Krishnasamy (Died) vs Dhanapal Pillai ...Plaintiff/ ...
2023 Latest Caselaw 2049 Mad

                                                                                      S.A.No.704 of 2006




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 08.03.2023

                                                         CORAM:

                         THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN

                                                     S.A.No.704 of 2006

                     1.Krishnasamy (Died)
                     2.Paramandam
                                                            ... Defendants/Respondents/Appellants
                         (2nd Appellant LR of the
                         deceased as per memo dated
                         20.07.2021 vide court order
                         dated 27.07.2021)

                                                            vs.

                     Dhanapal Pillai                        ...Plaintiff/ Appellant/Respondent

                     Prayer: Second Appeal filed under Section 100 of CPC against the
                     judgment and decree dated 12.12.2005 in A.S.No.38 of 2005 on the file of
                     the Sub Court, Panruti, reversing the Judgment and decree dated 27.07.2005
                     decreeing the suit in O.S.No.336 of 1997 on the file of the District Munsif
                     Court, Panruti.


                                    For Appellants           : Mr.R.Sunil Kumar

                                    For Respondent           : Mr.P.K.Harinath Babu



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                                                                                           S.A.No.704 of 2006


                                                           JUDGMENT

The defendants have filed this second appeal against the judgment

and decree dated 12.12.2005 passed in A.S.No.38 of 2005 by the learned

Subordinate Judge, Panruti reversing the judgment and decree of the learned

District Munsif, Panruti in O.S.No.336 of 1997 dated 27.07.2005.

2. The suit in O.S.No.336 of 1997 admittedly presented by the

respondent/plaintiff seeking for declaration of title and for recovery of

possession.

Bare facts necessary for the disposal of this appeal are as follows:

3. Dhanapal Pillai, the plaintiff claims to have purchased the property

from his maternal uncle, Palanisamy under Ex.A1 dated 11.04.1969. He

filed Ex.A3 to prove that his grandmother Sundrambal had purchased the

property from Sundaram Mudaliar in the year 1942. In order to prove that he

had enjoyed the property, he filed Ex.A2 dated 11.09.1970, the mortgage

deed entered into between the plaintiff and his mother Mangaiyarkarasi on

one hand and one Kasthuri Ammal on the other hand. He had sent a notice

https://www.mhc.tn.gov.in/judis S.A.No.704 of 2006

Ex.A4 stating that the defendants are in illegal occupation of the property

and called upon to hand over the possession of the same. The plaintiff had

pleaded that the defendants had vacated the property and had handed over

possession and had yet again trespassed into the property in the year 1997

and therefore, he presented the plaint on 26.08.1997 for the aforesaid relief.

The very case of the plaintiff is that from his grand mother Sundarambal, the

property came to Palanisamy who in turn sold the property to him. After the

death of Sundrambal, according to the plaintiff, there was a oral partition

whereby the property was allotted to the share of Palanisamy.

4. The case of the defendants is also more or less in the same line.

They admit the fact that Sundrambal is the owner of the property who was

the predecessor-in-title of the property. They claim that the property fell to

the share of Mangaiyarkarasi, the sister of Palanisamy and Manickam Pillai,

and the daughter of Sundrambal. She had alienated the property on

21.06.1983 for a valid consideration of Rs.2,000/- in favour of the second

defendant Paramandam, who was then a minor. Therefore, the document

executed in his favour and received by his father Krishnasmy, the first

defendant. In order to substantiate their title and possession, the defendants

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had filed Ex.B1 - the sale deed executed by Mangaiyarkarasi in favour of

the second defendant, Ex.B2 - the mutation of the revenue document, Ex.B4

and Ex.B5 - the kist and tax receipts.

5. The plaintiff examined himself as PW1 and examined the attestors

of the sale deed viz., Palani and Balakrishnan as PW2 and PW3. In order to

rebut the same, the first defendant, Krishnasamy examined himself as DW1

and had examined the father-in-law of the plaintiff viz., one Kathirvel Pillai

as DW2. He also examined one Vijayaraghava Reddiar as DW3 in order to

prove his possession and enjoyment over the property.

6. Learned Trial Judge framed the following issues:

(1) jhth brhj;J thjpf;F ghj;jpakhdjh>

(2) 2k; vjph;thjp bgahpy; cs;s fpuak; bry;yj;jf;fjh>

(3) thjpf;F tHf;Fiuapy; nfl;lgo gupfhuk; fpilf;ff; Toajh>

(4) thjpf;F fpilf;ff; Toa gupfhuk; vd;d>

7. Learned Trial Judge also framed the following additional issues:

https://www.mhc.tn.gov.in/judis S.A.No.704 of 2006

(1) thjpnah mtuJ Kd;fpuajhuu;fnsh tHf;Fr; brhj;jpy;

RthjPdj;jpYk; mDgtj;jpYk; ,Ue;jjpy;iy vd;W Twg;gLtJ cz;ikah>

(2) thjpf;F tpsk;gi [ f gupfhuk; fpilf;fj;jf;fjh>

(3) thjpf;F RthjPd gupfhuk; fpilf;fj;jf;fjh>

8. The findings of the Trial Court are as follows:

* The plaintiff had filed Ex.A2 in order to substantiate that he and his

mother had mortgaged the suit schedule property. The recitals of the

documents would go to show that as owners of the property, they had

mortgaged the same in favour of Kasthuriammal. The plaintiff had admitted

in his cross examination that apart from Ex.P1, he has no other document to

show that he has been in possession and enjoyment of the property.

