Allowed

S.Thiyagaraja Gurukkal v. Thirukazhukundram Adhi Saiva

Madras HC30 Oct 2018SA/535/2015

Case brief

AI extract

What is this about?

Bare suit for permanent injunction resting on a settlement deed, with the defendants disputing title. The trial court dismissed the suit; the first appellate court decreed it. Allowing the second appeal, the High Court held the suit not maintainable without a prayer for declaration of title, and that the Section 90 presumption does not extend to a deed's genuineness.

What did the court decide?

Second appeal allowed with costs; judgment and decree of the first appellate court set aside and the trial court's decree confirmed; CMP No.16072 of 2018 dismissed.

S.Thiyagaraja Gurukkal Vs Thirukazhukundram Adhi Saiva — Specific Performance | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 10.10.2018

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PRONOUNCED ON : 30.10.2018

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CORAM

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THE HONOURABLE MR. JUSTICE T.RAVINDRAN

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S. A.No.535 of 2015 and

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CMP NO. 16072 OF 2018

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S.Thiyagaraja Gurukkal 2. Vasu @ Sreenivasan 3. Dharni 4. Ganesa Gurukkal 5. Rajinikanth Gurukkal 6.Dhandapani ...Appellants in S.A.No.535 of 2015/Defendent Petitioners is CMP No.16072/2018 Vs.

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Thirukazhukundram Aadhi Saiva Sivachariargal Sangam Rep By its Secretary

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...Respondent/Plaintiff in both S.A.No.535 of 2015 and CMP No.16072/2015

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Prayer in S.A.No.535 of 2015: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 31.03.2015 passed in A.S.No.28 of 2011 on the file of the Additional Subordinate Judge, Chengalpet, reversing the judgment and decree dated 30.08.2011 passed in O.S.No.14 of 2006 on the file of the District Munsif cum Judicial Magistrate, Thirukalukundram.

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Prayer in CMP.No.16072 of 2018: Civil Miscellaneous Petition filed under Order 41 Rule 27 of CPC praying to receive and mark the additional documents listed in S.A.No.535 of 2015 on the side of the appellants.

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For Appellants : Mr.S.Rajendra Kumar for M/s.R.Bharath Kumar For Respondent : Mr.R.Venkaravarathan for Mr.T.Paranthaman

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JUDGMENT

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Challenge in this second appeal is made to the judgment and decree dated 31.03.2015 passed in A.S.No.28 of 2011 on the file of the Additional Subordinate court, Chengalpet, reversing the judgment and decree dated 30.08.2011 passed in O.S.No.14 of 2006 on the file of the District Munsif cum Judicial Magistrate Court, Thirukalukundram.

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The Parties are referred to as per their rankings in the trial Court.

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Suit for Permanent Injunction.

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The case of the plaintiff, in brief, is that the plaintiff's sangam was formed on 14.01.2001 and registered before the Registrar of societies and the plaintiff's sangam mainly consists of hereditary archakas and archakas of Sri Vedagireeswarar temple to enable them to ventilate their grievances and to find out an amicable solution for solving the same and to effectively manage and administer the properties belonging to the sangam situated in survey No.29/1B, 1A and 29/20 at New No.68, Old No.112, Big Street, Thirukalukundram, to regulate the poojas, Rishabandanam and decoration of the Deity and to sort out the modalities between the temple and the archakas and to start veda ahama padasala. Accordingly, the persons who were born in Thirukalukundram in the family of archakas, moreso, the male members shall be eligible to become the members of the sangam and the persons belonging to Kowsika Gotram, Bharadwaja Gotram, Agasya Gotram and hereditary poojamiras are entitled to become the members of the sangam and the persons belonging to the abovesaid family, who had crossed the age of 18 years and residing in Thirukalukundram are members on payment of necessary subscription fees. Thirukalukundram Adhi Saiva Sivachariyargal Sangam was originally functioning over 80 years at grama natham old survey No.29/A and subsequently, the old survey number has been sub divided into 29/1B, 1A at old Door No.112, Big Street, Thirukalukundram in the name of Adhi Saiva Parambarai Agora Sivachariarswamigal madam and the abovesaid madam has got the suit property from Kuppu Gurukkal and others by way of a registered settlement deed dated 29.04.1980 and after acquiring the suit property, the plaintiff's madam has constructed a building in the suit property and at that time, the madam was administered by Sabapathy Gurukkal, who had donated a sum of Rs.75/- to the said

