The defeated defendants 1 to 6, 9 & 10 are the appellants herein.
2. The plaintiff filed the suit, in O.S.No.1472 of 1986, before the learned Additional District Munsif, Dindigul, seeking the relief of declaration and permanent injunction.
3. After contest, the learned Additional District Munsif, Dindigul, by Judgment and Decree, dated 20.02.1995, decreed the suit only in respect of Item No.III of the suit schedule property and dismissed the suit in respect of the other properties.
4. Aggrieved by the Judgment and Decree passed by the learned Additional District Munsif, Dindigul, the plaintiff preferred an appeal, in A.S.No.38 of 1998, before the learned Additional Subordinate Judge, Dindigul.
5. After contest, the learned Additional Subordinate Judge, Dindigul, by Judgment and Decree, dated 11.12.2000, allowed the appeal and decreed the suit in respect of Item Nos.I and II of the suit properties also.
6. Challenging the correctness of the Judgment and Decree passed by the learned Additional Subordinate Judge, Dindigul, the defeated defendants 1 to 6, 9 & 10 have preferred the present second appeal.
7. The brief averments of the plaint that are necessary to decide this appeal are as follows:
Initially, one Kuppaiandi Konar and his five sons were owned the suit properties and other properties. They had obtained loan from one Nagoor Kani. Since they had failed to repay the same, Nagoor Kani got a favourable order in a suit filed against Kuppaiandi Konar and his sons. In order to collecte the loan amount from Kuppaiandi Konar and his sons, Nagoor Kani initiated execution proceedings in E.A.No.495 of 1911, before the learned District Munsif, Dindigul and brought the suit properties and other properties for auction. On 27.04.1912, Nagoor Kani took the property in the auction conducted and the same was confirmed by the Court on 26.06.1912 and thereafter, he enjoyed the said properties. Subsequently, Nagoor Kani sold the said properties to the plaintiff's grandfather, namely, Pillaiappa Konar. Pillaiappa Konar, in addition to those properties, had got more properties in Ragalapuram Village and Manjanaickenpatti Village. After enjoying those properties, he died 35 years back. Pillaiappa Konar has got two sons, namely, Manamarudai Konar and Ramasamy Konar, who is the father of the plaintiff. After the demise of Pillaiappa Konar, Manamarudai Konar and Ramasamy Konar were enjoying all those properties. Ramasamy Konar died intestate, during 1970, leaving behind the plaintiff as his legal representative. Whereas, Manamarudai Konar died intestate leaving his children, namely, Govinda Konar and others, as his legal representatives. Dispute arose between the plaintiff and Govinda Konar and others, in respect of the properties situated in Ragalapuram and Manjanaickenpatti and for which, the plaintiff filed a suit, in O.S.No.274 of 1970 and the said case was went upto the Madras High Court. During 1984, the dispute was compromised by some Panchayatars and in which, the suit properties situated in Balakrishnapuram were allotted to the share of the plaintiff and the properties situated in Ragalapuram and Manjanaickenpatti were all allotted to Govinda Konar and others. Pattas bearing Nos.1226, 1264 and 707 were issued in respect of the suit properties and based on which, the plaintiff had been paying taxes. Item Nos.I to III of the suit properties have been mentioned in the auction certificate as well as in the sale deed of the year 1913 as Item Nos.11, 12 and 26. When the suit schedule properties are in possession of the plaintiff, the defendants tried to interfere with her possession. The defendants have no right over the suit schedule properties. The plaintiff's father or his grandfather had never executed sale deed in favour of anybody in respect of the suit properties. If there are any documents, such documents are not maintainable as per law and they would not bind the plaintiff. In order to grab the suit properties from the possession of the plaintiff, they gathered together and tried to interfere with her possession. Hence, the suit.
8. The brief averments of the written statement filed by the ninth defendant adopted by the defendants 1 to 6, 8 and 11 that are necessary to decide this appeal are as follows:
The defendants are entitled to Item Nos.I and II of the suit schedule properties, comprised in Survey Nos.135 and 136. The plaintiff's grandfather Pillaiappa Konar purchased the suit properties and other properties from one Nagoor Kani in the year 1913. Pillaippa Konar mortgaged those properties with one Guruvaraja in the year 1918. On 13.07.1932, Pillaiappa Konar and his children sold those properties in favour of Guruvaraja and Dhandayuthapani Raja. Thereafter, those properties had been sold to several persons. During 1964, Sheik Abdul Kadar and others converted those properties into housing plots. On 02.12.1981, the ninth defendant has purchased Plot No.8 and since then, he is in possession and enjoyment of said plot. The plaintiff has no right over the suit properties as those properties have been in their possession for more than 60 years. It is false to state that the plaintiff was enjoying those properties. The defendants are not parties to the suits stated in the plaint and the findings of those suits would not bind the defendants. The plaintiff has not mentioned the correct details in the plaint. The adjacent land owner of the defendants' property, namely, Mari Pushpam is a necessary party to the suit and since she has not been made as a party, the suit is bad for non-joinder of necessary party. Therefore, the suit is liable to be dismissed.
