The lis between the parties is relating to 01 Cent of land and in which, + Cent is in dispute.
2. The unsuccessful plaintiffs are the appellants herein.
3. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
4. The plaintiffs filed the suit, in O.S.No.807 of 2000, before the learned Principal District Munsif, Nagercoil, for the relief of declaration and permanent injunction.
5. After contest, the learned Principal District Munsif, Nagercoil, by Judgment and Decree, dated 26.04.2004, dismissed the suit.
6. Aggrieved by the Judgment and Decree passed by the learned Principal District Munsif, Nagercoil, the plaintiffs preferred an appeal, in A.S.No.155 of 2004, before the learned Principal Sub Judge, Nagercoil. During the pendency of the appeal, the second plaintiff died and his legal representatives were impleaded as appellants 3 to 7.
7. After contest, the learned Principal Sub Judge, Nagercoil, by Judgment and Decree, dated 28.02.2005, dismissed the appeal, and confirmed the Judgment and Decree passed by the learned Principal District Munsif, Nagercoil.
8. Aggrieved by the dismissal of the appeal, the plaintiffs have preferred the present second appeal.
9. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The plaintiffs are husband and wife. The defendant is the sister of the second plaintiff. The land comprised in Old Survey No.1679/4133 and New Survey No.9/119, measuring about 01 Cent is the suit property. In the suit property, there is a house bearing Door No.8/6-49. The suit property was initially owned by Government. Thereafter, the suit property was leased out to Chinna Ponnammal and Rama Iyyer and they had constructed a house thereon. The first plaintiff purchased southern portion of + Cent land in the said property from Chinna Ponnammal and Rama Iyyer under a Sale Deed, dated 22.05.1978. On the very same day, the second plaintiff purchased the remaining northern portion of + Cent land in the name of the defendant. The defendant is only a name-lender and the second plaintiff is the real owner of the northern portion of + Cent. Based on the said sale, the plaintiffs have been in possession of the suit property. The plaintiffs have been residing in the suit property along with their children. The first plaintiff has obtained Patta in respect of the suit property. The first plaintiff availed loan from the Government for construction of building in the suit property. Since the plaintiffs are in possession of the suit property right from 1978, they have perfected the title by adverse possession. The defendant has no right, title or interest over the suit property. The defendant tried to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property. Hence, the suit.
10. The brief averments of the written statement filed by the defendant that are necessary to decide this appeal are as follows:
The door number of the house constructed in the suit property is 18/1-49. The first plaintiff had purchased southern portion measuring + Cent land. There are separate roofings for the northern side and southern side buildings. It is false to state that the second plaintiff had purchased northern portion of + Cent land in the name of the defendant and the defendant is a name-lender. The defendant purchased the northern portion of + Cent land out of her own earnings. She beard her marriage expenses out of her own earnings. The second plaintiff had never spent any amount for the defendant. She is the absolute owner of the northern portion of + Cent land and she has been paying taxes for the said land. It is false to state that the plaintiffs are residing in the suit property along with their children. From 17.06.1991, the second plaintiff enjoying the defendant's property as a tenant and Rs.50/- was fixed as a monthly rent for three years. After completion of the tenancy period on 16.06.1994, the second plaintiff has no right to continue the tenancy. It is false to state that the first plaintiff has obtained Patta. If that is so, it is a forgery Patta and such Patta would not bind the defendant. It is false to state that the first plaintiff has availed loan on 01.09.1992 from the Government for construction. If she has availed loan, it would be in respect of southern portion only. The plaintiffs have not got adverse possession. The incident stated to have been taken place on 12.12.2000 is just a concocted story for the suit. The defendant sent a reply notice on 13.11.2000 in respect of the legal notice sent on 02.11.2000. For the purpose of constructing new building after demolishing the existing building in the northern portion of the property, the defendant has filed filed R.C.O.P.No.2 of 2001 and the same is pending disposal. On 19.10.2000, the second plaintiff has given an undertaking to the defendant stating that he would hand over the possession. The plaintiffs are not entitled to the reliefs sought for and prayed for dismissal of the suit.
11. Based upon the above pleadings, the Trial Court had framed as many as eight issues for consideration.
12. On the side of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A6 were marked and on the defendant side D.Ws.1 to 4 were examined and Exs.B1 to B10 were marked. Besides, Exs.X1 and X2 were marked.
13. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the defendant has proved her case that the plaintiffs have suppressed the factum of tenancy and filed the suit and therefore, the plaintiffs are not entitled to the relief sought for and dismissed the suit accordingly.
14. As stated supra, the unsuccessful plaintiffs preferred first appeal in A.S.No.155 of 2004, before the learned Principal Subordinate Judge, Nagercoil and the learned First Appellate Judge, after contest, dismissed the appeal and confirmed the Judgment and Decree passed by the learned Trial Judge. Hence, the second appeal.
15. At the time of admission, the following substantial questions of law was framed for consideration:
(i) Whether the Judgment of the Lower Appellate Court is in accordance with the mandatory requirement of Order 41 Rule 31 of C.P.C? And
(ii) Have not the plaintiffs prescribed title by adverse possession especially when the alleged purchase by the defendant was on 22.05.1978 and the alleged lease arrange on 17.06.1991?
16. The plaintiffs filed the suit for declaration and permanent injunction in respect of 01 Cent of land as described in the plaint Schedule and the plaint proceeds on the basis that the southern half of the suit property has been purchased under Ex.A1 in the name of the first plaintiff and the northern portion of the suit property has been purchased under Ex.A2 in the name of the defendant, who is the sister of the second plaintiff, however money was paid by the second plaintiff (Ex.B3 is the original Sale Deed, dated 22.05.1978, in respect of the northern portion of the suit property).
17. It is further pleaded that though money was given by the second plaintiff, since the defendant is his younger sister, the northern portion of the suit property has been purchased in her name and she is only a name- lender. In short, while the southern portion of the suit property has been purchased by the first plaintiff under Ex.A1, the northern portion of the suit property has been purchased by the second plaintiff in the name of the defendant under Ex.A2 and the second plaintiff has exercised the act of ownership and the defendant had never acted as ownership of the northern portion of the suit property. Further, since the defendant trying to interfere with his possession of northern portion of the suit property, the plaintiffs filed the suit for declaration of title and injunction in respect of the total extent of 01 Cent.
18. Per contra, the defendant filed written statement stating that she is the absolute owner of northern portion of the suit property as per Ex.B3, Sale Deed, dated 22.05.1978 and she has paid tax under Ex.B5 Property Tax Receipts. The second plaintiff, who is the elder brother of the defendant was permitted to be in possession of the property and originally, they entered into an Agreement of Sale and subsequently, they converted the advance amount as loan and they have executed a Lease Deed on 17.06.1991 and therefore, prayed for dismissal of the suit.
19. On considering both the oral and documentary evidence, the Trial Court has come to the conclusion that the defendant is the absolute owner of the northern portion of the suit property and the plaintiffs have not perfected title by adverse possession as pleaded by them and Ex.B10 Lease Deed is true and valid and accordingly, dismissed the suit and the appeal, after contest, was also dismissed by the First Appellate Court. Hence, the second appeal.
20. The learned counsel for the appellants submitted that the defendant is only a name-lender and under Ex.A4 Patta has been issued in the name of the of the second plaintiff and after the suit, the respondent / defendant filed R.C.O.P.No.2 of 2001, before the learned Rent Controller, for eviction of the plaintiffs and hence, the adverse possession pleaded by the plaintiffs was not considered by the Lower Appellate Court.
21. Per contra, the learned counsel for the respondent submitted that as per Ex.B3, Sale Deed dated 22.05.1978, the defendant is the sole and absolute owner of northern portion of the suit property and she has also paid property tax under Ex.A5, which stands in the name of both the plaintiffs and the defendant in respect of the entire building constructed in the suit property. With regard to the plea of adverse possession, the plaintiffs have failed to prove their case that from what date their possession is adverse to the title of the defendant and prayed for dismissal of the appeal.
22. On perusal of the documents, it is seen that the southern portion of the suit property was purchased in the name of first plaintiff under Ex.A1, while the northern portion of the suit property was purchased by the defendant under Ex.B3, Sale Deed, dated 22.05.1978 and the property in both northern and southern portions were jointly assessed for property tax by Nagercoil Municipality as could be seen from Ex.B7, dated 01.09.1978, which goes to show that the respondent / defendant was in possession and enjoyment of the suit property and paid tax to the Municipality and therefore, both the Courts below have rightly come to the conclusion that the plaintiffs have miserably failed to prove the plea of adverse possession and the same is well founded and well merited and it does not warrant interference by this Court.
