This second appeal has been filed against the judgment and decree, dated 22.12.1994, made in A.S.NO.8 of 1993, on the file of the Subordinate Court, Nagapattinam, confirming the judgment and decree, dated 25.11.1991, made in O.S.No.235 of 1987, on the file of the District Munsif Court, Thiruthuraipoondi.
2. The defendants in the suit, in O.S.No.235 of 1987, are the appellants in the present second appeal. The plaintiff had filed the suit praying for the declaration of title and for permanent injunction in respect of the suit property.
3. The plaintiff in the suit, in O.S.No.235 of 1987, had stated that the suit Survey No.141/1, with an extent of 5.80 acres, was held by 13 persons, under a joint patta. However, they had been in possession and enjoyment of their individual shares in the said property. Govinda Konar is one of the persons, who was in possession and enjoyment of a portion of the property. Dharmaiya Konar is his son. The land in suit survey No.141/1 and the adjacent lands were lying fallow. 50 cents in the suit survey number had been allotted as the share of Govinda Konar, who has been in enjoyment of the said property. Thereafter, his son Dharmaiya Konar has been enjoying the said property. On 19.10.1986, the plaintiff had purchased the property from Dharmaiya Konar. Since the date of the purchase, the 50 cents of land, which is the suit property, has been in the possession and enjoyment of the plaintiff. 30 cents of land belonging to the family of the defendants is lying on the western side of the suit property. According to the resettlement, the grand father of the defendant, namely, Ponnusamy Devar is one of the 13 patta holders. As the legal heirs of Ponnusamy Devar, the defendants are entitled to 1/13th share of the property.
4. On 13.4.1987, a legal notice had been issued to the defendants asking them not to interfere with the plaintiff's enjoyment of the suit property. A reply notice had been issued by the defendants stating that Dharmaiya Konar did not enjoy any rights in the suit property and therefore, the sale deed in favour of the plaintiff is not valid in the eye of law. Since the defendants were denying the rights of the plaintiff, the plaintiff had filed the suit praying for a declaration and permanent injunction against the defendants.
5. In reply, the defendants had stated that the suit Survey No.141/1 has an extent of 5.80 acres. On 29.5.1964, a joint patta had been issued showing that it belonged to 16 persons. The name of Govinda Konar had never found a place in the patta issued in respect of the suit survey number. He was never in enjoyment of the land, either by himself or through any other person. The document, dated 19.10.1986, is invalid and it has been created by the plaintiff and Dharmaiya Konar, fraudulently. The boundaries shown in the document are not correct. The document has been created only with the mala fide intention of illegally occupying the land found to be within the four boundaries shown in the document. As the land in question is under the possession and enjoyment of the defendants, the plaintiff is not entitled to the reliefs, as prayed for in the suit.
6. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court, after framing the relevant issues for consideration, had decreed the suit in favour of the plaintiff. The trial Court had found that there was no dispute with regard to the fact that the suit survey No.141/1 was having an extent of 5.80 acres. The trial Court had not accepted the contention of the defendants that the land in suit survey No.141/1 is under a joint patta and that 13 persons are in joint enjoyment of the said property, since the land in the said survey number had been sold to various persons and they have been in separate possession and enjoyment of their shares in the property.
7. The trial Court had noted that the name of Govinda Konar, the father of Dharmaiya konar, is found in the Exhibits A.13 and A.14, marked on behalf of the plaintiff. There is nothing shown on behalf of the defendants that Govinda Konar is not the father of Dharmaiya Konar. Further, the claim of the defendants that the name of Dharmaiya Konar has been wrongly entered in the U.D.R. patta has not been accepted by the trial Court. Even if it had been wrongly entered, jointly, with the other names, the issue should have been agitated by appealing before the concerned authorities of the Revenue Department. Such a contention, which has not been supported by sufficient evidence, cannot be accepted. As such, the fact that Dharmaiya Konar has been in enjoyment of the property, in accordance with the joint patta, is not in doubt. Therefore, the plaintiff has the rights in the property purchased by him from Dharmaiya Konar, as claimed by him.
8. From the evidence available, the trial Court had come to the conclusion that the plaintiff is in enjoyment of the suit property and that he has the rights, as claimed by him, in the said property. Further, the trial Court had held that the defendants do not have any right in the suit property. Accordingly, the trial Court had decreed the suit in favour of the plaintiff.
9. Aggrieved by the judgment and decree, dated 25.11.1991, made in O.S.No.235 of 1987, on the file of the District Munsif Court, Thiruthuraipoondi, the defendants had filed an appeal, in A.S.NO.8 of 1993, on the file of Subordinate Court, Nagapattinam.
10. The first appellate Court had framed the following points for consideration:
"1. Whether the suit property was in the possession of the plaintiff/respondent at the time of the filing of the suit?
