Dismissed

Kanniammal v. Chakrapani(Died)

Madras HC6 Jul 2021SA/150/2008

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by a plaintiff claiming title to suit properties through ancestral inheritance. The court held that the plaintiff failed to prove possession or title of her predecessors, while the defendants established valid title and possession through earlier settlements and sale deeds. Revenue records were noted to be suspicious.

What did the court decide?

Second Appeal dismissed; no order as to costs.

Kanniammal Vs Chakrapani(Died) — Succession and Inheritance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 06.07.2021

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CORAM

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THE HONOURABLE Ms.JUSTICE P.T. ASHA

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S.A.No.150 of 2008

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Kanniammal

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...Appellant/Appellant/Plaintiff

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Vs.

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1.Chakrapani (died)

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2.Kaliaperumal 3.Jayanthi W/o.Chakrapani 4.Nivetha D/o.Chakrapani 5.Minor Velmurugan S/o.Chakrapani 6.Minor Janani D/o.Chakrapani (Minors 5 and 6 are represented by mother/natural guardian Jayanthi) ...Respondents/Respondents/Defendants

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(R3 to R6 brought on record as legal representatives of the deceased R1 vide Court order dated 19.04.2021 made in C.M.P.Nos.22562 and 22563 of 2018 and 22564 of 2018 in S.A.No.150 of 2008)

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PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree in A.S.No.54 of 2000 on the file of the learned I Additional Subordinate Judge (Additional In-charge), Villupuram dated 14.02.2003 confirming the Judgment and decree in O.S.No.129 of 1997 on the file of the learned Principal District Munsif, Ulundurpet dated 21.06.2000.

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For Appellant : Mr.Joseph Stalin

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for Mr.V.Raghavachari For Respondents : Mr.N. Suresh for R2 to R4 R5 and R6 – Minors rep by R3 R1 - Died

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JUDGMENT

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The plaintiff who has been unsuccessful before the Courts below is the appellant before this Court. The plaintiff had filed the suit O.S.No.129 of 1997 on the file of the learned Principal District Munsif, Ulundurpet for a declaration that the suit properties belonged to her and for an injunction restraining the respondents from interfering with her peaceful possession and enjoyment of the suit property.

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2.The suit schedule property has been described in the schedule to the Plaint as follows :

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“fs;sf;Fwpr;rp o/ vytdhNh; rg;/o/ cSe;J}h; ngl;il jhY}f;fh. tlkhk;ghf;fk; fpuhkj;jpy;

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1)mad; g[";ir hp/rh;nt 73/13 1.14 brz;oy; (a[/o/Mh;) go 71/13v 0.04.0 Vh;!;. 73/13rp 0.31.0 Vh;!;) nky;g[wk; mk;khrp ghf epyj;jpw;Fk; (t) tHfF 2tJ mapl;lj;jpw;Fk; (bj)/ nfhghy; ghf epyj;jpw;Fk; (nk) uhn$e;jpud; eph;kyh epyj;jpw;Fk; (fp) ,jd; kj;jpapy; 0.38 brz;l; jPh;it 0.12

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(2)mad; g[";ir hp/rh;nt 73/4 1.67 brz;oy; (a[/o/Mh;) go 72/4 0.51.0 Vh;!;. 73/4rp 0.11.0 Vh;!;) nky;g[wk; Fd;dj;J}h; nuhLf;F (bj) (nk)/ thjp epyj;jpw;Fk; (fp)/ g{td; tifawh epyj;jpw;F (t) ,jd; kj;jpapy; 0.27 1/2 brz;l; jPh;it 9.00

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(3)mad; g[";ir hp/rh;nt 73/4 1.67 brz;L fPH;g[wk; u';fehjd; fpiua epyj;jpw;F (bj)/ nfhghy; ghf epyj;jpw;F (t) vk; Fd;dj;J}h; nghFk;; nuhl;ow;Fk; (fp) fPhpahh; tPL rpd;dj;jk;gp epyj;jpw;F (nk) ,jd; kj;jpapy; 0.27 1/2 brz;l; jPh;it 9.00.”

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3.The case of the plaintiff was that the suit properties originally belonged to one Poova Gounder. Poova Gounder had three sons. The eldest was the father of Periyathoppalan and Chinnathoppalan. The second son was Periyayi Gounder. On the death of Poova Gounder, the properties comprised in Survey No.72/13 measuring an extent of 1.14 cents and Survey No.73/4 measuring an extent of 1.67 cents were orally partitioned between the three sons. Each of them were allotted 0.38 cents in Survey No.72/13 and 0.55 cents in S.No.73/4. After the death of their father, Periyathoppalan and Chinnathoppalan inherited his share and in the oral partition entered into between them, the suit property was allotted to the share of Periyathoppalan. On the death of Periyathoppalan, his son Rangasamy inherited the property and after his demise, his son Ammasi became entitled to the suit property. Ammasi had two wives, namely, Annakili and Pachaiyammal. After the death of Ammasi, his two wives have partitioned the property and they had under the Sale Deeds dated 21.02.1995 and 08.05.1995 sold their shares to the plaintiff.

