The second appeal has been preferred against the judgment and decree dated 05.01.2004 made in A.S.No.65 of 2000 passed by the learned Subordinate Judge, Padmanabhapuram, confirming the judgment and decree dated 10.07.2000 made in O.S.No.170 of 1997 passed by the learned Additional District Munsif, Padmanabhapuram.
2. The averments in the plaint is as follows:
Originally suit properties are belonged to Rayan Nadar and his son Devasahayam Nadar. They sold the same to one Asirvadam Nadar under a registered sale deed dated 18.06.1124. Malayalam year for 9 cents and 11.02.1952 is for 4 cents. At the time of sale deed, the property has been mortgaged in favour of Chellayyan, S/O.Ponnumuthu, who is father of plaintiffs. That Asirvadam Sold the same to Chellayyan on 28.05.1966. After the death of Chellayyan, the property devolved on his sons, the plaintiffs. The suit property is abutting a road in the south along the road side, the plaintiffs have put up two sheds, one shed is rented out to one Pathalis where he is selling casuariona poles and the other shed has been rented out to Mohandoss, where the tenant is selling 'Jollies'. The defendant is the daughter in law of Devasahayam, is one of the executants of the original sale deed, has attempted to disturb the plaintiffs' possession over the suit property on the strength of some invalid and incompetent document executed her father in law after exhausting his right over the suit property. Hence he come forward with the suit for injunction. During the pendency of the suit after issuance of order of injunction, on 3.6.1997, the defendant trespassed upon the suit property and put up thatched shed in the portion of the property. So, he amended the prayer for mandatory injunction removing the shed put up in the suit property and also prayed for injunction and he prayed for a decree.
3.The gist and essence of the written statement filed by the defendants is as follows:
The suit properties is not properly described. The plaintiff has got no manner of right, title or possession of the plaint schedule property. It is true that the property and other property originally owned to one Rayan Nadar S/O.Devasahayam Nadar. In the suit survey number and other adjacent survey number properties also he has got right under ancestral rights. He never executed any mortgage deed. The property mortgaged under 1118 Malayalam year was not for the plaint suit property. Accordingly the said mortgagee got no right or possession over the suit property and enjoy the same at any time. The plaintiff never obtained any right over the suit property on the death of Chellayyan. S.No.615/5 or 615/5A is not only the property as scheduled in the suit i.e. for 79 cents. The defendant is the niece of Rayan Nadar. His another sister Elizabeth is now alive. On his death in addition to the gift deed executed by him in favour of the defendant on 06.10.1966, he has got other properties also. That right is obtained by his sister Elizabeth also. The brothers and sisters of the defendant are necessary parties to the suit. This defendant is in continuous possession and enjoyment of these properties in continuation on the death of Rayan Nadar under his ancestral right in the suit survey no and other properties. He died as a bachelor. The defendant and others are the lawful owners on the suit property and adjacent properties. The plaintiffs' suit for mere injunction is not maintainable under facts and law. No cause of auction for the suit. The suit is barred for non-joinder of necessary properties and prayed for the dismissal of the suit.
4. Reply statement filed by the plaintiff is as follows:
The old survey number was having 79 cents though in some earlier documents, it seems to have been described as 85 cents. That property has been got well demarcated boundaries made of barbed wire fence on the north, east and west, besides the presence of line of tress. As the two thatched shed rented out to the tenants are situated in the southern end, fencing road in the south, no boundary is put up there. The plaintiffs are incompetent to question the mortgage. The said mortgage is in respect of the entire 1/4th shate of Devasahayam. The above said mortgage had been the subject matter in the subsequent suits in O.S.Nos.106 of 1966 and 355 of 1979. Rayan Nadar is the only son of Devasahayam. The gift deed said to have been executed by Rayan on 06.10.1966 is not true and genuine document. The defendant had not in possession at all. Mohandoss, who is in occupation of the eastern shed is engaged in making and selling cement 'jollies' and 'grills' and for 'curing' them, he has constructed a cement water tank also. After obtaining the order of injunction, the defendant entered upon the suit property and pulling apart the barbed wire fence on the west and put up thatched in portion of the suit property and the same is liable to be removed and he prayed for a decree.