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building on 16.08.1926 and he has administered the said madam and thereby, the house tax has been assessed in his name and even after his death, the house tax continues in his name and the service connection No.139 has been obtained. It was in the name of the then administrator Thiru. Margasaghaya Gurukkal and after the formation of the sangam, the office bearers had given an application to transfer the connection in the name of the plaintiff's sangam and accordingly, the service connection had been transferred in the name of the plaintiff's sangam and based on the long and uninterrupted possession, grama natham patta had been granted to the plaintiff's sangam and the patta had been granted in the name of Adisaiva Archakar sangam and after obtaining the patta , the plaintiff's sangam had been registered in the name and style of Adisaiva Sivachariyargal sangam and the abovesaid facts are known to the defendants 1 to 5, who are the members of the plaintiff's sangam, and in any event, the plaintiff's sangam and its predecessor in title have prescribed title to the suit property by way of adverse possession also. While so, the defendants, without any manner of title or interest in the suit property attempted to interfere with the possession and enjoyment of the suit property and on account of the hostile attitude of the defendants, the fourth defendant has been removed from the post of secretary of the sangam by way of a resolution dated 31.03.2005 and in as much as the defendants continued their attempts to disturb the possession and enjoyment of the plaintiff's sangam in respect of the suit property, even after the complaint had been lodged with the police, according to the plaintiff, it has been necessitated to lay the suit for appropriate reliefs.

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The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts and it is stated that the suit property has not been correctly described by survey number or extent. The grama natham survey number 521/26 measured east to west only 26.6. metre, which works to 87 feet and hence the measurement given as east west 250 feet for grama natham survey No.521/26 is not true and the same never existed and the entire grama natham survey No.521/26 and the punja land in survey No.221/23 on the west of grama natham survey No.521/26 originally belonged to Panjachataram Gurukkal and the village settlement register will establish that Panjachataram Gurukkal is the owner of survey No. 521/23 as well as grama natham survey No.521/26. The patta in respect of the 12 feet on the

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north in survey No.521/26 has already been granted to the defendants 1 to 5 and in connection with the same, the proceeding before the D.R.O., Kancheepuram is pending for enquiry. The plaintiff has suppressed the said fact in the suit and the pliantiff has filed W.P.No.3303/2006 in the High Court, Madras, in respect of the patta granted in favour of the defendants 1 to 5 and the same was disposed of by the High court directing the D.R.O. Kancheepuram to enquire into the matter in respect of the claim of the defendants 1 to 5 to the entire extent in survey No.521/26 and the claim of the plaintiff in respect of 12' and the plaintiff has not turned up for the enquiry before the D.R.O., and the alleged settlement deed dated 29.04.1899 relied upon by the plaintiff is denied and the abovesaid settlement deed in favour of Agora Sivachariyargal is in respect of the property with different boundaries and comprised in grama natham survey No.29/A and grama natham survey No.29/A does not at all stretch to 250 feet and is limited only to 87 feet and by no stretch of imagination, the property contained in the abovesaid settlement deed can be made equivalent to the suit property, the suit property has been in the enjoyment of Panjachataram Gurukkal and thereafter his son Subramania Gurukkal. Sabapathy Gurukkal is the junior paternal uncle of Subramania Gurukkal. Subramania Gurukkal permitted Sabapathy Gurukkal to occupy the building over the suit property and reside therein and he is the junior grandfather of the first defendant and after the death of Sabapathy Gurukkal, the first defendant is in the possession and enjoyment of the suit property as his sole heir and the plaintiff is attempting to interfere with the possession of the suit property by the first defendant. The claim of the plaintiff to the suit property based on the settlement deed 29.04.1899 is not true and the service connection was obtained in the name of Margasahaya Gurukkal as Sabapathy Gurukkal was ill due to old age and could not move about freely and it is false to state that the plaintiff has obtained the patta for the suit property and the plaintiff's sangam has nothing to do with the Agoro Sivachariyar Swamy or his madam mentioned in the settlement deed dated 29.04.1899. Therefore the plaintiff has no title or possession of the suit property and only the defendants are in the possession and enjoyment of the suit property. None of the documents projected stands in the name of the plaintiff. The plaintiff has obtained certain documents by misrepresentation and based on the same laid a false case against the defendants. The plaintiff has no title to the suit property and hence

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the suit laid by the plaintiff without seeking the relief of declaration of title is not maintainable. The suit property is not properly described and therefore, the suit is liable to be dismissed.

