Challenging the judgment and decree passed in A.S.Nos.43 and 51 of 2013, dated 04.02.2016, by the Subordinate Judge at Kuzhithurai, confirming the judgment and decree, passed in O.S.Nos.120 of 2010 and 405 of 2009, dated 26.04.2013, respectively, by the First Additional Cum District Munsif cum Judicial Magistrate Court, Kuzhithurai, Kanyakumari District, the present second appeals have been preferred. The defendants, who lost before both the courts below are the appellants herein in S.A.(MD).No.446 of 2017. The plaintiff, who lost before both the courts below is the appellant herein in S.A.(MD).No.350 of 2017.
2.For the sake of convenience, the plaintiff in O.S.No.405 of 2009 and the defendants in O.S.No.120 of 2010 will herein after be referred to as the plaintiff. While the defendant in O.S.No.405 of 2009 and the plaintiff in O.S.No.120 of 2010 will herein after be referred to as defendant.
O.S.No.405 of 2009:
3.The plaintiff/appellant filed O.S.No.405 of 2009, seeking the relief of declaration of title over the suit property and for consequential relief of injunction. According to the plaintiff, the suit property, measuring 2.500 cents in Old Sy.No.2609, New Survey No.168/11 at Pacode Village, originally belonged to Gnanasoundariammal and on her death, the property devolved on her only son Muthukutty and after the demise of Muthukutty, the property devolved on his wife Thangammal. She executed a settlement deed in favour of her daughter, the plaintiff herein on 13.07.2009 and the same was registered in Marthandam Sub Registrar Office and settlement deed is Ex.A.1. Ever since the said date, the plaintiff is in absolute possession and enjoyment of the said property by paying Government Taxes, as evidenced by Exs.A.2 to A-4, A-6 and A-7. The plaintiff also produced encumbrance certificate as Ex.A.3. According to the plaintiff, the defendant is a stranger and he is trying to trespass into the plaintiff's property with an intention to disturb the peaceful possession and enjoyment of the plaintiff. Hence, the plaintiff seeks to declare over her property and restrain the defendant from interfering with her possession.
4.On the other hand, the defendants entered appearance and filed a written statement disputing the contention of the plaintiff, by stating that the property absolutely belonged to them and the suit is not maintainable. The defendant stated that the property originally belong to his grandmother Gnanasoundariammal, as per Ex.B.1/sale deed and subsequently, the entire property belonged to his father Thangappan, as per Ex.B.3, sale deed, by which the property was acquired by defendant's father from the said Gnanasoundariammal. After demise of his father, the defendant's mother Thangavadivu was in enjoyment of the property. Subsequently, the defendant's mother and his two sisters executed Ex.B.5-release deed, giving up their rights in the suit property in favour of the defendant herein. Ever since ,the defendant is in possession and enjoyment of the property and the revenue records stand in his name. The door number for the built up area is 18/34B and the new number is 18/59. The defendant is the absolute owner of the suit property. The claim of the plaintiffs that the defendant is trying to interfere in the property is not correct. Ex.A.1 document relied upon by the plaintiff is a fabricated one and no title can pass to the plaintiff under the said document. Hence, the defendant seeks dismissal O.S.No.405 of 2009.
O.S.No.120 of 2010:
5.The plaintiff/respondent herein filed O.S.No.120 of 2010, seeking the relief of declaration of title over suit B schedule property, recovery of possession and other reliefs. According to the plaintiff, the suit A schedule property in Sy.No.168/11 of Pacode Village with well-defined boundaries originally belonged to one Gnanasoundaryammal, D/o.Kannimariyal of Pacode Village. The sale deed in favour of the said Gnanasoundaryammal dated 22.10.1951 in Malayalam and copy of Tamil translation deed are produced as Exs.B.1 and B.2. The old survey number of the suit property is 2609. The total extent of the property is 5 cents. Out of the said 5 cents, about 1+ cents on the western side was vacant for road laying purpose. The remaining extent of 3.500 cents was only available. The said Gnanasoundaryammal conveyed her entire rights in Sy.No.168/11 in favour of one Thangappan, who is the father of the plaintiff on 08.06.1978, as per Ex.B.3 sale deed. The Tamil translation of the same is produced as Ex.B.4. The father of the plaintiff, the above said Thangappan died on 17.04.1992 and his entire rights devolved on his wife Thangavadivu, two daughters and only son/the plaintiff herein. Whileso, on 25.06.2009, the wife and two daughters of said Thangappan executed a release deed/Ex.B.5, giving up their rights in the said 3.500 cents of the plaint scheduled property in favour of the plaintiff herein. Thus, the plaintiff is the absolute owner of the said A schedule property. The plaintiff is paying land tax as well as house tax for the building in the said property. He produced the land tax receipt as Ex.B.9 and House tax receipt as Ex.B.11. The plaintiff also produced the house tax receipts in the name of previous owner Gnana Sowndariammal as Exs.B.23 to B.32 and house tax receipts in the name of his father as Exs.B.33 to 38 and the house tax receipts in the name of his mother as Exs.B.39 to B.43 and on his own name as Exs.B.44 to B.46. Similarly, the plaintiff produced the land tax receipt in the name of previous owner Ganasoundariammal as Ex.B.47. The land tax receipts in his father's name as Ex.B.48 and B.49, in the name of his mother as Ex.B.50 and the land tax receipts in the plaintiff's name as Exs.B.51 to B.53. Further, the plaintiff produced water tax receipts in the name of his mother as Ex.B.54 series and similarly, the electricity charge receipts as Ex.B.55 series. The old door number of the building in the suit schedule property is 18/34B(1) and new door number is 18/59. The second defendant in the suit is the daughter of the first defendant and the first defendant is the widow of one Muthukutty, brother of the plaintiff's deceased father Thangappan. According to the plaintiff, the defendants have no right or interest in the suit A schedule property including the building therein. The first defendant was originally residing with her daughter/ second defendant in the house at Kerala and after the death of the second defendant's husband, the first defendant approached the plaintiff and his mother, seeking permission to occupy the shed in the suit property for residential purpose. The said building has no separate door number and due to close relationship, the defendants were permitted by the plaintiff's mother to stay in the said shed from 15.01.2003. Previously, the said shed was used by plaintiff's mother to store firewood and agricultural implements. The said portion of the suit A schedule property is described as B schedule property in the plaint. After getting permission to reside in the suit schedule property, the defendants colluded and created fraudulent document claiming right over the plaint schedule property and the first defendant executed Ex.A.1/settlement deed in favour of the second defendant herein. The suit B schedule property is about + cents in the A schedule property and the entire property belongs to the plaintiff alone. Whileso, the second defendant herein filed O.S.No.405 of 2009 seeking declaration of title over the B schedule property in O.S.No.120 of 2010 and for consequential relief of injunction to restrain the plaintiff herein from interfering with the peaceful possession and enjoyment of the second defendant herein. The second defendant herein produced the kist receipts in her name as Ex.A.2 and other tax receipts as Exs.A.4, 6 and A-7 and produced encumbrance certificate as Ex.A.3. As the defendants have no right over the suit property and as they are in occupation of the B schedule property, the plaintiff issued notice/Ex.B.6 on 14.12.2009, asking them to hand over possession. But the defendants failed to surrender the building nor send any reply. Hence, the plaintiff has come forward with the suit seeking declaration of title over the suit B schedule property and recovery of possession from the defendants.
6.The defendants entered their appearance and filed the written statement refuting the claim of the plaintiff in the plaint and stated that the suit is not maintainable. The defendants states that the suit property is 2.500 cents and it originally belonged to Gnana Soundariyal Nadachi. After her death, the property devolved on her only son Muthukutty and on his demise, his wife, the first defendant herein got the property. The plaintiff is having no right over the property. The plaintiff's father is the brother of husband of first defendant and after his demise, the first defendant is having right over the suit schedule property. The first defendant executed Ex.A.1-settlement deed dated 13.07.2009, giving the property on her daughter/second defendant herein and the property is now belonged to the second defendant only. The defendants are living continuously for more than 40 years in the suit property. The defendants have filed O.S.No.405 of 2009, seeking declaration and permanent injunction, restraining the plaintiff herein from interfering with the possession of the suit property. The defendant contends that the suit B schedule property absolutely belongs to them and the plaintiff has no right or interest over the property. Hence, the defendants seek dismissal of the suit.
7.The trial court, on perusal of the pleadings, framed the following issues:
In O.S.No.405 of 2009:
?1.jhthr;brhj;J thjpf;F ghj;jpag;gl;L> mtuJ mDgtj;jpy; ,Ue;J tUfpwjh?
2.thjpf;F jhthr;brhj;jpy; tpsk;g[if ghpfhuKk;> mjd; bjhlh;r;rpahd cWj;Jf;fl;lis ghpfhuKk; fpilf;ff;Toajh?
3.thjpf;F fpilf;ff;Toa ,ju ghpfhuk; vd;d??
:In O.S.No.120 of 2010 :
1.thjpf;F gp gl;oif brhj;jpd; kPJ jFe;j chpik cs;sjh?
2.thjpf;F tHf;Fiuapy; nfhhpa[s;s tpsk;g[if ghpfhuKk;> mDgtj;ij kPl;L bgWk; ghpfhuKk; bgWtjw;f chpik cs;sjh?
3.thjpf;F fpilf;ff;Toa ,ju ghpfhuk; vd;d??
8.The suit in O.S.No.120 of 2010 and the suit in O.S.No.405 of 2009 were both tried together and disposed of by the trial court by passing a common judgment.
9.Before the trial court, common evidence was recorded in O.S.No.405 of 2009 and the plaintiff herein was examined as P.W.1 and another witness was examined as P.W.2 and documents Exs.A.1 to A.11 were produced. The defendant herein was examined as D.W.1 along with two other witnesses as D.W.2 and D.W.3 and documents Exs.B.1 to B.55 were marked.
10.The trial court, on consideration of the pleadings and oral as well as documentary evidence, found that the suit property originally belong to the grandmother of the plaintiff and the defendant herein viz., one Gnanasoundariammal, as per Ex.B.1. The trial court also stated that as per the said document, the property to an extent of 5 cents along with the building in old Sy.No.2609 was purchased by Gnanasoundariammal and in turn, she has sold the property to her son Thangappan, as per Ex.B.3/sale deed. The trial court also found that only 3+ cents has been sold by Gnanasoundariammal under Ex.B.3, sale deed with four boundaries. The defendant herein is the son of said Thangappan and the trial court has held that as per the release deed, Ex.B.5, the wife and daughters of Thangappan have released their right in the said 3 + cents in favour of the defendant herein, Selvakumar and the title of the property has been conveyed to the defendant, as per the said document. The trial court also held that the defendant is in possession and enjoyment of the property and the same is clearly established by the house tax receipts Exs.B.44 to B.46 produced by the defendant herein. The trial court also found that the house tax receipts was issued originally in the name of Gnanasoundariammal and then, in her son's name Thangappan, as evidenced by Exs.B.23 to 38 and thereafter in the name of Thangavadivu, wife of Thangappan/mother of the defendant herein, as evidenced by Exs.B.39 to B.43, house tax receipts. The trial court also held that original door number of the property was 8/36. Subsequently, it became 2/36, then, 18/36 and thereafter, 18/34 and presently, 18/59 and the said property was continuously in the possession of Gnanasoundariammal, her son Thangappan, his wife Thangavadivu and presently, with of the defendant herein. The trial court also found that the land tax receipts Exs.B.47 to B.53 as well as Ex.B.9 hereby establish the payment of land tax by Gnanasoundariammal, then by her son Thangappan, later by his wife Thangavadivu and presently the defendant herein, and on the basis of joint patta, Exs.B.12, standing in the name of Gnanasoundariammal and his son Thangappan and Ex.B.13, standing in the name of Thangavadivu. Further, as per Ex.B.10, change of patta was issued in the name of the defendant herein. The trial court also held that on the basis of the above said title deeds, revenue records have also been changed in favour of the defendant and as such, the defendant is having title over the suit property. The trial court also held that as per encumbrance certificate Exs.B.21 and 22, it is clear that the title has passed on to Thangappan and then to defendant, Selvakumar herein. The trial court further stated that the plaintiffs have failed to produce any document to establish their title over the suit property. The trial court also stated that except Ex.A.1/settlement deed, the plaintiffs have not produced any document to establish the title and as such, the plaintiffs' claim over the property is not established. The trial court also found that the first plaintiff has categorically admitted in her evidence itself that a portion of the property purchased by Gnanasoundariammal was acquired for road laying purpose and at present, only 3 + cents of property is available and the trial court also found that the plaintiff has admitted that in the plaint averments, it has been wrongly stated that Muthukutty was the only son of Gnanasoundariammal, whereas, there are four other sons also. It is further held that in Ex.A.1, nothing is mentioned about the building in the property, but ration card is produced with door No.18/36 and that itself will clearly show that the plaintiffs are not having any title over the suit property. Holding so, the trial court has dismissed the suit in O.S.No.405 of 2009 and decreed the suit in O.S.No.120 of 2010 by judgment dated 26.04.2013. Aggrieved over the said finding of trial court, the plaintiffs herein filed A.S.Nos.43 of 2013 and 51 of 2013, seeking to set aside the finding of the trial court.
11.The lower appellate court, on going through the grounds of appeal, framed the following points for consideration: In A.S.No.43 of 2013:
?1.m.t.vz;.120/2010y; thjpf;F gpuhjpy; nfhhpago tpsk;g[ifa[k; RthjPd kPl;g[g; ghpfhuKk; fpilf;fj;ff;fjh?
2.,e;j nky;KiwaPl;il mDkjpj;J m.t.vz;.120/2010y; fPHik ePjpkd;wk; gpwg;gpj;Js;s jPh;g;iga[k; jPh;g;ghiziaa[k; uj;J bra;J cj;jutpl ntz;Lkh??
In A.S.No.51 of 2013 ?1.m.t.vz;.405/2009y; thjpf;F gpuhjpy; nfhhpago tpsk;g[ifa[k; epue;ju cWj;Jf;fl;lisa[k; fpilf;fj;jf;fjh?
2.,e;j nky;KiwaPl;il mDkjpj;J m.t.vz;.405/2009 y; fPHik ePjpkd;wk; gpwg;gpj;Js;s jPh;g;iga[k; jPh;g;ghiziaa[k; uj;J bra;J cj;jutplntz;Lkh??
12.The lower appellate court, after considering the materials, held that the suit property in Pacode village, in resurvey No.168/1, with a building having door No.18/59 is available and the same is in enjoyment of the defendant herein. It further held that there was a shed to the north of the said building and the same was in enjoyment of the plaintiff herein. The plaintiff states that the property to the extent of 2 + cents in the said resurvey number belongs to her, as per Ex.A.1/settlement deed, executed by her mother. However, the defendant claims the same property as his own on the basis of the documents produced by him. The first appellate court held that the property has been sold to the father of the defendant, as per Ex.B.3 and the same has been in possession and enjoyment of the defendant's family, as evidenced by the house tax receipts and the land tax receipts produced as Exs.B.33 to 38 and Exs.B.48 to 50. The first appellate court also held that as the original sale deed/Ex.B.1 patta and kist receipts Exs.B.23 to B.32 are produced and after the sale, Thangappan has produced tax receipts to show that he is in possession, the release deed/Ex.A.3 is a genuine one. It is further held that as per Ex.B.3, the entire property in the suit survey number belong to Thangappan, father of the defendant and on the date of death of Gnanasoundariammal, she has no title over the suit property. In such circumstances, the lower appellate court held that the father of the plaintiff would not have got any property in the suit survey number as ancestral property and as such, the mother of the plaintiff could not claim any title over the property and as such execution of A-1 was not probable. The first appellate court also held that even in Ex.A.1/settlement deed, nothing is mentioned about the house over which the plaintiff is claiming right. Further in all the parent documents, nothing is mentioned about the said building and as such, the plaintiff is not entitled to seek title over the building, relying upon the ration card and the Commissioner's report produced before the trial court. The first appellate court categorically held that the Commissioner's report and sketch/ Exs.C.1 and C.2 cannot be relied upon to accept the claim of the plaintiff in the property. The first appellate court also held that as the mother and sisters of the defendant have released their right over the property, as per Ex.B.5- release deed, the entire property belongs to the defendant and as such, he alone is having title over the suit property. Further, the said property belongs to the defendant. The petitioner is in occupation of one portion on permission basis and the same is cleanly established by the evidence of D.Ws.1 to 3. The first appellate court also held that the plaintiff and her mother were in occupation of the portion of the property in the suit survey number on permission granted by the defendant and the said permission was terminated as per Ex.B.6-notice and hence, the plaintiff and his mother have no right to stay in the said property. On that ground, the first appellate court confirmed the judgment and decree of the trial court, granting the relief of declaration and recovery of possession in O.S.No.120 of 2010 filed by the defendant and the dismissal of O.S.No.405 of 2009 filed by the plaintiff and dismissed both the appeals. Aggrieved over the said conclusion of the first appellate court, which dismissed both the appeals in A.S.Nos.41 and 51 of 2013, the present second appeals have been filed.
13.In the memorandum of second appeals, the following substantial questions of law have been raised by the appellants.
In S.A(MD).No.446 of 2017:
?i)Whether the courts below wrongly placed the burden of proof on the appellants/defendants?
ii)Whether the courts below are correct in ignoring Ex.A.3 in arriving at the conclusion?
iii)Whether the courts below committed error by ignoring Ex.C.2 plan??
S.A.(MD).No.350 of 2017:
?i)Whether the courts below wrongly placed the burden of proof on the appellants/defendants?
ii)Whether the courts below are correct in ignoring Ex.A.1 in arriving at the conclusion?
iii)Whether the courts below committed error by ignoring Ex.C.2 plan??
14.The learned counsel for the appellants contended that the courts below have not properly appreciated the materials placed before them and the conclusion arrived at by them is totally incorrect. According to him, Ex.A.1 document was not properly considered. The Commissioner has categorically stated in Ex.C.2/plan that there are separate boundaries for the property, in which both the plaintiff and defendant were residing and the same has not been taken into account by both the courts below. The learned counsel for the appellants further contended that both the courts below have not considered the tax receipts produced by the plaintiff in appropriate manner and the finding, without taking into consideration the Commissioner's report and Plan/Exs.C.1 and C.2 is liable to be set aside.
15.Per contra, the learned counsel for the respondents contended that the courts below have rightly appreciated the oral and documentary evidence and the conclusion arrived at is just and appropriate. He further contended that the title cannot be conveyed either by the mother of the plaintiff or anybody else in favour of the plaintiff, since the property has already vested with the defendant, as evidenced by the documents produced by him. He further contended that the plaintiff has not established any title or interest with acceptable document and the finding of the courts below that the plaintiff is in possession of the property only on the basis of the permission granted by the defendant's family and the said permission was terminated is correct. Hence, the plaintiff has got no right or interest in possession of the property. It is a factual finding and the same cannot be interfered with at this stage. It is also pointed out that the defendant has clearly established his title from Gnanasoundariammal, then his father, then to himself and the finding rendered to that effect by the courts below is categorically quite clear and the same warrants no interference.
16.The rival contentions of both sides and the impugned judgments of courts below was considered. The materials available on record was considered by this Court. The plaintiff claiming title over the property contends that Ex.A.1-Settlement deed executed in his favour was not properly considered by the courts below. However, it is apparent that the same was considered and negatived by the courts below on the ground that the plaintiff's mother has no interest in the property and as such, claim of plaintiff under Ex.A.1-settlement deed has not been accepted by the courts below. Further, on perusal of the same, it is evident that in Ex.A.1, nothing is mentioned about the existence of the house in the said property as claimed by the plaintiff. Even in the Commissioner's report and plan/Exs.C.1 and C.2, it is only stated that there is a small wall in between the property in enjoyment of the plaintiff and defendant, but the measurement of the same is not mentioned. The defendant has categorically stated that the alleged wall mentioned in the Commissioner's report was put up by him to support the basement of his house as the same has weakened. Further, P.W.2 himself has admitted in his evidence that a small wall has been put up to protect the house, where the defendant is residing. Further, there is no averment in the plaint to the effect that the compound wall has been put up in between the properties in enjoyment of both sides, by the plaintiff. Further, it is apparent that Ex.B.3 has been acted upon and the defendant is in enjoyment of the property, as evidenced by the property tax receipts and kist receipts Exs.B.33 to 38 and Exs.B.48 to 50. Further, encumbrance certificates/ Exs.B.21 and 22 also corroborate the version of defendant. In such circumstances, it is apparent that the contention of the plaintiff/appellant herein that document Ex.B.3 cannot be relied upon and the finding based on the same is not proper, has to fail.
17.In such circumstances, it is clear that the courts below have rightly held that the plaintiff has failed to establish title over the property and as such, the relief sought for by the plaintiff cannot be entertained. Further, it is also found by the courts below that the defendant has categorically established his title over the suit property and he is entitled for declaration and recovery of possession as sought for by him.
18.In view of the above, this court finds no irregularity or error in the conclusion arrived at by the courts below. The substantial questions of law raised by the appellants have already been answered by the courts below. In the considered opinion of this Court, no substantial question of law arises for consideration and the concurrent findings recorded by the courts below are based upon proper appreciation of oral and documentary evidence and therefore, the impugned judgments of the courts below warrant no interference.
19.In the result, both the second appeals are dismissed at the admission stage itself, confirming the judgments, passed by the courts below. No costs.
To
1. First Additional Cum District Munsif cum Judicial Magistrate Court, Kuzhithurai, Kanyakumari District.
2.The Subordinate Court, Kuzhithurai .