5. The learned Additional District Munsif, Padmanabhapuram, after considering the averments both in the plaint and written statement, framed five issues and one additional issue and considering the oral evidence of P.Ws.1, D.Ws.1 and 2, and Exs.A1 to A10, B1 to B9 and Exs.C1 and C2, had dismissed the suit stating that the plaintiffs have not proved the title to the suit property. Against that, they preferred an appeal before the learned Subordinate Judge, Padmanabhapuram. The learned first appellate Judge after hearing the arguments of both sides counsel, had framed one point for consideration and dismissed the appeal confirming the decree and judgment of the trial Court. Against that the plaintiffs have come forward with this second appeal.
6. The substantial questions of law arises in the Second Appeal are as follows:
"1. When there is clear recital in Ex.A9 Othi that the mortgagors have conveyed possession of the entire property over which they have title in Survey Number 3175 which is the suit property, whether the lower Court is right in holding that the suit for bare injunction filed by the plaintiffs who are admittedly the sons of the mortgagee under Ex.A9 is not maintainable especially when there is absolutely no evidence to prove that the mortgage was redeemed or possession recovered from the mortgagee by anybody claiming under the mortgagor?
2.Whether non application of mind and omission to consider the effect of Ex.A9 Othi of the year 1943 constitutes substantial question of law under Section 100 of the Civil Procedure Code on the bsis of the principle laid down by the Supreme Court of India in 2002(2) S.C.C.85?
Points 1 and 2 :
7. The appellants as plaintiffs have filed a suit for mandatory injunction and permanent injunction in respect of the suit property stating that originally the suit property is belong to one Rayan Nadar and he executed the usufructuary mortgage deed in favour of the father of the plaintiffs' Chellayyan and subsequently, he sold the same to one Asirvatham. The above said Asirvatham has sold the property to said Chellayyan and hence the plaintiffs are the absolutely owners and they are in possession and enjoyment of the suit property from the date of usufructuary mortgage. The defendant/respondent has relied upon one settlement deed alleging to executed by Devasahayam, who is the son of said Rayan Nadar and attempted to interfere the possession and enjoyment of the suit property, the plaintiffs have filed the suit for injunction and obtaining injunction, the defendant had trespassed upon the portion of the property and put up a thatched house and hence, the plaintiffs amended the prayer for mandatory injunction and injunction and they prayed for a decree.
8. The respondent/defendant raised a contention that suit survey number contains nearly 79 cents and hence the plaintiffs have not having possession over the property and he denied the title and possession of the suit property of plaintiffs and he claiming title under the settlement and he prayed for the dismissal of suit.
9. The learned Additional District Munsif, Padmanabhapuram, after considering the oral and documentary evidence, dismissed the suit stating that the plaintiff has failed to prove the title to the suit property and possession, that has been confirmed by the first appellate Court and hence, the plaintiffs have come forward with the second appeal.
Substantial Question of law No.1
10. The learned counsel for the appellants would contend that the suit property is originally belonged to one Rayan nadar and his son Devasahayam Nadar. They executed the usufructuary mortrage deed in favour of the father of the appellants/plaintiffs on 07.09.1943 in respect of 13 cents i.e. the suit property, then they sold the same as per Ex.A1 and A2 in the year 1949 in respect of 9 cents and under Ex.A3 and A4, on 11.02.1952, they sold 4 cents adjacent to 9 cents to Asirvatham Nadar and he is in possession and enjoyment in view of Ex.A9 usufructury mortgage from 07.11.1118, Malayalam year and changed patta in their name and paid kist also. He would also contend that the respondent herein has claiming title under one settlement deed dated 06.10.1966 and during the pendency of the suit, she encroached upon the portion of the property and the trial Court and first appellate Court has not considered Ex.A9, Othi deed properly and he prayed for the allowing of the appeal.
11. The learned counsel for the respondent would contend that the suit itself is not maintainable and the suit property has not been correlated and though the appellants/plaintiffs have filed the suit for mandatory injunction, they have not sought for the possession of 79 cents which contains in old S.No.3175 = new S.No.612/08 and the trial Court has considered that since no prayer sought for declaration of title and recovery of possession, the suit is not maintainable and hence, the trial Court and first appellate Court have come to the correct conclusion and he prayed for the dismissal of the appeal.
12. The learned counsel would contend that the appellants herein are in possession and enjoyment of the suit property as per Ex.A9 and he relied upon the decision reported in 2002(2) SCC 85 (Madhukar D. Shende Vs. Tarabai Aba Shedage) and urged that in trial Court and first appellate Court, ignoring a relevant and material piece of documentary evidence is a serious error of law having a vitiating effect on the findings of appellate Courts, interference with the concurrent finding of fact, so the high Court having the right to interfere with the concurrent finding of the Court. High Court ought not to have sustained such a perverse finding which would result in the property of a rightful owner being lost to trespasser.
