Dismissed

Kuppusamy Udayar (Died) v. E.Ayyasamy Udayar

Madras HC8 Oct 2014SA/725/2002

Case brief

AI extract

What is this about?

Second appeal in a suit for declaration of title and injunction. The High Court dismissed the appeal, upholding lower courts' findings that plaintiffs failed to prove title over the entire 9 cents of land. Relief was limited to 5 cents; recovery against the remaining 4 cents in the respondent's possession was denied.

What did the court decide?

Second appeal dismissed; Judgment and Decree of Courts below confirmed; No order as to costs.

Kuppusamy Udayar (Died) Vs E.Ayyasamy Udayar — Specific Performance | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 08.10.2014

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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Kuppusamy Udayar (Died)

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Yasothai 3. A.Rajakumari 4. R.Vasuki ... Appellants/Plaintiff.

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(Appellants 2 to 4 were brought on record as LRs of the deceased sole appellant, vide order of Court, dated 01.02.2013 made in C.M.P.Nos.1454 to 1456 of 2010 in S.A.No.725 of 2002.)

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Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 18.02.1991 made in O.S.No.801 of 1985 on the file of the Additional District Munsif, Kallakurichi, confirmed by the Judgment and Decree, dated 24.09.1999 made in A.S.No.75 of 1996 on the file of the Subordinate Court, Kallakurichi.

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For Appellants : Mr.K.Muthukumarasamy For Respondent : Mrs.Mythili Suresh for M/s. Sarvabhauman Associates

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JUDGMENT

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The second appeal has been preferred by the appellants, who are the legal heirs of the original plaintiff, late Kuppusamy Udayar. The suit was filed by the said plaintiff against E.Ayyasamy Udayar, the respondent / defendant, seeking declaration of title of the suit property and consequential permanent injunction restraining the respondent / defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. Subsequently, by way of amendment, the plaintiff has sought a decree for mandatory injunction to demolish the compound wall marked as GH, HI and IJ and the toilet and septic tank shown 'Z' in the Commissioner's plan and the bathroom

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east of the toilet and to direct the respondent / defendant to deliver vacant possession of the suit property shown as "GHIJ" in the Commissioner's plan to the plaintiff.

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The trial court, having considered the pleadings, evidence of P.W.1 and P.W.2 and the documents marked on the side of the plaintiff as Ex.A.1 to Ex.A.25 and also the evidence of the respondent / defendant, who was examined as D.W.1 and the documents marked on the side of the respondent / defendant as Ex.B.1 to Ex.B.11 and the Commissioner's Report, Ex.C.1 and the sketch prepared by the Commissioner, Ex.C.2, partly decreed the suit, whereby granted the relief of declaration of title and injunction in respect of 5 cents, out of 9 cents in the suit survey number and so far as 4 cents of land on the Eastern side is concerned, the suit was dismissed. Aggrieved by the Judgment and Decree of the trial Court, appeal was preferred by the plaintiff.

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The Appellate Court, by its Judgment and Decree, dated 24.09.1999, has confirmed the Judgment and Decree passed by the trial Court and dismissed the appeal preferred by the plaintiff, against which, this Second Appeal has been preferred by the legal heirs of the deceased plaintiff.

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This Second Appeal was admitted by this Court on the following Substantial Questions of Law :

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"1. Whether the Judgments of the courts below restricting the decree to 5 cents out of 9 cents are sustainable in law, even though the plaintiff established his claim to the suit property in entirety ?

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Whether the Judgments of the Courts below are not vitiated by the court's failure to consider the entire evidence and to apply to the correct principles of law ?

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Whether the findings of the courts below for refusing the decree for mandatory injunction in the absence of evidence are sustainable in law ?"

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Mr.K.Muthukumarasamy, learned counsel appearing for the appellants drew the attention of this Court to the Judgment rendered by the Courts below and also the supporting documents, Ex.A.1 to Ex.A.6. It is seen that Ex.A.1 is the copy of the sale deed, dated 07.02.1925 executed by one Ramayi Ammal in favour of one Muthusamy Udayar in S.No.248/4, near Kodikaal corner, 10 cents and chidambarathu corner, 7 cents, out of the total extent of 50 cents. Subsequently, under Ex.A.2, registered Will, dated 07.11.1945, Muthusamy Udayar bequeathed his properties in favour of one Kathayee

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Ammal and Pachai Ammal. On a perusal of the Will, it is seen that survey number, extent and other details of the properties are not stated in the Will, however, he has stated that all his properties are bequeathed in favour of Kathayee Ammal and Pachai Ammal under the Will. As per Ex.A.3, Kathayee Ammal and Pachai Ammal jointly executed registered settlement deed in favour of Kuppusamy Udayar , the plaintiff in the suit. Hence, the burden is upon the appellants / plaintiffs, to establish that the plaintiff, Kuppusamy Udayar was entitled to the suit property, an extent of 9 cents of land, by way of settlement deed, Ex.A.3 and that was inherited by the appellants herein as his legal heirs.