9. Based upon the above pleadings, the Trial Court had framed two issues for consideration.
10. On the side of the plaintiff, P.Ws.1 and 2 were examined and Ex.A1 to A14 were marked and on the defendants side, D.W.1 was examined and Exs.B1 to B24 were marked, besides Exs.C1 and C2.
11. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiff is entitled to the relief sought only in respect of Item No.III of the suit Schedule properties and not for other properties and decreed the suit accordingly.
12. As stated supra, aggrieved by the Judgment and Decree of the learned Additional District Munsif, Dindigul, the plaintiff preferred first appeal in A.S.No.38 of 1998, before the learned Additional Subordinate Judge, Dindigul and the learned First Appellate Judge, after re-appreciation of the entire oral and documentary evidence, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit in its entirety.
13. At the time of admission, the following substantial questions of law were framed for consideration:
(i) Whether the judgment of the lower appellate Court is right in declaring the rights of the plaintiff contrary to documentary proof under Exs.B3 to B17?
(ii) Whether the lower appellate Court is right in coming to the conclusion that the subject matter of the suit and the one found in the sale deed of the defendants are different, when the identity of the property had not been disputed? And
(iii) Whether the judgment of the lower appellate Court is not against the admission of P.W.1, wherein she had expressed her lack of knowledge as regards the suit property and the manner in which it had been dealt with.
14. The defeated defendants have preferred this appeal.
15. Ponnammal/the first respondent herein filed the suit through her Power Agent Ramuthevar for a declaration of title and for Permanent Injunction in respect of 3 items in the suit property. After contest, Item No.I alone was decreed by the trial Court.
16. In respect of the disallowed the portion, the plaintiff-Ponnammal filed in A.S.No.38 of 1998, Sub-Court, Dindigul in respect of Item No.2 and 3 of the suit property. The defendants have not preferred any appeal against the trial Court and judgment wherein, suit was decreed in respect of Item No.I of the property assumes significance.
17. On appeal by the plaintiff after contest, the lower Appellate Court allowed the appeal thereby, the suit was decreed in entirety.
18. The Admitted facts:-
a) The suit property are originally belonged to one Kuppaiandi Konar and his five sons and as they filed to repay the loan borrowed from Nagoor Kani. The said Nagoor Kani has filed the suit before the District Munsif Court, Dindigul in O.S.No.495 of 1991 and obtained a decree and thereafter, the property was brought on Court auction and after obtaining necessary permission, the decree-holder participated in the Execution Proceedings and taken the property in Court auction on 27.04.1912. Exhibit A1 is the Court Auction Sale Certificate. The correlation of the property is that under Ex.A1 Court Auction Sale Deed Certificate, there are 26 items of property, in which, Item No.11,12 and 26 are respectively, Item No.1 to 3 of the suit properties.
b) The defendant admitted that the said Nagoor Kani Rawther on 10.09.1913 have sold the above property along with other properties to Pillaiappa Konar under Ex.A2=Ex.B1 wherein, the land in Survey No. land measuring and extent of 88 cents out of 3.54 cents in survey No.135/C and land to an extent of acre 1.23 cents out of 4.92, on the southern side in Survey number 136 and thus, of the Item No.1 and 2 in the suit property, the corresponding patta No. for the Item No.1 in the Balakrishnapuram Village is Patta No.1226. While, Patta No.1264 relates to Item No.II in the suit property as stated supra.
c) The description of the property in the plaint as to Survey No. its sub-division total extent and extent claimed by the plaintiff and the patta Number are not denied by the defendant/appellant in the written statement. It is also not in dispute that suit property is the form part of the auction purchase under Ex.A1 and under Ex.A2(=Ex.B1) was sold by Nagoor Kani to the Pillaiappa Konar and those properties are self-acquired properties of Pillaiappa Konar is also not disputed. In short, the contesting defendant have not disputed Ex.A1 and A2 document. Infact, the certificate copy of the A2 document is marked as Ex.B1 on the side of the defendant assumes significance. Thus upto Ex.A2, the title traced by the plaintiff through the predecessor-intitle are not disputed by the defendant.
d) The Ramasamy Konar died in the year 1970 leaving behind his sole heir Ponnammal/the plaintiff herein. The patta for the suit property are 1226,1264,707. The defendant in his written statement have not disputed Ex.A1 and A2. Infact, Ex.B1 is the certified copy of the A2.
Disputed fact:-According to the defendant, the Pillaiappa Konar, have mortgaged the same of the property in the same Survey No under Ex.B2. So, is the evidence of 9th defendant/D.W.1.
