Madras High Court
Seethapathy vs Arumugam on 28 September, 2021
SA NO.368 OF 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.09.2021
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.368 OF 2016
AND
CMP NO.6593 OF 2016
1.Seethapathy
2.Elanceziyan
3.Dhananjayan ... Appellants
VS.
Arumugam ... Respondent
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgment and decree in A.S.No.15 of 2014 on the
file of I Additional District Judge, Tindivanam dated 17.03.2016 in
reversing the well considered judgment and decree in O.S.No.42 of 2007
on the file of District Munsif cum Judicial Magistrate Court, Vanur,
dated 07.01.2013.
For Appellants : Mr.V.Raghavachari
For Respondent : Mr.J.Prithvi
for M/s.S.Kaithamalaikumaran
1/10
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SA NO.368 OF 2016
JUDGMENT
The defendants are the appellants. The respondent is the
plaintiff. The plaintiff filed a Suit for declaration and injunction in
respect of his property in S.No.18/5, new S.No.189/3 measuring an
extent of 0.43 Cents.
2.The defendants denied the claim holding that they were
enjoying the properties according to their convenience and they were
paying kist to the Suit schedule properties and pursuant to their long
possession and enjoyment, patta and adangal stands in their name.
3.Originally, the properties belonged to one Ramanuja
Gounder. Ramanuja Gounder had two sons, namely, Loganatha Gounder
and Kannan. The said Ramanuja Gounder partitioned the properties
along with his sons on 01.07.1968. Thereafter, the property, which came
to the share of Loganatha Gounder was partitioned among the three sons
namely the plaintiff, the first defendant and one Manavalan on
16.04.1980. The said partition deed was registered as Document
No.704/1980. As per Ex.A2, the partition deed dated 16.04.1980, the Suit
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SA NO.368 OF 2016
property was allotted to the share of the plaintiff and the parties were
enjoying their respective shares independently. The plaintiff mortgaged
the Suit property on 20.08.1981 to which the first defendant and another
brother were the attesting witnesses. Separate patta was issued in favour
of the plaintiff. While so, on 16.03.2007, the defendants have attempted
to interfere with the property and to sell the same. The second and third
defendants, who are the sons of the first defendant, claimed that they are
the title holders by virtue of the Settlement Deed executed by their father
and on the basis of long possession. On the basis of the partition deed
dated 01.07.1968 and the partition deed dated 16.04.1980 and the attempt
to dispossess the possession of the defendants on 16.03.2007, the
plaintiff has filed the Suit for declaration and injunction.
4.As stated above, in the written statement, the defendants
have taken a stand that the partition deed dated 16.04.1980 was not acted
upon and the parties have enjoyed the properties according to their
convenience and accordingly, one of the brothers, namely, Manavalan
has sold the property, which was in his possession, contrary to the
partition deed. The property allotted to the plaintiff is not in possession
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SA NO.368 OF 2016
of the first defendant and the property allotted in favour of the first
defendant is in possession of the plaintiff. Therefore, the claim of the
plaintiff for declaration of title in respect of the property which was in his
possession, which was settled in favour of the second and third
defendants is not the property of the plaintiff and therefore, he cannot
claim declaration of title.
5.The Trial Court framed appropriate issues and held that by
virtue of the documentary evidence and continuous possession, the
plaintiff is not entitled to the relief sought for and dismissed the Suit. On
appeal, the First Appellate Court has found that the possession follows
title and that when a registered document vide Ex.A2 partition deed is
accepted by all the parties, they cannot go against the judgment and claim
contrary title. It relied on the evidence of D.W.2 - brother, who is not a
party to the Suit and held that the parties were enjoying the property as
per the partition deed and the first defendant has settled the property
which is derived under Ex.A2 partition deed in favour of second and
third defendants and therefore, the plaintiff is entitled to declaration of
title and possession.
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SA NO.368 OF 2016
6.This Second Appeal was admitted on 15.04.2016 on the
following substantial questions of law:-
"A. Whether the Lower Appellate Court is right in
applying the principles of "possession follows title" for a
cultivable land when it is established that defendants are
in possession of property and are tilling it?
B. Whether the Lower Appellate Court ought not
have seen that under Section 35 and 114 of the Indian
Evidence Act, the Court shall presume the existence of
the fact likely to have happened in the normal course of
events, namely, collection of kists and mutation of name
in the name of the defendants based on their possession?
C. Whether the Lower Appellate Court is right in
rejecting Exhibits B11 to B14 on the ground they are
subsequent to the filing of suit, when those documents
are relatable to Exhibits B4 to B10?
