facts with regard to the village Pithalaipatti mentioned in the plaint and death certificate filed by the appellants and findings of the First Appellate Court that appellants failed to prove that their grand father purchased the suit properties and they are the legal heirs of Savari Muthu Servai mentioned in the sale deed;
(iii) The first Appellate Court failed to consider Ex.A18 (othi document) lease deed and not correct in coming to the conclusion that the appellants have not filed any othi document executed by the Soosai Servai and Madalai Muthu Servai;
(iv) The first Appellate Court is not correct in coming to the conclusion that based on the sale deed and death certificate, it cannot be held that the appellants are legal heirs of Savari Muthu Servai. The appellants have categorically proved that their grand father purchased the property and are the legal heirs of Savari Muthu Servai;
(v) The respondents have not disproved that they are not legal heirs of Savari Muthu Servai. The respondents have relied on the revenue records and it is well settled that revenue records do not confer any title. The various documents created by the predecessor of title of the respondents and respondents are sham documents and do not create any right or interest over the properties;
(vi) The first Appellate Court failed to take into consideration the possession of the suit properties are with the appellants. The documents relied on by the respondents are not legal and valid as respondents failed to prove that Savari Muthu Servai mentioned in the sale deed is not the actual Savari Muthu Servai as claimed by the appellants;
(vii) The learned first Appellate Judge erred in allowing the appeal on the ground that the respondents have filed many documents with regard to the suit property, when the respondents failed to prove that their predecessor had title over the suit properties;
(viii) The learned first Appellate Judge is not correct in calculating the period of limitation ignoring earlier suit filed by the appellants; Thus, he prayed for allowing the second appeal.
12. Per contra, learned counsel for the respondents 1 and 2 submitted that Kombaiyanpatti Savari Muthu is not Pithalaipatti Arokiam's son Savari Muthu. Savari Muthu mentioned in the sale deed dated 31.08.1903 has no connection with Pithalaipatti Arokiam's son Savari Muthu. After the death of Kombaiyanpatti Savari Muthu, his sons, the legal heirs sold S.Nos.1002/2, 1022 and 1067/1 to K.S.O.Ponnaiah Rawuthar by the sale deed dated 29.08.1942. The property in S.No.1002/1 belonged to one Elizabeth ammal, who purchased the same by the deed of sale dated 17.12.1924. She sold the same to one Arulappan Servai by the deed of sale dated 21.07.1939, who in turn sold the property to K.S.O.Ponnaiah Rawuthar by the sale deed dated 03.12.1942. K.S.O.Ponnaiah Rawuthar was in possession and enjoyment of the suit property from the date of his purchase and by the settlement deed dated 23.07.1970, he settled his property on his daughter Noorjahan Begam, the fifth respondent herein. From the fifth respondent, the respondents 1 and 3 and respondents 2 and 4 purchased the properties by two sale deeds and respondents 3 and 4 sold their property to the respondents 1 and 2 respectively. The property in S.No.1067/2 did not belong to Savari Muthu Servai @ Sinthamani Savari Muthu Servai. It belongs to Chinnaiah Servai and after his death, his four sons dealt with the property and second respondent purchased the property by the deed of sale dated 01.12.1992. The respondents 1 and 2 have traced their title from the year 1903 and they are in possession and enjoyment of the property, deepened the well, dug the bore well and laid pipelines for agricultural purpose by spending Rs.5 Lakhs and they are paying kist for the property.
13. The appellants have not produced any document to show that they are in possession and enjoyment of the above property and paying kist. The respondents are not claiming any right over the property in S.Nos.1023/1, 2 and 3. The appellants have produced kist receipts only in respect of S.Nos.1023/1, 2 and 3 to substantiate their title. The trial Court failed to see that the appellants produced kist receipts only in respect of S.No.1023 and have not produced any document in respect of the property in other survey numbers. The property in S.No.1002 was sub-divided into S.No.1002/1 measuring 4 Acres 40 cents and S.No.1002/2 measuring 2 Acres 14 cents. The appellants have filed the suit claiming title over 3 Acres 45 cents in S.No.1002. They have not properly described the suit property as per the Order 7 Rule 3 of C.P.C. and suit has to be dismissed on this ground.
14. The appellants have not mentioned neither about the purchase by their grand father nor date of his purchase. The witnesses deposed on behalf of the appellants have categorically stated that they do not know when the property was purchased and the extent of the property and whether their grand father obtained patta. Arokiam Servai, s/o. Savari Muthu Servai dealt with the property by creating mortgage in Ex.A20, document dated 27.11.1923 and subsequently, sold the property to K.S.O.Ponnaiah Rawuthar under Ex.B2, after discharging mortgage debt created by the registered mortgage deed dated 27.11.1923. The suit in respect of S.No.1067 was dismissed by the trial Court and the appellants have not filed any appeal. The second appeal relates only to the property in S.Nos.1002 and 1022. The respondents 1 and 2 have substantiated their right over the suit properties by pleadings, oral and documentary evidence. The first Appellate Court has considered all the materials available on record in proper perspective and allowed the first appeal. There is no error of law and no substantial question of law has arisen in the second appeal. Therefore, he prayed for dismissal of the second appeal.
15. I have heard the submissions of the learned counsel for the appellants as well as the respondents 1 and 2 and perused the materials available on record.
16. The appellants have filed the suit claiming title in respect of four properties mentioned in A schedule property. As far as the properties in S.Nos.1023/1, 2 and 3 are concerned, the respondents are not claiming any title. As far as the property in S.No.1067 is concerned, the trial Court dismissed the claim of the appellants and appellants have not filed any appeal. Now the question to be decided in the second appeal is with regard to the properties in S.Nos.1002 and 1022. According to the appellants, A schedule property is the self acquired property of their grand father Pithalaipatti Savari Muthu. In the plaint, they have not mentioned when their grand father purchased the property and extent of the property purchased by their grand father. They pleaded that their grand father was in possession and enjoyment of the property and till his death, kist was paid by him. After his death, their father Soosai Servai and paternal uncle Madalai Muthu Servai inherited the property and they were paying kist. After their death, the appellants are in possession.