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Based on the abovesaid pleas projected by the respective parties, it is found that to sustain the plaintiff's case Pws1 to 3 were examined and Exs.A1 to A46 were marked. On the side of the defendants Dws.1 and 2 were examined and Exs.B1 to B5 were marked.

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On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to dismiss the plaintiff's suit and aggrieved over the same, the plaintiff had preferred the first appeal in the first appellate court. It is noted that therein, in support of the plaintiff's case, further documents had been pressed into service as Exs.A47 to 49 and on the side of the defendants Exs.B6 and B7 were also marked. The first appellate court, on an appreciation of the materials placed on record and the submissions made, was pleased to set aside the judgment and decree of the trial court and by way of allowing the appeal preferred by the plaintiff, decreed the suit laid by the plaintiff as prayed for. Impugning the same, the present second appeal has been laid by the defendants.

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At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration.

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"a) In a suit for bare injunction whether the first appellate court is correct and justified in going into the question of title, in the absence of a prayer for declaration of title and held that the plaintiff has title to the suit property, when the title to the suit property is under cloud?

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b. Whether the finding rendered by the first appellate court regarding possession of the plaintiff sangam over the suit property on the basis of the documents viz., Exs.A47 to A49 property tax receipts came into existence subsequent to the filing of the suit and marked as exhibits in the appellate stage is correct and justified in law?

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c. Whether the first appellate court being the final court of fact is correct in law in decreeing the suit by not reversing the finding of fact rendered by the trial court which is sine-quo-non for coming to a different conclusion?

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The suit has been laid simplicitor for the relief of permanent injunction. The suit property has been described as situated in grama natham old survey No.29A, sub divided as survey No.29/1B, 1A, New survey No.521/26, old Door No.112 and New Door No.68, Big Street, bounded within the specific boundaries measuring east-west 250 feet and north-south 46 feet together with the tiled house, EB service connection, etc. Mainly claiming the title to the abovesaid property, based upon the settlement deed dated 29.04.1899, the copy of which has been marked as Ex.A1, the plaintiff's sangam has laid the suit. The defendants in their written statement have disputed the truth and the validity of the abovesaid settlement deed in toto and also contended that the property comprised in the abovesaid settlement deed does not relate to the suit property as described in the plaint. Furthermore, the defendants have also resisted the plaintiff's suit contending that the alleged settlement deed relied upon by the plaintiff dated 29.04.1899 is not true and valid and will not confer the title upon the plaintiff in respect of the suit property and also contended that the plaintiff has no entitlement to the claim of title to the suit property without establishing as to how it had derived the title under the abovesaid settlement deed as well as, as to how Agora Sivachariyar Madam had changed into Adisaiva Archakar sangam and thereafter as to how the plaintiff had derived the title to the suit property from Adisaiva Sivachariyargal sangam without placing any material pointing to the same and on the other hand, contended the defendants have title in respect of the suit property as detailed in the written statement and also contended that the suit property is under their possession and enjoyment and also in specific, pleaded that the suit laid by the plaintiff without seeking the relief of declaration of title to the suit property is not maintainable and accordingly prayed for the dismissal of the plaintiff's suit.

