Madras High Court
Rose Peerez (Died) vs Persia Peerez on 23 September, 2021
S.A.No.113 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 21.01.2022
DELIVERED ON : 07.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.113 of 2001
and
M.P.No.1 of 2008
Rose Peerez (Died) ... Plaintiff/
Appellant/
Appellant
A2.Justa Fernando
A3.Tensilda Fernando ... Proposed Appellants
(Appellants 2 and 3 are brought on record as legal heirs of the
deceased sole appellant vide Court order, dated 23.09.2021 made
in C.M.P(MD)No.7859 of 2021 in S.A.No.113 of 2001)
Vs
1.Persia Peerez
2.Margu Peerez
3.Marytal Peerez
4.Justan Peerez
5.Geotta Peerez
6.Murphy
7.Meera
8.Theodar Peerez
9.Milatmir Peerez
10.Paltimor Peerez
11.Licy Peerez ... Defendants/
Respondents/
Respondents
1/15
https://www.mhc.tn.gov.in/judis
S.A.No.113 of 2001
(2 to 11 given up in the above second appeal)
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the decree and judgment, dated 07.07.2000 rendered in
A.S.No.17 of 2000 on the file of the Additional District Judge, Tuticorin,
confirming the decree and judgment, dated 25.06.1997 rendered in O.S.No.
487 of 1995 on the file of the District Munsif of Tiruchendur.
For Appellants : Mr.M.P.Senthil
For Respondents : Mr.S.Aravindan
for R1
R2 to R11 - Given up
JUDGMENT
The plaintiff is the appellant herein.
2. The plaintiff filed O.S.No.487 of 1995 before the District Munsif,
Tiruchendur for declaration that the suit schedule properties belonged to the
plaintiff and defendants 2 to 11 and for consequential permanent injunction.
The suit was dismissed by the trial Court. The plaintiffs filed A.S.No.17 of
2000 before the Additional District Court, Tuticorin. The learned District
Judge was pleased to dismiss the appeal. As against the concurrent findings,
the present Second Appeal has been filed by the plaintiffs.
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S.A.No.113 of 2001
3. The plaintiff has contended that the suit schedule properties
originally belonged to one Thomai Antony Peerez. He died intestate leaving
behind his son Soosai Siluvai Peerez and two daughters namely, Soosai
Savariyal Peerez and Maria Santhana Peerez. According to the plaintiff, the
daughters of Thomai Antony Peerez have executed a release deed in favour
of their brother Soosai Siluvai Peerez under Exhibits A1 and A2 on
18.05.1926 and 16.05.1926. Thus Soosai Siluvai Peerez became the
absolute owner of the suit schedule properties. He contended that Soosai
Siluvai Peerez had passed away leaving behind the plaintiff, second
defendant, Theemothi Peerez and Moses Peerez. The defendants 3 to 7 are
the legal heirs of the Theemothi Peerez. The defendants 8 to 11 are the legal
heirs of the Moses Peerez. Hence, according to the plaintiff himself and
defendants 2 to 11 are the joint owners of the suit schedule properties. The
plaintiff has further contended that the first defendant is a stranger to the
suit schedule properties and since there was disturbance from the first
defendant, the present suit for declaration of title and permanent injunction
has been filed.
4. The first defendant filed a written statement contending that the
plaintiff's family has nothing to do with the suit schedule properties. She
traced her title through a different line of succession. According to the first
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S.A.No.113 of 2001
defendant, the suit schedule properties originally belonged to one Soosai
Manuel Peerez. He had passed away in the year 1958, after bequeathing the
properties in favour of his three children under Exhibit B4 Will. After the
death of Soosai Manuel Peerez, the properties devolved upon his three sons
namely, Soosai Marcilan Peerez, Soosai Michael Henry Peerez and Soosai
Barnabas Peerez. The first defendant has further contended that the suit
schedule properties have been mortgaged during the lifetime of the original
owner on 07.01.1956 under Exhibit B2. The said mortgage was redeemed
by the legal heirs on 02.12.1968 under Exhibit B5. According to the
defendant, two sons namely Soosai Michael Henry Peerez and Soosai
Barnabas Peerez sold their undivided 2/3rd share in the suit schedule
properties in favour of the first defendant on 04.12.1968 under Exhibit B6.
Hence, according to the first defendant, she is entitled to 2/3rd share in the
suit schedule properties.
5. The first defendant had further contended that she is in possession
of the suit schedule properties right from the year 1968 and hence she has
acquired title by adverse possession. She further contended that the present
defendants 3 to 7, as plaintiff had filed a suit for partition in O.S.No.906 of
1986 on the file of the District Munsif Court, Srivaikundam as against the
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S.A.No.113 of 2001
first defendant. In the said suit, the defendants 3 to 7 herein have admitted
that the first defendant herein is entitled to 1/3rd share in the suit schedule
properties. However, after understanding that they do not have any right
over the suit schedule properties, they have chosen to withdraw the suit on
31.07.1982 with liberty to file a fresh suit. However, no fresh suit was filed
by the defendants 3 to 7 herein. Hence, when the share of the first defendant
is admitted by the defendants 3 to 7 in previous proceedings, the present suit
is for declaration of title is not maintainable.
