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Pichai Asari - died v. Mariappan Pethiriar - S.A. No.1454 of 1995 [2007] RD-TN 1712 (16 May 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 16/05/2007

Coram:

The Honourable Mr. Justice V. DHANAPALAN

S.A. No.1454 of 1995

1. Pichai Asari - died

2. Balasubramanian

3. Palayee

4. Rajambal

5. Chinnappan .. Appellants (Appellants 2 to 5 are brought on record as LRs

of the deceased 1st appellant vide order dated

17.04.1997 in C.M.P. No.9059 of 1996

passed by the Dy. Registrar)

vs.

Mariappan Pethiriar .. Respondent Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree dated 12.08.1994 passed in A.S. No.99 of 1992 on the file of the District Court, Pudukkottai confirming the judgment and decree dated 18.12.1991 passed in O.S. No.343 of 1988 on the file of the District Munsif Court, Pudukkottai.

For appellants Mr. S. Venkateswaran

For respondent Mr. K. Balasundaram

:JUDGMENT



This Second Appeal is directed against the judgment and decree of the District Court, Puddukkottai confirming the judgment and decree of the District Munsif Court, Pudukkottai and the appellants herein are the legal heirs of the unsuccessful plaintiff before both the Courts below who has since died.

2. The case of the plaintiff is that the suit first item was acquired by him from one Venkatachala Solathiriyar vide Ex.A.1, registered sale deed dated 01.04.1974 and the suit item 2 is his ancestral property and he is in possession of both the suit properties and the defendant has no right whatsoever in them. The further case of the plaintiff is that he put up a shed in the suit first item and when the defendant interfered with his possession of the shed, he lodged a complaint with the Mandayur Police Station and filed a suit for permanent injunction.

3. In his written statement, the defendant contended that the suit first item was not acquired by the plaintiff and the suit second property was not the plaintiff's ancestral property. The defendant's case is that the suit properties originally belonged to one Ramasamy Solathiriyar who sold it to one Poornathammal vide registered sale deed dated 07.10.1933 and after her demise, her son Mariappa Thalanjirar inherited the suit properties and sold the same to the defendant by a registered sale deed dated 06.03.1974, marked as Ex.B.1. and the defendant has been in possession and enjoyment of the suit properties right from the date of the sale deed. It is the further case of the defendant that the plaintiff did not put up any shed in the suit first item and it is only he who put up a shed in the suit first item and has been in possession and enjoyment of the same and the four boundaries and measurements mentioned in the plaint are not correct.

4. After an analysis of the oral and documentary evidence and framing six issues for consideration, the Trial Court, holding that it is only the defendant who had put up the shed in the suit item 1 and had been in possession and enjoyment of the same and further holding that the plaintiff had failed to prove his case, dismissed the suit.

5. On appeal before the lower appellate court, the plaint was amended seeking declaration of title and recovery of possession and the appellate judge held that Ex.B.2, parent deed did not tally with Ex.B.1 sale deed and only a portion of the property mentioned in Ex.B.2, sale deed, was purchased by the defendant. The appellate judge further held that the plaintiff is not in enjoyment of the entire suit item 1 and that the defendant is in possession of the same and holding so, confirmed the judgment of the Trial Court.

6. This Court admitted the Second Appeal on the following substantial questions of law:

a. Whether in law, the Courts below are right in omitting to note that the boundary description contained in Ex.A.1 correlated to the suit first item, thereby proving the title of the appellant?

b. Whether in law, the Courts below are right in conferring title on the respondent in view of the fact that the respondent claims title to Ex.B.1 only through Ex.B.2, when the boundary description contained in Ex.B.2 did not tally with the boundary description in Ex.B.1?

c. Whether in law, the Courts below are right in relying on Ex.B.1 when the vendor under Ex.B.1 had no title to the suit property to convey the same to the respondent?

7. Heard Mr. S. Venkateswaran, learned counsel for the appellants and Mr. K.Baalasundharam, learned counsel for the respondent.

8. The learned counsel for the appellants has contended that: a. the Courts below, having found that the respondent could not have purchased the property described in Ex.B.2 under Ex.B.1, have erred in holding that the respondent had purchased a portion of the property described in Ex.B.2;.

b. the Courts below have erred in coming to the conclusion that description of the property contained in the Commissioner's Report tallied with the description of the property shown in Ex.B.1, when the property alleged to have been purchased by the respondent under Ex.B.1 did not tally with Ex.B.2; c. regarding the possession of the suit first item, the Courts below ought not to have come to the conclusion that the respondent is in possession based on the Commissioner's Report which says that the Commissioner, after obtaining the keys from the respondent, opened the thatched shed; d. the tax receipts marked by the respondent ought not to have been relied on by the Courts below since they were dated subsequent to the filing of the suit and

e. when the boundaries of the plaintiff's sale deed tallied with those of the suit property, the Courts below have ignored the well-settled principle that boundaries will prevail over the extent.

