Madras High Court
Mariappa Naicker (Died) vs Krishnammal on 5 January, 2023
S.A.No.1286 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.1286 of 2003
and
C.M.P(MD)No.2466 of 2006
1.Mariappa Naicker (Died)
2.Ramuthai (Died) ... Appellants/Appellants/
Defendants
3.Soundararaj
4.Sakunthala
5.Annalakshmi
6.Palpandiyammal
7.Indhirani
8.Jeyapandi ... Appellants 3 to 8
(Appellants 3 to 8 are brought on record as LRs of deceased 1st &
2nd appellants vide order dated 20.02.2012 made in M.P(MD)Nos.
2,3,5 and 6 of 2011 in S.A.(MD)No.1286 of 2003 by RKJ)
-Vs-
Krishnammal ... Respondent/Respondent/
Plaintiff
1/14
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S.A.No.1286 of 2003
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree of the Subordinate Judge,
Virudhunagar in A.S.No.23 of 2002 dated 08.04.2005 confirming the judgment
and decree in O.S.No.250 of 2000 on the file of the District Munsiff Court,
Virudhunagar, dated 12.04.2002.
For Appellants : Mrs.Lakshmi Gopinathan
for M/s.R.K.Associates
For Respondent : Mrs.G.Jessi Jeeva Priya
JUDGMENT
The defendants are appellants 1 and 2. The respondent herein filed a
suit for declaration of title and for injunction in respect of the suit item No.1 and
for mandatory injunction directing the appellants 1 and 2/defendants to remove
the construction put up by them in the second item of the suit property, which is
part of the first item. The suit was decreed by the trial Court and the findings of
the trial Court were confirmed by the first Appellate Court. Aggrieved by the
concurrent findings, appellants 1 and 2/defendants are before this Court. Pending
second appeal, both the appellants have died and their legal representatives were
brought on record as appellants 3 to 8.
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S.A.No.1286 of 2003
2.According to the respondent/plaintiff, the first item of the suit
property which is a vacant site with an extent of 25 square meters belonged to her.
In support of her title, the respondent relied on the patta issued by the Tahsildar
on 10.07.1986 in her favour in respect of the first item of the suit property. It
was also stated that the respondent had constructed a terrace house on the
property on eastern side of suit first item. It was further averred that the
respondent had been in possession and enjoyment of the suit vacant site by
parking vehicles. It was also submitted that appellants 1 and 2/defendants,
without having any manner of right, tried to disturb the possession of the
respondent over the suit item No.1 and in fact, in the portion of the suit item
No.1, appellants 1 and 2 had put up a superstructure horizontally and the said
portion is shown as item No.2 of the suit property. On these averments, the
plaintiff filed a suit for declaration of title and for injunction.
3.The suit was resisted by appellants 1 and 2/defendants by denying the
title and possession of the respondent. According to the appellants, the suit
property originally belonged to one Gopal Naickar, S/o. Sangava Naickar. One
Chellamal purchased the suit property from Gopal Naickar on 21.11.1952 and
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S.A.No.1286 of 2003
subsequently sold the same to the second appellant on 23.07.1966. It was
asserted by appellants 1 and 2 that from the date of purchase in the year 1966,
they had been in possession and enjoyment of the suit property. It was further
submitted that the patta for the suit property originally stood in the name of
second appellant and the respondent by influencing Revenue Authorities got the
patta in her name in the year 1997. After acquiring knowledge about the issuance
of patta in the name of respondent, the second appellant filed an appeal before the
Revenue Divisional Officer, Aruppukottai, for cancellation of the patta and when
the said appeal was pending, the present suit was filed by the respondent. In view
of the pendency of the suit before the civil Court, the appeal filed by the second
appellant was dismissed by the Revenue Divisional Officer.
4. Before the trial Court, the husband of the respondent/plaintiff was
examined as PW1 and yet another witness was examined as PW2. Eight
documents were marked on the side of the respondent as Ex.A1 to Ex.A8. On
behalf of appellants 1 and 2, the second appellant was examined as DW1 and four
documents were marked as Ex.B1 to Ex.B4.