6. The defendant further contended that Soosai Marcilan Peerez who
is having 1/3rd share in the suit schedule properties had passed away in the
year 1961 and his undivided share is in the enjoyment of his legal heirs. The
present suit without impleading the said sharers is bad for non joinder of
necessary parties.
7. The trial Court after considering the oral and documentary
evidence on either side arrived at a finding that Exhibits A1 and A2 release
deeds said to have been executed by Soosai Savariyal Peerez and Maria
Santhana Peerez in favour of the plaintiff's father Soosai Siluvai Peerez do
not trace the title. No document has been filed on the side of the plaintiff to
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S.A.No.113 of 2001
trace the title from Thomai Antony Peerez. The revenue records filed on the
side of the plaintiff namely, Exhibits A3 to A6 are of very recent origin and
hence, they are doubtful. The trial Court further found that the first
defendant has traced her title right from the year 1945 through a Will, dated
17.08.1945, marked as Exhibit B4. The first defendant has also produced
the registered mortgage deed under Exhibit B2 which was redeemed under
Exhibit B5 in the year 1968. The first defendant has also produced the patta
under Exhibit B7 and Exhibit B12. The trial Court also relied upon the tax
receipts from the year 1977 onwards standing in the name of the first
defendant and her vendors. Based upon the said documents, the trial Court
arrived at a finding that the plaintiff has not established his title. But on the
other hand, the first defendant has established her title over the suit schedule
properties and dismissed the suit.
8. Before the First Appellate Court, the plaintiff filed I.A.No.25 of
2000 to receive the additional evidence. The said application was resisted
by the defendants on the ground that the plaintiff has not entered into box
before the trial Court and only his agent was examined as P.W.1. The trial
Court after considering the said application on merits dismissed the
application.
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S.A.No.113 of 2001
9. The First Appellate Court re-appreciated the oral and documentary
evidence and arrived at a finding that the plaintiff has not established his
source of title and has not produced any revenue records to establish his
possession over the suit schedule properties and dismissed the appeal. As
against the concurrent findings, the present Second Appeal has been filed by
the plaintiff.
10. The above Second Appeal has been admitted on the following
substantial question of law:
"Is not a presumption to be drawn that a property, which
was dealt with by two brothers separately without disclosing
their ancestral title belonged to both the brothers?"
11. Pending Second Appeal, the appellants had filed M.P.No.1 of
2008 to receive nine documents as additional evidence under Order 41, Rule
27 of the Civil Procedure Code. In the affidavit filed in support of the said
application, the appellants have contended that they had produced two
documents before the First Appellate Court namely one sale deed, dated
26.11.1890 and a patta, dated 26.01.1996 which were erroneously rejected
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S.A.No.113 of 2001
by the First Appellate Court, on the ground that they are not related to the
suit property. The appellant/petitioner has further contended that they are
producing seven other documents in the Second Appeal since they could not
be produced at earlier point of time. The appellants have further contended
that they did not have a copy of the said document when the trial was
proceeding. The learned Counsel for the respondents objected to the
application, on the ground that the suit is of the year 1992 and the present
application has been filed in the Second Appeal stage in the year 2008 with
a huge delay. The learned Counsel for the respondents had further
contended that there are no pleadings in the plaint with regard to the said
documents and hence, the documents could not be accepted. The learned
Counsel for the respondents had further contended that the documents are
certified copies and no original has been produced. He further contended
that no proper or legally acceptable reason has been furnished by the
appellant for not filing these documents either before the trial Court or
before the First Appellate Court.
12. I have carefully considered the submissions made on either side
with regard to reception of additional documents. As rightly pointed out by
the learned Counsel for the respondents, there are no pleadings with regard
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S.A.No.113 of 2001
to the sale deed, dated 26.11.1890 or with regard to any other document that
is sought to be presented as additional evidence before this Court. That
apart, no explanation has been offered for presenting certified copies of the
documents instead of production of the original documents. The affidavit
filed in support of an additional evidence application does not disclose any
legally acceptable reason for not filing these documents before the trial
Court or the First Appellate Court. Hence, I find that M.P.No.1 of 2008 filed
by the appellant seeking permission of the Court to present additional
documents at the Second Appeal stage is not maintainable and the same is
liable to be dismissed. Let us consider the merits of the Second Appeal on
the basis of the existing oral and documentary evidence let in before the trial
Court.
13. The learned Counsel for the appellants had contended that the suit
schedule properties originally belonged to one Thomai Antony Peerez and it
later by way of succession, it devolved upon the plaintiff and defendants 2
to 11. According to the learned Counsel for the appellants, the first
defendant is a stranger to the suit schedule properties and due to some
disturbance from the first defendant, the present suit for declaration of title
and permanent injunction has been filed. According to the learned Counsel
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S.A.No.113 of 2001
for the appellants, the Courts below have not properly appreciated Exhibits
A1 and A2 release deeds in favour of the plaintiff's father. The documents
will clearly disclose that the plaintiff's grand-father Thomai Antony Peerez
was the original owner of the suit schedule properties and on his death it
devolved upon his three legal heirs. Hence, the plaintiff has established his
title over the suit schedule properties. He further contended that the
plaintiffs have produced Exhibits A3 to A6 to establish their possession over
the suit schedule properties. When the plaintiffs have established their title
and possession over the suit schedule properties, the Courts below ought to
have granted a decree as prayed for. Hence, he prayed for allowing the
Second Appeal.