On perusal of Ex.B2, it is seen that along with Kuppandi Konar, Pillaiappa Konar, Nallathambi Konar, all the three have jointly executed in favour of the Gururaj. However, the subject matter of the property under Ex.B2, it refers to only in respect of Kuppandi Konar properties in Balakrishnapuram village assumes significance and it remains to be stated that none of the property belonging to the Pillaiappa Konar or his patta number have been included under Ex.B2 has been noted by the lower Appellate Court is found to be factual correct.
19. Discussion:-
A perusal of suit property described in Ex.B2 and Survey No and the extent therefor clearly demonstrated that there is no reference to the properties and lands covered in Ex.A1 and A2 documents. The defendant specifically pleaded that on 13.07.1932 Pillaiappa Konar and their legal heirs have executed a sale deed in favour of Guruvaraja and Dhandayuthapani Raja for sale consideration of Rs.3,000/-. The D.W.1 also deposed on the similar line and marked Ex.B3. Thus, based upon the pleadings and the evidence of the D.W.1, this Court finds that Ex.B3 is their sheet anchor. The certified copy of the sale deed dated 13.07.1932 is marked as Ex.A3.
20. On perusal Ex.B3, it is seen that parties No.1 to 10 are the legal heirs of Kuppandi Konar while the Pillaiappa Konar is arrayed as 11th party and his younger brother Nallathambi Konar is arrayed as a 12th party. It remains to be stated that none of the legal heirs of the Pillaiappa Konar were added as a party namely Ramasamy Konar and Manamarudai Konar under Ex.B3. It is seen that in respect of the mortgage created under Ex.B2 and made over has been referred to. At this juncture, it is significant to refer to schedule 'B'property under Ex.B3, which is a sheet anchor of the defendants mentioned as spoken to by the D.W.1. While, the property under Ex.B3, through which, the defendants claimed title refers only to land in Dindigul Taluk, Balakrishnapuram village and land belongs to Kuppandi Konar and comprise in Patta No.2,3,4 is alone is mentioned and it is stated that the Pillaiappa Konar and Nallathambi Konar are referred to as sister's son of the Kuppandi konar and only lands in S.No.135 and lands in S.No.136 are referred to. It remains to be stated that the property i.e, covered under Ex.B3 document does not belong to Pillaiappa Konar (the grand-father of the plaintiff herein) and the Pillaiappa konar, Nallathambi Konar were added as a formal party under Ex.B3. Since, they are legal heirs of the sister of the Pillaiappa konar and Nallathambi Konar have sold the property in favour of the persons therein and the property being the joint family property and their name has been added as a formal party. Though, the said Pillaiappa Konar and Nallathambi Konar does not have any title or ownership in respect of the property covered under Ex.B3.
21. On the correlation of the property described in Ex.B3 with that of the Item No.I and II of the suit property, the lower Appellate Court has gave a categorical finding that they are different and distinct, as already stated in the preceding paragraphs.
22. The case of the defendant/appellant solely rest upon the Ex.B3, on its perusal, there is no reference to the documents Ex.A1 and A2 and even in the Ex.B3, the sub-divisions to the Survey No. are not been mentioned. Besides, the total extent of lands in the said survey number were also not mentioned. On comparision of property mentioned under Ex.B3 with that of the Item No.I&II of the suit property, the property described under Ex.B2 and Ex.B3 are different and distinct from Item No.I&II of the suit property. Besides, there is no boundaries mentioned for the properties described under Ex.B3 as admitted in the cross examination of the D.W.1 (9th defendant). He has categorically admitted that the entire case of the defendant rest upon the Ex.B3. However, on correlation, this Court is found that there is no reference as to the documents Ex.A1 and A2 which are admittedly documents of the predecessor in-title and further in the description of the property under Ex.B3, the schedule is bereft of details viz sub-division in survey number and no boundaries are mentioned and the total extent land that is available in survey number is also not mentioned.
23. On the contrary, Ex.A2 and A3 based upon which, the plaintiff claims title have specifically stated the suit property with all boundaries, as described earlier, which was not disputed by the defendant, in the written statement or in the witness box as D.W.1 assumes significance. At this juncture, it is relevant to refer to the Advocate Commissioner's report appointed by the trial Court. Since, in the plaint, the suit property has been clearly mentioned with the sub-divisions in Survey No and extent to which the plaintiff seeks relief, out of the total extent has specifically mentioned. While, under Ex.B3, the sheet anchor of the defendant, the properties of the lands were missing and infact, after Ex.B3, various sale deeds have came into force which are marked as Ex.B4 to B12 and hence, to have conclusiveness of fact, an Advocate Commissioner was appointed and he has inspected the property and filed the report Ex.C1 and Ex.C2.