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S.A.No.1286 of 2003
5. Based on the evidence available on record, the trial Court came to the
conclusion that appellants 1 and 2 failed to prove the prior possession and by
recognizing the possession of the respondent, patta was given in favour of the
respondent and consequently, granted a decree for declaration and also mandatory
injunction. Aggrieved by the same, appellants 1 and 2 filed a first appeal and the
first appellate Court also concurred with the findings and dismissed the appeal.
Hence, appellants 1 and 2 are before this Court. As mentioned earlier, appellants
1 and 2 died pending second appeal and appellants 3 to 8 were brought on record
as their legal representatives.
6. At the time of admission of the second appeal, the following
substantial question of law was framed:
“Whether the decree of mandatory injunction for demolition
of building could be granted solely on the basis of a patta?''
7.The learned counsel for appellants 3 to 8 submitted that the
respondent cannot prove her title by relying on Ex.A1-Patta. The learned counsel
submitted that patta is not a document of title and hence, the suit for declaration
filed based on the patta, is not sustainable. The learned counsel, by taking this
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S.A.No.1286 of 2003
Court to the proceedings of the Tahsildar, dated 09.04.1997 annexed with Ex.A1,
submitted that originally patta for the suit property stood in the name of the
second appellant Ramuthai and subsequently, by virtue of the order dated
09.04.1997 patta for the suit property was transferred in the name of respondent
without any basis, that too, without putting the second appellant on notice.
Therefore, the learned counsel submitted that Ex.A1 – Patta is not at all binding
on the appellants. The learned counsel further submitted that the suit property
was purchased by the second appellant under Ex.B3 from one Chellammal, who
in turn, purchased the same from Gopal Naickar under Ex.B1 and Ex.B2.
Therefore, the learned counsel for appellants 3 to 8 submitted that the findings
rendered by the Court below, as if the respondent proved her title and possession
over the suit property, are liable to be set aside.
8. The learned counsel for the respondent submitted that Gopal Naickar
is none other than the paternal uncle of the respondent and the second appellant
purchased the property on the southern side of the suit property under Ex.B3 and
hence based on Ex.B3, appellants 1 and 2 cannot claim title over the suit property.
The learned counsel also had taken this Court to the boundary description found
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S.A.No.1286 of 2003
in Ex.B1 to Ex.B3, wherein Gopal Naickar's property was shown as northern
boundary of the property covered under those documents. The learned counsel
further submitted that the second appellant as DW1 admitted that Ex.A1-Patta
was issued to the respondent after due enquiry by the revenue officials and hence,
it is not open to appellants 1 and 2 to say that Ex.A1 was issued without hearing
the case of appellants 1 and 2. The learned counsel relied on the decision of the
Hon'ble Apex Court in the case of Arumugham (Dead) By LRs and Others Vs.
Sundarambal and another reported in (1999) 4 SCC 350, for the preposition that
when both the parties adduce evidence, question of burden of proof loses its
significance.
9. Heard the arguments of the learned counsel for appellants 3 to 8 and
the learned counsel for the respondent and perused the typed set of papers and
other records.
10. In the plaint averments, the respondent/plaintiff claimed title to the
suit property only based on Ex.A1 - Patta. A perusal of Ex.A1 and the Tahsildar's
proceedings annexed with Ex.A1 would make it clear that before issuance of patta
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S.A.No.1286 of 2003
in the name of respondent, the patta for the suit property stood in the name of
second appellant Ramuthai. There is no reference in the proceedings of Tahsildar
annexed with Ex.A1 that the patta transferred in favour of respondent was
effected after putting the second appellant on notice.
11. The learned counsel by relying on the evidence of DW1 submitted
that Ex.A1 - Patta was issued after due enquiry by the Revenue Officials. It is an
admitted case of the respondent that even as per the boundary description found
in the plaint, on the northern side of suit property, there is a land belonging to the
respondent/plaintiff and she had put up a house thereon. Therefore, the evidence
of DW1 to the effect that patta was given to the properties of appellants 1 and 2
and that of the respondent after due enquiry by the Revenue Officials cannot be
treated as an admission that Ex.A1 - patta was issued after putting the second
appellant on notice. It can only be a statement referring to issue of patta by
Revenue Officials in respect of respective properties of parties. In the
proceedings of Tahsildar, dated 09.04.1997 annexed with Ex.A1, there is no
reference about notice to the original pattadhar namely the second appellant.
