Madras High Court
K.Kasi vs Bommi Ammal on 30 March, 2022
S.A.No.181 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.181 of 2012
K.Kasi .. Appellants/Appellant/Defendant
-Vs-
Bommi Ammal ..Respondent/Respondent/Plaintiff
PRAYER : Second Appeal filed under Section 100 of C.P.C., against the
Decree and Judgment dated 28.10.2011 in AS.No.2 of 2011 on the file of
Principal Sub Court, Thiruvannamalai, confirming the Decree and Judgment
dt.02.11.2010 in OS.No.395 of 2006 on the file of Principal District Munsif,
Thiruvannamalai.
For Appellant : Mr.R.Rajarajan
For Respondent : Mr.K.V.Sajeev Kumar
Ms.Reshmi Christy
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JUDGMENT
The defendant is the appellant in this second appeal.
2.The case of the plaintiff is that the suit property along with larger
extent of property measuring 3 ares was originally owned by one Kanna
Udaiyar. On his demise, the property was inherited by his wife and children.
They executed a registered sale deed dated 12.05.1985, marked as Ex.A-1 in
favour of the father of the plaintiff and the possession and enjoyment of the
property was also handed over to the father of the plaintiff. The further case
of the plaintiff is that her father died intestate on 21.05.1997 leaving behind
the plaintiff alone as his legal heir. According to the plaintiff, she was in
possession and enjoyment of the entire property left behind by her father.
3.The grievance of the petitioner is that the defendant attempted to
trespass into the suit property and a legal notice was also issued on
07.03.2006, marked as Ex.A-3, to the defendant. On receipt of the same, the
defendant issued a reply notice dated 10.04.2006, marked as Ex.A-4
containing false claims. Left with no other alternative, the suit was filed
seeking for the relief of declaration of title and for delivery of possession.
4.The case of the defendant is that the disputed property totally
measuring 7½ cents belonged to three brothers viz., Appadurai Udaiyar,
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Angappa Udaiyar and Iyyakannu Udaiyar. They partitioned among themselves
and Appadurai Udaiyar was allotted the western portion of 2 ½ cents and the
remaining 5 cents was allotted in favour of the other two brothers. The said
Appadurai Udaiyar died and the property allotted to him was inherited by his
son Kasi Udaiyar. The said Kasi Udaiyar sold the property in favour of the
defendant and his brother under a registered sale deed dated 20.08.1982
which was marked as Ex.B-2. The further case of the defendant is that he
also purchased his brother's share under a registered sale deed dated
11.04.1983, marked as Ex.B-3. Thus, the defendant claims to be the absolute
owner of the property and he has taken a specific plea that he is in
possession and enjoyment of the same.
5.According to the defendant, Angappa Udaiyar was entitled for
only 2½ cents and it is this extent of property that was inherited by his legal
heirs. Therefore, according to the defendant, the legal heirs could not have
alienated 8 cents of land as claimed under Ex.A-1 and therefore, the very
entitlement of the plaintiff in the suit property beyond 2½ cents was
questioned by the defendant. Accordingly, the defendant sought for the
dismissal of the suit.
6.Both the Courts below on considering the facts and circumstances of
the case and on appreciation of the oral and documentary evidence,
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concurrently held and decreed the suit in favour of the plaintiff. Aggrieved
by the same, the defendant has filed the second appeal before this Court.
7.When the Second Appeal was admitted, the following substantial
questions of law were framed:
1. Whether the first appellate Court is correct in law by
decreeing the suit when the plaintiff fails to prove that the
disputed portion of the property falls within the suit property?
2. Is not the first appellate Court wrong in law, by not
considering the failure of the plaintiff to trace the title which is
fatal in the facts and circumstances of the case?
3. Is not the appellate Court wrong in law by directing
the suit without framing the issue whether the boundary recitals
in Ex.A.1 is correct or incorrect and which goes to the root of
the case?
4. Whether the appellate Court is correct in law by
dismissing the appeal without considering the objection against
the commissioner report and without any finding thereon?
8.Heard Mr.R.Rajarajan, learned counsel for the appellant and
Mr.K.V.Sajeev Kumar, learned counsel for the respondent. This Court carefully
perused the materials available on record and the findings of both the Courts
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below.
9.A careful look at the description of the property in the plaint shows
that the boundaries to the suit property has not been stated and the property
has been described by showing the total extent as 1637.6 sq.ft (roughly 3.756
cents).
10.The dispute in the present case confines itself to the alleged
encroached portion which according to the plaintiff is in possession and
enjoyment of the defendant. In order to determine as to whether the
defendant has encroached upon the portion of the property belonging to the
plaintiff, it becomes necessary to first ascertain the total extent of property to
which the plaintiff was entitled.
11.The trial Court while dealing with this issue has taken into
consideration, the document marked as Ex.A-1 wherein, the total extent of
the property is mentioned as 8 cents. The trial Court also took into
consideration Exhibits A-5 and A-6 which was issued by the Revenue
Department. While analysing the same, the trial Court found that there was
no evidence to show that there was a partition between three brothers and
pursuant to the same, each became entitled to 2 ½ cents. The trial Court
also took into consideration the rectification deed which was marked as
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Ex.B-4 and gave a finding to the effect that such rectification had taken place
after nearly 21 years and hence, the same cannot be taken into consideration
to substantiate the claim made by the defendant. The trial Court mainly
focussed on the documents that were produced on the side of the defendant
and came to a conclusion that the defence taken by the defendant has not
been established. The trial Court also placed reliance upon the evidence of
DW-1 and DW-2 and rendered a finding that the plaintiff had proved her case
and accordingly found that she is entitled for the relief of declaration of title
and consequently, directed the defendant to hand over the encroached
portion of the property to the plaintiff.