14. Per contra, the learned Counsel for the respondents contended that
the defendants have traced their title through a different source. The
defendants have produced registered documents from the year 1945
onwards to establish their title over the suit schedule properties. The
defendants have also produced an Othi deed of the year 1956 marked as
Exhibit B2 which was redeemed under Exhibit B5 in the year 1968. The
defendants had purchased an undivided 2/3rd share in the suit schedule
properties under Exhibit B6 in the year 1968. The defendants have also
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S.A.No.113 of 2001
produced sequence of revenue records right from the year 1973 till the filing
of the suit. Hence, according to the learned Counsel for the respondents,
the defendants have established their title and possession over the suit
schedule properties.
15. The learned Counsel for the respondents further contended that
the defendants 3 to 7 in the present suit had filed O.S.No.906 of 1986 before
the District Musif Court, Srivaikundam for the relief of partition. In the said
suit, the present first defendant was one of the defendants. In the plaint, the
defendants 3 to 7 have categorically admitted that the present first defendant
is having 1/3rd share in the suit schedule properties. Now, the defendants 3
to 7 have set up the present plaintiff to file the suit for declaration of title
suppressing the filing of O.S.No.906 of 1986. The learned Counsel for the
respondents had further contended that without impleading the legal heirs of
the balance 1/3rd share holder, the present suit is bad for non-joinder of
necessary parties. He further contended that the trial Court as well as the
Appellate Court have properly appreciated the oral and documentary
evidence and have dismissed the suit. Hence, he prayed for dismissal of the
Second Appeal.
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S.A.No.113 of 2001
16. I have carefully considered the submissions made on either side.
17. It is the settled position of law that the entire burden is upon the
plaintiff to establish his title and possession over the suit schedule
properties. In the present case, Exhibits A1 and A2 are the release deeds in
favour of the plaintiff's father. Admittedly, these two release deeds do not
disclose the source of title or refer to any other parent document. In the
plaint also except the averment that the suit schedule properties belonged to
Thomai Antony Peerez, no document was produced. The sale deed that was
attempted to be produced as an additional evidence was not pleaded in the
plaint. The other additional documents which were projected to be marked
were also not pleaded in the plaint. Hence, except Exhibits A1 and A2, the
plaintiff has not produced any document to establish his title over the suit
schedule properties. The Courts below have rightly arrived at a finding that
the plaintiff has not established his title.
18. The defendants have produced a copy of the plaint in O.S.No.906
of 1986 as Exhibit B21. The defendants 3 to 7 have filed the said suit as
plaintiffs for the relief of partition and separate possession of the very same
suit schedule properties. Admittedly, the present first defendant is also one
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S.A.No.113 of 2001
of the defendants in the said suit. The plaintiffs of the said suit have
admitted that the present first defendant is entitled to 1/3rd share in the suit
schedule properties. However, for reasons best known, the plaintiffs therein
have withdrawn the said suit with liberty to file a fresh suit for partition.
Once, the defendants 3 to 7 herein have admitted the share of the first
defendant herein in the previous proceedings, the present suit for
declaration of title in favour of D.3 to D.7 also could not be maintainable.
The contention of the learned Counsel for the respondents that D.3 to D.7
(Plaintiffs in O.S.No.906 of 1986) have set up their aunt to file the suit for
declaration of title, cannot be brushed aside. In view of the above
averments, the plaint in O.S.No.906 of 1986, the plaintiff as well as the
defendants 2 to 11 are estopped from contending that the first defendant
does not have a share in the suit schedule properties.
19. If really, the plaintiff and the defendants 2 to 7 are the joint
owners of the property right from the year 1926 onwards, certainly they
could have produced revenue records to the said effect. However, Exhibits
A3 to A6 are of very recent origin just before filing of the present suit. On
the other hand, the first defendant has produced revenue records from the
year 1973 onwards including a patta marked as Exhibit B7 and UDR patta
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S.A.No.113 of 2001
marked as Exhibit A12.
20. Hence, viewed from any angle, the appellants/plaintiff have
neither established their title nor possession over the suit schedule
properties. The Courts below have rightly non suited the plaintiff. In view of
the above said discussion, the substantial question of law is answered as
against the appellants. The judgment and decree of the Courts below are
confirmed. The Second Appeal stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
07.06.2022
Index : Yes / No
Internet : Yes / No
btr
Note :
In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate / litigant
concerned.
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S.A.No.113 of 2001
R.VIJAYAKUMAR,J.
btr
To
1.The Additional District Judge,
Tuticorin.
2.The District Munsif,
Tiruchendur.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.No.113 of 2001
07.06.2022
https://www.mhc.tn.gov.in/judis