13. Here, the appellants and his father are the usufructuary mortgagee and they are in possession of the property from 07.11.1118=07.11.1943 onwards as per
Section 58(d) of Transfer of Property Act. Usufructury mortgage means the property to be handed over to the mortgagee. So, from the above said date onwards, Chellayyan and his children, the appellants are enjoying the property under Ex.A9, Othi deed. After that only, Rayan and Devasahayam sold the same in respect of 9 cents under Exs.A1 and A2 on 18.06.1124 = 11.08.1949 and the remaining three cents was sold under Exs.A3 and A4 on 11.02.1952 to Asirvatham Nadar, in turn he sold the same under Ex.A5 to Chellayyan Nadar on 28.05.1966. After purchase the same, they continued in enjoying the property as owners and the same was not considered by the trial Court and the first appellate Court.
14. While considering the above said argument as per
Section 58(d) of Transfer of Property Act, as per Othi and usufructury mortgage, mortgagor has handed over the possession of S.No.3175, which is the suit property was handed over to the mortgagee in 1943 and they are in possession under Exs.A1 to A4, sale deeds executed to redeem the mortgage in favour of one Asirvatham. In Ex.A1, it was stated that " jgrpy; brhj;Jk; BtW brhj;Jk; Brh;j;J ehA;fs; fUA;fy; Bjrj;jpy; g[Jf;fhL btl;otpis g[j;jd; tPl;oy; bghd;DKj;J ehlhh; bry;iyad; ehlhh; bgaUf;F 1118-hk; ek;guhf vGjpf; bfhLj;jpUf;fpd;w xw;wpg; gj;jpuj;jpug;goa[s;s bjhifapy; jrtpy; brhj;jpw;F bfhLj;J xHpg;gpj;J bfhs;tjw;F tif itj;J bfhLj;j gzk; 500-k'; vA;fspy; 1-hk; fl;;rpa[ila kfSk; 2-hk; fl;rpa[ila rBfhjhpa[khd qhdRe;jhp ehlhr;rp. Bwhrk;khs; ehlhr;rpa[ila jpUkzk; rk;ge;jkhf cz;lhapl;Ls;s fld;fs; jPh;f;fpd;w tiff;F nd;W buhf;fk; gzk; 2386-k; tif 2-y; gzk; 2886-k; tif itj;Jk; buhf;fkhft[k; thA;fpf; bfhz;L tpiyahf vGjpf; bfhLj;jpUg;gjhy;". This would show that in Exs.A1 and A2, they have mentioned that they executed the usufructuary mortgage to redeem the same and they were directed to pay some amount. As per Ex.A5, Asirvatham sold the same to Chellayyan, the father of the appellants. In that it was stated that "nuzpay; rg;hp$p!;jhh; Mgp!; Kfhk; 1118-y; 1-hk; g[!;jfk; 75-hk; thy;a{k; 3 Kjy; 5 tiu gf;fA;fspy; 7627hk; ek;guhf 7000 gpiza 982 Ugha; 45 igrh jhA;fSila BgUf;F vGjp je;jpl;Ls;s xw;wp Mjhuj;jpy; gl;oif brhj;J rk;ge;jpj;J 101 Ugha; 17 igrh bfhLj;J xHpg;gpj;J bfhs;tjw;F bghUs; bryt[ brhy;ythd;dhy; Mtif Mh;j;jk; jhA;fSf;F tif itj;J je;j Ugha; 101k; ifrh 17k; ehsJ jhA;fs; trk; buhf;fk; gw;W Ugha; 498k; igrh 83k; tif nuz;oy; mh;j;jk; Ugha; mWEhWk; gw;wpf; bfhz;L gl;oifr; brhj;jpd; Bghpy; vdf;Fs;s rfytpjkhd RtfhrKk; ghj;jpaija[k; tpl;blhHpe;J tpiyahf vGjpj; je;jpUg;gjhy; ." So, to redeem the same, the sale deeds have been executed. While considering the entire document, it has clearly proved that the appellants and his father are in possession and enjoyment of the suit property from the date of Ex.A9.