12.The Appellate Court on re-appreciation of evidence and after
considering the findings of the trial Court found that there are no grounds to
interfere with the findings of the trial Court and while rendering such a
finding, the Appellate Court also took into consideration, the report of the
learned Advocate Commissioner. The Appellate Court granted three months
time to the defendant to hand over possession of the encroached portion of
the plaintiff.
13.The learned counsel for the appellant placed reliance upon the
report filed by the learned Advocate Commissioner which was heavily relied
upon by both the Courts below and submitted that the entire report is
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unsustainable since the survey was not conducted by the learned Advocate
Commissioner based on the title documents to the property. The learned
counsel submitted that the survey was conducted only based on the revenue
documents and such a survey cannot establish the actual extent of the
property in possession of the respective parties.
14.The learned counsel for the appellant also questioned the very basis
on which both the Courts below traced the title since the defendant took a
very specific stand that the plaintiff cannot claim for title over an extent of
8 cents since it belonged to three brothers and admittedly, the sale deed was
executed in favour of the plaintiff by the branch falling under one of the
brother viz., Angappa Udaiyar. The learned counsel further submitted that
both the Courts below were trying to pick holes on the case of the defendant
without really focussing on the plaintiff, who was supposed to prove her right
and title over the property. The learned counsel also submitted that the suit
was filed even without mentioning boundaries in the suit schedule and there
was no proper description of the immovable property as required under Order
VII Rule 3 of CPC.
15.The learned counsel for the respondent submitted that both the
Courts below have assigned proper reasons based on the oral and
documentary evidence and the same does not warrant the interference of this
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Court in the second appeal.
16.In the considered view of this Court, both the Courts below had
attempted to pick holes in the case of the defendant without focussing on the
plaintiff, who is supposed to discharge the burden in proving the right and
title over the property. The defendant had taken a very specific stand to the
effect that the plaintiff could not have purchased an extent of 8 cents under
Ex.A-1 since she was tracing the title from Angappa Udaiyar, who himself was
entitled for only 2½ cents. The boundary recitals of the document that was
relied upon by the plaintiff had shown the eastern boundaries as Shekar's
land instead of the road that was acquired from the original owners
measuring an extent of ½ cent. The defendant had made a very specific
pleading in this regard in the written statement. Therefore, the burden of
proof was heavily on the plaintiff to have properly traced her title to the
property and established that she was entitled for 8 cents of land. For this
purpose, the evidence on the side of the defendant can only be taken for
corroboration and the plaintiff should have primarily proved that she is
entitled for 8 cents of land. This burden of proof on the part of the plaintiff
has not been discharged. If this burden has not been discharged, it will
become very difficult to come to a conclusion as to how much of the property
belonging to the plaintiff has been encroached by the defendant. The burden
of proof is heavy on the plaintiff to establish title over 8 cents of land since
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the defendant and his brother had purchased an extent of 450 sq.ft., from the
son of Appadurai Udaiyar through registered sale deed dated 20.08.1982,
marked as Ex.B-2. Nobody had disputed this sale deed. If this sale deed is
taken into consideration, obviously the plaintiff could not have traced title for
8 cents of land from the Angappa Udaiyar's branch. In view of the same, this
Court holds that the plaintiff has failed to trace her title and establish that she
was entitled for 8 cents of land and that the disputed portion of the property
fell within the suit property. The first and second substantial questions of law
are accordingly answered in favour of the appellant.
17.There is yet another issue which was not taken note of by the
Courts below. The Commissioner's report was filed without any reference to
the title deeds. The same is evident on reading the learned Advocate
Commissioner's report. It is also evident from the report of the learned
Advocate Commissioner that while describing the boundaries, the eastern
boundary has been shown as the road which is quite contrary to the
boundary that was shown in Ex.A-1 sale deed relied upon by the plaintiff. In
any event, the report of the learned Advocate Commissioner becomes
irrelevant since the plaintiff failed to establish her title over an extent of
8 cents of land.
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18.In the considered view of this Court, the findings of both the Courts
below suffers from perversity and the same warrants the interference of this
Court in the present second appeal. The third and fourth substantial questions
of law are answered accordingly.
19.The above discussion leads to the conclusion that the judgment and
decree of both the Courts below deserves the interference of the Court. This
is a classical case where both the Courts below lost sight of the fundamental
law that the plaintiff has to prove his case and the plaintiff cannot be
permitted to discharge the burden by picking holes in the case of the
defendant. Both the Courts below were swayed by the case put forth by the
defendant, even without seeing if the plaintiff had proved her title over 8
cents of land in which she had alleged that the defendant had encroached
upon. Accordingly, all the substantial questions of law are answered in favour
of the appellant and the Judgement and Decree passed by both the Courts
below are set aside.
20.In the result, this Second Appeal is allowed. Considering the facts
and circumstances of the case, there shall be no order as to cost.
30.03.2022
Index :Yes/No
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Internet :Yes/No
KP
To
1.Principal Sub Judge, Thiruvannamalai.
2.Principal District Munsif, Thiruvannamalai.
3.The Section Officer
V.R.Section, High Court, Madras.
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N. ANAND VENKATESH, J.
KP
Judgment in
S.A.No.181 of 2012
30.03.2022
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