This second appeal has been filed against the judgment and decree, dated 18.7.1995, made in A.S.No.122 of 1994, on the file of the District Court, Nagapattinam, reversing the judgment and decree of the District Munsif Court, Nannilam, dated 7.4.1994, made in O.S.No.161 of 1991.
2. The plaintiff in the suit in O.S.No.161 of 1991, is the respondent in the present second appeal. The plaintiff had filed the suit before the District Munsif Court, Nannilam, praying for a decree to recover possession of the schedule mentioned property from the defendant therein, who is the appellant in the present second appeal.
3. The suit had been filed by the plaintiff to direct the defendant to hand over possession of the house, described in the `A' schedule of the suit properties and the vacant land described in the `B' schedule of the plaint, to the plaintiff and for mesne profits and for costs.
4. The husband of the plaintiff, Krishnamurthy, had given the suit property to the defendant for her enjoyment three years prior to the filing of the suit. The defendant had filed a suit, in O.S.No.100 of 1990, falsely claiming that the husband of the plaintiff had written a Will, dated 28.12.1988. However, the said suit had been dismissed, on 22.7.1991. The suit property had been sold to the plaintiff by one Kuppusamy, on 24.3.1979. Since the claim of the defendant, with regard to the suit property, had been denied by the judgment rendered, in O.S.No.100 of 1990, the plaintiff has filed the present suit.
5. In the written statement filed on behalf of the defendant it has been stated that the defendant is the wife of Krishnamurthy. The defendant had given birth to two female and two male children through Krishnamurthy. Krishnamurthy had obtained the suit property by his own earnings. After the death of Krishnamurthy the defendant and his other legal heirs have been in enjoyment of the suit property. The claim of the plaintiff that her son is having a tea shop in the suit property is only a figment of imagination. Before the death of Krishnamurthy, when he was in a disposing state of mind, he had written a Will, dated 28.12.1988, in favour of the defendant. The house tax receipt has also been changed in the name of the defendant. The tiled house in the suit property has been built by the defendant, at her own cost. Therefore, the plaintiff does not have any right in the suit property. Further, the suit property belongs to the defendant by way of adverse possession. In such circumstances, as the suit is not maintainable, it is liable to be dismissed with costs.
6. In the additional written statement filed on behalf of the defendant it has been stated that the defendant and her husband have been living in the suit property from the year, 1971. The patta in respect of the suit property has been given to the defendant, on 10.5.1976. The said patta has not been cancelled by any authority. The plaintiff does not have any right in the suit property. She does not have any right to ask for possession of the suit property.
7. In view of the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues for consideration:
"1) Whether the plaintiff is entitled to possession of the property in `A' schedule?
2) Whether the plaintiff is entitled to future mesne profits?
3) What other reliefs the plaintiff is entitled to"
8. The additional issue arising for consideration is as follows:
"Whether the defendant can claim that she is entitled to the suit property, in view of the house patta issued to her?"
9. The above stated issues had been re-framed by the trial Court, as follows:
"1) Whether the plaintiff is entitled to the suit property?
2) Whether the defendant is entitled to the suit property?
3) Whether the plaintiff is entitled to mesne profits?
4) Whether the plaintiff is entitled to recovery of possession of the suit property?
5) To what reliefs the plaintiff is entitled to?"
1O. Based on the evidence available, the trial Court had come to the conclusion that the claim of the plaintiff that the suit property belongs to her, by way of the sale deed, dated 24.3.1979, marked as Ex.A-1, as well as the claim of the defendant that it belongs to her, based on the "manai patta" issued in her name, cannot be sustained. In view of the fact that both the claims of the plaintiff, as well as that of the defendant, were equally supported by the evidence produced on their behalf, respectively, the trial Court had found that a decree for recovery of possession, as prayed for by the plaintiff, cannot be granted. The trial Court had found that the plaintiff had been paying the house tax only after the death of Krishnamoorthy, in the year, 1989. On the other hand, the trial Court had found that the defendant has been living in the suit property from the year, 1977. Further, from the evidence of the plaintiff it has been noted that the defendant has no other house to live in.
11. The trial Court had also found that the "manai patta", marked as Ex.B-1, is in the name of the defendant. Even though the survey number mentioned therein is 170/2, it cannot be said that it does not belong to the suit property, which is in survey No.170/2A. The plaintiff had contended that the suit filed by the defendant, in O.S.No.100 of 1990, claiming that the suit property belongs to her, by way of a Will written by Krishnamurthy in her favour, had been dismissed. Therefore, the defendant is not entitled to claim any right in the suit property, as she would be estopped from doing so.