9. Contending contra, the learned counsel for the respondent has contended that:

a. the four boundaries and measurements in Ex.A.1, sale deed do not tally with the suit properties;

b. the plaintiff has neither let in any anterior title deed or document to prove that his vendors had any right over the suit property nor has he examined any witness in this regard;

c. as per the Commissioner's Report, the thatched shed in the suit first item was opened by the key given by the defendant and further P.W.1 himself has admitted that he has not paid property tax to Panchayat and d. Ex.B.1, sale deed marked by the defendant and Ex.B.2, the parent document of Ex.B.1 amply prove the possession of the shed in the suit first item by the defendant and the boundaries mentioned in Ex.B.1 also correlate with the boundaries in the Commissioner's Report.

10. As regards the suit second item, the counsel for the respondent has contended that though the plaintiff had filed Ex.A.3, sale deed, the lower appellate court could not identify the description of the property found in the said exhibit and on the other hand, the defendant had filed Ex.B.6, sale deed, whose boundary recital was proved by D.W.2 and which clearly proves the possession by the defendant.

11. The counsel for the respondent has finally submitted that the plaintiff cannot take advantage of the weakness of the defendant and when the plaintiff had filed a suit for declaration of title and recovery of possession and when the possession of the defendant is admitted, it is the duty of the plaintiff to prove that the defendant is not the owner as per Section 110 of the Evidence Act.

12. The counsel for the appellants, in support of his contention that the Advocate Commissioner should not have been appointed for ascertaining the possession of property by parties, has relied on: i. a judgment of this Court reported in 2006 2 LW 159 in the case of Chandrasekaran & 6 others vs. V. Doss Naidu wherein it was held as under: (para 19)

"Apart from seeking appointment of Advocate Commissioner to note down the physical features of the suit property in S.No.8/2, application has been filed to note down the physical features of the adjacent property of the defendants property on the northern side in S.No.8/1 also. Strong objection has been raised by the respondent/plaintiff on the appointment of Advocate Commissioner to note down the physical features of the adjacent property. Learned counsel for the Revision Petitioners/defendants has submitted that the Commissioner may be appointed to make local inspection (for the purpose of elucidating the matter in dispute) and contended that when the contention of the defendants is that they are in possession of the northern side of the suit property along with their property on the northern side in S.No.8/1, that aspect is to be elucidated by appointment of Advocate Commissioner and the lower court erred in declining to appoint the Commissioner. This contention of the learned counsel for the Revision Petitioners does not merit acceptance. Possession of the defendants in S. No.8/1 is a matter of evidence. Power is conferred on the Court to appoint Commissioner to make local inspection not to collect evidence; but only to obtain evidence, which is a peculiar nature which could be obtained only on spot inspection. Possession of the defendants in S.No.8/1 could be well proved by adducing appropriate evidence. In that view of the matter also, the order of the lower court declining to appoint Advocate Commissioner is to be confirmed."

ii. One more judgment of this Court reported in 2002 (3) CTC 748 in the case of Devadoss vs. A. Duraisingh and the relevant para reads as under: (para 8)

"The learned counsel for the revision petitioner also relied on the case in Gopal Chettiar (deceased & 3 others vs. P.A.A. Sahula Hameed and another, 1998 (3) LW 773 that the appointment of a Commissioner cannot be sought for collecting evidence or for any other materials. It has also been held in the case of Malaya Gounder and others vs. Palanisamy & others, 1 MLJ 626 that the Court cannot appoint any Advocate Commissioner to find out the physical possession of the parties. The principles in these decisions are applicable to the case on hand. Now, in the present case also, the plaintiffs sought the appointment of an Advocate Commissioner only for the purpose of making a roving enquiry with respect to the person in the house and also whether they have got cable connection and from whom they have got the connection. The Advocate Commissioner cannot be used for such fact finding purposes and as such, the order passed by the Court below is not sustainable under law."

13. In support of his argument that the plaintiff can succeed only on the strength of his case and not on the weakness of the defendant, the counsel for the respondent has relied on a decision of the Supreme Court reported in (2004) 7 SCC 708 in the case of Sayed Muhammed Mashur Kunhi Koya Thangal vs. Badagara Jumayath Palli Dharas Committee and Others and the relevant portion of para 8 of that judgment reads as under:

"When the plaintiff came forward specifically pleading that he was entitled to declaration of title and for recovery of possession of the plaint schedule property based on the agreement, Ext.A-2 dated 13.02.1973, it could succeed only on the basis of validity of Ext.A.2 and the validity of transfer of mutawalliship in its favour. Since all the courts have concurrently found that mutawalliship could not be validly transferred in favour of the plaintiff Committee under Ext.A.2, the suit filed by the plaintiff ought to have been dismissed. The plaintiff could only succeed on the strength of its case and not on the weakness found in the case of the defendant, if any. . ."

14. Admittedly, the plaintiff had filed the suit in respect of items 1 and 2 of the suit property. While the plaintiff claims that the first item of the suit property belongs to him as per Ex.A.1, sale deed, and that the second item of the suit property is his ancestral property, the defendant claims title to the suit properties by virtue of Ex.B.1, sale deed and also Ex.B.2, parent deed.

