The first defendant in a suit for declaration of plaintiff's title to the suit property and a consequential decree for prohibitory injunction has preferred this second appeal after suffering decrees successively both before the trial Court in O.S.No.198/1997 and before the First Appellate Court in A.S.57 of 2002. During the pendency of the appeal, the appellant died and his legal representatives were impleaded as appellants 2 to 10.
2. The case of the plaintiff may be briefly stated as below : The suit property is described as one comprised in S.F.No.98/2022 which is since sub-divided into S.F.98/2A and 98/2B of Duraisamaypuram Village, Sivakasi Taluk, having an extent of 63 ares, equivalent to 1.56 acres.
The suit property and others originally belonged to one Thoonga Naicker alias Thasi Naickar. He had three sons namely Gopalsamy, Venkatasamy and Kandasamy.
Thoonga Naicker died about 60 years prior to the filing of the suit, and on his demise the suit property devolved on his three sons. Some 35 years prior to the filing of the suit, these three sons of Thoonga Naicker orally partitioned the property, in which the suit property fell to the share of his son Venkatasamy Naicker. Ever since, Venkatasamy Naicker was in possession and enjoyment of the suit property.
Venkatasamy Naicker had two sons and two daughters. The eldest of them is Gopalsamy. He is the husband of the first plaintiff. The other son is one Srinivasan. Venkatasamy Naicker's daughters are Jayalakshmi and Seethalakshmi. Some 30 years prior to the filing of the suit said Venkatasamy died, whereupon his 2 sons viz., Gopalsamy and Srinivasan came to be in possession and enjoyment of the suit property. Some ten years since the demise of Venkatasamy, there took place an oral partition among the heirs of Venkatasamy Naicker in which both the suit property happened to be allotted to Gopalasamy and Srinivasan. About 14 years prior to the institution of the suit, Gopalsamy died, leaving the plaintiff as his heirs.
On 2.4.1996, the first plaintiff purchased the undivided half share of the suit property from the other sharer Srinivasan. Consequent to this purchase, in the entire suit property for one half the first plaintiff became the absolute owner, and the other half she held it jointly with other plaintiffs. Patta for the entire schedule property was also issued in the name of the plaintiff. She has been paying land tax for the same. The plaintiff also dug up a well at a cost of Rs.1000/- after the first plaintiff's purchase of the Srinivasan's half share.
The first defendant has no manner of right in the suit property. However, during UDR settlement by mistake patta was issued jointly both in the names of the first plaintiff and the first defendant. It is an inadvertent error. Therefore, the first plaintiff petitioned the Tahsildar, Sivakasi. By his proceedings dated 10.6.1996, the Tahsildar corrected the error crept in the UDR and restored status quo ante.
The first defendant has some property on the north-west of the suit property. In his property, there is a well but there is no water in it. On 07.11.1997, the first defendant attempted to fetch some water from the plaintiffs' well by trespassing into the same. This was prevented by the plaintiffs. In the meantime, plaintiffs also came to know that the first defendant has applied for electricity service connection for installing motor for drawing water from the plaintiff's Well in the suit property. They also came to know that the defendants 2 & 3 are processing the papers pertaining to the same. Hence the suit is laid for declaration of title and other allied reliefs.
3.Denying the plaintiffs contention over the suit property, the first defendant in his written statement has alleged that:
The plaintiffs have no title to the suit property, that they did not dig up a well in the North-western portion of the suit property. The said well is square shaped measuring 30 ft. x 30 ft. Even in the FMB for S.F.No.98, that the plaintiffs have produced, the well was shown spread over both in Survey Nos.98/1 and 98/2. As per that, the well was not shown to occupy a north- south length of 10 feet in 98/1.
S.F.98/1 originally belonged to Bhoomithan Board. On 22.7.1997, it was assigned to one Subbalakshmi, Vide assignment document No.3715/87F, dated 22.7.1987. Since for about north-south length 20, the well is in Subbalakshmi's portion, she is a necessary party to the suit. In that property, Subbalakshmi is cultivating. To the south of suit property is S.F.No.98/3 and it is assigned to the same Subbalakshmi and she has been cultivating there.
In the assignment document in S.F.No.98/1, the souther boundary is shown as first defendant's property hence it is apparent that the first defendant is entitled to and all the revenue documents is in the name of the first defendant. Some five years prior to the suit, Subbalakshmi and the defendant jointly dug up a well in the suit property. Therefore, the plaintiffs have no right over 78 cents in S.F.No.98/2A that belong the first defendant. Besides, the first defendant has been in wrong possession.The suit property is not properly described and the north and southern boundaries are wrongly given.
4. Before the trial Court, the first plaintiff had examined himself as P.W.1 and she has produced Ext.A-1 to Ext.A-12. For the defendant, the first defendant examined himself as D.W.1 and he has produced of Ext.B-1 to B-9 of which Ext.B1 & B2 were marked during the cross-examination of P.W.1, the first plaintiff.