12. The plaintiff had further stated that she had purchased the suit property by way of the sale deed, dated 24.3.1979, marked as Ex.A-1, along with her husband Krishnamurthy. However, the trial Court had found that the plaintiff had not shown that she has been paying the house tax, nor had she paid the said tax through Krishnamurthy. The house tax receipt marked on behalf of the plaintiff, as Ex.A-5, relates to the period which is after the death of her husband Krishnamurthy. The trial Court had also found that Exs.A-4, A-6, A-10, A-12 to A-18, which are house tax receipts, electricity bills, etc. show that they pertain to a period subsequent to the filing of the suit by the plaintiff. Whereas the house tax receipts, marked as Exs.B-2 to B-5, on behalf of the defendant are in respect of the years 1976 to 1983.The trial Court had come to the conclusion that when the Ex.B-1 patta, which cannot be rejected on the ground that it does not relate to the suit property, due to the difference in the survey number shown therein, relate to the year 1976, the plaintiff cannot claim that she had purchased the suit property in the year 1979, by way of a sale deed, dated 24.3.1979, marked as Ex.A-1. Even if Ex.A-1 sale deed could be held to be valid, since sufficient evidence is available in favour of the defendant to show that she has been in occupation of the suit property for a number of years, from a period even before the death of Krishnamurthy, on 5.10.1989, the plaintiff would not be entitled to the relief of recovery of possession from the defendant, as prayed for in the suit. In such circumstances, the trial Court had dismissed the suit, in O.S.No.161 of 1991, by its judgment and decree, dated 7.4.1994.
13. Aggrieved by the judgment and decree of the trial Court, dated 7.4.1994, made in O.S.No.161 of 1991, the plaintiff had filed the appeal before the District Court, Nagapattinam, in A.S.No.122 of 1994. The first Appellate Court had framed the following points for consideration:
"1) Whether the plaintiff is entitled to recovery of possession of the suit property, from the defendant, on the basis of her ownership?"
2) Whether it is correct to state that the suit property is the separate property of the defendant?
3) Whether the claim of the defendant that she has obtained the rights in the suit property, by way of a Will written by Krishnamurthy, can be accepted?
4) Whether the claim of the defendant that she has got rights in the suit property, by way of adverse possession, is correct.
5) Whether the plaintiff is entitled to an order for future mesne profits from the defendant?"
14. The first Appellate Court had allowed the appeal by its judgment and decree, dated 18.7.1995, made in A.S.No.122 of 1994, stating that the defendant in the suit and the respondent in the first Appeal had made contradictory statements, with regard to her rights in the suit property. She had made a claim that the suit property had belonged to Krishnamurthy, as he had got it on lease and had built a house in the said property. Since it was his separate property he had written a Will in favour of the defendant. However, the first Appellate Court had found that the suit filed by the defendant, in O.S.No.100 of 1990, claiming the suit property, by way of the Will written by Krishnamoorthy, had been dismissed. The defendant had relied on the same claims in the written statement filed in the present suit, as well. The first Appellate Court had also found that the defendant had, thereafter, abandoned her earlier contentions and had made a new claim that she had built the house in the suit property with her own funds and that she was continuing to live in the said house. She had filed Exs.B-2 to B-12, which are house tax receipts, as proof, to support her claim. Further, the first Appellate Court had come to the conclusion that the defendant cannot have any valid claim in the suit property since she was not a legally wedded wife of Krishnamurthy.
15. The first Appellate Court had also found that the plaintiff's son, Balamurugan, had been running a tea shop in the front portion of the property, after the plaintiff had purchased the property in the year, 1979. Later, P.W.2 was living in the said property, as a tenant. In such circumstances, the defendant cannot validly claim that she was living in the said property, for over 12 years, for claiming her right of ownership by way of adverse possession. The first Appellate Court had also found, from the evidence of P.W.1, that the suit property, which had belonged to Sri Veezhinathaswamy temple, Thiruvizhimazhalai, had been bought by one Kuppusamy and that he had built a house in the said property.
