The unsuccessful plaintiffs 3 to 9 are the appellants herein.
2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
3. The plaintiffs filed the suit, in O.S.No.68 of 1998, before the learned District Munsif, Thirumayam, for the relief of declaration, recovery of possession and permanent injunction directing the fourth defendant to collect the house tax from them.
4. After contest, the learned District Munsif, Thirumayam, by Judgment and Decree, dated 20.02.2001, dismissed the suit.
5. Aggrieved by the Judgment and Decree passed by the learned District Munsif, Thirumayam, the plaintiffs 3 to 9 preferred an appeal, in A.S.No.22 of 2001, before the learned Subordinate Judge, Pudukottai.
6. After contest, the learned Subordinate Judge, Pudukottai, by Judgment and Decree, dated 31.12.2003, dismissed the appeal with costs and confirmed the Judgment and Decree passed by the learned District Munsif, Thirumayam.
7. Aggrieved by the dismissal of the first appeal by the Lower Appellate Court, the plaintiffs 3 to 9 have preferred the present second appeal.
8. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The parents of the plaintiffs, namely, Muthukaruppan and Adaikkammai died long back. They had one male child and four female children. One of the female children, namely, Kamatchi got married to Muthiah Konar, who belongs to Poolampatti Village. The suit property is a thatched house and its land. Initially, the said land was vacant. The first defendant had been in possession of the said vacant by putting up a thatched house. During 1965, the first defendant permitted his sister Kamatchi and her husband Muthiah Konar to reside in the said thatched house. Accordingly, they were residing and running a Tea Shop therein. Muthiah Konar died 30 years back leaving behind his wife Kamatchi as his 4 legal heir. They had no issues. Kamatchi had been paying the house tax in her name and for which the first defendant had not raised any objection. Kamatchi also died on 03.04.1989. The plaintiffs are their legal representaives. After the death of Kamatchi, one Mohideen became her legal heir as husband. It is correct to state that Kamatchi got married to Mohideen. There was no husband and wife relationship between them. However, based on the legal heirship certificate, from 15.10.1991, the said Mohideen has been in possession of the suit property. The plaintiffs raised objection for issuance of legal heirship certificate in favour of the said Mohideen and they filed a suit in O.S.No.850 of 1995 and got a decree in their favour. They have no knowledge about when Mohideen died. The defendants 1 to 3 are the legal heirs of the said Mohideen. The fourth defendant, for the reasons best known, has colluded with the defendants 1 to 3. The fourth defendant has been refusing to receive house tax from the plaintiffs. Hence, the suit.
9. The brief averments of the written statement filed by the second defendant and adopted by the defendants 1 and 3 that are necessary to decide this appeal are as follows:
It is incorrect to state that the suit property belongs to the first plaintiff Periayiah Konar, wherein Kamatchi was permitted to reside and she got married to Muthiah. In fact, the suit property belongs to one Mohideen, who is the husband of the first defendant and father of the defendants 2 to
3. The said Mohideen married Kamatchi and they were residing in the suit property. Since they had no issues, he married the first 5 defendant. The defendants 2 and 3 are their children. During the lifetime of Kamatchi, she, her husband Mohideen and the children were living together as a joint family. It is utter false to state that the first plaintiff had encroached upon the suit property and during 1965, he had constructed a house thereon. If the said Kamatchi got married to Muthiah, who belongs to Poolampatti Village, there was no necessary for her to reside in Thirumayam. The plaintiffs are not the legal heirs of Kamatchi. During the lifetime of Kamatchi, she got Voters Identity Card showing Mohideen as her husband. On 16.10.1991, Mohideen obtained a Legal Heirship Certificate and thereafter, he has been paying the house tax in respect of the suit property to the fourth defendant. Since the said Kamatchi married Mohideen, there was no communication between Kamatchi and the plaintiffs' family. The defendants had no knowledge with regard to filing of O.S.No.580 of 1995. Even though house tax stands in the name of Kamatchi, in fact the suit property belongs to Mohideen. The plaintiffs are not the legal heirs of the Kamatchi. They have no right, title or interest over the suit property. Therefore, the suit is liable to be dismissed with costs.
10. Based upon the above pleadings, the Trial Court had framed as many as many as six issues for consideration.
11. On the side of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A1 to A10 were marked and on the side of the defendants, the first defendant was examined as D.W.1 and marked Exs.B1 to B14 were marked and Ex.C1 was marked.
12. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiffs are not entitled to the reliefs sought for and hence, dismissed the suit. Appeal is dismissed and hence this Second Appeal.
13. At the time of admission, the following substantial question of law are framed:-
(i) Was the decree and judgment of the Courts below are liable to be set aside for not giving a finding as to who was the 1st occupant of the suit property for deciding the rights of legal heirs?
14. For the sake of convenience, parties are referred to as per the ranking before the trial Court, the unsuccessful plaintiff is the appellant herein.
15. The learned counsel for the appellant submitted that, both the Courts below have concurrently erred in holding the suit property is a poromboke land and hence, relief for declaration could not be granted and filed to note that the plaintiff/appellant are claiming possessory title against the trespasser. the defendants herein and further contended that the alleged matrimonial relationship between the Kamatchi and Mohideen 7 is not proved in the manner known to law and hence, the entire case projected by the respondent/defendant falls into ground and hence prayed for allowing the appeal and decreeing the suit.
16. The plaint proceeds on the basis that the suit property in the Survey No.580/95, measuring 3 cents. Originally, belong to the father of the first plaintiff Periyakonar and after the death, one of his sister by viz.,Kamatchi who was married to Muthaiah Konar and the said Muthaiah konar died and 30 years before the institution of the said suit and hence, the Kamatchi was allowed to put up a house in the suit property and he was residing there in a thatched house which was also assessed to proper tax by the local body. After her death, the defendant have trespassed into the suit property and hence, seeking the declaration of the possessory title in respect of the suit property against the defendant and for recovery of possession. The claim of the plaintiff was resisted by the respondent/defendant on the ground, one Mohideen was married to Kamatchi as they have no children, he married the first defendant viz., Ayisha Beevi and begotten defendants 2 to 3 and residing in the suit property. After the death of the Kamatchi, they are continuing in possession of the property and paying the house tax and contended that the suit filed by the plaintiff is not maintainable in law.
17. The attention of this Court was drawn to the exhibits filed on behalf of the plaintiff viz., Ex.A1 goes to show that the said Kamatchi died on 22.08.1996. Originally, the Mohideen has attained L.Rs certificate in his favour. However, an application made by the present plaintiff, they were advised go before the Civil Court. Accordingly, as plaintiffs along with sister filed in O.S.No.550 of 1995 before the District Munsif Court, Thirumayam and decreed on 08.07.1997. Thereafter, the L.R certificate issued in favour of the said Mohideen was cancelled and the plaintiffs have been recognized as L.Rs of the deceased 8 Kamatchi. Thus, it could be seen that the order of the Tahsildar issued to Mohiden Pitchai was cancelled under Exhibit A4 and A2.
18. It is seen from Exhibit A5 that a demand notice was issued to the deceased Kamatchi by the Thirumayam Tahsildar demanding a house tax and she was paying the house tax.
19. On a combined reading of Exhibit A7,A8,A9 and A10, all are issued by this revenue goes to show that patta in patta No.918 stands in the name of the first plaintiff and natham nilavari thitta chitta the name of the first plaintiff appears for the suit property. It remains to be stated that under Exhibit A6 assessment order in favour of one Alagappan issued by the Deputy Tahsildar headquarters, Thirumayam on 08.08.1970 goes to show that, the Kamatchi owned house and the same was shown as northern boundary for the assignment order issued by the Alagappan goes to show that the Kamatchi has put up a thatched house in the suit property and was paying house tax and she was residing there. In this regard, the revenue witness P.W.3 in his evidence have categorically stated, that old Survey No. for the suit property is 590 and New survey No.936/6 measuring 3 cents but order was originally stands in the name of Periya Konar. The first plaintiff herein and exhibit A7 and Exhibit A8 are relating to the natham nilavari thitta adangal extracted under the Patta No.918 was issued to the first plaintiff. During the cross examination, the revenue witness P.W.3 was confronted with Ex.B1 and B2. However, they are not relevant to Exhibit A10 since Exhibit A10 was issued on 31.08.2000 in this patta pass book was issued under No.918 in the name of the first plaintiff and therefore, the exhibit B1 and B2 does not advanced case of the defendant.