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Learned counsel appearing for the respondent drew the attention of this Court to Ex.A.6, dated 16.07.1961 and submitted that as per the settlement deed, properties were settled by one Kathayee Ammal in favour of one Pachaiyammal and Kuppusamy Udayar, the plaintiff in the suit. It has been admitted that the eastern boundary of property was owned by one Narayana Udayar, the vendor of the respondent's property. It is not in dispute that the property covered under Exs.B.1 and B.2 were stated as eastern boundary of the suit property. In the document, Ex.A.6, various properties with the details and extent have been stated, including the property in S.No.248/4, which reads an extent of 6 cents and 2 cents totally 8 cents out of 50 cents. There is no details as to how 17 cents of land said to have been purchased by Muthusamy Udayar became 8 cents to be bequeathed in favour of Kathayee Ammal and Pachai Ammal and stated as 9 cents in the plaint schedule property and there is no other supporting documents, such as patta or any other revenue records to show that an extent of 9 cents was owned by Kathayee Ammal and Pachai Ammal, by virtue of the registered Will, Ex.A.2, dated 07.11.1945 executed by Muthusamy Udayar and other subsequent documents, Exs.A.3 to A.7 marked on the side of the appellants.

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As contended by the learned counsel appearing for the respondent, the Courts below have concurrently held that the eastern boundary of the plaintiff's property was originally owned by Narayana Udayar and subsequently, his two sons Ayyasamy Udayar and Ramasamy Udayar became absolute owners of the property left by Narayana Udayar and as per sale deed, Ex.B.1, dated 10.02.1970, defendant's father Irusappa Udayar purchased 2 cents and under Ex.B.2, sale deed, the respondent / defendant purchased two cents in S.No.248/4 from Ayyasamy Udayar and Ramasamy Udayar, sons of Narayana Udayar. As found by the Courts below, the eastern boundary of the plaintiff's property was only owned by Narayana Udayar and his sons, who were the vendor of the respondent / defendant and the other documents marked on the side of the appellant as Ex.A.8 to Ex.A.25 are only kist receipts.

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The respondent / defendant has filed the original sale deeds, dated 10.02.1970 and 26.10.1974 executed by Ayyasamy Udayar and Ramasay Udayar, sons of Narayan Udayar in favour of the respondent's / defendant's father under Ex.B.1 and Ex.B.2 in fvour of the respondent / defendant. It is clear that sale deeds, dated 10.02.1970 and 26.10.1974 respectively executed by Ayyasami Udayar, son of Narayana Udayar in favour of Irusappa Udayar, father of the respondent / defendant and another sale deed, Ex.B.2 executed by Ramasami Udayar, son of Narayana Udayar in favour of Ayyasamy Udayar, the respondent / defendant would show that the respondent has got ownership and possession of 4 cents of land. It is not in dispute that Narayana Udayar, who had been the owner of the land on the eastern boundary of the suit property, after his death, his two sons namely Ayyasamy Udayar and Ramasamy Udayar executed Ex.B.1 and Ex.B.2 sale deeds.

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It cannot be disputed that the deceased Kuppusamy Udayar, being the plaintiff was the dominus litus and the burden was upon him to establish his claim that he was entitled to declaration of title for the entire 9 cents of land and also consequential injunction as prayed for. So far as, an extent of 5 cents of land is concerned, the relief was granted by the Courts below. In the Second Appeal, there is no dispute that the appellants, who are the legal heirs of the deceased plaintiff are entitled to the said 5 cents of land in the aforesaid survey number. Hence, the disputed question of facts relates to remaining 4 cents of land, on the eastern side of the said 5 cents. Even as per the documents of the appellants / plaintiffs, it has been made clear that the respondent's / defendant's vendor Narayana Udayar, owned the property of the eastern boundary of the suit property and that was subsequently, purchased by Irusappa Udayar, father of Ayyasamy Udayar and the respondent / defendant himself purchased another two cents from the said vendor. There is no supporting document to establish that the appellants, being the legal heirs of the deceased plaintiff have got title for 9 cents of land in the suit survey number. Similarly, there is no evidence to establish that the possession and enjoyment of the entire 9 cents of the suit property was with the appellants or their predecessor in title, who filed the suit as plaintiff. There is no dispute with regard to the four boundaries, especially the eastern boundary of the plaintiff's property, that was originally owned by Narayana Udayar, out of which, two cents was purchased by the respondent's vendor Irusappa Udayar and another two cents by the respondent himself.

