Dismissed

Prema v. Govindarajan

Madras HC1 Nov 2018SA/573/2018

Case brief

AI extract

What is this about?

In a second appeal regarding recovery of possession of land, the High Court dismissed the appeal. It held that since the lower appellate court had incidentally adjudicated title based on documentary evidence and the defendant did not plead adverse possession, the decision was supported by reasons and not erroneous. The decree for recovery of possession was confirmed.

What did the court decide?

Second appeal dismissed; Judgment and decree dated 30.10.2017 in A.S.No.50 of 2017 and decree in O.S.No.6 of 2010 confirmed; In the result, suit decreed as prayed for.

Prema Vs Govindarajan — Partition | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 01.11.2018

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CORAM

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THE HONOURABLE MR. JUSTICE S.S.SUNDAR

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S.A.No.573 of 2018

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Prema ... Appellant / Defendant

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Versus Govindarajan ... Respondent / Plaintiff

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PRAYER: Second Appeal filed under Section 100 CPC praying to set aside the Judgment and decree dated 30.10.2017 made in A.S.No.50 of 2017 on the file of the Additional Sub Court at Mayiladuthurai, by reversing the Judgment and Decree dated 09.06.2017 made in O.S.No.6 of 2010 on the file of District Munsif Court, Sirkali.

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The defendant in the suit in O.S.No.6 of 2010 on the file of the District Munsif, Sirkali, is the appellant and the plaintiff is the respondent in the above Second Appeal. The respondent herein filed a suit in O.S.No.6 of 2010 on the file of District Munsif, Sirkali for recovery of possession in respect of suit 'B' schedule property. The suit 'B' schedule property is an extent of 11 cents in S.No.87/2B in Kizhsattanathapuram circle, Sirkali Taluk.

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The brief facts that were narrated in the plaint are as follows:

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The suit 'B' schedule property is part of the suit 'A' schedule property and it lies on the northern portion of suit 'A' schedule property. The 'A' schedule property is a land having an extent of 1 acre in S.No.87/2B. The plaintiff purchased the suit 'A' schedule property from one Kanagammal and others by a Sale Deed dated 12.04.1990. The predecessor-in-

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interest of the plaintiff's vendors were in enjoyment of the entire 'A' schedule property for more than 40 years and the parent documents are also filed. The patta, chitta and adangal are maintained in the name of Kanagammal, the plaintiff's vendor.

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The defendant is the owner of the land to an extent of 1.47 acres in S.No.87/2A. After the suit 'A' schedule property was purchased by the plaintiff, the northern portion of 'A' schedule property was purchased by the defendant on 01.10.2003. When the plaintiff was not in the suit village, the defendant on 01.10.2004 encroached the 'B' schedule property measuring to an extent of 11 cents which was lying immediately on the southern side of the property of the defendant. He has also fixed the electric motor in the property. Since, the encroached portion described in the plaint was only approximate, the plaintiff also prayed for appointment of Advocate Commissioner to ascertain the extent of property that was encroached by the defendant.

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The suit was contested by the appellant on many grounds. It is the specific case of defendant that the entire 'A' schedule property does not belong to the plaintiff. He disputes the case of the plaintiff that the plaint 'B' schedule is part of the plaint 'A' schedule. Though, the suit property was purchased by the plaintiff under document dated 12.04.1990, it was pleaded by the plaintiff that the plaintiff's vendors were in the enjoyment of the property for more than 40 years. But, the defendant disputed the case of the plaintiff. According to the defendant, an extent of 1.47 acres on the northern side of the suit property was purchased by her in two documents dated 01.10.2003. It is his case that an extent of 22 cents and further extent of 1.25 cents had been acquired by the defendant under the two sale deeds. The allegations regarding encroachment was also specifically denied. It is to be noted that the defendant has not pleaded adverse possession or title by prescription. The trial Court relying upon the documents in respect of the defendant's title to the suit property found that there is no reason to reject the plea of the defendant. It was further pointed out by the trial court that the suit property though purchased by the plaintiff, under the document dated 12.04.1990, from Kanagammal and the husband of said Kanagammal by name Govindasamy had purchased only an extent of 1 acre in 1974, the trial Court relied upon the revenue documents showing a lesser extent in the name of Kanagammal. The trial Court mainly relied upon the statement of surveyor in his reports Ex.C1 to the effect that only an extent of 89 cents was recorded in the holding of Kanagammal, the trial Court found that the plaintiff has to prove his case and that the plaintiff is not entitled to seek recovery of possession without taking steps to

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correct the revenue records. Therefore, the trial Court dismissed the suit. The lower appellate Court, however, reversed the findings of the Trial Court after elaborately considering the documents filed by the plaintiff and the defendant in the suit.

