Madras High Court
R.Suresh vs V.Irulappan (Died) on 20 July, 2021
SA (MD) NO.152 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20 / 07 / 2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
SA (MD) NO.152 OF 2010
R.Suresh ... Appellant
Vs.
1.V.Irulappan (Died)
2.The Tahsildar
Sivaganga Taluk, Sivaganga.
3.The State
Rep. by the District Collector
Sivaganga District, Sivaganga.
4.Valli
5.Kaveri
6.Senthilnathan
7.Karthigaiselvi
8.Shanthi
9.Sridevi
10.Valavanthan
11.Muniyandi
12.Kannan
13.Jeya
(RR4 to 13 brought on record as LRs' of
deceased 1st respondent vide order dated
18.04.2016 made in CMP (MD) No.3022/2016
in SA (MD) No.152 of 2010) ... Respondents
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
1/19
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SA (MD) NO.152 OF 2010
Code against the judgment and decree dated 14.09.2006 made in A.S.No.
147 of 2003 on the file of the District Court, Sivaganga, which confirmed
the judgment and decree dated 19.11.2001 in O.S.No.213 of 2000 on the
file of the Court of the Principal District Munsif, Sivaganga.
For Appellant : Mr.J.John
For Respondents 4 to 13 : Mr.S.Srinivasaraghavan
JUDGMENT
Unsuccessful first defendant has preferred the Second Appeal
against the concurrent findings of the Courts below in declaring title in
favour of the plaintiff.
2.The plaintiff filed a Suit for declaration of title and injunction
restraining the defendants from interfering with his peaceful possession.
According to the plaintiff, the suit property originally belonged to one
Vazhavanthal Ammal by virtue of registered sale deed dated 09.08.1939.
The vendor of Vazhavanthal Ammal, namely, Arumuga Udayar, purchased
the properly from the predecessors in title, namely, Kalaiperumal Naidu
and Lakshmi Ammal by way of a registered sale deed dated 27.11.1935.
The other part of the property on the southern side was purchased by
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SA (MD) NO.152 OF 2010
Vazhavanthal Ammal by way of a registered sale deed dated 30.03.1904.
Since both the properties are lying adjacent to each other, Vazhavanthal
Ammal enjoyed the same as one lot. During settlement period, a patta in
Patta No.251 was issued to her. After the death of her husband
Veeranakonar, Vazhavanthal Ammal bequeathed the property in favour of
her brother Kalimuthu's son, the plaintiff herein. After her demise, the
properties came into the possession on the basis of the WILL. Ever since
the properties are in exclusive possession and enjoyment of the plaintiff
till date. In the year 1974, Patta Passbook was issued in his favour under
Land Development Scheme. Patta No.128 was issued and he is paying
kist.
3.While the matter stood thus, the first defendant claimed title to
the property and filed a petition with the second defendant for transfer of
patta in his favour. Since the title of a property can be decided only by a
Civil Court, the petitioner filed the Suit for declaration and injunction. All
the documents with regard to the property is available with the plaintiff.
The defendant has not submitted any document to show his possession.
Taking cause of action on the basis of notice of enquiry dated 12.10.2006
for transfer of patta on the claim of patta by the defendant, plaintiff has
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SA (MD) NO.152 OF 2010
filed the Suit for the prayer of declaration and injunction.
4.The defendant filed an elaborate written statement denying the
plaint averments, wherein, he has stated that the plaintiff is not entitled to
declaration of title and possession of the Suit property vests with the
defendant. The Suit property originally belonged to Vazhavanthal Ammal
and she conveyed the same to one Muthusamy Servai in the year 1927.
The said Muthusamy, in turn sold the same to his grandfather Muniandi
Servai. The property thus belongs to the first respondent and his family
members. They are also in joint possession of the property. The Suit is
liable to be dismissed for non-joinder of necessary parties. The Suit is not
maintainable for non-compliance of Section 80(1) of Civil Procedure
Code as against defendants 2 and 3 and liable to be dismissed.
5.The defendant also denied the allegation that the Suit property
was not purchased by him. It is also not correct to state that Vazhavanthal
Ammal was enjoying the properties and sold it to some Kalimuthu Konar.
The plaintiff should strictly prove the devolution of title.
6.The defendant came to know that patta has been wrongly
given in favour of the plaintiff and he filed necessary petition before the
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SA (MD) NO.152 OF 2010
Revenue Divisional Officer for cancellation of patta. The plaintiff instead
of proving his right, has approached this Court on untenable grounds for
declaration as if he is the owner of the property. The plaintiff has no right,
title or interest in the suit property at all.
7.Patta which was recorded in the name of Vazhavanthal Ammal
has been wrongly mutated in the name of the plaintiff, which is sought to
be rectified. The defendant is entitled to approach the second and third
defendants for rectification. The plaintiff is not the owner of the Suit
property and not in possession of the same and is not entitled to the relief
sought for without any cause of action and payment of proper Court fee.
8.The Trial Court framed the following issues:-
(i) Whether the suit property belongs to the plaintiff?
(ii) Whether the suit property belongs to the first defendant?
(iii) Whether the plaintiff is in possession?
(iv) Whether the plaintiff is entitled to the relief as prayed for?
(v) To what relief, the plaintiff is entitled to?
9. The plaintiff examined himself as P.W.1 and the neighbouring
land owner as P.W.2 and marked 21 documents vide Exs.A1 to A21. The
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SA (MD) NO.152 OF 2010
first defendant examined himself as D.W.1 and examined his neighbour as
D.W.2 and Village Administrative Officer as D.W.3 and marked four
documents vide Exs.B1 to B4. After considering the oral and documentary
evidence, the Trial Court decreed the Suit in favour of the plaintiff.
10.On appeal, the First Appellate Court has taken the following
points for consideration:-
(i) Whether the respondent No.1/plaintiff has
title, possession and enjoyment over the suit property?
(ii) Whether the judgment and decree of the
Trial Court is erroneous and is liable to be set aside?
(iii) To what relief, the parties are entitled to?
11.During the pendency of appeal, the first defendant / appellant
filed a petition under Order 41 Rule 27 CPC to receive the following
documents as additional documents:-
(i)Death certificate of Vazhavanthal Ammal
(ii)FMB Sketch of Survey No.198
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SA (MD) NO.152 OF 2010
(iii)Patta copy for Survey Nos.198/4A, Patta No.1850
(iv)Patta copy for Patta No.287 for S.Nos.196/3, 198/6 & 198/9
(v)Patta copy of Patta No.2952 for Survey No.198/8A
12.The First Appellate Court rejected the petition as it does not
fall within the ambit of Order 41 Rule 27 CPC and not related to the suit
property. There is no appeal filed against the same before this Court.
13.The First Appellate Court after discussing all the points
raised, confirmed the decree and judgment of the Trial Court and
dismissed the appeal.
14.The First defendant aggrieved of the concurrent finding has
approached this Court with this Second Appeal. This Court had admitted
the Second Appeal on the following questions of law:-
(i)Whether the Courts below are right in holding
that the WILL dated 23.02.1958 – Ex.A4 has been
validly executed by the Testator?
(ii)Whether the Courts below are right in
holding that Ex.A4 – WILL is presumed to have been
executed validly by virtue of Section 90 of the Indian
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SA (MD) NO.152 OF 2010
Evidence Act?
Therefore, the question looms large before this Court is as to whether the
WILL has been validly executed or not?
15.Admittedly, before the Trial Court, no objection was raised as
to the validity of the WILL executed by Vazhavanthal Ammal, the Testator
and no iota of evidence was adduced objecting the validity of the WILL or
valid execution of the WILL, except for a suggestion at the fag end of the
cross examination of P.W.1 that the WILL is a fabricated document. In
fact, much focus was adverted to valid adoption in the cross examination,
but, without any objection in those aspects in the pleadings or oral and
documentary evidence of the defendants.
16.Can an issue which was not raised either in pleadings or
through oral and documentary evidence be raised at the appellate stage?
17.It is well settled principle of law that admitted facts need not
be proved. It can either be an express admission or implied admission. If
an express admission is made before the Court, the Court can pass
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SA (MD) NO.152 OF 2010
judgment on the admitted portion of the dispute. In respect of the conflict
arising out of material propositions shall form the subject of the issue
either an issue of fact or issue of law, parties shall adduce evidence in
support of or against their respective propositions. If a party is at variance
with the issues framed by the Court, shall bring it to the notice of the
Court or file an application. The Court under Rule 5 of Order XIV CPC
has power to amend, or frame additional issues and even to strike out the
issues which were wrongly framed.
18.In so far as this appeal is concerned, the validity of Ex.A4 -
WILL or valid execution of the same was not an issue at all. No iota of
evidence was let in in this direction. Having failed to raise an objection to
the WILL and its validity in the written statement and having failed to
adduce evidence on this aspect, the appellant/first defendant is not entitled
to approach this Court for deciding a non-issue.
19.Even assuming that it is a question of law, it shall be framed
from the material objections raised against the same and objection as to
the facts leading to the question of law. But the evidence of D.W.1, the
appellant herein in his chief examination reads as under:
t.rh.M.4 – capypy; jhthr; brhj;J fl;Lg;gltpy;iy.