16. By way of a sale deed, dated 24.3.1979, marked as Ex.A-1, the lease hold right in the said property had been sold to the plaintiff. Exhibits A-2 to A-4 are receipts showing that Krishnamurthy had been paying the dues, in respect of the property, in the name of Kuppusamy. From Ex.A-18, dated 2.7.1992, it has been found that Exs.A-5, A-6, A-10, A-12 and A-13 are house tax receipts in the name of the plaintiff. Ex.A-14 to A-17 are electricity bills paid in the name of Kuppusamy. Even though P.W.2, Ayyamuthu, had accepted that he had been living in the property after its purchase, it has been stated that he does not know as to who is the owner of the property. After Ayyamuthu had vacated the property the plaintiff's husband, Krishnamurthy, had allowed the defendant to stay in the property on payment of rent, which was to be paid to the plaintiff. However, it has been stated on behalf of the plaintiff that no such payment had been made.
17. Even though the defendant had claimed the suit property by way of Will written by Krishnamurthy, no such will had been filed by her to prove her claims. The suit filed by her, in O.S.No.100 of 1990, had been dismissed for non-prosecution. Therefore, she cannot make the same claims in the present suit. The first Appellate Court had also found that the survey number shown in the patta, marked as Ex.B-1, is 170/2, whereas the survey number of the suit property, as shown in the plaint, in O.S.No.161 of 1991, is 170/2A. Therefore, the first Appellate Court had come to the conclusion that the patta, marked as Ex.B-1, is not relating to the suit property. The first Appellate Court had also found that the defendant in the suit, having made a claim that the suit property belongs to the temple, it would not be open to her to change her stand and to make a claim that the patta, marked as Ex.B-1, has been given to her by the Government. In any case, the Government could not have given the patta in the name of the defendant, when the land belongs to a temple. Even otherwise, it cannot bind the plaintiff. In such circumstances, the first Appellate Court had set aside the judgment and decree of the trial Court, dated 7.4.1994, made in O.S.No.161 of 1991 and had decreed the suit, as prayed for by the plaintiff.
18. Aggrieved by the judgment and decree of the first Appellate Court, the defendant in the suit, in O.S.No.161 of 1991, who was the respondent in the first Appeal, in A.S.No.122 of 1994, had filed the present second appeal before this Court. This Court had admitted the second appeal on the following substantial question of law:
"1. Whether the first Appellate Court was right and justified in law in decreeing the suit of the plaintiff, reversing the judgment and decree of the trial court in the absence of the plaintiff proving title to the suit property."
19. The learned counsel appearing on behalf of the appellant had submitted that the judgment and decree of the first Appellate Court, reversing the judgment and decree of the trial Court, is contrary to law and the facts of the case. The first Appellate Court had erred in holding that the respondent in the second appeal, who was the plaintiff in the suit, is entitled to the suit property, even though no material evidence had been produced to support her claims. The first Appellate Court had failed to consider the fact that the respondent had not proved her title or possession, in respect of the suit property. Further, the first Appellate Court had failed to consider the fact that both the parties to the suit had failed to produce the parent documents relating to the suit property. Therefore, the trial Court had rightly come to the conclusion that the plaintiff, as well as the defendant had not proved their title with regard to the suit property.
20. In the absence of sufficient proof the plaintiff cannot claim any right in the suit property. The first Appellate Court had also failed to consider the categorical findings of the trial Court that the appellant in the present second appeal is in possession and enjoyment of the suit property, from the year 1971. Further, a patta had been issued to the appellant in respect of the suit property and that she has been paying the house tax after the death of her husband Krishnamurthy. The first Appellate Court had also erred in coming to the conclusion that the suit filed by the appellant, in O.S.No.100 of 1990, had been dismissed for default. Further, the fact that the appellant has been receiving the widow's pension and that as per the voter's list the appellant is shown to be residing in the suit property has not been considered by the first Appellate Court. In such circumstances, the judgment and decree of the first Appellate court, dated 18.7.1995, made in A.S.No.122 of 1994, is liable to be set aside.
21. The learned counsel for the appellant had further submitted that there is no clear finding by the first Appellate Court that the plaintiff, who is the respondent in the present second appeal, has valid title in respect of the suit property. Unless the title is proved the first Appellate Court cannot grant the relief of delivery of possession in favour of the plaintiff. It is clear from the evidence of P.W.1 that the Sri Veezhinathaswamy temple, at Thiruvizhimazhalai, is the owner of the suit property. Therefore, the trial Court had come to the conclusion that both the plaintiff, as well as the defendant, had no title in respect of the suit property. Unless the plaintiff could prove title in respect of the suit property, she cannot ask for the relief of recovery of possession. Further, the temple has not been made a party in the suit, in O.S.No.161 of 1991. Hence, the judgment and decree of the first Appellate Court is contrary to the facts and the law and therefore, liable to be set aside.