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The lower appellate Court considered the fact that the plaintiff has proved his title by producing parent documents of title established his case that he is entitled to an extent of 1 acre in S.No.87/2B. The lower appellate Court relying upon Ex.B1 and Ex.B2 found that the defendant has purchased an extent of 1.25 acre in S.No.87/2A under Ex.B1 dated 01.10.2003. The Lower Appellate Court also found that the defendant purchased another extent of 22 cents in S.No.87/2A under Ex.B2. The Lower Appellate Court further proceeded to examine the title of the vendors of the defendant who sold the property to the defendant under Ex.B1 and Ex.B2. In that process, the lower appellate Court categorically found that the property purchased under Exs.B1 and B2 were not proved to be the property of defendant's vendors. It was noticed by the lower appellate Court that under Ex.A7 dated 19.07.1970, the defendant's vendors had purchased only an extent of 11 cents. However, by referring to the same document, as the source of title of the defendant's vendor, the vendor of the defendant had sold an extent of 22 cents. It is, on the basis of the documents of the title, the lower appellate Court found that the plaintiff had purchased an extent of 22 cents from a person who was holding title to an extent of 11 cents in S.No.87/2. Thus the lower appellate Court decided the title in respect of 'B' schedule property, which is part of 'A' schedule property in favour of the plaintiff.

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Since the defendant's possession was admitted and the defendant has not pleaded any adverse possession, the lower appellate Court granted decree for recovery of possession in favour of the plaintiff. Challenging the findings of the lower appellate Court in A.S.No.50 of 2017 on the file of the Additional Sub Court at Mayiladuthurai, the present appeal has been preferred by the defendant.

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The learned Counsel appearing for the defendant/appellant raised the following substantial questions of law in the Memorandum of grounds:

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(A) Whether the Lower Appellate Court was right in non considering the oral and documentary evidences in its proper perspective as contemplated under Indian Evidence Act?

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(B) Whether the Lower Appellate Court was right in granting the relief of bare injunction and recovery of possession when especially the title is being denied by the defendant on the ground he was in possession of the property based on the revenue records?

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(C) Whether the finding of the Lower Appellate Court is not vitiated by failure to consider the entire oral and documentary evidence and apply the correct principle or law?

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(D) Whether the finding of the Lower Appellate Court for reversing the well considered finding of the trial Court that the plaintiff is not in possession of the 'B' schedule property?

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(E) Whether the Lower Appellate Court has not committed any error of Law in not considering that the suit is not maintainable in the absence of declaration of title when especially the defendant is in the possession of the 'B' schedule property based on thr Revenue records?

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(F) Whether the lower Appellate Court is right in let in evidence and adduce without there being pleading for the same?

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The learned Counsel further tried to convince this Court on the plea of the title in respect of the 11 cents, shown as suit 'B' schedule.

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Having regard to the findings of the lower appellate Court, it is the submission of the learned counsel appearing for the appellant that by the document dated 01.10.2003 namely Ex.A.3 the defendant has purchased an extent of 22 cents in S.No.87/2A. The document Ex.A2 dated 01.10.2003 is another document by which the defendant has purchased an extent of 1.25 cents in S.No.87/2A. It is not in dispute that the property purchased by the defendant under Ex.A2 and Ex.A3 are the documents to show the title of the defendant who owns his land on the northern side of the suit 'A' schedule. It is not the case of the defendant in the written statement that that apart from these two documents, there are other documents to prove his ownership over the suit 'B' schedule. Through these two documents, the defendant had purchased the land measuring to an extent of 1.47 acres. This fact is not in dispute. However, it is the finding of lower appellate Court that though the defendant purchased an extent of 22 cents and 1.25 acres respectively in S.No.87/2 under two documents under Exs.B1 and B2, the defendant's vendors had purchased respectively only an extent of 11 cents and 1.25 acres under Exs.A7 and A8.

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The learned Counsel appearing for the defendant by referring to the document Ex.A2 submitted that 22 cents of land purchased by the defendant in Ex.A2 consists of the property which came to him from his mother and also her ancestral property. The learned counsel for the appellant relied upon the following recitals in the document Ex.A3 which is also marked as Ex.B2.