20. At this juncture, it is relevant to note that, the defendant has come forward the specific plea that the Kamatchi was married to Mohideen and they lived as husband and wife. Thereafter, since Kamatchi has begotten no children, the said Mohideen was married the first defendant herein and begotten two children viz., the defendants 2 and 3.
21. On perusal of the records filed before the Court, there is no iota of evidence to show that the said Kamatchi and the Mohideen lived as husband and wife in the said suit property. Even in the Exhibit A7, death certificate issued on 22.08.1996 name of the father/ name of the mother/ name of the husband it was mentioned as '........'(no name was mentioned). However, the defendant has also produced Exhibit B4 who is said to have been issued on 07.04.1989 wherein in the column Page No.7, it was originally returned as Muthukaruppiah, the name of the father subsequently, it was show as Mohideen as husband. In view of Exhibit A2, judgment passed in O.S.No.550 of 1995. This Court, is of the considered view that the defendants had not let in positive evidence to show that the Mohideen was married to Kamatchi and thereafter, he married the first defendant and begotten two children, as projected in the written statement. The claim of the plaintiff is that, the plaintiffs are legal heirs of the Kamatchi on the strength of Exhibit A2, Civil Court decree and the said Kamatchi was in possession and enjoyment of the suit property as per the Exhibit A6,A7 and A8 and that the first plaintiff was in possession of the property as per the Exhibit A7,A8 and A10 after the death of the said Kamatchi as a legal heir. They are entitled for a recovery of possession and in the present suit, they want to declaration of their possessory title.
22. It is title law that possession is heritable and legal heirs can sue against the trespasser on the basis of possessory title and suit is maintainable. A possessory title is a good against everyone who does not have a better one and possession is heritable and transferable right and said right is valid against the all the world except the true owner and interest in possession being heritable, his heirs can sue for the possession on the basis of possessory title.
23. From exhibit A9 coupled with Exhibit A4, this Court finds that the Kamatchi the sister of the first plaintiff has put up a thatched house and residing there and paying house tax receipts and as per Exhibit A2 Civil Court decree in O.S.No.550 of 1995, the District Munsiff/-cum-Judicial Magistrate Court, Thirumayam, present appellant/plaintiffs are legal heirs of the deceased Kamatchi and hence the suit filed by them against the present defendant are maintainable in law.
24. According to the defendant, since the lifetime of Kamatchi and after her lifetime,the Mohideen and their family members are residing there and at no point of time, the plaintiff was in possession and enjoyment of the suit property and therefore, the claim of the appellant/plaintiff is to be rejected.
25. The respondent counsel has drawn an attention of this Court, in Exhibit B5,B6 which goes to show that during the voters enumeration and the said kamatchi and Mohindeen are living together in the said house. The nature of the relationship could not be interfered from the document except to the extract that they are living together in thatched house as could be seen under Exhibit B5 and B6. After death of the Kamatchi, enumeration during the year 1994, the Mohideen and their family members namely, the 11 present defendant are in possession of the property as could have reflected under exhibit B6. The other documents Exhibit B7 to B11 are house tax receipts issued to the Mohideen is Exhibit B12. Thus, this Court finds that, there is sufficient evidences are available before the Court to come to the conclusion that, after death of Kamatchi and Mohideen was residing in the suit property in the thatched house and paying house tax receipts and thereafter Mohideen was living along with his wife and defendant was also found to be living in the hut and after the death of Mohideen their sons there in suit property who are defendants. Thus, the Lower Appellate Court has come to the conclusion that since the defendants are in possession of the suit property for more than statutory period and house tax has been levied in their name as could be seen from the Exhibits B7 to B9 and hence, the Lower Appellate Court has come to the correct conclusion that the possessory title of the plaintiff could not be ascertained as against the defendant is hereby confirmed for different reasoning as discussed in the preceding paragraphs and accordingly, the Judgment of the both Courts below in rejecting the claim of the appellant/plaintiff is hereby confirmed for different reasoning as stated supra and the substantial question of law held against the appellant.
26. In view of the finding of possession as discussed above and hence, on the substantial question of law is held against the appellant/plaintiff and appellant is not entitled to any relief and the appeal is itself devoid of merits and liable to be dismissed.
27. In the result, the Second Appeal is dismissed. The Judgment of both Court below is hereby confirmed. No costs.
To
1. The Subordinate Court, Pudukottai
2. The District Munsif-cum-Judicial Magistrate Court, Thirumayam.