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SA (MD) NO.152 OF 2010
Which means, the Suit schedule property is not included in the WILL or
the WILL does not bind the Suit schedule property.
20.The above evidence amounts to admission of execution of
WILL, in the absence of any oral evidence questioning the validity of the
WILL. The first defendant / appellant having admitted the existence of the
WILL, is not entitled to question the validity of its execution or it coming
into operation. Normally, the WILL comes into operation after the demise
of the Testator. It is well proved by the plaintiff through Exs.A3, A5, A7
and A8 to A19.
21.A Division Bench of this Court in THE COMMISSIONER,
HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, MADRAS
VS. V.KRISHNASWAMI AND ANOTHER [AIR 1975 MAD 167] has
observed as under:
“14............Having invited the Court to render
a decision on merits it will be most inequitable if the
party is allowed to fall back upon a technical plea and
oppose an action of the other party when such a plea was
wholly available to him even at the very inception of the
action and which plea he failed to put forward and
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SA (MD) NO.152 OF 2010
instead chose to hazard a decision of the case on
merits.......”
Having failed to raise any issue, which was very much available to the
defendant, he cannot now raise an issue anew at the Second Appeal stage.
22.Now that if the question of law is meant to question the
competency, right, title or interest of the Testator is concerned, the
documentary evidence play a vital role.
23.Let us assume, the import of the question of law is that the
Testator has no right to execute a WILL and bequeath the property in the
year 1958 after having conveyed the properties by way of sale deed dated
01.03.1927. Absolutely, the defendant has not raised this issue
expressively or adduced any evidence. For this purpose, we analyse the
documents marked before the Trial Court.
24.Ex.A1 is the registered sale deed dated 27.11.1935 executed
by one Kalaiperumal Naidu and Lakshmi Ammal in favour of one
Arumuga Udayar, the vendor of the Testator in respect of northern side
portion of the property measuring 1 ¼ kurukkam. Ex.A2 is the registered
sale deed dated 09.08.1939 executed in favour of Arumuga Udayar in
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SA (MD) NO.152 OF 2010
favour of the Testator Vazhavanthal Ammal. Ex.A20 is the sale deed dated
11.03.1904 executed by Kaliammal in favour of Vazhavanthal Ammal.
25.Thus, for there is no dispute, as Vazhavanthal Ammal is
accepted to be the common title holder for both the parties. The plaintiff
claims that both the properties were conveniently possessed and enjoyed
as one lot by Vazhavanthal Ammal during her lifetime and obtained rough
Patta No.251 vide Ex.A3 and bequeathed it in his favour in the year 1958
vide Ex.A4. But the defendant claims that Vazhavanthal Ammal purchased
the property from Kaliammal in the year 1920 and sold the same to
Muthusamy Servai in the year 1927. The sale deed dated 17.08.1920 –
Ex.A21 executed by Kaliammal in favour of Vazhavanthal Ammal
assumes importance. Likewise, the sale deed dated 01.03.1927 (Ex.B1)
executed by Vazhavanthal Ammal in favour of Muthusamy Servai is also
imperative.
26.A reading of the Schedule in Exs.A1 and A20 reveal that
property sold were situate in Mettupatti Village. Whereas, the schedule
found in Exs.A21 and Ex.B1 show that property sold were situate in
Kalaiyarkoil Village. Ex.B2, the sale deed executed by Muthusamy Servai
to the grandfather of first defendant also conveys the property in
Kalaiyarkoil Village. Therefore, the property mentioned in Exs.B1, B2 and
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SA (MD) NO.152 OF 2010
A21 are not connected with the Suit schedule property which situate in
Mettupatti Village.
27.Further, it is noted that Ex.A21 conveyed 3 items of
properties having different boundaries to Vazhavanthal Ammal. Out of
these 3 items, Vazhavanthal Ammal sold 2nd item of these 3 properties to
Muthusamy Servai vide Ex.B1. The extent of land sold through Ex.B1 is 2
Kurukkams which is equal to 112 cents. The boundaries found in Exs.A1
and A20 are different from Exs.B1, B2 and A21. In fact, lands sold by
virtue of Exs.A1 and A20 are two parcels comprising of two different
boundaries measuring 1 Acre 1 Cent. Therefore, it cannot be compared
with 112 cents in a single stretch by way of one sale document.
28.Therefore, it can be inferred that the property sold by virtue
of Ex.B1 is entirely different from the property bequeathed by virtue of
Ex.A4, property comprised in Ex.B1 situate in Kalaiyarkoil Village and
property comprised in Ex.A4 situate in Mettupatti Village. Vazhavanthal
Ammal has not bequeathed the property, which was sold to Muthusamy
Servai, without right, title or interest.