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On the basis of the materials placed on record, it is seen that the plaintiff traces its title to the suit property mainly upon the settlement deed

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29.04.1899, the copy of which is marked as Ex.A1. The abovesaid document has been seriously impugned by the defendants in toto as regards its truth and validity. Despite the same, there is no acceptable evidence adduced by the plaintiff to establish as to how the executors of Ex.A1 document derived title to the property described therein so as to enable them to settle the same in favour of the settlee described therein. On a perusal of Ex.A1 document, it is seen that the same had not been executed in favour of the plaintiff's sangam, on the other hand, the document appears to have been executed in favour of Adhi Saiva parambarai Agora Sivachariargal swamigal Madam for the purpose of constructing the madam in the property described therein. Further, the plaintiff has not placed any acceptable and reliable material correlating the abovesaid property described in Ex.A1 settlement with the suit property as set out in the plaint. Furthermore, there is no material placed on the part of the plaintiff that following Ex.A1 settlement deed Agora Sivachariar Swamigal accepting the same had put up the madam and if that be so, as rightly put forth, necessary documents, such as, payment of tax receipts, service connection, etc., would have been obtained in the name of Agora Sivachariar swamigal or in the name of the madam and on the other hand it is seen that the documents projected by the plaintiff, such as, house tax receipts and service connection stand in the name of Sabapathy Gurukkal and the service connection in the name of Margasahaya Gurukkal. Now according to the plaintiff, inasmuch as the madam put up by Agora Sivachariar swamigal was maintained by Sabapathy Gurukkal, the house tax had been obtained in his name and later, the service connection had been obtained in the name of Margasahaya Gurukkal. But, when according to the plaintiff the suit property had been settled in favour of Agora Sivachariar Swamigal for the purpose of constructing the madam, either the property settled would have been recorded or registered in the name of the Agora Sivachariar swamigal or the madam put up therein and in such view of the matter, the case of the plaintiff that the house tax had been registered in the name of the administrator of the madam,i.e., Sabapathy Gurukkal and the service connection had been secured in the name of Margasahaya Gurukkal, the subsequent administrator, as such, does not inspire confidence and acceptability. Be that as it may, admittedly, the house tax receipts and the service connection documents projected by the plaintiff do not stand in the name of the settlee described in Ex.A1 settlement

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deed. As abovenoted, the plaintiff has not placed acceptable and reliable material to evidence that the property comprised in Ex.A1 settlement deed relates to the suit property as described in the plaint.

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According to the plaintiff, the patta had been issued in respect of the suit property in the name of Adhi Saiva Archakar Sangam based upon the settlement deed marked as Ex.A1. When, as above noted, Ex.A1 settlement deed is found to have been executed in favour of Adhi Saiva Agora Sivahcariar swamigal madam by the settlors described therein for the purpose of putting up a madam and when there is no other document placed by the plaintiff pointing to the property settled standing in the name of either Agora Sivachariar swamigal or the madam put up there in and accordingly it has not been explained on the part of the plaintiff as to how could the patta document projected by the plaintiff has come to be issued in the name of Adhi Saiva Archakar Sangam, i.e., as to the how Adhi Saiva Archakar Sangam have derived the title to the suit property for enabling them to obtain the patta in respect of the property comprised in Ex.A1 settlement deed or for the matter in respect of the suit property, and there is no proper explanation on the part of the plaintiff, particularly, as to how Agora Sivachariar Madam had changed into Adhi Saiva Archakar Sangam and in connection thereof, the plaintiff has not placed any resolution buttressing the same passed by the competent persons. Furthermore, the plaintiff is stated to be Thirukalukundram Adhi Saiva Sivachariargal Sangam. As to how the plaintiff's sangam has derived the title to the suit property from Adhi Saiva Archagar Sangam, there is no proper explanation and also no proper material worth acceptance has been placed on the part of the plaintiff. However, the service connection seems to have been obtained in the name of the plaintiff's sangam and the documents had been projected with reference to the same. However, when the plaintiff, as such, has failed to establish the truth and validity of Ex.A1 settlement deed and as to how the property comprised in ExA1 settlement deed had changed hands in the name of Adhi Saiva Archakar sangam and thereafter as to how the plaintiff's sangam had derived the title from Adhi Saiva Archakar Sangam, further, when there is no material to link the trace of title to the suit property by the plaintiff from Ex.A1 settlement deed, as pointed by the trial court other than marking certain house tax receipts, electricity bills, etc.,it is seen that absolutely there is no acceptable and reliable material placed on

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the part of the plaintiff to evidence its valid claim of title, possession and enjoyment of the suit property.