15. In order to enable the Court to come to a conclusion as to whether the plaintiff is entitled to get the relief asked for or not, an Advocate Commissioner has been appointed in the case and he has given his report along with a sketch of the spot and the same have been marked as Court Exhibits 1 & 2 respectively before the Trial Court. The Advocate Commissioner had inspected the suit property and according to him, the suit property consists of two items. In his report, he had observed that there was a thatched shed in the suit first item which was in a locked condition and that its key was given to him by the defendant. He had also found in the thatched shed certain items such as utensils, stove, clothing and so on which are required to run a family. That apart, on measuring the suit first item, contrary to the plaint which shows the eastern breadth as 44 ft., he had found that the plaintiff was in possession of only 33 ft. On the other hand, since the boundaries in Ex.B.2, parent deed did not tally with Ex.B.1, sale deed in favour of the defendant and since there was some minor deviation in the description, the Trial Court had come to the conclusion that the defendant could have acquired only a portion of the property contained in Ex.B.1 and not the entire property. Since the details of boundaries mentioned in the Advocate Commissioner's report had tallied with the boundaries contained in Ex.B.1, the Trial Court has further concluded that the defendant could have acquired only the second item of the suit property by way of Ex.B.1. Though the plaintiff had contended that he is in possession of the second item of the suit property, he has not let in any evidence, either oral or documentary, to prove his case. The deposition of D.W.2 that the defendant has raised chilly crops in the second item of the suit property adds strength to the case of the defendant. On these bases, it has been concluded by the Courts below that the suit second item belongs to the defendant.

16. On the contention of the counsel for the appellants that Advocate Commissioner ought not to have been appointed to find out as to who was in possession of the suit properties, it is to be noted that he was not appointed for the said purpose. It is only for the purpose of measuring the suit properties, the Advocate Commissioner has been appointed and on inspection of the suit properties, he had given his findings in the form of a report and this report of his, besides other materials on record, has been taken into consideration by the Courts below in arriving at their conclusion and it is not that depending solely on the report of the Advocate Commissioner, the Courts below have arrived at their conclusion and in such a view of the matter, the contention of the counsel for the appellants that the Advocate Commissioner ought not to have been appointed for the purpose of ascertaining as to who was in possession, has to be naturally brushed aside.

17. As regards the suit first item, though the plaintiff claims title to it by virtue of Ex.A.1, while coming to the matter of possession and enjoyment of the same by the plaintiff, as already stated, it has been found by the Advocate Commissioner that the plaintiff is in possession of only 33 ft. in the southern boundary as against 45 ft. as stated in the plaint. From this, it is evident that the plaintiff was not in possession of the entire first item of the suit property and that he was in possession of only a certain portion of the suit first item. Added to this, the key to the locked thatched shed in the suit first item was given to the Advocate Commissioner only by the defendant. Except the vague contention of the plaintiff that it is he who had put up the thatched shed and has been in its occupation, there is no iota of evidence let in by him. Even if it be true that he was in possession and enjoyment of the thatched shed in the suit first item, there is no clue as to why the key was in the custody of the defendant rather than being with the plaintiff. Further, it is relevant to point out in this context that Exs.B.3 to B.5, proceedings issued by the Tahsildar, Kulathur relating to handing over of house plots to the defendant, amply prove that the defendant was in possession of the suit first item. In addition to this, it can be seen from Exs.B.7 to B.9 that the defendant has paid the property tax for the shed in the suit first item. Though it is contended by the counsel for the appellants that those exhibits are subsequent to the filing of the suit, the plaintiff could have filed the tax receipts had he really been in possession and paid property tax which is not the case here. On the contrary, the plaintiff has not let in any evidence, either oral or documentary, to prove his possession. In view of these cogent and convincing reasons which are based on the report of the Advocate Commissioner and the other documents marked, the Trial Court has taken a categorical stand that it is only the defendant who had put up the shed and has been in possession and enjoyment of the same.

18. Thus, (i) considering the facts and circumstances of the case and the evidence on record, (ii) the undisputed fact that the plaintiff had not amply proved his title and possession to the satisfaction of the Courts below, (iii) the settled principle that the plaintiff can succeed only on the strength of his case and not on the weakness of the defendant laid down in the judgment of the Supreme Court reported in (2004) 7 SCC 708 and (iv) also in view of the settled proposition of law that High Court cannot interfere with the concurrent findings of the Courts below in matters relating to questions of fact, unless and otherwise extremely warranted, I am of the considered view that the well- considered findings of the Courts below that the plaintiff is not entitled to the relief prayed for, need not be interfered with and the substantial questions of law formulated in this appeal are answered accordingly. In fine, the judgment and decree of the Courts below are upheld and the appeal which is devoid of any merit, stands dismissed without any order as to costs. __.__.2007

cad

To

1. The District Court, Pudukkottai

2. The District Munsif Court, Pudukkottai




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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