The plaintiff who was non suited by the concurrent findings of the Court below as regards his prayer for declaration of title and also for permanent injunction challenges the findings of the Court below by way of the present Second Appeal.
2. The plaintiff/appellant would contend that though the suit property bearing survey number 194/2 measuring 1.96 acres and survey number 194/3 measuring 1.92 acres originally owned by the first defendant, the said property was allotted to the share of the plaintiff by the panchayatars and therefore, the said factum was reduced into writing by way of Koorchit.
3. Further, claiming that the plaintiff has been in possession and enjoyment of the suit property ever since 24.03.1976, the day on which the Koorchit was executed he has sought for declaration of title and also for permanent injunction.
4. The defendants resisted the claim of the plaintiff on the ground that the suit properties did not form part of the Koorchit admittedly executed between the parties. As the suit properties are the self-acquired properties of the first defendant, they were not the subject matter of the Koorchit arrangement. They contend that the said Koorchit was later on cancelled and a new Koorchit came into existence. The defendants seek for dismissal of the suit.
5. The Trial Court having found that the unregistered Koorchit virtually makes a division of the properties between the parties and therefore the same cannot be admitted as part of evidence chose to hold that the suit properties are the self-acquired properties of the first defendant. It is also held considering the patta and adangal in the name of the first defendant that the plaintiff has not established title to the suit property but also exclusive possession there of and therefore he is not entitled to the relief as sought for.
6. An attempt was made by the plaintiff who preferred an appeal before the Lower Appellate Court to mark the Koorchit. Yet another attempt was also made by the plaintiff to setup a quite contradictory plea that the plaintiff perfected his title by an adverse possession. Both the pleas projected through two different petitions before the First Appellate Court by the plaintiff stood rejected by the First Appellate Court. The First Appellate Court has also held that the plaintiff failed to establish title to the suit properties in the absence of the Koorchit alleged to have been entered into the parties. It also rejected the claim for permanent injunction as it is found that the material documents namely the patta and adangal stood in the name of the first defendant.
7. At the time of the admission of the Second Appeal, the following Substantial questions of law were framed:
1) When the defendants admit the execution of the koorchit and the fact that it was produced in Court after payment of the stamp duty is the learned Subordinate Judge right in refusing to receive the same and dismiss the appeal.
2) When the plaintiff has produced documents from 1976 to show his possession pursuant to the koorchit which was admitted by the defendants and in the absence of any documents on the side of the defendants to disprove the possession of the plaintiff is the learned Judge right in dismissing the suit.
3) Whether the learned Subordinate Judge right in dismissing the applications for receiving additional evidence and amendment of the plaintiff respectively, when the petitions were filed after following the principles laid down under the Civil Procedure Code.
4) Whether the learned Subordinate Judge right in refusing to mark the koorchit even for the collateral purposes.
8. The learned counsel appearing for the appellant/plaintiff would strenuously submit that both the Courts below failed to mark the admitted Koorchit clinched by the parties concerned. Even for establishing the nature of possession of the appellant, the kist receipts produced by the appellant was not at all considered by the Courts below. It is his further submission that the Koorchit may be marked atleast to establish the possession of the suit property as otherwise the appellant will be deprived of his long possession and enjoyment of the suit property, on the mere technical plea that the Koorchit was not registered.
9. Per contra, the learned Senior Counsel appearing for the respondents/defendants would submit that the appellant has come out with a novel case that in Mohamedan family, the self-acquired property of a family member was also combined for the purpose of partition of the family properties. It is his submission that the Courts below have rightly viewed the matter in the absence of any Koorchit produced before the Court establishing allotment of the suit property to the share of the appellant. The Koorchit which speaks about the current transaction of partition cannot be marked as a document before the Court of Law in the absence of compulsory registration mandated under
Section 17 of the Registration Act. In the alternative, he would submit that the Koorchit also doesn't disclose the survey number and the exact extent of the property. Marking of the Koorchit for the purpose of establishing possession is quite redundant on account of the fact that the patta and the adangal stand in the name of the respondents and the original sale deed was also produced from the custody of the respondents. He would vehemently submit that the Second Appellate Court cannot render a different verdict quite against the concurrent verdict on the facts of the case.
10. The Koorchit produced by the appellant was thoroughly scanned by this Court. By no stretch of imagination, can we can come to a decision that the properties were already divided amongst the family members of the appellant and the respondents under the koorchit. Past transaction alone was clinched under the Koorchit produced by the appellant but not marked by any of the Court's below. The Koorchit deals with the current transaction of the partition of the property in the presence of panchayathars. It is not as if the Koorchit only evidences the division of property already taken place amongst the family members. The Court's below have rightly held that the Koorchit under which the properties were divided amongst the family members attracts compulsory registration. In the absence of such registration, unregistered koorchit cannot be marked.