15. In Ex.A9, Othi deed, it was stated that "xw;wpahf vGjpj; je;jpUg;gjhy; 1hk; vz; brhj;ij xHpg;gpj;Jk; kPjp nd;W Kjy; mDgtpj;Jk; thp xLf;fpa[k; ele;Jf; bfhs;s Btz;oaJkhFk;" So, as per Ex.A9, property has been handed over to the father of the appellants. In the above said circumstances, it has clearly proved that said Chellayyan was in possession and enjoyment of 13 cents of suit property in S.No.3175 from 1943 under Ex.A9, Othi, so the trial Court has not considered the aspect.
16. Even though the learned respondent counsel would contend that the suit is not maintainable without sought for declaration. He would also contend that Ex.P9, Othi document has been disputed by the defendant. Hence the appellants/plaintiffs have not proved by way of examining the attestor and the same cannot be looked into. At this juncture, the learned counsel appearing for the appellants would rely upon the decision reported in 2000(1) CTC 359 (Ishwar Dass Jain (Dead) through LRs Vs. Sohan Lal (Dead) through LRs), and culled out the following portion:
"The mortgage is a document required to be attested by two attestors by two attestors under Section 59 of the Transfer of Property Act and in this case it is attested by two attestors. The mode of proof of documents required to be attested is contained in
sections 68 to
71 of the Evidence Act. Under
Section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered, then except in the case of a will, it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed."
and argued that since mortgage has been admitted by the mortgagor in Ex.A1 and Ex.A3, the same need not be proved by way examining the attestor. While considering the above citation, it was stated that it is not necessary to call an attesting witness unless the execution has been specifically denied by the person by whom it purports to have been executed. Here Rayan Nadar and Devasagayam Nadar executed Ex.A9 in 1943 and admitted the same in the subsequent documents Exs.A1 and A3. They also directed the purchaser to redeem some portion of the usufructuary mortgage to Chellayyan Nadar, in turn Chellayyan Nadar himself purchased the same under Ex.A5. In such circumstances, the mortgagor himself admitted the mortgage in Ex.A9 in subsequent documents. In that, the defendant is a third party. Hence, as per the decisions of the Apex Court reported in 2000(1) CTC 359, the proof of attestation is not necessary.
17. The learned counsel appearing for the appellant would rely on the decision reported in 2001(8) SCC 645 (M.Krishnan Vs. Vijay Singh and another), wherein it was stated that onus of proving the allegations beyond reasonable doubt, as in criminal case, is not applicable in the Civil proceedings which can be decided merely on probabilities with respect to the acts complained of. There is no quarrel over the proposition. Here, the appellants herein have proved that as per Ex.A9, their father has obtained usufructuary mortgage and subsequently, he purchased the suit property as per Ex.A9, and from that date onwards, he was in possession and after his death the appellants are in possession, so the plaintiffs/appellants need not prove the case beyond reasonable doubt, but merely on probabilities.
18. The learned counsel appearing for the appellants would contend that the trial Court has come to the conclusion that since the appellants sought for remedy only for mandatory injunction, declaration of title and recovery of possession is not necessary. To substantiate the same, he relied upon the decision reported in 1991(1) MLJ 31 (Palaniammal Vs. Pechimuthu and others) and culled out the following portion:
"If the entire plaint is read, it is clear that the plaintiffs have rushed to the court as soon as the defendant started construction. It is not as if the defendant encroached upon the property and squatted on the same for some time, and thereafter began to construct thereon. The encroachment itself was by commencement of the construction on the disputed property. Hence, there is no necessity for the plaintiffs to seek a declaration of their title or recovery of possession. If the impugned construction is removed, the plaintiffs will be certainly in possession as the property is adjacent to their admitted property and it is really part of the same. The courts below have taken the correct view on a reading of the plaint and held that there is no necessity to pray for any declaration or recovery of possession. Hence this contention of learned counsel for the appellant fails."
As per the above decision, while reading the entire plaint, it has clearly proved that the appellants are in possession of the suit property. During the pendency of the suit only, the defendant has encroached upon the property and made a construction. In the above said circumstances, there is no necessity for the plaintiff to seek for declaration of title and recovery of possession, mere mandatory injunction is sufficient. In the above said decision, it was held that if the impugned construction is removed, the plaintiffs will be certainly in possession as the suit property as adjacent to their admitted property and it is really part of the same. So, in view of the above decision, I am of the opinion that the suit is maintainable without declaration of title and recovery of possession.
19. The learned counsel for the appellants had relied on the decision reported in 2000(2) TNLJ 6 (Sundarambal Vs. Ramaiya Pillai) and urged that in a suit for bare injunction, lawful possession is sufficient and title need not be proved. There is also no quarrel over the proposition. But, the above citation is not relevant for the facts of this case.
