Radha Vs Subrayan(Died)

Prayer : Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 26.07.2018 made in A.S. No.02 of 2015 on the file of the Principal District and Sessions Court, Ariyalur, confirming the judgment and decree dated 27.04.2015 made in O.S. No.70 of 2011 on the file of the Additional Sub Court, Ariyalur.

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For Appellant : Ms. K.Vijayalakshmi for M/s. Dass & Viswa Associates For Respondents : Mr. P. Valliappan, Senior Advocate for Mr. K.M. Hareesh for M/s. P.V. Law Associates for R2 to R8.

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JUDGMENT

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This appeal is directed against the judgment and decree dated 26.07.2018 made in A.S. No.2/2015 on the file of the Principal District and Sessions Court, Ariyalur, confirming the judgment and decree dated 27.04.2015 made in O.S. No.70/2011 on the file of the Additional Subcourt, Ariyalur.

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The appellant is the 2^nd defendant in O.S. No.70/2011. The deceased 1^st respondent as plaintiff filed the above suit in O.S.

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S.A.No.223 of 2019 and C.M.P. No.3581 of 2019

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No.70/2011 for partition.

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The case of the plaintiff is that the suit property measuring 0.04.0 ares (10 cents) originally comprised in S.F.No.134/12B. The said property jointly owned by the plaintiff and the 1^st defendant and a joint patta was issued in their name in S.F. No.134/12B. Since the said land was unfit for cultivation, the plaintiff and the 1^st defendant's predecessors used the land for grazing cattle. While so, the government acquired the northern 0.05 cents of land in the said property for formation of road. Hence, the plaintiff and the 1^st defendant jointly executed a sale deed on 13.01.2005 to the government and the compensation amount was equally shared by the plaintiff and the 1^st defendant. Thereafter, the acquired land was subdivided as 134/12B1 and the remaining land was subdivided as 134/12B2. It is the suit property. However, a joint patta was not issued in favour of the plaintiff and the 1^st defendant in respect of S.No.134/12B2. While so, the 1^st defendant has fabricated document in favour of the 2^nd defendant in respect of the said property. The 2^nd defendant also obtained patta in his name. The 1^st defendant has no right whatsoever to create any Page 3 of 14

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S.A.No.223 of 2019 and C.M.P. No.3581 of 2019

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document in respect of the suit property in favour of the 2^nd defendant. The 2^nd defendant has no independent right over the suit property. Therefore, on 18.07.2011 the plaintiff sent a legal notice (Ex.A4) to the defendants. The 2^nd defendant sent a reply notice (Ex.A5) dated 25.07.2011 with false averments. Hence, the plaintiff was constrained to file the above suit for partition.

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The 2^nd defendant in his written statement has resisted the claim of the plaintiff by stating that the plaintiff has no right over the suit property. The plaintiff and the 1^st defendant are not brothers and therefore, the plaintiff is not entitled to any share in the suit property. It is further submitted that the 0.5 cents of land situated on the north of the suit property was acquired by the government for formation of road. Since joint patta was in the name of the plaintiff and the 1^st defendant in S.F. No.134/12B, the 1^st defendant had to sign jointly along with the plaintiff at the time of receiving the compensation. But, in fact, the plaintiff alone took the compensation amount. The brother of the plaintiff, namely Munusamy, was aware of this fact, who was alive at that Page 4 of 14

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S.A.No.223 of 2019 and C.M.P. No.3581 of 2019

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point of time. The southern 0.5 cents of land in S.No.134/12B2 absolutely belong to the 1^st defendant. The suit property is the ancestral property of the 1^st defendant and the same was allotted to him in the family partition. On 25.01.2011, the 1^st defendant executed a settlement deed in favour of his son, namely the 2^nd defendant, and the same has been acted upon. The plaintiff is aware of the above facts. Taking advantage of the joint patta, the plaintiff has come out with the above vexatious suit. Hence the suit is liable to be dismissed.

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The trial court decreed the above suit in favour of the plaintiff against which the 2^nd defendant filed the appeal suit in A.S. No.2/2015 on the file of Principal District Court, Ariyalur. The first appellate court dismissed the appeal suit confirming the judgment and decree of the trial court. Aggrieved by this the present appeal is preferred by the 2^nd defendant.

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The following substantial questions of law are raised by the appellant in the memorandum of the appeal.

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S.A.No.223 of 2019 and C.M.P. No.3581 of 2019

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a)

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a) Whether the courts below committed an error in deciding that mere

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joint patta bearing Patta No.627 standing in the name of the appellant's father and the respondent and the appellant's father's inaction to cancel the same confirms that both are joint owners and hence the respondent is entitled to half share over the suit property?

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b) Whether the courts below are correct in holding that the suit is not

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hit by non-joinder of necessary parties?

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c) Whether the courts below are right in holding that the kist receipts produced by the appellant are not sufficient to prove the claim of adverse possession of the appellant?

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d) Whether the courts below erred in decreeing the suit though the respondent has not produced any independent witnesses to substantiate his claim?

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The learned counsel for the appellant submits that the

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respondent/plaintiff failed to prove that he had received only half of the compensation amount given at the time of acquisition, though the same Page 6 of 14

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was given by way of cheque. The respondent/plaintiff himself admitted

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that the total compensation given was only Rs.2,927/- and only one cheque was received. In spite of a specific stand taken by the 1^st defendant that he signed the sale deed dated 13.01.2005 for name sake since patta jointly stood in the name of the plaintiff and the 1^st defendant. The 2^nd defendant/appellant has marked Ex.B1 to B4 to prove that he has perfected title by adverse possession. He would further contend that the categorical admissions made by P.W.1 in cross examination would amply prove that the suit property belongs to the 1^st defendant. However, the courts below failed to take note of the above documents. Hence, the judgment and decree passed by the courts below are liable to be set aside.