Further, the copy of proceedings of Tahsildar, dated 09.04.1997 was not at all
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S.A.No.1286 of 2003
marked as despatched to the second appellant. Therefore, the contention made by
the learned counsel for the respondent/plaintiff that Ex.A1 – Patta was issued in
the name of respondent after hearing the objection of the second appellant, cannot
be accepted. Therefore, Ex.A1 – Patta will not advance the case of the
respondent to prove her title over the property.
12. Though at the time of arguments, an attempt was made to explain
that the suit property was the ancestral property of the respondent and in
recognition of long possession of the respondent's family, patta was given to her,
there is no plea to that effect in the case. Further, perusal of Ex.A1 – Patta would
make it clear that the original patta stood in the name of the second appellant.
Therefore, the respondent's own document Ex.A1 proves prior possession of the
second appellant and negatives the claim of respondent regarding her long
possession over the suit property.
13. The learned counsel for the respondent by referring the northern
boundary description found in Ex.B1 to Ex.B3 submitted that the second
appellant herein purchased the property on the south of Gopal Naickar's property
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S.A.No.1286 of 2003
and the respondent being the brother's daughter of Gopal Naickar, inherited the
property retained by Gopal Naickar. The said contention cannot be accepted.
14. In the light of the description of property found in the schedule to
the plaint while describing the suit property, it is mentioned that the northern
boundary of the suit property is property of the plaintiff. Therefore, if the
contention of the learned counsel for the respondent is accepted, Ex.B1 to Ex.B3
will confer title to the second appellant, as she purchased the property on the
south of the land retained by Gopal Naickar.
15. The learned counsel for the respondent relied on the decision of the
Hon'ble Apex Court in the case of Arumugham (Dead) By LRs and Others Vs.
Sundarambal and another reported in (1999) 4 SCC 350, for the preposition that
when both the parties adduce evidence, question of burden of proof loses its
significance.
16. In the case on hand, the respondent/plaintiff came to the Court with
a prayer for declaration of her title. Except patta, she had not produced any other
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S.A.No.1286 of 2003
evidence in support of her claim for title. Even the patta produced by the
respondent proved prior possession of the second appellant. In these
circumstances, the case law relied on by the counsel for the respondent will not
advance her case.
17. It is settled law “in a suit for declaration of title, the plaintiff has to
succeed on the basis of his own case and not on the weakness of the case of the
defendant's case”. In support of the said preposition, the learned counsel for
appellants 3 to 8 relied on the judgment of the Hon'ble Apex Court in the case of
Union of India & Others Vs. Vasavi Co-op. Housing Society ltd., & Others
reported in (2014) 2 SCC 269. The law laid down in the said judgment is taken
into consideration.
18.The respondent having failed to lead any evidence to prove her title
to suit property, cannot maintain a suit declaration of title and consequential
reliefs. Hence, the judgment and decree passed by Court below are liable to be
set aside.
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S.A.No.1286 of 2003
19. In view of the discussions made earlier that the respondent/plaintiff
failed to lead any evidence in support of her claim for title over the suit property,
the question of law framed at the time of admission is answered in favour of the
appellant.
20. In fine,
a) this Second Appeal is allowed by setting aside the judgment and
decree dated 08.04.2003 passed in A.S.No.23 of 2002, on the file of the Sub
Court, Virudhunagar;
b) in the facts and circumstances of the case, there would be no order as
to costs; and
c) consequently, connected Miscellaneous Petition is closed.
05.01.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
vsd
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S.A.No.1286 of 2003
To
1.The Subordinate Judge,
Virudhunagar.
2.The District Munsiff Court,
Virudhunagar.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.No.1286 of 2003
S.SOUNTHAR, J.
vsd
S.A.No.1286 of 2003
and
C.M.P(MD)No.2466 of 2006
05.01.2023
https://www.mhc.tn.gov.in/judis