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As above noted, the main document of the plaintiff's case is the settlement deed marked as Ex.A1. However, when the plaintiff has failed to establish that the executants of the abovesaid document had been competency to settle the property described therein in favour of the settlee mentioned therein and when the plaintiff's document has been challenged in toto by the defendants, without establishing the abovesaid basic fact, it has not been explained by the plaintiff as to how it had chosen to trace the title to the suit property through the abovesaid document. In this connection, the first appellate court seems to have relied upon Section 90 of the Indian Evidence Act and thereby drawn the presumption in respect of Ex.A1 settlement deed. However, as rightly put forth by the defendants' counsel, the abovesaid approach of the first appellate court seems to be erroneous and could not be sustained in the eyes of law. No doubt, Ex.A1 settlement deed is a 30 years old document. It has to be noted here that the original settlement deed has not been placed by the plaintiff and only the copy of the document has been marked as Ex.A1. In such view of the matter, even assuming for the sake of arguments that the presumption could be raised in respect of the above document being a 30 years old one, by virtue of Section 90 of the Indian Evidence Act, the said presumption could be drawn only as to the execution and attestation of the said document and the presumption could not be raised as regards the genuineness of the said document, particularly, when the genuineness of the said document is being impeached by the defendants tooth and nail. This position could also be gathered from the decision reported in CDJ 2018 MHC 3238 (The Government of Tamilnadu rep. by District Collector, Coimbatore and others v. T.Natarajan and others). Such being the position, it is found that the first appellate court had erred in placing total reliance upon Ex.A1 settlement deed on the basis of the presumption raised under Section 90 of the Indian Evidence Act, even as regards the truth and validity of the same, ignoring the fact that the defendants had challenged the said document in toto. It is thus found that when the plaintiff has miserably failed to establish the truth and validity of Ex.A1 settlement deed and as to thereafter how come the property described therein had changed hands from the settlee to the Adhi Saiva

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Archakar Sangm and thereafter to the plaintiff's sangam and when the documents projected by the plaintiff do not stand in the name of the settlee described in Ex.A1 settlement deed or in the name of the plaintiff and on the other hand stands in the name of the other persons, particularly, when the plaintiff has miserably failed to establish the truth and validity of Ex.A1 settlement deed, its parent document, through which source the plaintiff claims title to the suit property, it is found that the first appellate court has totally erred in accepting the plaintiff's case mainly based upon Ex.A1 settlement deed.

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As above noted, even as per the case of the plaintiff, the patta in respect of the suit property had been granted in the name of Adhi Saiva Archakar Sangam and thereafter, it is stated that the plaintiff's sangam had been formed. When there is no material, placed on the part of the plaintiff to link Adhi Saiva Archakar Sangam with the plaintiff's sangam by placing necessary documents worth acceptance and as on date, the plaintiff has failed to place reliable material to evidence its claim of title to the suit property through Ex.A1 settlement deed as above discussed, merely on the basis of the documents projected by the plaintiff, it cannot be held that the plaintiff has established his entitlement to the suit property or its claim of legal possession and enjoyment of the suit property as sought to be made out.

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The materials placed on record go to show that with regard to the grant of patta in respect of the suit property, disputes are pending between the parties before the revenue authority and in this connection, as could be seen from the order passed by the DRO marked as Ex.A37, the abovesaid authority has passed an interim order by holding that the patta in respect of the suit property should be retained in the name of certain persons as determined in the said order and further it is noted that the abovesaid authority had directed the rival parties, namely, the plaintiff as well as the defendants to approach the civil court for establishing their claim of title to the suit property. Therefore, when the revenue authority, by way of Ex.A37, had only passed an interim order and furthermore, had directed the contesting parties to approach the civil court for sustaining their respective claims to the suit property and thereafter approach the revenue authority for granting the patta, despite the above position,

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the endeavour of the plaintiff to lay the suit only for the bare relief of permanent injunction, does not stand scrutiny in the eyes of law. When right from the inception, the defendants had been challenging the claim of title by the plaintiff to the suit property and also its legal possession and enjoyment of the suit property and when the claim of patta by the parties involved in the lis before the revenue authority had culminated with a direction to the respective parties to approach the civil court for sustaining their title, and despite the same, the action of the plaintiff in laying the suit simplicitor for the relief of permanent injunction without seeking the relief of declaration of title to the suit property is found be to not maintainable.