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In the aforesaid circumstances, the appellants cannot raise a plea that the plaintiff has established his title to the suit property in respect of the entire 9 cents of land. The Courts below have concurrently held that plaintiff was entitled to only to an extent of 5 cents and after his death, the appellants are entitled to the said extent of land as his legal heirs. Hence, it cannot be said

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that there is failure on the part of the courts below in considering the entire evidence and in applying correct principles of law. Learned counsel for the appellants argued that the four boundaries will prevail over the extent of the property, since there is no dispute with regard to the four boundaries of the suit property. However, the said analogy is not applicable to the facts and circumstance of this case, as one of the four boundaries is the property of the respondent / defendant and earlier, the same was owned by the vendor / predecessor in title of the respondent's property. As per the Commissioner's Report and sketch, Ex.C.1 and Ex.C.2 submitted by Advocate-Commissioner, it has been made clear that the possession and enjoyment of the property on the east of the said 5 cents of land is with the respondent / defendant, as per his sale deeds, Exs.B.1 and B.2. It is also relevant to note that mandatory injunction sought was for by the appellants, admitting the possession and enjoyment of the said property by the respondent, hence, without establishing the title, the appellants would not be entitled to recovery of possession or mandatory injunction in respect of 4 cents of land.

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As already discussed, this Court is of the view that appellants have not established their claim in respect of 4 cents of land, in addition to the 5 cents of land, for which relief was already granted in favour of the appellants by the Courts below. The Courts below have held that the appellants are not entitled to seek mandatory injunction in respect of the 4 cents of land, which is in the possession and enjoyment of the respondent / defendant, by virtue of his sale deeds.

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In Durai v. Kamala, reported in 2010 (1) MWN (Civil) 683, this Court, relying on various decisions of the Hon'ble Apex Court, held that the relief of recovery of possession sought for is not maintainable, without a prayer seeking declaration of title or declaration of any right relating to the relief sought for by the plaintiff, as the right is disputed by the defendant. As contemplated under Section 34 of Specific Relief Act, 1963 (47 of 1963), unless the plaintiff establishes his title over the property, he would not get recovery of possession or mandatory injunction against the defendant, who is admittedly in possession and enjoyment of the property. The said decision is squarely applicable to the facts and circumstances of this case.

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In the instant case, the respondent / defendant has not admitted the title claimed by the appellants and their predecessor in title, Kuppusamy Udayar, who filed the suit in respect of the 4 cents of land. The case of the respondent / defendant is that the disputed property was purchased by his father Irusappa Udayar under Ex.B.1 (2 cents) and by himself under Ex.B.2 (2 cents). It is also the case of the respondent / defendant that the eastern boundary of the suit

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property was stated as Narayana Udayar's property, who is admittedly the vendor of the respondent's / defendant's property and further, the possession and enjoyment of the property is admittedly with the respondent / defendant and therefore, it is mandatory on the part of the appellants, to establish their title for seeking recovery of possession and mandatory injunction with regard to the 4 cents of land.

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The other point canvassed by the learned counsel appearing for the appellants is that the concurrent finding could be construed as perverse. If concurrent finding of the courts below is perverse, certainly that would create a substantial question of law, as contemplated under Section 100 of the Code of Civil Procedure, for which the finding of the courts below should be against the evidence available on record or not supported by any legally acceptable evidence. If the finding is perverse, this Court can interfere with the concurrent finding of the courts below in the second appeal, to meet the ends of justice.

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In Ishwar Dass Jain v. Sohan Lal, reported in 2000 (1) CTC 359 (SC) : 2000 (1) LW 425, the Hon'ble Apex Court has held that there are two situations, in which interference of this Court in the findings of fact is permissible :

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"(i) The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. (ii) The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the lower appellate Court by placing reliance on the inadmissible evidence which if it was omitted, an opposite conclusion was possible."