23. The claim of the plaintiffs over the northern portion of the suit property was mainly under Ex.A4 Patta. It is a settled proposition that mere mutation of name in the revenue records is not evidence of title as held in Guruvammal and another v. Subbiah Naicker, reported in 2000 (1) LW 488 and further, merely because Patta stands in the name of the plaintiffs, it cannot be inferred that they are the owners of the property as held Nagar Pallika Jind v. Jagat Singh, reported in AIR 1995 SC 1377 and State of Himachala Pradesh v. Keshav Ram, reported in AIR 1997 SC 2181. In the instant case, in view of existence of Ex.B3 Sale Deed, which stands exclusively in the name of the defendant, who is none other than the younger sister of the plaintiff, coupled with Ex.B5, both the Courts below have rightly come to the conclusion that the plaintiffs have no title over the northern portion of the suit property and accordingly, the concurrent findings given by the Courts below with regard to the title in respect of the northern portion of the suit property are hereby confirmed.
24. The Lower Appellate Court has formulated necessary points for determination of the appeal in view of the narrow scope of the subject matter and has given a specific finding to the effect that the defendant is the absolute owner of northern portion of the suit property as per Ex.B3 and the possession of the plaintiffs is not adverse to the title of the defendant and accordingly, dismissed the appeal and hence the substantial question of law No.1 is held negative against the appellants / plaintiffs herein.
25. As discussed supra, both the plaintiffs have come forward with the specific case that northern portion of the suit property was purchased under Ex.B3 in the name of the defendant and she (defendant) is only as a name- lender was not substantiated. On the contrary, the defendant has examined two independent witnesses as D.Ws.3 and 4, who are neighbours in the area and they have spoken about the possession and enjoyment of the property as absolute owner by the defendant. Furthermore, both the Courts below have relied upon Ex.B10, unregistered Lease Deed, wherein the second plaintiff Nagarajan has paid Rs.5,000/- to the defendant and in lieu of interest, the rent was adjusted. Since Ex.B10 document was not registered, necessary stamp duty penalty has been paid and the Trial Court is quite right in looking into the said document for collateral purpose so as to ascertain the nature of possession, since the phrase ?Collateral Purpose? includes possession. Such approach adopted by the Trial Court is well in confirmity with law laid down by the Judicial Forum and come to the conclusion that the plaintiffs are only tenants and they cannot seek relief of injunction and accordingly, both the Courts below have rejected the relief of injunction and the reason as well as the findings given thereof are well considered and well merited and it does not warrant interference by this Court. In view of the specific finding that the plaintiffs are enjoying the northern portion of property as tenants, the plea of adverse possession falls to ground and similar findings arrived at by the Courts below does not suffer from any infirmity and accordingly, substantial question of law No.2 is held negative against the appellants / plaintiffs.
26. In fine, in respect of the disputed portion of + Cent of northern portion of the suit property, the respondent / defendant is the absolute owner of the property and she has also paid property tax and for that the appellants / plaintiffs have not perfected title by adverse possession and they are only tenants and the Judgment and Decree of the Lower Appellate Court are in consonance of Order XLI Rule 31 C.P.C., and as both the substantial questions of law were held against the plaintiffs.
27. It is seen that both the Courts below have dismissed the suit in entirety, which is on the face of it wrong, since in respect of the land and building to an extent of + Cent on the southern side, the first plaintiff is the absolute owner and is in possession and hence, she is entitled to the relief of permanent injunction against the defendant in respect of + Cent on the southern side and hence, injunction to the limited extent has to be granted.
28. In the result, the second appeal is allowed in part and the Judgment and Decree, dated 28.02.2005, made in A.S.No.155 of 2004, by the learned Principal Subordinate Judge, Nagercoil, are modified to the effect as indicated above and the suit in O.S.No.807 of 2000, on the file of the learned Principal District Munsif, Nagercoil, is decreed in respect of + Cent on the southern portion alone and the suit stands dismissed in respect of + Cent in the northern portion of the suit property. No costs. Consequently, connected civil miscellaneous petition is closed.
To:
1.The Principal Sub Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil..