The above second appeal arises out of the judgment and decree, dated 18.10.1995, passed in A.S.No.252 of 1993 on the file of the District Court, Kamarajar District at Srivilliputhur, reversing the Judgment and Decree, dated, 14.06.1993, passed in O.S.No.132 of 1992 on the file of the Additional District Munsif, Srivilliputhur.
2.Parties herein are hereinafter referred to as they were arrayed in the original suit.
3.The defendants in O.S.No.132 of 1992 on the file of the Additional District Munsif Court, Srivilliputhur are the appellants. The plaintiff/respondent filed the above suit for declaration of his title and recovery of possession. The plaintiff died during the pendency of the appeal and his legal representatives have come on record.
4.The case of the plaintiff is that he purchased the suit property under a sale deed/Ex.A.1 on 30.06.1987 from Selvaraj/P.W.2.
5.The defendants resisted the suit. According to the defendants, the suit property is their ancestral property and their family has been in possession of the property from time immemorial. The second defendant is the son of the first defendant. It is also their case that in an oral partition that had taken place in the year 1945, the suit property was allotted to the father of the first defendant. In the year 1970, in a subsequent partition in their family, the suit property was allotted to the first defendant. The first defendant has put up a petty shop in the property in the year 1986 and has been running the shop. According to them, the plaintiff and his vendor have no title to the suit property.
6.During trial, the plaintiff examined himself as P.W.1 and he has examined another three witnesses; The first defendant has examined himself as D.W.1. He has marked four documents. Exs.B.1 to B.3 are professional tax receipts; Ex.B.4 is a licence fee challan to show that he was permitted to run a grocery shop.
7.On appreciation of materials, the trial court has come to the conclusion that the plaintiff has failed to establish his title to the suit property. Hence, the suit was dismissed.
8.Aggrieved by the judgment and decree of the trial court, the plaintiff approached the first appellate court by way of A.S.No.252 of 1993.
9.The plaintiff filed an interlocutary application in I.A.No.406 of 1995 in A.S.No.252 of 1993 for reception of additional documents. The defendants objected. The first appellate court had allowed that petition and marked additional documents as Exs.A.2 to A.6 and and came to the conclusion that the plaintiff established his title and decreed the suit as prayed for.
10.Aggrieved by the judgment and decree of the first appellate court, the defendants have approached this Court by way of this second appeal.
11.Despite notice, the legal representatives of the deceased plaintiff have not turned up and remained absent.
12.At the time of admitting the second appeal, the following substantial questions of law have been formulated for consideration.
?1.Whether the lower appellate court is justified in receiving marking and considering the additional documents filed before it when the same do not satisfy the requirements of Order 41 Rule 27 C.P.C?
2.Is not the judgment and decree of the lower appellate court vitiated due to the failure to follow the procedure provided under Order 41 Rule 28 and 29 C.P.C?
3.Is not the judgment and decree of the lower appellate court vitiated when the documents filed by the plaintiff do not relate to the suit property and when the ancestral character of the property, in the hands of the plaintiff's vendor was not proved in a manner known to law??
13.The learned counsel for the appellants would submit that the first appellate court ought not to have received documents (Exs.A.2 to A.6) at appellate stage, as those documents were obtained after the date of dismissal of the suit on 14.06.1993. He would further submit that additional documents Exs.A.2 to A.6 do not relate to the suit property and no one was examined to prove those additional documents. According to the learned counsel for the appellants, the plaintiff has failed to prove his title to the suit property.
14.The suit property is a land measuring east-west 16 feet, south-north 14+ feet, comprised in Sy.No.58 of Chokkanathanputhur village and a petty shop put up thereon. As the plaintiff claims title to the property by purchase under Ex.A.1/sale deed, dated, 30.06.1987, it is for him to establish that his vendor had title to the property. P.W.2/Selvaraj executed the sale deed (Ex.A.1) in favour of the plaintiff. The plaintiff had admitted that the first defendant was permitted to occupy the property to run a shop from the month of 'Thai', 1986 by P.W.2 Selvaraj. However, in Ex.A.1/sale deed, it has been stated that the property was handed over to the plaintiff. It is significant to note that the vendor (P.W.2) has executed rectification deed/Ex.A.2, dated 16.08.1993, subsequent to the decree passed by the trial court. The first appellate court has received this rectification deed, as an additional document without oral evidence to prove the contents of the document. As per this rectification deed, survey number of the property has been changed from 58 to 77/2. Ex.A.3 is a copy of village map pertaining to Sy.No.541. Ex.A.5 relates to Survey No.41 (Land Register copy). A-6 relates to Sy.No.66 (Land Register copy), issued by the Block Development Officer, Rajapalayam. Ex.A.4 is a document issued by the Special Tahsildar under UDR scheme. It is a copy of the register prepared under UDR scheme. In these documents, the plaintiff's name was registered as 'occupier', entitled to get patta. However, these documents were issued on 11.06.1993, the judgment of the trial court was pronounced on 14.06.1993. As per this document, the property comprised in Sy.No.77/2 part was registered in the name of the plaintiff just five days before the judgment of the trial court. Hence, much importance cannot be given to this document. It cannot be treated as a document of title.
15.As already noticed, the suit property is comprised in Sy.No.58. The plaintiff claims title only under Ex.A.1 and the Rectification Deed/Ex.A.2. There is no documentary evidence to indicate that the family of P.W.2 dealt with this property. P.W.2 has admitted that there is no sale deed with respect to the property in question in their favour. It cannot be held that the property originally belong to P.W.2 on the basis of mere oral statements.
16.Having regard to the entire circumstances referred to above, there is no difficulty in coming to the conclusion that the plaintiff has failed to prove his vendor's title to the suit property. Admittedly, the defendants are running a petty shop in the suit property. Possession is nine points in law. The findings of the first appellate court is based on no evidence asfar as the title of the plaintiff's vendor is concerned. Therefore, the findings of the first appellate court are liable to be set aside. The substantial questions of law raised in the second appeal are answered in favour of the appellants.
17.In the result, the appeal is allowed. The judgment and decree of the first appellate court are set aside and the judgment and decree of the trial court are restored. No costs. Consequently, connected C.M.P.No.13732 of 1997 is closed.
To.
1.The District Court, Kamarajar District at Srivilliputhur
2.The Additional District Munsif, Srivilliputhur.