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“,jdbapy; tpthpf;fg;gl;l nrhj;J vdf;F g+h;t P f nrhe;jkhdJk, vdJ jhahUk; vdJ Kjy;tUkhd =tukq;if mth;fs; ngauhy; fpuak; thq;fp Nkw;gb gj;jpukhdJ r Ph ;fhop rhh; gjpthsh; – mYtyfj;jpy , 2948/1970 d;gb gjpag;gl;l Mtzj;jpd;gb fpilf;fg; ngw;wk; , Nkw;gbahuhy; rh;t Rje;jpukha; Mz;L mDgtpj;J te;J , Nkw;gbahuhy; vdf;F vOjpf; nfhLj;j Nkw;gb nghJ mjpfhuj;jpd;gb Nkw;gbahh; gth; V[z;L vd;fpw KiwapYk; jdf;fhfTk; ,jd; mbapy; tpthpf;fg;gl;l nrhj;ij jq;fSf;F tpw;fpuak; nra;J nfhLg;gjhf tpiy Ngrp Kbj;J ”

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from the above recitals of the document, the learned Counsel would submit that a portion of the property conveyed in Ex.A3 is shown as the property belonged to the defendant's vendor's ancestrally. Since the document in Ex.A3 is in respect of the properties acquired by the vendor under two different source, it is argued that the lower appellate Court is wrong in concluding that the defendant has not established his title in respect of an extent of 11 cents.

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The learned Counsel for the appellant further submit that the lower appellate Court has proceeded as if the defendant has purchased the property in S.No.87/2A, whereas the parent documents of the defendant's vendors is only recorded in S.No.87/2. The contention of the learned Counsel appearing for the defendant/appellant is ignoring the specific stand taken by himself in the written statement. The defendant has himself admitted and claimed the title to an extent of 22 cents in S.No.87/2A on the basis of the documents Ex.A2 and Ex.A3. From the plea raised in the written statement the contention of the learned Counsel appearing for the appellant regarding Survey Number and subdivision to the effect that the lower appellate Court has not understood the actual properties purchased under Ex.A2 and Ex.A3 has no merit. In this case the lower appellate Court has considered the documents Ex.A2 and Ex.A3 and the document Ex.A7 which is crucial. Under Ex.A7, the defendant's vendor's mother had purchased only an extent of 11 cents of land. The defendant's vendor however specifically refers to his

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title only under Ex.A7 when he sold the property to the defendant. Merely because there is a reference to some other property as ancestral, it cannot be inferred that the defendant's vendor's had title to more than 11 cents in S.No.87/2A. The dispute is in respect of 11 cents. It is to be seen that the document Ex.A2 is in respect of three items in the properties. The second item is referred as a property measuring 22 cents in S.No.87/2A. There are two other items they are in S.No.87/1 and 106/5. The contention that the defendant's vendor has sold not only the property inherited by him from his mother but also some property belonged to him ancestrally is not supported by any evidence. The document can only be interpreted to the effect that the property in S.No.87/2 belonged to the defendant's vendor by virtue of the sale deed obtained by her mother under Ex.A7. The properties in other survey numbers might have been inherited by him as a successor interest from his ancestors. Since the question of title has been concluded by the lower appellate Court by referring to the documentary evidence corroborated by other materials, this Court is enable to take a different view on the question of title.

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The learned Counsel for the appellant submitted that the suit for recovery of possession without a declaration of title is not maintainable. It is to be noted that the plaintiff has sought the relief for recovery of possession based on the title relying upon the sale deed under which the suit property was purchased by him. In the plaint itself the case of the plaintiff is that the defendant claimed right more than what he has purchased under the documents.

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In such circumstances, the Court has specifically decided the question of title incidentally by considering the documentary evidence along with oral evidence adduced by the defendants. When the question of title has been raised and decided the suit cannot be dismissed on the ground that there is no prayer for declaration of title. It is interesting to note that the defendant has not pleaded adverse possession and hence by mere enjoyment the defendant cannot resist the suit. Since the lower appellate Court has given finding on the basis of material documents and the decision of the lower appellate Court is supported the reasons, this Court is not inclined to interfere with the findings of the lower appellate Court in A.S.No.50 of 2017 on the file of the Additional Sub Court at Mayiladuthurai reversing the judgment of the trial Court in O.S.No.6 of 2010 on the file of District Municif Court, Sirkali.

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Hence, the second appeal is dismissed by confirming the Judgment and decree dated 30.10.2017 in A.S.No.50 of 2017 on the file of the Additional Sub Court, Mayiladuthurai. Consequently, the suit in O.S.No.6 of 2010 is decreed as prayed for. No costs. Consequently, connected miscellaneous petition is also closed.

Sd/-

Assistant Registrar

//True Copy//

Sub Assistant Registrar
rpl/mtl
To
1. The Additional Sub Judge,
Mayiladuthurai,
2. The District Munsif Court,
Sirkali.
Copy to: The Section Officer,
VR Section,
High Court, Madras (2 copies)
+1 cc to Mr.U.Karunakaran, Advocate, S.R.No.75624
S.A.No.573 of 2018
and C.M.P.No.17331 of 2018
SSI(CO)
SSM(10/01/2019)

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Prema v. Govindarajan

Case brief

What is this about?

What did the court decide?

Prema v. Govindarajan

Case brief

What is this about?

What did the court decide?

What the court decided

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