2. What are the reliefs, the appellant is entitled to?"
11. Based on the evidence available on record, the first appellate Court had confirmed the judgment and decree of the trial Court, dated 25.11.1991, made in O.S.No.235 of 1987. The first appellate Court had found that there was a joint patta for 13 persons, in respect of the property in suit survey number 141/1. Further, in the patta number 25, issued in respect of the suit survey number 141/1, the names of Ponnuswamy Devar and 13 others have been mentioned. The name of Govinda Konar had also been mentioned. Govinda Konar is the father of Dharmaiya Konar. Thus, it is seen, from the records available, that the suit property, originally, was in the possession of 13 persons, under a joint patta. Since Govinda Konar, the father of Dharmaiya Konar, was a joint patta holder, the property had gone to Dharmaiya Konar, the son of Govinda Konar.
12. From Exhibits A.1 and A.15, it was found that the patta holders had been enjoying their separate shares of the property. The separate property enjoyed by Dharmaiya Konar had been sold to the plaintiff, which has been in the possession and enjoyment of the plaintiff thereafter. In such circumstances, the defendants in the suit had no right, whatsoever, to interfere in the possession and enjoyment of the suit property. Therefore, the first appellate Court had confirmed the judgment and decree, dated 25.11.1991, made in O.S.No.235 of 1987, on the file of the District Munsif Court, Thiruthuraipoondi.
13. Aggrieved by the concurrent findings of the Courts below, the defendants in the suit in O.S.No.235 of 1987, had filed the present second appeal. The second appeal had been admitted by this Court on the following substantial question of law:
"1. Whether the courts below have correctly appreciated the evidence of P.W.3 Village Administrative Officer in holding separate enjoyment of the suit property?"
14. The appellant in the second appeal had stated that the Courts below had erred in decreeing the suit in respect of the property in suit survey No.141/1, overlooking the fact that the plaintiff was only a joint patta holder of the land in the said survey number. There was no evidence to prove that the plaintiff was in enjoyment of the suit property. Even though the plaintiff had not produced any evidence to show that the plaintiff and his vendor had been in possession of 50 cents in S.No.141/1, which is the suit property, the courts below had erred in coming to the conclusion that the plaintiff is entitled to 50 cents in S.No.141/1, only on the basis of the sale deed, dated 19.10.1986, marked as Exhibit A.1. Since the property in question had been in joint possession of various persons, under a joint patta, it cannot be held that the suit property had been in separate possession of the plaintiff and his vendor. From Exhibit B.12, it would be clear that each patta holder is entitled only to the undivided shares in the suit survey number and therefore, the question of separate possession and enjoyment of the suit property, by the plaintiff, would not arise. Therefore, the judgment and decree of the courts below are erroneous and therefore, they are liable to be set aside.
15. The main contention of the learned counsel appearing for the appellants is that the Village administrative officer, who was examined as P.W.3, had stated, in his evidence, that he was receiving the kists paid by the persons in possession of the property, in suit survey No.141/1. However, he had submitted that he was not aware as to whether the persons occupying the suit property were in possession of separate shares in the property. As such, the courts below ought not to have come to the conclusion that the plaintiff and his vendor were in separate possession and enjoyment of 50 cents in S.No.141/1.
16. In view of the averments made on behalf of the appellants and on a perusal of the records available, it is clear that there was sufficient evidence for the courts below to come to the conclusion that the plaintiff and his vendor were in separate possession and enjoyment of 50 cents in suit survey No.141/1. The courts below had clearly found that the vendor of the suit property, namely, Dharmaiya Konar, had been in possession and enjoyment of 50 cents in the suit survey No.141/1 and that Dharmaiya konar had sold the property to the plaintiff by way of a sale deed, dated 19.10.1986, marked as Exhibit A.1.
17. The courts below had rightly come to the conclusion, based on the evidence available, that the defendants had no right, whatsoever, to disturb the possession and enjoyment of the suit property by the plaintiff. Even though the suit property was forming a part of a larger extent of land, in suit survey No.141/1, the joint patta holders of the lands in the suit survey No.141/1 were in separate possession and enjoyment of their shares.
18. In such circumstances, the Courts below had concurrently found that the plaintiff in the suit, in O.S.No.235 of 1987, was entitled to the reliefs, as prayed for by him.
19. As such this Court would be slow in interfering with the findings of the Courts below based on facts, as in the present case, as held by the Supreme Court in GURDEV KAUR AND OTHERS Vs. KAKI AND OTHERS (2007 (1) CTC 334).
20. Further, this Court is of the considered view that no substantial questions of law had arisen for the consideration of this Court, in the present second appeal.
21. Hence, the second appeal stands dismissed, confirming the judgment and decree of the courts below. No costs.