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The Revenue Records were also mutated in their names jointly with the defendants. The 1^st defendant challenged the orders passed by the Deputy Tahsildar before the Revenue Divisional Officer and the Revenue Divisional Officer set aside the orders of the Deputy Tahsildar. Taking advantage of the above, the defendants attempted to trespass into the property and try to take possession of the same by putting up a thatched house, however, this attempt was successfully prevented. The plaintiff would submit that the defendants being highly influential persons would definitely attempt to renew their obstruction. Hence, the suit.

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4.The 1^st defendant had filed their Written Statement inter alia contending that neither the plaintiff nor her predecessors in title had any right to the suit property and further, the tracing of the title was totally flawed. It is their contention that the property comprised in Survey No.73/4 measuring an extent of 1.67 cents belonged to one Chinnathoppalan who had three sons Sadaiyan, Poongan and Pavadai. On the death of the Chinnathoppalan, his sons inherited 51 ½ cents each. Sadaiyan had two sons, namely, Chinnathambi and Kattavakkil. Chinnathambi's son was one Kasilingam. Likewise, on the death of Kattavakkil, his son Kaliyaperumal inherited the property. He also passed away and therefore, the property devolved on his wife Muzhinkathaal. Poongan's son is Appavoo and he had two wives. The 1^st wife's son was one Balakrishnan and through his second wife Pottukanni Ammal and one Kaliammal was born. Likewise, Pavadai's wife was Mangaiyammal and son, Appavoo. On 19.04.1950, Pavadai Gounder had executed a marriage Settlement Deed in favour of his wife Mangaiyammal with reference to his 55 ½ cents and 55 ½ cents of share which fell to the share of Sadaiyan ultimately devolved on Muzhiyankathaal and Kasilingam. Likewise, Pottukanni and her daughter Kaliammal sold 28 cents to one Gengathurai by means of the Sale Deed dated 14.02.1966. On 22.06.1995, Mangaiyammal and Appavoo Gounder sold 55 ½ cents to the respondents by means of a registered Sale Deed dated 22.06.1995. Thereafter, by a Sale Deed dated 08.05.1995, Chinnathambi, Kasilingam, Muzhinkathaal and Gengathurai sold 1 acre in Survey No.73/4 to the respondents by means of a registered Sale Deed. The respondents also claim to have purchased 4 ½ cents from Ranganathan and others under a Sale Deed dated 22.09.1998. Therefore, the 1^st defendant was entitled to 1.55 ½ acres in Survey No.73/4 in Vadamambakkam Village.

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5.As regards the properties comprised in Survey No.72/13, it is the case of the 1^st defendant that he had purchased the properties from its rightful owners Thangavel Gounder and Duraisamy under a registered Sale Deeds dated 08.05.1995, 09.06.1995 and 30.06.1995. The revenue records had been mutated in their names and he is in possession of the suit property

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since then. It is the case of the defendants that there is no clarity with reference to the suit property and the plaintiff has also not been able to prove that his vendors are the true owners of the suit properties. That apart, the plaintiff who asserts title to the property by way of Sale Deeds has also pleaded that he has perfected title by adverse possession which is a mutually destructive plea. Being the plaintiff, they ought to have come forward with a definite case. Therefore, the defendants sought to have the suit dismissed.

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6.The learned Principal District Munsif, Ulunthurpet, had framed over 27 issues and on a detailed consideration of the evidence both oral and documentary adduced on the side of both the plaintiff and defendants had come to the conclusion that the plaintiff had failed to prove their title or that of their predecessors in title to the suit property. That apart, the learned Judge had held that the plaintiffs have not filed any document to prove possession. The cause of action pleaded was also not proved by the plaintiff. Challenging the said Judgment and Decree, the plaintiff had filed A.S.No.54 of 2000 on the file of the learned I Additional Sub Judge, Villupuram. The learned I Additional Sub Judge also upheld the Judgment and Decree of the trial Court. It is challenging this concurrent Judgment and Decree that the plaintiff is before this Court.

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7.On 18.03.2010, this Second Appeal was admitted on the following Substantial Questions of Law:

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“(1)Whether the Courts below are right in

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coming to a conclusion that the appellant is not the owner of the suit property only on the basis of the revenue proceedings and that too when it had not attained finality?

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(2)Whether the Courts below are right in coming to a conclusion that the defendants are the owners based on the documents subsequent to the institution of the suit?

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(3)Whether the Lower Appellate Courts are right in relying on 2002(1) MLJ 419, contrary to the facts?”

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8.Mr.Joseph Stalin learned counsel arguing on behalf of the appellant would submit that by producing Ex.A.1 and Ex.A.2, the plaintiff has proved their title to the suit property and they traced title to one Periyathoppalan. The learned counsel would further submit that the defendants who contend that Periyathoppalan's family had no interest in the property comprised in Survey No.73/4 have purchased this property from Ammasi's wife Pachaiyammal under Ex.A.9 – Sale Deed. He would submit that from the defendants' pleadings, it is clear that

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they have traced title only under Chinnathoppalan, the brother of Periyathoppalan from whose branch the defendants claims to drive a right. However, the defendants have conveniently omitted to include the details of Periyathoppalan and the fact that he also owns a share in the suit property. He would submit that the revenue records after due enquiry had been mutated in their names and the defendants jointly under Ex.A.4, the defendants on false grounds have got the patta cancelled and the appeal proceedings that had been initiated also went against the plaintiff. He would submit that the Courts below have not properly appreciated the case of the plaintiff and the fact that both the parties are claiming under a common ancestors.