D. Whether the Lower Appellate Court is right in
reversing the Judgment of the Trial Court without even
considering the area of error committed by the Trial
Court?
E. Whether the Lower Appellate Court is right in
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SA NO.368 OF 2016
not framing the point for consideration that would
predicate a decision on the subject rather than framing
an issue that would not lead the Court to arrive at a
correct conclusion?
F. Whether the deed of partition could be a
document of title amongst the original co-owners and it
does not prove mere severance in status which could be
dislodged by evidence ?"
7.From the perusal of the evidence, it is noted that the entire
lot of the property partitioned amongst the brothers are not cultivable
lands. On them the Cashewnut trees were grown. Ex.A3 shows that the
plaintiff has mortgaged the property in the year 1981 itself and it was
witnessed by the first defendant and another brother. Ex.A4 proves that
separate patta was issued in favour of the plaintiff vide Patta Nos.20 and
22 and he paid Kists for the property allotted to his share. The very
crucial documents is Ex.B3. A reading of Ex.B3 clearly shows that the
first appellant/first defendant had settled the property in which he derived
title through the partition deed Document No.704/1980 dated
16.04.1980. A reference through the shares allotted to the first defendant
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SA NO.368 OF 2016
vide Ex.A2, it seems that in respect of the property in S.No.17/1, he was
allotted 0.93 Cents out of 1.42 Acres. The extent of property which was
settled in favour of the second and third defendants is also 0.93 Cents. In
the schedule of the settlement deed, it is mentioned that in old S.No.17/1,
out of 1.42 Acres, he has settled 0.57 1/2 Cents. In S.No.18/5, out of 0.43
Cents, he had settled 0.35 (1 1/2) Cents. But a conjoint reading of Exs.A2
and B3 would go to show that the first defendant was not allotted any
land in old S.No.18/5 measuring an extent of 0.43 Cents. On the
contrary, it was allotted in favour of the plaintiff. Therefore, the First
Appellate Court has rightly held that the first defendant is not entitled to
the property which was not allotted to his share by Ex.A2 which is an
admitted document. On the other hand, the appellants are entitled to 0.93
Cents in S.No.17/1. Therefore, the settlement in respect of the property in
S.No.18/5 is without title and hence not valid and the appellant/first
defendant is entitled to settle only the extent of 0.93 Cents of property in
S.No.17/1 only and not the property in S.No.18/5. The other brother
Manavalan who was examined on the side of the defendants as D.W.2
would categorically depose that the property was enjoyed by the
respective sharers and the partition deed dated 16.04.1980 was acted
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SA NO.368 OF 2016
upon. Therefore, from the evidence of D.W.2, the brother who is an
independent witness and from the evidence of D.W.1, it is clearly noted
that as per the partition, the brothers have derived title to the property
and in respect of the Suit property in S.No.18/5 measuring an extent of
0.43 Cents, the plaintiff is the title holder.
8.The appellants have pleaded continuous possession and
convenient enjoyment of the property and that will entitle them to have
the title. But the documents marked by them are post suit documents,
which came into existence after filing of the Suit. Mere entry into Village
accounts or transfer of name in patta will not confer any title and they are
not conclusive proof. As already premised that Cashew trees were
standing on the Suit property and there was no evidence from the side of
the defendants that the lands are cultivable and they were filling it. In
such circumstances, the findings of the First Appellate Court that
possession follows title is absolutely valid. Apart from that, one of the
brothers namely Manavalan sold his share of land allotted through
Partition Deed dated 16.04.1980. This factum is admitted by all parties.
Mortgage made by plaintiff is admitted and his separate possession of his
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SA NO.368 OF 2016
share are all admitted. But the defendants have not come out with the
circumstances in which the patta was transferred or the legal right to get
such transfer has not proved in evidence. In such circumstances, their
title can be traced only from the registered Partition Deed. Once the
registered document, namely, the partition deed marked as Ex.A2 is
admitted and there is evidence to show that the parties were in the
exclusive possession of the properties, the claim of the appellants is not
sustainable and the findings of the First Appellate Court is based on
sound reasons. The questions of law raised by the appellants are
answered against the appellants.
9.In the result, the Second Appeal stands dismissed. No
costs. Consequently, connected Civil Miscellaneous Petition is closed.
28.09.2021
Index : Yes/No
Internet : Yes/No
TK
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SA NO.368 OF 2016
M.GOVINDARAJ, J.
TK
To
1.The I Additional District Judge
I Additional District Court
Tindivanam.
2.The District Munsif cum Judicial Magistrate
District Munsif cum Judicial Magistrate Court
Vanur.
SA NO.368 OF 2016
28.09.2021
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