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The first appellate court appears to have easily brushed aside the abovesaid position by holding that even in the suit for permanent injunction, the question of title could be gone into incidentally and thereby, on the basis of the documents projected by the plaintiff, namely, the house tax receipts, electricity receipts, etc., it had accepted the plaintiff's case. As above noted, the defendants have set up a rival claim of title to the suit property, furthermore, the defendants have also challenged the maintainability of the plaintiff's suit for the bare relief of permanent injunction without seeking the relief of declaration of title. Therefore, when the question of title to the suit property between the parties concerned is glaring at each other and both have based their own claim of title to the suit property, merely because the defendants were the erstwhile office bearers of the plaintiff's sangam, that by itself, would not be sufficient to hold that the defendants have admitted the title of the plaintiff's sangam to the suit property and on the other hand, when as could be seen from the averments contained in the written pleas projected by the defendants, they have stoutly challenged the claim of the plaintiff's title to the suit property in entirety, in such view of the matter, the plaintiff should have, atleast, after the written pleas projected by the defendants, amended the plaint for including the relief of declaration of title to the suit property. On the other hand, the plaintiff had proceeded with the suit mainly on the plea of title and thereby sought to sustain its claim of possession and enjoyment of the suit property for obtaining the relief of permanent injunction. However, when as above discussed, with reference to the same, the plaintiff has mainly relied upon Ex.A1 settlement deed

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and when the first appellate court is found to have erred in accepting the genuineness of the said document based upon the presumption under Section 90 of the Indian Evidence Act, despite the challenge qua the truth and validity of the said document by the defendants altogether, it is seen that as above discussed, when the plaintiff has failed to establish its tracing of the vesting of title to the suit property from the settlee described in Ex.A1 settlement deed as to how it had changed into various hands and thereafter the plaintiff had acquired the title to the suit property and with reference to the same when the plaintiff has failed to establish the necessary links by placing acceptable and reliable evidence for sustaining its claim of title to the suit property and as rightly put forth, on the basis of the house tax receipts and electricity connection documents, the plaintiff's claim of legal possession and enjoyment of the suit property, as set out in the plaint, cannot be sustained, and as on date, the revenue authority has refused to grant the patta to both the contesting parties and on the other hand, had directed them to approach the civil court for establishing their claim of title, in such view of the matter, the plaintiff, as a prudent person, should have approached the civil court mainly seeking the relief of declaration of title to the suit property and other consequential reliefs. On the other hand, the plaintiff's attempt of seeking the relief of permanent injunction based upon the title, when, as above discussed, the plaintiff has not placed acceptable documents to sustain its claim of title, the first appellate court is found to have erred in accepting the plaintiffs case. In this connection, as pointed out by the Apex Court in the decision reported in CDJ 2008 SC 603 (Anathula Sudhakar V. P.Buchi Reddy (dead) by Lrs and others), when there is a cloud of the plaintiff's title over the suit property, the remedy available to the plaintiff is to lay the suit only for declaration and other consequential reliefs. The first appellate court seems to have brushed aside the abovesaid position of law on the footing that the defendants have failed to establish their claim of title to the suit property by placing acceptable and reliable documents. In other words, it appears that the first appellate court has gone into the question of title of both the parties one way or the other and thereby proceeded to dispose of the matter by granting the relief in favour of the plaintiff. However, when in a suit for bare permanent injunction, particularly, when the question of title involving complex questions arise for consideration, the parties should

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have been directed to seek the relief of declaration of title to the suit property before venturing into the determination of the title projected by the respective parties. Though the first appellate court, on the premise that in a suit for bare injunction, the question of title could also be gone into incidentally, seems to have, in toto, considered the rival claims of title to the suit property one way or the other and thereby finally concluded that the plaintiff's sangam had proved its possession and also primafacie established its right to deal with the property concerned and thereby, it is found that, as rightly contended, the abovesaid approach of the first appellate court in upholding the plaintiff's claim of title to the suit property, cannot be countenanced in law and accordingly as rightly put forth, it is found that the appellate court has indirectly upheld the claim of the plaintiff's title of the suit property when the plaintiff has not sought the declaration of title to the suit property as per law.