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9.Per contra, Mr.N.Suresh, learned counsel appearing for the respondents would submit that the very genealogy submitted by the plaintiff was totally wrong. Further, the plaintiff has not let in a shred of evidence to show that their predecessors in interest have been in possession and enjoyment of the suit property. Except for the Sale Deed in their favour, no other documents have been filed by the plaintiff. That apart, even the revenue records had been clandestinely mutated by the plaintiff jointly with the defendants. On appeal, the same has been set aside with the Appellate Authority coming down heavily upon the Deputy Tahsildar stating that the act of the Tahsildar in including the name of the plaintiff at record speed without even holding an enquiry is arbitrary and without jurisdiction. He would further argue that the plaintiff who has instituted the suit has not come forward with the definite case and a clear identity of the suit properties. Hence, the Judgment and Decree of the Courts below are very much in order and does not require interference of this under Section 100 of the Code of Civil Procedure. He would submit that the Substantial Question of Law do not favour to the appellant.

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10.Heard the learned counsels appearing on either side and perused the papers.

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11.The plaintiff traces title to the property to one Periyathoppalan from whom the property has been passed down three Generations. The plaintiff has based his title on possession and on the ground that it is the ancestral property of her vendors. Except for Ex.A.1 and Ex.A.2, the plaintiff has not filed any document to show possession of the property by their predecessors in title. Even the mutation of the revenue records in the name of the plaintiff is shrouded in suspicious circumstances. The defendants on the other hand would trace title in respect of Survey No.73/4 from another branch of the family from whom the plaintiff had purchased the property. However, they have been able to establish possession by filing

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title deeds from the year 1950. (The Settlement Deed and the Sale Deed marked as Ex.B.4 and Ex.B.7 respectively). It is an axiomatic principle of Law that the plaintiff has to succeed on the strength of his case and not the weakness of the defence. The plaintiff who has come forward to have her title declared, has not been able to prove the title and possession of her predecessors in title.

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12.That apart, since the plaintiff is tracing her title to the property through the family of one branch of the original owners, it is for her to prove the continuous possession and enjoyment of her predecessors in title in the suit property. The title to the suit properties is sought to be established through the revenue records. The order of the Revenue Divisional Officer would show the clandestine manner in which the plaintiff had attempted to get the revenue records mutated jointly in her name. Therefore, the Substantial Question of Law No.1 is answered against the plaintiff.

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13.As regards the Substantial Question of Law No.2, as already stated, it is for the plaintiff to prove her case and not contend that the defendants have not substantiated his defense. Once the plaintiff is able to substantiate her claim, it is only then this Court has to consider the defence. In the instant case, the defendant has produced documents Ex.B.4 and Ex.B.7 as early as in the year 1950 and 1966 to prove the possession of the suit property by their predecessors in title. It is not only documents subsequent to the suit that have been taken into consideration. The plaintiff has not produced any revenue records standing in the name of her predecessors in title. Therefore, Substantial Question of Law No.2 is answered in favour of the defendants.

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14.The Judgment relied upon by the trial Court in (2002) 1 M.L.J. 419 [Saravanan Pillai v. A.S.Mariappan and others] would apply to the facts of the instant case. Since even in that case the appellant/plaintiff had not been able to trace title as well as possession. On the contrary, the defendants had produced documents to show their possession. The Lower Appellate Court ultimately confirmed the Judgment of the Lower Court on the ground that when a person institutes a Civil action seeking a relief of declaration and injunction the same cannot be sustained in Law in the light of the settled proposition of Law that when a person who is out of possession has not sought for recovery of possession, the suit would fail. In the instant case, the appellant has not proved their possession which fact is also tacitly admitted by the appellant by filing an application seeking a Joint Patta. On a conspectus of the above, I do not find any compelling reasons to overturn the

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Judgment and Decree of the Courts below. The Substantial Question of Law No.3 is also answered against the plaintiff.

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In fine, the Second Appeal is dismissed, however, there shall be no order as to costs.

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Sd/-

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Assistant Registrar(Commercial cases)

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//True Copy//

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Sub Assistant Registrar

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mps

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1.The I Additional Subordinate Judge (Additional In-charge), Villupuram.

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2.The Principal District Munsif, Ulundurpet.

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The Section Officer, VR Section, High Court, Madras.

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+1CC to Mr.N.Suresh, Advocate, Sr.No.31550

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S.A.No.150 of 2008

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SMI (CO) K.RK. (30.11.2021)

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Kanniammal v. Chakrapani(Died)

Case brief

What is this about?

What did the court decide?

Kanniammal v. Chakrapani(Died)

Case brief

What is this about?

What did the court decide?

What the court decided

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