22. The learned counsel appearing on behalf of the respondent had stated that the first Appellate Court had come to the right conclusion after properly analysing the evidence on record. The first Appellate Court had found that the patta, marked as Ex.B-1, in favour of the defendant, does not relate to the suit property. The defendant having filed a suit, in O.S.No.100 of 1990, on similar grounds, cannot raise the same grounds, as objections, in the present suit. Even though the defendant claims the suit property by way of a Will, said to have been written by Krishnamurthy, no such Will had been filed before the Courts below. The defendant has been making contradictory statements. While she has made a claim that a patta had been issued to her by the Government, in respect of the suit property, she had also stated that the suit property belongs to the temple. Since the defendant is not the legally wedded wife of Krishnamurthy she cannot claim any right in the suit property. The defendant in the suit, who is the appellant in the present second appeal, had not produced any evidence to show that she has been in continuous possession of the suit property to claim title by adverse possession.
23. In view of the contentions raised on behalf of the appellant, as well as the respondent and on a perusal of the records available, this Court is of the considered view that the judgment and decree of the first Appellate Court, dated 18.7.1995, made in A.S.No.122 of 1994, cannot be sustained. It is clear from the evidence available on record that the suit property belongs to Sri Veezhinathaswamy temple at Thiruvizhimazhalai and therefore, the trial Court had come to the right conclusion that both the plaintiff, as well as the defendant, in the suit, in O.S.No.161 of 1991, do not have title in respect of the suit property.
24. As such, the trial Court had refused to grant the relief of recovery of possession, as prayed for by the plaintiff, in O.S.No.161 of 1991. Even though certain documents, including the patta, house tax receipts and electricity bills have been marked as exhibits on behalf of the plaintiff, as well as the defendant, the trial Court had come to the conclusion that they cannot be taken as sufficient evidence to prove their title, in respect of the suit property.
25. The trial Court had also concluded that since the plaintiff had not proved her title in respect of the suit property, she cannot ask for the relief of recovery of possession. Similarly, the defendant had not shown sufficient proof to substantiate her claim that the property belongs to her and that she has been in occupation of the property, continuously, for a period of twelve years to claim title by adverse possession.
26. In such circumstances, the trial Court had dismissed the suit by denying the reliefs prayed for by her, by its judgment and decree, dated 7.4.1994, made in O.S.No.161 of 1991. However, the first Appellate Court had set aside the judgment and decree of the trial Court by allowing the first appeal, by its judgment and decree, dated 18.7.1995, made in A.S.No.122 of 1994, by holding that the defendant had not been in a position to show that she had got the suit property by way of Will written by Krishnamurthy. The Will had not been filed before the Courts below. Further, the suit filed by the defendant, in O.S.No.100 of 1990, claiming title in respect of the suit property by way of the Will, said to have been written by Krishnamurthy, had been dismissed. Further the first Appellate Court had also held that the defendant had been making contradictory statements in respect of the title of the suit property. While she had stated that the suit property belongs to the temple, she had also claimed that she has been given a patta, in respect of the suit property, by the Government. Further, she had not been in a position to prove title by adverse possession. The patta marked as Ex.B-1, issued in favour of the defendant, was relating to Survey No.170/2. While the survey number of the suit property was 170/2A. The first Appellate Court had further stated that the defendant cannot be said to be the legally wedded wife of Krishnamurthy and therefore, she is not entitled to the possession of the suit property. It is clear that the first Appellate Court had not given sufficient reasons to set aside the findings of the trial Court. However, it is seen that the plaintiff had not impleaded the Government as a party to the suit, in O.S.No.161 of 1991.
27. In such circumstances, in view of the various grounds raised by the appellant in the second appeal and in view of the fact that the plaintiff had not made the State Government as a party to the suit, in O.S.No.161 of 1991, the judgment and decree of the first Appellate Court, made in A.S.No.122 of 1994, is liable to be set aside, confirming the judgment and decree of the trial Court, made in O.S.No.161 of 1991. Accordingly, the second appeal stands allowed. No costs.
csh To
1. The District Judge, Nagapattinam.
2. The District Munsif Court, Nannilam