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On the other hand, the learned counsel for the respondent/plaintiff would submit that the suit property jointly owned by the plaintiff and the 1^st defendant and hence joint patta was issued in their name. The fact that the plaintiff and the 1^st defendant jointly executed the sale deed in favour of the Government in respect of northern 5 cents in the suit survey number, would clearly establish that the suit property Page 7 of 14

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is jointly owned by the plaintiff and the 1^st defendant. The compensation amount was jointly received by the plaintiff and the 1^st defendant. While so, the 1^st defendant fraudulently executed a settlement deed in favour of his son, the 2^nd defendant. Hence, the plaintiff was constrained to file the above suit for partition. The courts below rightly decreed the suit in favour of the plaintiff which calls for any interference by this court.

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Heard on both sides. Records perused.

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It is not in dispute that a joint patta stood in the name of the plaintiff and the 1^st defendant in respect of land in S.No.134/12B to an extent of 10 cents. It is the specific case of the plaintiff that since the property was jointly owned by the plaintiff and the 1^st defendant, joint patta was issued in the name of the plaintiff and the 1^st defendant. Whereas, the contention of the 2^nd defendant is that, though joint patta was issued in the name of the plaintiff and the 1^st defendant for 10 cents in S.No.134/12B, the entire 10 cents was not owned jointly by the plaintiff and the 1^st defendant. The plaintiff owned only the northern 5 Page 8 of 14

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S.A.No.223 of 2019 and C.M.P. No.3581 of 2019

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cents of land in the said survey number and that, the said land was acquired by the government for formation of road. Since, there was a joint patta, the 1^st defendant signed the sale deed executed in favour of the government in respect of the northern 5 cents along with the plaintiff and that the entire compensation amount was received only by the plaintiff. The suit property is the ancestral property of the 1^st defendant and therefore, he executed a settlement deed in favour of the 2^nd defendant. The plaintiff has no right over the suit property and that the suit is vexatious.

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No doubt, the plaintiff has to prove his case and cannot pick up holes in the defendants' case. The joint patta in this case is marked as Ex.A1 which stands in the name of the plaintiff and the 1^st defendant. Though the 1st defendant contends that the same has been mistakenly issued by the revenue authorities, till date he has not taken any steps to correct the said mistake. Moreover, the plaintiff and the 1^st defendant jointly executed Ex.A2 sale deed in favour of the Government during acquisition process. The recitals in Ex.A2 runs as follows:

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'fpuhk fzf;Ffshd 'm" gjpNtL kw;Wk; 10(1) gjpNtl;by; 627 vd;w gl;lhtpy; jhf;fy; Mfp ehsJ Njjp tiu ehq;fs; nghJthf Mz;L mDgtpj;J tUfpd;w nrhj;ij" vd;W fz;Ls;sJ.

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Therefore, from the above recitals, it is clear that the joint patta 627 was issued in favour of the plaintiff and the 1^st defendant recognising their joint possession and enjoyment in the said land. Therefore, the contention made by the 1^st defendant that the patta was mistakenly issued in the name of the plaintiff and the 1^st defendant cannot be accepted. Moreover, Section 91 and 92 of the Evidence Act contemplates that, where there is an express document, it is not open to the parties to lead oral evidence to the contrary. Hence, the defendants are not entitled to deny Ex.A2 sale deed based on the admission made by the plaintiff. Moreover, in Ex.A3 settlement deed executed by the 1^st defendant in favour of the 2^nd defendant, it is mentioned that the suit property is the ancestral property of the 1^st defendant for which there is no iota of Page 10 of 14

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evidence. Even in Ex.A3 settlement deed, the existence of joint patta is mentioned. If really the suit property is the exclusive property of the defendants, steps would have been taken to remove the name of the plaintiff from the joint patta before the revenue authorities. When no such steps had been taken by the defendants, it goes to show that the suit property is jointly owned by the plaintiff and the 1^st defendant. The documents filed on the side of the defendants do not support their contention. Ex.B1 to Ex.B4 documents do not establish the exclusive title of the defendants in the suit properties. The above documents are not sufficient to prove even the claim of adverse possession by the defendants. Since the joint patta bearing patta No.627 is in the name of the plaintiff and the 1^st defendant and the inaction on the part of the 1^st defendant to cancel the same, confirms that both the plaintiff and the 1^st defendant are joint owners and the plaintiff is entitled to half share in the suit property. Since the plaintiff and the 1^st defendant alone are joint owners of the suit property, the suit is not hit by non joinder of necessary parties. There is no perversity or infirmity found in the judgment and decree passed by the courts below, which warrants interference by this Page 11 of 14

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Court. The substantial questions of law are answered against the appellant.

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In the result,

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i. The Second Appeal is dismissed. No costs. Consequently

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connected miscellaneous appeal is closed.

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ii. The decree and judgment dated 26.07.2018 made in A.S. No.02 of 2015 on the file of the Principal District and Sessions Court, Ariyalur, confirming the judgment and decree dated 27.04.2015 made in O.S. No.70 of 2011 on the file of the Additional Sub Court, Ariyalur. is upheld.

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02.09.2025

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Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga

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S.A.No.223 of 2019 and C.M.P. No.3581 of 2019

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To