5.1. Of the documents that the plaintiffs have produced, Ext.A-2, dated 17.08.1920 is a mortgage deed under which a certain Thasi Naicker had purchased the property in S.F.No:98/2. This is the suit property. This is followed by Ext.A-1, Settlement Register which shows Thasi Naicker as the owner/pattadar of the property. Ext.A-3 is a mortgage deed of the year 1923 that Thasi Naicker had executed and the property mortgaged thereunder was the suit property. Ext.A-6 and Ext.A-4 are the Adangal wherein plaintiff's husband Gopal Naicker and the latter's brother Srinivasan as those in enjoyment of S.F.No:98/2. Ext.A-5, dated 02.4.1996 is the sale deed under which first plaintiff has purchased the share of her brother-in-law Srinivasan. This is followed by proceedings of Tahsildar for issue of patta exclusively in the name of the first plaintiff, excluding therefrom the name of the first defendant. Exts.A-11 dated 10-01-1996 and Ext.A-10 dated 19-03- 1996 were the notices issued by the Tahsildar for enquiry and Ext.A-7 dated 10.6.1996 is the proceeding of the Tahsildar directing issuance of patta exclusively in the name of the first plaintiff.
5.2 The document that the first defendant relies on is Ext.B-3, dated 31-12- 1996, the proceedings of Revenue Divisional Officer by which Ext.A-7 proceedings of the Tahasildar was set aside.
5.3 Appreciating the evidence before it carefully, the trial court found that the plaintiffs have proved their exclusive title to the property and decreed the suit. In arriving at its conclusion the trial court has relied on the documents that the parties have produced. The first appellate court did not find any reasons to interfere with the finding of the trial court and confirmed its decree. This is now in challenge in this appeal.
6. On admission, following substantial questions of law was framed :
(a) When the defendant had taken the plea of adverse possession, whether the failure on the part of the lower appellate court to decide that issue in one way or other is illegal?
(b) when the possession of the suit properties had been found to be correct by the trial Court, for more than 12 years preceding the date of suit, whether the first defendant has not acquired the title to the suit properties by adverse possession?
(c) When the first defendant had taken a specific plea that some more persons who are interested in the suit property were not impleaded as necessary and proper parties to the suit, is not the judgment of the lower appellate court vitiated for violation of the provisions under Order I, Rule 8 of the Code of Civil Procedure?
7.The argument of the learned counsel for the appellant had two parts to it:
(a) That Ext.A-7 proceedings of the Tahsildar under which the plaintiffs claim title has been set aside Vide Ext.B-3 proceedings of the RDO. Therefore, he continues to be a joint pattadar of the suit property; (b) At any rate the first defendant has perfected title by adverse possession.
8. The response to the same from the counsel for the plaintiffs/ respondents 1 to 4, is along predictable lines: (a) That patta is not a document of title and has no significance in the face of Exts A-2, A-1 in favor of Thasi Naicker, Ext.A-3 under which Thasi Naicker exercised his right of ownership by motgaging the suit property even in 1923, Ext.A-6 and A-4, Adangal indicating that the suit property and others were divided among the two grandsons of Thasi Naicker, Ext.A-5 sale deed by obtaining which the Plaintiffs have absolute title to the suit property. Except Ext.B-3 there is hardly any document that could indicate that the first defendant had a better title to the suit property; (b) Claim of title by adverse possession and claim of title itself would not go together.
9.This Court agrees with the submissions of the counsel for the plaintiffs without any limiting qualifications. It is yet another case where someone (the first defendant) claims title under a patta and resists a claim of title of the other. In the face of overwhelming documentary evidence tracing title to the suit property since 1920, what has the first defendant produced except Ext.B-3 proceedings of the RDO? Civil cases are decided by preponderance of probability and Ext.B-3 is a mismatch to resist the quality of evidence that the plaintiffs have managed to produce.
10. There is one fact that the first defendant has repeated in few places in his pleadings: That the suit property is sandwiched between S.F.No:98/1 on the north and 98/3 on the south, both of which belonged to one Subbalakshmi, that S.F.No:98/1 was assigned by Bhoothan Board to her, and in that document of assignment the southern boundary was described as first defendant's. This is the nearest piece of fact that the first defendant has pleaded but he chose not to labour himself much in proving it. He had then pleaded that the well in question was jointly dug by the said Subbalakshmi and himsef. He did not examine her either. Now it is immaterial where the well is located: If it is exclusively in S.F.No:98/2 or spread over 98/2 and 98/1. The point is as long as the first defendant had not established his title to either 98/1 or 98/2, it is not for him to defend the title of Subblkshmi, more so when the plaintiffs did not face any threat to their title from her.
11. In the end the second appeal is dismissed with costs through out. The judgment and decree dated 29.10.2002 rendered in A.S.No.15 of 2002 on the file of the Subordinate Judge, Sivakasi, confirming the decree and judgment dated 27.3.2002 rendered in O.S.No.198 of 1997 on the file of the District Munsif of Sivakasi is hereby confirmed.
To:
1.The Sub Judge Subordinate Court, Sivakasi.
2.The District Munsif Sivakasi.
.