11. Of course, there is a reference in the Koorchit that the property namely Gangasoodamani land purchased from Gangadhara Chettiar by the first defendant measuring 4.50 acres was allotted to the share of the appellant. It is true, that the first respondent candidly admitted the existence of the Koorchit which came into existed on 24.03.1976. Though the respondents have setup a plea that two further Koorchits were executed amongst the family members overriding the effect of the original Koorchit executed earlier. Those subsequent Koorchits alleged to have been in possession of second respondent/DW.2 did not see the light of the day. For reasons best known to DW.2, who was allegedly in possession of those subsequent koorchits did not choose to produce them before this Court for scrutiny. But in the considered decision of this Court, the non-production of those Koorchits does not go to the root of the matter inasmuch as the appellant who comes before this Court seeking to establish his title based on the Koorchit will have to establish his title on his own pleadings.
12. Though the first respondent admitted that the Koorchit dated 24.03.1976 was executed amongst the parties, there is a total denial of the inclusion of the suit properties in the said Koorchit.
13. The appellant who seeks for the prayer of declaration of title on a specific plea that he got the property by way of partition evidenced by the Koorchit will have to establish that he got title as per the koorchit. The Koorchit does not specifically refer to the date of purchase made by the first respondent, the survey number, patta number or the exact extent of the said property. The first respondent has come out with a concrete denial that the suit property did not form part of the Koorchit. The absence of those material facts concerning the suit properties in the koorchit will have to be viewed in the background of such a denial emanated from the first respondent through the written statement.
14. Firstly, it is found that the Koorchit which clinches the current transaction of the partition which is liable for compulsory registration cannot be marked as a document before the Court of law. Secondly, the suit property has not been specifically mentioned in the Koorchit. Therefore, the strenuous plea made by the learned counsel appearing for the appellant that the Koorchit may be relied upon atleast for the purpose of establishing the nature of possession of the suit property cannot also be acceeded to, on account of the absence of material particulars with respect to the suit property in the Koorchit.
15. Yet another aspect is brought to the notice of this Court. The appellant is none other than the son of the second wife of Ibrahim sahib. The first respondent is the wife of the son of the first wife of Ibrahim sahib and the respondents 2 to 5 are the children born to the first respondent. It is the admitted case of both the parties that the suit properties were purchased under Ex.D1 by the first respondent not only after the demise of her husband but also after the demise of her father in law. The rival parties belong to a Mohamedan family. As rightly pointed out by the learned Senior Counsel appearing for the respondents, the Mohamedan family would not have thought of including a separate property standing in the name of a female member which was purchased subsequent to the death of her husband and her father in law. The appellant cannot be permitted to raise a plea at the appellate stage quite against the fundamental plea set up at the stage of Trial that he has perfected title by adverse possession over the suit property. The appellant has laid a foundation for the prayer for declaration of title on the basis that he got the suit property under a Koorchit. The contradictory plea attempted to be taken before the First Appellate Court is in fundamental variation of the original plea the appellant had setup before the Trial Court. It cuts the very root of the plea setup before the Trial Court. Such a plea cannot be permitted to be taken and it is found that the First Appellate Court has rightly rejected the plea.
16. The learned counsel appearing for the appellant submitted the decision in Roshan singh and others v. Zile singh and others, AIR 1988 Supreme Court 881. The sum and substance of the ratio laid down by the Supreme Court is that the Court before admitting a particular document which was not registered will have to find whether there was a current transaction of partition under the said document or the said document merely records the previous completed transaction. Even the use of past tense in such a deed does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not at all an instrument of partition and therefore, it does not require registration under
Section 17(1)(b) of the Registration Act.
17. This Court has already held on a careful scanning of the Koorchit that it clinches a current transaction of a partition and that it is not a record of past transaction of partition. In view of the above, the aforesaid ratio laid down by the Supreme Court does not in any way advance the case of the appellant.
18. It has been already held by me that the Koorchit cannot even be marked for establishing the possession of the property inasmuch as the Koorchit does not specifically refer to either the survey number or the exact extent of the suit property, more especially when the first respondent totally denied the inclusion of the suit property under the Koorchit.
19. It is true that the appellant has produced kist receipts to show that he paid land revenue to the Government for the suit properties. As rightly pointed out by the learned Senior Counsel appearing for the respondents, it is not necessary that the person who is in possession of the property alone is supposed to pay the land revenue. The adangal extract and the patta would go to show who actually has been in possession of the disputed property. Here is a case whether the respondents have produced not only the patta, but also the adangal extract to establish possession of the respondents. It is true that the appellant has produced the receipts for payment of electricity charges. It is to be noted that the electricity connection stands in the name of the original owner of the suit property namely the vendor of the first respondent. If at all the Koorchit was put into effect, the appellant would have received the original sale deed from the custody of the first respondent and he would have taken steps to mutate revenue records and change the service connection in his name. The aforesaid facts and circumstances would go to show that the Koorchit was also not put into effect by the parties.
20. In view of the above, all the substantial questions of law framed by this Court are decided against the appellant and as a result of which this appeal stands dismissed. There is no order as to costs.
kj/ps To
1. The Sub Judge, Tiruvannamalai
2. District Munsif, Polur