17. The respondents 1 and 2 disputed the fact that the appellants' grand father Savari Muthu Servai was the original owner having purchased the suit properties. On the other hand, it is the case of the respondents that the property was purchased by one Kombaiyanpatti Savari Muthu by the deed of sale dated 31.08.1903 and after his death, his son Arokiam and his legal heirs dealt with the property and sold the same to K.S.O.Ponnaiah Rawuthar by the deed of sale dated 29.08.1942. Similarly, they claimed the property in S.No.1002/1 measuring 4 Acres 40 cents originally belonged to one Elizabeth ammal. She sold the property to Arulappan Servai, who in turn, sold to K.S.O.Ponnaiah Servai by the deed of sale dated 03.12.1942. K.S.O. Ponnaiah Servai settled the property in favour of his daughter/fifth respondent on 23.07.1970. From the fifth respondent, respondents 1 to 4 purchased the properties in the year 1986. Respondents have filed all the sale deeds to substantiate their claim. After their purchase, pattta was transferred in the name of respondents 1 and 2 and respondents 1 and 2 are in possession of the property.
18. The claim of the first respondent is that he deepened the well, dug bore well by spending Rs.5 Lakhs. He has also laid underground pipelines to take water from S.No.1022 and he is taking water to S.Nos.1002/1 and 1067. This was admitted by the appellants. The appellants also admitted that S.No.1002 was sub-divided. But they claimed that sub-division is illegal and not valid. The various sale deeds mentioned by the respondents starting from the year 1942 are sham and or not binding on them. They have not taken any steps either to set aside the sale deeds or object to sub-division and made any representation to rectify the defects, even when they filed the suit in respect of the property in S.No.1002, which was sub-divided as S.No.1002/1 measuring 4 Acre 40 Cents and S.No.1002/2 measuring 2 Acres 14 cents. From this, it is clear that at the time of filing of the suit, there is no property measuring 3 Acres 45 Cents in S.No.1002. The contention of the learned counsel for the respondents 1 and 2, in the circumstance, that the appellants have not properly described the property as per the Order VII Rule 3 C.P.C. has considerable force.
19. The appellants have produced and marked kist receipts as Exs.A5 to A7. The learned trial Judge erroneously decreed the suit by holding that the documents related to the property mentioned in S.Nos.1002 and 1022. On the other hand, the first Appellate Court properly considering these documents held that these documents relate only to the properties in S.No.1023. It is not the contention of the learned counsel for the appellants that these documents related to the property in S.Nos.1002 and 1022 also. On the other hand, respondents have filed the documents Exs.B5 to B8, B20 to B23 and B28 with regard to payment of kist and chitta. They also produced Exs.B13 and B14 to prove that patta has been issued in favour of the fifth respondent and B15 series being kist receipts paid by the fifth respondent. They have also filed Exs.B24 series, B25, B26 and B27 with regard to the receipts for electricity charges. All these documents clearly proved that the respondents have purchased the property from the legal heirs of original owner Savari Muthu Servai and Elizabeth ammal. The predecessor of title of the respondents 1 and 2 have paid kist and also obtained patta to show their possession and enjoyment of the suit property.
20. The learned first Appellate Judge has considered all these documents in proper perspective and held that the respondents have proved their title in respect of the properties in S.Nos.1002 and 1022. The learned trial Judge himself dismissed the claim of the appellants in respect of the property in S.No.1067. The appellants have not filed any appeal challenging said dismissal and the said judgment and decree has become final. The appellants did not know about the purchase by their grand father except saying that the suit properties are self acquired properties of their grand father Savari Muthu Servai. Only after respondents 1 and 2 have stated that Kombaiyanpatti Savari Muthu purchased the properties by the sale deed dated 31.08.1903, the appellants have applied for copy of the document and filed the same as Ex.A17. Apart from marking of death certificates of Savari Muthu Servai, Soosai Servai and Madalai Muthu Servai as Exs.A2 to A4, appellants have not filed any document to show that Savari Muthu Servai mentioned in Ex.A17 is their grand father Savari Muthu Servai and not a different person as claimed by the respondents 1 and 2. From the exhibits produced by the respondents 1 and 2, it is seen that sale transactions with regard to the suit property have taken place from 29.08.1942, when the legal heirs of Savari Muthu Servai have sold the property and in 1924, when Elizabeth ammal purchased the property in S.No.1002/1. The respondents 1 and 2 have produced patta as well as kist receipts. The contention of the appellants that only in the year 1986, they came to know about the sub-division and change of patta are unbelievable.
21. Considering all the materials available on record, the pleadings, oral and documentary evidence and judgments of both the Courts below, I hold that the first Appellate Court has properly appreciated all the materials available on record and allowed the first appeal. There is no error of law in the said judgment. The learned first Appellate Court has given cogent and valid reasons for reversing the judgment and decree passed by the trial Court. In view of the above, all the substantial questions of law are answered against the appellants.
22. In the result, the Second Appeal is dismissed confirming the judgment and decree dated 27.09.2004 made in A.S.No.316 of 2004 passed by the first Appellate Court, reversing the judgment and decree of the trial Court dated 15.06.1999 made in O.S.No.155 of 1996. No costs.
To
1.The Additional Sub-Ordinate Court, Dindigul.
2.The Second Additional District Munsif Court, Dindigul..