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The view of the first appellate court that until and unless the defendants set up a valid claim of title, the plaintiff is not required to seek the relief of declaration to the suit property, in my considered opinion, when both the parties have set up rival claims of title to the suit property, the courts below should have directed the parties to seek the relief of declaration based on their claims and on the other hand, the approach of the first appellate court, in particular, indirectly, one way or the other accepting the plaintiff's case by upholding its entitlement to deal with the suit property in any manner, would only go to show that the first appellate court has proceeded with the suit as if it is a suit for title involving determination of the title of the respective contesting parties. However, when as above discussed, the plaintiff has miserably failed to establish its claim of valid title to the suit property through Ex.A1 settlement deed and as to how it had changed hands from various persons as projected in the plaint and when even as per the claim of plaintiff's sangam, it had been registered only on 14.01.2001, in such view of the matter, when the documents projected on the part of the plaintiff do not connect their link of title to the suit property through Ex.A1 settlement deed and furthermore, when the description of the suit property comprised in Ex.A1 settlement deed is not shown to be correlated with the plaint schedule property, in all, it is seen that the first appellate court is found to have erred

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in accepting the plaintiff's case. In respect of his various contentions, the plaintiff's counsel would rely upon the decisions reported in

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2009(3) CTC 493 (R.Pannerselvam v. A.Subramanian and another). 2. 2013(1) MWN (civil) 334 (Vijayan @ Arokkiyasamy and another v. Angammal and another). 3. (2006)2 MLJ 453 (S.Parthasarathy v. Durai @ Govindasamy and others). 4. 1997-II-MLJ-351 (Yadhavan and another v. Md.Dayanudin and others). 5. 2010(5) CTC 874 (Rangaswami v. T.V.Krishnan (died) and others). 6. 2004-3-L.W143 (Rame Gowda (d) by Lrs v. M.Varadappa Naidu (DP by lrs and another), particularly for the main proposition that once the plaintiff is found to be in the possession, the burden would shift upon the defendants to establish their claim of title to the suit property. However, when the parties are at loggerheads as regards the claim of title to the suit property in entirety, it is seen that considering the description of the suit property, it is for the plaintiff, who had laid the suit to establish its valid claim of title to the suit property one way or the other. When the documents projected by the plaintiffs did not lend support for tracing its alleged claim of title, legal possession and enjoyment through Ex.A1 settlement deed and when the plaintiff has failed to fill up the gaps / links as to how the property had changed hands from the settlee in favour of the plaintiff's sangam, in such view of the matter, the decisions relied upon by the plaintiff's counsel, as such, would not be applicable to the case at hand. However, the principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at the hand.

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Furthermore, on a perusal of the plaint, it is found that the plaintiff has also laid the claim of title to the suit property on the footing that the plaintiff and its predecessors in title have prescribed title to the suit property by way of adverse possession. The abovesaid plea taken by the plaintiff, would only go to reveal that, impliedly, thereby, the plaintiff has accepted the defendants' claim of title to the suit property. Only on the plaintiff's accepting the defendants' claim of title to the suit property, it would be entitled to raise the plea of adverse title. The abovesaid stand taken

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by the plaintiff would only further reveal that inasmuch as the plaintiff is aware that it may not be able to secure a valid claim of title to the suit property on the strength of the settlement deed dated 29.04.1899 marked as Ex.A1 and also its inability to establish the change of title from various persons as above projected and finally the vesting of title with the plaintiff's sangam, it is apparent that the plaintiff has also chosen to lay the claim of title to the suit property by adverse possession. However, on a perusal of the documents projected by the plaintiff, seen toto, it is found that the said documents would not buttress the plaintiff's claim of title to the suit property by way of adverse possession. As above noted, the plaintiff's endeavour to secure the patta in respect of the suit property ended in vain and the plaintiff had been directed to approach the Civil Court with reference to the same. Despite the position being above, the plaintiff has not chosen to seek the relief of declaration of title to the suit property in the manner known to law, on the other hand, it has laid the suit simplicitor for the relief of permanent injunction and in the guise of the abovesaid suit, had stressed its claim of title to the suit property one way or the other and accordingly, had taken inconsistent pleas with reference to the same and resultantly, unable to place acceptable and reliable materials in support of its claim of title to the suit property. Therefore, the claim of title to the suit property raised by the plaintiff, also by way of adverse possession, would only expose its lack of regular title to the suit property as per law and in any event, as above pointed out , the documents projected on the part of the plaintiff, not supporting its claim of title by way of adverse title, the abovesaid plea also sans proof, would not, in any manner, be useful to uphold the plaintiff's suit.

