The above Second Appeal arises against the judgment and decree in A.S.No.122 of 1988 on the file of Subordinate Court, Ariyalur confirming the Judgment and Decree in O.S.No.54 of 1983 on the file of District Munsif court, Jayamkondam.
2. The legal representatives of the third defendant and the defendants 4 and 5 are the appellants in the above second appeal. The first respondent herein is the plaintiff and the respondents 2 and 3 herein are the defendants 1 and 2 in the suit.
3. The plaintiff filed O.S.No.54 of 1983 on the file of District Munsif Court, Jayamkondam for declaration, possession and for injunction restraining the defendants 1 and 2 from issuing patta in favour of the defendants.
4. The brief case of the plaintiff in the suit is as follows: -
The suit property originally belonged to one Pappu Singh. The plaintiff purchased the suit property from one Ganesh Singh by a sale deed dated 18.6.1972. The said Ganesh Singh became entitled to the suit property through a family partition deed in the year 1967. The said Ganesh Singh's father acquired the suit property through a sale deed dated 19.04.1909 and had been in possession and enjoyment of the same for about a century. The defendant's father late Krishnan was a tenant under the plaintiff on a monthly rent of Rs.100/-. Suddenly, the said Krishnan stopped paying rent and also attempted to get patta in his favour. Therefore, the plaintiff filed the suit.
5. The brief case of the defendants are as follows:
(i) According to the defendants, the suit property did not belong to Pappu Singh. The averment that after the death of Pappu Singh, his three sons orally partitioned the family properties and that the suit property was allotted to the share of Ganesh Singh is not correct. The sale deed dated 18.6.1972 in favour of the plaintiff is not correct and not binding. The suit property is an unoccupied Natham poramboke. Pappusingh and his sons have no right to deal with the property in any manner.
(ii) The averments that before the partition deed, the suit property was usufructually mortgaged to one Ayyaathurai Mudaliar on 22.4.1967 is also false. The alleged mortgage deed and the sale deed will not clothe the plaintiff or his predecessors in title to any title to the suit property. The allegation that the plaintiff enjoyed the property for more than 100 years openly, adversely and continuously is not correct. The defendants are occupying the suit property for a period of more than 12 years. The 3rd defendant constructed thatched house in the suit property which was vacant land before. B memo has been issued to the third defendant which will clearly go to show that the plaintiff has no title over the suit property. There is no landlord-tenant relationship between the plaintiff and the third defendant at any time. The defendants moved for assignment of the property in their names. The said proposal is pending before the defendants 1 and 2. The suit properties belong to the Government and the plaintiff has no right to question to issue of patta to anybody. Therefore, the defendants prayed for dismissal of the suit.
6. Before the trial court, on the the side of the plaintiff, 4 witnesses were examined and 14 documents Exs.A-1 to A-14 were marked. On the side of the defendants, 3 witnesses were examined and 13 documents Exs.B-1 to B-13 were marked. The Advocate Commissioner's reports and plans were marked as Exs. C1 to C6.
7. The trial court after taking into consideration the oral and documentary evidences of both the parties, decreed the suit as prayed for.
8. Aggrieved over the judgment and degree of the trial court, the legal representatives of the 3rd defendant and defendants 4 & 5 filed appeal in A.S. No.122 of 1998 on the file of Subordinate Court, Ariyalur and the lower appellate Court after considering the materials available on record confirmed the judgment and decree of the trial court and dismissed the appeal.
9. Aggrieved over the judgment and decree of the courts below, the legal representatives of the third defendant and defendants 4 & 5 have filed the above second appeal.
10. Heard Ms.P.T.Asha, learned counsel for the appellants and Mr.J.R.K.Bhavanandham, learned counsel for the first respondent and Mr.R.Muthaiah, learned Government Advocate for the respondents 2 and 3.
11. At the time of admission of the above second appeal, the following substantial questions of law arose for consideration:-
" Whether both the courts below misconstrued in appreciating the probative value of Exs.P1 and P2 and Ex.A1 and whether this has resulted in miscarriage of justice?"
12. On a careful consideration of the materials available on record and the submissions made by both the learned counsel, it could be seen that the property conveyed under Ex.A1 sale deed dated 18.6.1972 is in Survey No.162. But according to the first respondent/plaintiff by oversight, in the sale deed, it has mentioned as Survey No.185. Ex.A2 mortgage deed dated 22.4.1967 was executed in favour of Ayyadurai Mudaliar by Ram Singh, Balaji Singh and Ganesh Singh. Ex.A9 Sale deed dated 11.10.1972 was executed by Balaji Singh as guardian of his minor sons Gajendran, Jothi and Srinivasan in favour of one Neelavathi Ammal. Ex.A10 is the sale deed executed by Subbu Singh in favour of Thangaraj. Ex.A11 is the sale deed dated 30.10.1979 executed by R.Mohan Singh in favour of Thangaraj. Ex.A12 sale deed dated 19.4.1909 was executed by Samabai Ammal in favour of Pappu Singh. Further, the first respondent has also produced tax receipts pertaining to the suit property. The tax receipts were produced from the year 1978-79. Ex.B4 is the Water charges receipt produced by the appellants. The said document is dated subsequent to the filing of the suit. Even Ex. B3, B memo is also subsequent to the filing of the suit. From Ex. A12, it is clear that the first respondent/plaintiff and his predecessor in title are in possession and enjoyment of the suit property for more than 100 years. Ex. A2 mortgage deed is also support the case of first respondent. The first respondent also obtained the electricity connection for the suit property. The Advocate Commissioner's reports and plans marked as Exs.C3 to C6, also supports the case of the first respondent/plaintiff. The Advocate Commissioner's plans Exs.C5 and C6 tallies with the measurements found in Ex.A12 sale deed dated 19.4.1909. Exs. A1, A9 to A11 and A13 supports the case of the first plaintiff. Therefore, it is clear that the suit property originally belonged to Pappu Singh. By examining P.W.1 to P.W.4, the first respondent also proved that the 3rd defendant in the suit was a tenant under him.
13. From the perusal of the documents marked on the side of the first respondent/plaintiff, it could be seen that the survey number mentioned in Ex.A1 sale deed has been wrongly mentioned as Survey No.185 instead of No.162. The courts below have concurrently found that the first respondent is the absolute owner of the suit property and the appellants are in occupation of the suit property as tenants under the first respondent.
14. Therefore, I find no ground much less substantial question of law to interfere with the concurrent findings of the courts below. Therefore, the above second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. However, there will be no order as to costs.
rj To
1.The Subordinate Court, Ariyalur.
2.The District Munsif court, Jayamkondam