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SA (MD) NO.152 OF 2010
29.Apart from this, when a document, which is more than 80
years old produced by the plaintiff, who is the legatee of the WILL, as per
Section 90 of Indian Evidence Act, 1872, shall be presumed to be proper.
More particularly, when it was acted upon and not questioned by the
successors in interest. The patta granted in favour of Vazhavanthal Ammal,
has been transferred in favour of the plaintiff and an independent patta
under Land Development project was also issued in his favour in the year
1974. The evidence of D.W.3 – Village Administrative Office also prove
that assessment patta, rough patta, patta under Land Development Scheme
was issued in favour of Vazhavanthal Ammal has been transferred in
favour of the plaintiff and continuously entered in the revenue records. He
also deposed with respect to the Survey No.198/3 and its corresponding
paimash entry 198/7 from the revenue records. In that event, the document
produced from the rightful custody of the plaintiff cannot be agitated and
shall be presumed to be a valid document. The defendant, without raising
objections, issues, or adhering evidence cannot say that the WILL was not
proved as per Section 63 of the Succession Act and Section 68 of the
Evidence Act. Having admitted the existence of the WILL, it is not open to
challenge it.
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SA (MD) NO.152 OF 2010
30.The plaintiff has categorically proved his title by clinching
evidence. On the other hand, the first defendant, who claimed title through
independent sale transactions has failed to discharge the onus cast on him.
Hence, the following judgments relied on by him do not come to his aid:-
(i)Judgment of the Hon'ble Supreme Court
in BHARPUR SINGH AND OTHERS VS.
SHAMSHER SINGH [2009 (3) SCC 687]
(ii)Judgment of the Hon'ble Supreme Court
in KALYAN SINGH VS. SMT. CHHOTI AND
OTHERS [AIR 1990 SC 396]
(iii)Judgment of the Karnataka High Court
in KEMPAMMA VS. KALAMMA AND OTHERS
[AIR 1992 KARNATAKA 282]
(iv)Judgment of this Court in
MAHALINGAM VS. A.S.NARAYANASWAMY
IYER AND OTHERS [1996 (1) LW 443]
(v)Judgment of the Hon'ble Supreme Court
in JANKI NARAYAN BHOIR VS. NARAYAN
NAMDEO KADAM [2003 (2) SCC 91]
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SA (MD) NO.152 OF 2010
(vi)Judgment of this Court in
V.NARASIMMA NAIDU AND OTHERS VS.
THIRUMALAISAMY AND OTHERS [2013 (3) LW
854]
(vii)Judgment of this Court in
K.M.SUBRAMANIAM VS. PARVATHIAMMAL
(DIED) AND OTHERS [2017 (2) LW 97]
(viii)Judgment of this Court in KARUPPA
KONAR @ PORIKARAR KARUPPA KONAR
(DECEASED) AND OTHERS VS.
CHINNATHAYEE (DECEASED) AND OTHERS
[2016 (3) LW 550]
(ix)Judgment of this Court in MARA
NAICKER AND ANOTHER VS. NAGA NAICKER
[2019 (1) LW 696]
(x)Judgment of the Hon'ble Supreme Court
in UNION OF INDIA AND OTHERS VS. VASAVI
CO-OP. HOUSING SOCIETY LTD., AND OTHERS
[2014 (2) SCC 269]
31.In so far as, possession is concerned, the plaintiff has proved
the same by Ex.A8 to A19. On the other hand, it is admitted by the
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SA (MD) NO.152 OF 2010
defendants that no cultivation was done by them and no kist was paid by
them. Therefore, it is well proved that the possession and enjoyment vests
with the plaintiff for decades. Hence, his title and possession cannot be
interfered by the defendants.
32.From the foregoing discussions, it is inferred that the
defendant / appellant has not made out a case for the substantial questions
of law framed by this Court. Both the questions of law are answered
against the appellant.
33.Accordingly, the Second Appeal stands dismissed. No costs.
20 / 07 / 2021
Index : Yes/No
Internet : Yes/No
TK
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SA (MD) NO.152 OF 2010
To
1.The District Judge
District Court, Sivaganga.
2.The Principal District Munsif
Principal District Munsif Court
Sivaganga.
3.The Tahsildar
Sivaganga Taluk, Sivaganga.
4.The District Collector
Sivaganga District, Sivaganga.
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SA (MD) NO.152 OF 2010
M.GOVINDARAJ, J.
TK
SA (MD) NO.152 OF 2010
20 / 07 / 2021
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