24. Based upon the said Advocate Commissioner's report and the Map C1 and C2, the lower Appellate Court has given a categorical finding that the Advocate Commissioner who has carried out the physical inspection of the suit property and noted down his physical feature with an assistant of the Village Surveyor and Revenue Inspector of the firka during the presence of the parties and in the first ABCDE sketch refers to the Item No.II of the suit property in Survey No.136/2. While, Item No.I of the suit property in respect of Patta No.1226 in respect of S.No.135/C, measuring 88 cents out of the total extent of 3 acre 54 cents on the western side and accordingly, filed the Map II relating to the Item No.1 of the property and the lower Appellate Court on a close scrutiny and on correlation of the sketch filed by the Advocate Commissioner under C2 which duly stand corroborated with item No.1and2 of the suit property have rendered a categorical finding that as identified by the Advocate Commissioner held that C1 and c2 are admissible in evidence and have reflected the correct correlations of the suit property I&II. At this juncture, it remains to be stated that for the Advocate Commissioner's report C1&C2 defendant have not filed any objections before the trial Court nor filed any objection for the cross examination of the Advocate Commissioner disputing the report or challenging the physical features noted therein, assumes significance.
25. Based upon the above analysis, the lower Appellate Court has come to the correct conclusion that on correlation of the suit property Item No.I&II with that of the schedule property mentioned in Ex.B3 who is suffers from loss and brift of particulars as to identy of the property, held that Item No.I&II of the suit property are different and distinct from the properties mentioned in Ex.B3 is well considered and well merited does not warrant any interference by this Court. Besides, the plaintiff calculated that for the fasli 1394, he has been issued with receipt on 13.12.1985 Ex.A3 which clearly and categorically refers to lands in patta No.1226. She had remitted the tax. So, Ex.A3 and A4 are the documentary evidence immediately proceeding the intuition of the suit to show plaintiff possession in the Item 1 to 3 of the suit properties shows plaintiff pleadings are duly states substantiated.
26. It remains to be stated that in the Ex.A3 and tax receipts under A4 wherein the patta No. 1226 and 1264 are clearly mentioned so as to give reference to the Item No.I&II of the suit property, this Court finds that the finding of the lower Appellate Court that the plaintiff is in possession and enjoyment of all the suit properties is based on the evidence and cannot be interfered with. While, B3 which has been discussed in detail in preceding paragraphs and this Court has given a finding that the suit properties Item No.I&II are different and distinct from the property mentioned under Ex.B3 suffers from breft of the details and Ex.B4 to B17 are all various sale deeds, that subsequently, came into existence based upon Ex.B3 only and hence, this Court is of the considered view that Ex.B4 to B17 which have been emerged from Ex.B3 does not advanced case of the defendant and hence, the substantial question of law No.I is answered in negation against the appellant. Though, the defendant have not disputed the identity of the suit property has described in the plaint schedule, it remains to be stated that the sheet anchor of the defendant's case viz., Ex.B3 is breft of the particulars especially with regard to sub-divisions in the Survey No. and the portion with which the property conveyed or lies. Besides the location and the total extent of the lands available in the Survey No is also not been mentioned under Ex.B3. Therefore, based upon Ex.C1 and C2 Commissioner's report and the sketch and also deriving the title from the Kuppandi Konar upto Pillaiappa Konar were not disputed by the defendant and since Ex.B3 has been correlated and found to be different from the properties covered under Ex.A1 and A2. The substantial question of law II does not arise for consideration and the same is rejected.
27. On perusal of the evidence of the P.W.1, the factum that the Ponnammal is admittedly, the sole legal heirs of the Pillaiappa Konar through his son Ramasamy Konar was not in dispute. Further, description of the property under Ex.A3 was not disputed by the defendant and therefore, he cannot be allowed to raise the plea by way of substantial question of law in the Second Appeal which he has not raised either before the trial Court nor before the lower Appellate Court and hence, this Court is of the considered view that as the defendants have not denied the description of the property in the plaint schedule and the Ex.A1 and A2 based upon which Ex.A3 came into existence. Now, they cannot do so, at the stage of the Second Appeal and hence, the substantial question of law No.III is also answered in negative against the appellant/defendant.
28. The upshot of the above discussion demonstrates that the Judgment and decree of the lower Appellate Court is well merited and well considered and all the substantial question of law are held in favour of respondents and this Second Appeal is devoid of merits liable to be dismissed.
29. In the result,
i) this Second Appeal is dismissed without costs.
ii) Judgment and Decree of the Additional Subordinate Judge, Dindigul, in A.S.No.38 of 1998, dated 11.12.2000, reversing the Judgement and Decree of the Additional District Munsif, Dindigul, in O.S.No.1472 of 1986, dated 20.02.1995 is hereby confirmed. Consequently, connected Miscellaneous Petition is also closed.
To
1.The Additional Subordinate Judge,Dindigul.
2.The Additional District Munsif,Dindigul.
.