20. The learned counsel appearing for the respondent would relied on the decision reported in 2001-1 L.W. 724 (Arasappan Karayalar and one another Vs. Subramania Karayalar) and urged that in the suit for injunction, the question of title to be incidentally looked into and urged without claiming relief of declaration of title, the suit is not maintainable. The relevant portion is as follows:
"As rightly held by the trial court, in case of vacant site possession follows title. The plaintiffs cannot claim relief of injunction, unless it is established that they have got title to the disputed property. It is no doubt true that in a suit for injunction, the question of title can be incidentally gone into. But, in this case, it is established that the suit property is a vacant site. It is, thus, seen that the dispute between the plaintiffs and the defendant involves question of title. therefore both courts have come to these correct conclusion in holding that the suit without claiming the relief of declaration of title is not maintainable. On the basis of the documentary evidence produced by the plaintiffs, it cannot be contended that the plaintiffs were in possession of the suit property on the date of suit."
He relied on the said decision stating that on the basis of the documentary evidence, the plaintiffs cannot contend that they were in possession of the above suit property. But, the above said citation is not applicable to the facts of the present case.
21. One more circumstance in this Case is a commissioner has also been appointed and he filed his report as Exs.C1 and C2. In that report, the Commissioner has clearly stated that a newly constructed thatched shed has been put up one week before his visit. But, the trial Court and first appellate Court have not considered the commissioner report and plan. It is also pertinent to note that D.W.1 also admitted that the second shed has been situated in her property and one tamarind tree situated in plaintiffs'appellants' shed. She has also stated that she has put up the shed 10 years back. So, it is clearly proved from the chief and cross examination of D.W.1 that the appellants are in possession and enjoyment of the suit property. After filing of the suit only, the respondent herein has encroached upon the property and she put up a shed. Hence, I am of the opinion that the trial Court and first appellate Court has not considered Ex.A9, othi deed that from 1943 onwards, the appellants are in possession and they made construction and doing business.
22. In the above said circumstances, the conclusion of the trial Court and the first appellate Court that the suit property is not correlated and new survey number has not been given and without declaration of title and recovery of possession, the suit is not maintainable is not correct. Because admittedly the suit property is originally owned by one Rayan Nadar and his son Devasagayam. They executed Ex.PA9 in 1943 and handed over the possession of 13 cents in old S.No.3175 new survey number is 612/58. The father of appellants had purchased the same under A5 and the appellants are in possession before Ex.B1 came into existence, in view of Ex.A9 as mortgagee and as absolute owner under Ex.A5.
23. As per Exs.A1 and A3, A5, the appellants herein are proved their title and they proved their possession and it was admitted by the predecessor in title of the Rosammal, the respondent herein. Even though she has filed Ex.B2 patta and Exs.B3 - B9, kist receipts, there is no evidence to show that the kist receipts are connected with the suit property. Because, after division, S.No.3175 contains 85 cents. The respondent herein has encroached and put up the shed and hence the appellants herein are also entitled for mandatory injunction as prayed in the plaint and injunction as prayed for.
24. Even though Devasagayam has owned more than 13 cents in S.No.3175 as per Ex.B1, the respondent is entitled only 2 cents, but the property has not been measured and as per the commissioner report, the appellants are in possession of the suit property and they are enjoying the same. The respondent herein has encroached upon the suit property and put up a shed and hence, I am of the opinion that the appellants are entitled for injunction and for mandatory injunction for removal of thatched shed put up by the respondent/defendant and also entitled for injunction restraining from the respondent/defendant from interfering the possession and enjoyment of the appellants/plaintiffs' over the suit property.
23. For the foregoing reasons, the trial Court and first appellate Court has committed an error and dismissed the suit and hence, I am of the opinion, the same is liable to be set aside and the second appeal has to be allowed.
24. In the result, the second appeal is allowed and the the judgment and decree dated 05.01.2004 made in A.S.No.65 of 2000 passed by the learned Subordinate Judge, Padmanabhapuram, confirming the judgment and decree dated 10.07.2000 made in O.S.No.170 of 1997 passed by the learned Additional District Munsif, Padmanabhapuram are set aside and O.S.No.170 of 1997 is decreed as prayed for. Both parties are directed to bare their own cost. Consequently connected miscellaneous petition in 2797 of 2004 is closed.
arul To
1. The Additional District Musnif Padmanabhapuram.
2. The Subordinate Judge, Padmanabhapuram.