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CMP NO. 16072 OF 2018

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The defendants have filed an application for the reception of additional documents in the second appeal in support of their case. With reference to the same, it is stated by the appellants that the documents now projected as additional documents, could not be filed by them before the courts below and hence they had been necessitated to file the same at the second appeal stage. However, as rightly put forth by the plaintiff's counsel, when the application preferred by the defendants for the reception of additional documents, has not satisfied the parameters governing the principles of law provided under Order 41 Rule 27 of CPC and when sufficient cause is not

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shown by the defendants as to why they had not endeavored to produce the projected additional documents before the courts below and furthermore when the additional documents could not be received straightaway without the adduction of oral evidence in support of the same and as above discussed, as this court is setting aside the judgment and decree of the first appellate court for the reasons stated supra, particularly, the plaintiff having failed to seek the relief of declaration of title for sustaining its suit in the manner known to law and in such view of the matter, in my considered opinion, the additional documents projected are not required to be received for sustaining the defence version. Accordingly, the petition laid for the reception of additional reception is dismissed.

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In the light of the above discussions, the first appellate court had erred in going into the question of title in the absence of prayer of declaration of title by the plaintiff, particularly when the plaintiff's title to the suit property is under challenge in toto by the defendants and therefore the first appellate court should have rejected the plaintiff's suit as not maintainable barely laid for permanent injunction without seeking the relief of declaration of title to the suit property. The first appellate court is also found to have erred in accepting the plaintiff's case based upon the tax receipts and service connection documents by failing to take note of the fact that the abovesaid documents do not serve the case of the plaintiff to establish its legal possession and enjoyment of the suit property as described in the plaint and furthermore, the projected documents mainly marked in the first appellate court had come into existence after the institution of the lis. The first appellate court has failed to give valid and acceptable reasons for setting aside the well considered reasonings of the trial court for non suiting the plaintiff, particularly, for its acceptability to the settlement deed marked as Ex.A1. The first appellate court is also found to have erred in indirectly upholding the claim of title to the suit property of the plaintiff by analysing the materials placed on record as if the suit laid by the plaintiff is a title suit involving declaratory reliefs and in such view of the matter, the judgment and decree of the first appellate court upholding the plaintiff's claim of legal possession and enjoyment of the suit property, cannot be sustained as per law. The substantial questions of law formulated in this second appeal are accordingly

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answered against the plaintiff and in favour of the defendants.

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For the reasons aforestated, the judgment and decree dated 31.03.2015 passed in A.S.No.28 of 2011 on the file of the Additional Subordinate Court, Chengalpet, are set aside and the judgment and decree dated 30.08.2011 passed in O.S.No.14 of 2006 on the file of the District Munsif cum Judicial Magistrate, Thirukalukundram, are confirmed. Accordingly the second appeal is allowed with costs. CMP No.16072 of 2018 is dismissed. Consequently, connected miscellaneous petition, if any, is closed.

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Sd/-
Assistant Registrar(Ccc)
//True Copy//
Sub Assistant Registrar
bga
To
1. Additional Subordinate Judge, Chengalpet,
2.The District Munsif cum Judicial Magistrate,
Thirukalukundram.
+2cc to Mr.T.Paranthaman, Advocate SR.No. 74127
+1cc to M/s.R.Bharath Kumar , Advocate SR.No. 75397
S. A.No.535 of 2015
and
CMP NO. 16072 OF 2018
ASK(17/12/2018)

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S.Thiyagaraja Gurukkal v. Thirukazhukundram Adhi Saiva

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S.Thiyagaraja Gurukkal v. Thirukazhukundram Adhi Saiva

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