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In the instant case, appellants have not established that they are entitled to get declaration and injunction for the total extent of 9 cents stated as schedule of property in the plaint. The documents marked as Ex.A.8 to Ex.A.25 are only kist receipts and the other documents marked as Ex.A.1 to Ex.A.7 are also not sufficient to establish that the plaintiff Kuppusamy had right for seeking declaration of title and other consequential reliefs in respect of 9 cents of land in S.No.248/4. The appellants herein are admittedly the legal heirs of the deceased plaintiff and hence, they cannot claim more than the right, that was available to the plaintiff late Kuppusamy, through whom they claim right as his legal heirs.

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In this regard, learned counsel appearing for the appellants / plaintiffs submits that the boundary will prevail over the extent, on the ground that there was no dispute with regard to

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the four boundaries of the suit schedule property. In the instant case, the plaintiff, Kuppusamy had sought declaration of title and recovery of possession for 9 cents in the aforesaid S.No.248/4. After the trial, the relief was granted only for 5 cents, so far as the remaining 4 cents are concerned, the suit was dismissed and the same was upheld by the first appellate court. As there is a concurrent finding, the appellants should convince the Court, based on the evidence that the finding is perverse.

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It is well settled that the plaintiff being the dominus litus has to establish his claim that the evidence available on record would be sufficient to declare that the appellants are entitled to declaration of title, recovery of possession and mandatory injunction, so far as the 4 cents of land, for which, the claim of the appellants was negatived by the Courts below.

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In the Judgment reported in 1997 Law Weekly 365, it has been held as follows :

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" in case of doubtful or varying extents in the documents of title relating to the property boundaries should be preferred to the extent. Only in the absence of definite material to show the actual extent intended to be sold the boundaries should out-weigh the doubtful extent mentioned in the document. If the recitals in the document and the circumstances of the case shows that a lesser extent only was conveyed than the area covered by boundaries and there is clear evidence as to the intention of the parties with reference to the extent conveyed then the extent prevail over the boundaries."

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In Kolandasamy Gounder v. Thirumalai Gounder and another, reported in 2007-1-LW 706, this Court has held as follows: "10...Only when there is a doubt regarding the extent sold the principle that boundaries will prevail over the extent will apply and in this case no doubt whatsoever has arisen as the recitals in Exs.A.1 are very clear and the plaintiff intended to purchase and what he paid for is only for 1.45 1/2 acres and as such the plaintiff cannot claim more than that extent. He further submitted that the Trial Court has elaborately considered all the evidence on record and has recorded a correct finding that there was an oral partition between the vendors of the plaintiff and the defendants and as such there is no reason to interfere with the judgment of the Trial Court."

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When one of the boundary is admittedly the land belongs to the respondents / defendant, the appellants cannot say that the boundary will prevail over the extent, in the absence of establishing specific extent of the land claimed by them. In the instant case, one of the boundaries of the suit property was owned by Narayana Udayar, predecessor in title to the respondent and that was subsequently purchased by the respondent / defendant and his father, hence, it cannot be said that the four boundaries will prevail over the extent of the land claimed by the appellants, since the land on the eastern boundary belongs to the respondent / defendant.

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In this second appeal, the appellants claim that they have established that they are entitled to 9 cents of land, however, as discussed above in the Judgment, there is no evidence to establish that the appellants are entitled to another 4 cents of land, hence, first Substantial Question of Law is answered only in favour of the respondent / defendant and against the appellants.

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The appellants plea that the Courts below have not considered the entire evidence available on record and has not applied the correct principles of law is incorrect. As discussed in the earlier paragraphs, the appellants have not established the title over 4 cents of land, for which the relief was not granted by the Courts below. Admittedly, the respondent / defendant is in possession and enjoyment of the said 4 cents of the property and he has also produced supporting document to establish his title for the said four cents of land. Hence, the second and third substantial questions of law are also answered against the appellants and in favour of the respondent.

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In the result, confirming the Judgment and Decree passed by the Courts below, the second appeal is dismissed. However, there is no order as to costs.

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tsvn

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The Subordinate Judge, Kallakurichi.

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The District Munsif Kallakurichi.

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1 CC To Mr.V.Sanjeevi, Advocate SR NO.47804

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1 CC To M/s.Sarvabhauman Associates, Advocate SR NO.47737
S.A. No.725 of 2002
ng[co]
gp/24.11.

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Kuppusamy Udayar (Died) v. E.Ayyasamy Udayar

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Kuppusamy Udayar (Died) v. E.Ayyasamy Udayar

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