* That PW2, the witness examined by the plaintiff had stated that

excepting for knowing that the house had been constructed in the suit

schedule property and had been given electricity connection and was in

occupation of two tenants, he was not aware of the partition between the

brothers and sister. He has also stated that the defendants were using the

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property by installing loom for the purpose of weaving for over twenty

years.

* That PW3, the witness examined by the plaintiff had stated that

apart from attesting the sale deed, he does not know anything about the sale

deed including the fact that whether the plaintiff or his mother was in

enjoyment and possession of the property.

* That DW2, Kathirvel Pillai had stated that in the oral partition

between the brothers Palanisamy and Manickam Pillai, no agricultural lands

were alloted to their sister Mangaiarkarasi. Instead, she was allotted the suit

schedule property.

9. After a careful perusal of the documents and evidence, the learned

Trial Judge dismissed the suit on the ground that the suit is barred by time as

well as on the ground that the plaintiff had failed to prove his title to the suit

property.

10. On appeal, the learned Subordinate Judge, Panruti reversed the

Judgment on the following grounds:

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* The thumb impression (fPuy;) of the mother of the plaintiff was not

found in every page;

* The defendants having purchased the property cannot claim a right

of adverse possession. Since PW2 and PW3 were aged 70 and 75

respectively, it proves that the plaintiff had purchased the suit property.

* Under Ex.A2, the mortgage deed, the mother of the plaintiff had

joined the plaintiff as a party in execution of the document which she would

not have done, if the plaintiff did not have any right over the property.

* If the sale deed had been in fact executed by Mangaiyarkarasi in

favour of the defendants, they would have examined Mangaiyarkarasi as a

witness on their side.

* Ex.P1 is the document of the year 1969 and predates the dispute

between the parties and therefore, it is true and genuine.

* The defendants having pleaded adverse possession, had not filed

any document to substantiate the same.

* Ex.P4 notice had been issued on 07.07.1983 against the purchase of

the property on 21.06.1983 from Mangaiyarkarasi by the Defendants.

* Finally that since Palanisamy had been allotted the property in the

partition, it is the plaintiff who is the owner of the property.

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11. Against this reversal findings, the defendants have filed the

present second appeal.

12. This Second Appeal was admitted on the following substantial

questions of law:

a. Whether the plaintiff was entitled to a decree for ejectment without

proof of fact that his vendor was entitled to convey the property under

Ex.A1?

b. Whether the plaintiff's mother was no the only Sreedhana heir to

her mother under the then law prevalent before 1956 and the sale by her in

favour of the defendant is perfectly valid?

c. Whether acknowledgement in a sale deed through a scribe who has

affixed the mark in each one of the pages is not sufficient to establish proper

execution of the sale deed?

d. Whether the defendant had not in any event prescribed title to the

property by adverse possession which is a plea available to the defendant in

the alternative?

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13. I heard this appeal on the above substantial questions of law:

14. Heard Mr.R.Sunil Kumar, learned counsel for the Appellants and

Mr.P.K.Harinath Babu, learned counsel for the respondent.

15. I am afraid that I am not able to sustain the Judgment and decree

of the lower appellate court as I find it to be perverse on several grounds.

* The Lower Appellate Court had found the sale deed does not carry

the thumb impression of the mother of the plaintiff in every page of the sale

deed and therefore, founded to be suspicious. This goes against the very

case of the plaintiff.

* Under Ex.A4, the plaintiff had accepted that his mother had

executed the sale deed in favour of the defendants. When the parties

themselves do not dispute the execution of the sale deed, it is perverse on

the part of the lower appellate court to comment that he suspects the sale

deed. The relevant portion of the notice Ex.A4 is extracted hereunder:

                                          "vd;       jhahUf;F        vGjg;gof;f       bjupahJ/
                                    ifbaGj;Jg;      nghlt[k;    bjupahJ/      vd;dplk;     ,e;j

kidapd; K:ykhf rz;ila[k; tPd; tk;gk[ ;. gz e?;lKk;

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Vw;gl ntz;Lk; vd;w bfl;l vd;dj;jpy; jh';fs; vd; jhaplk; kidia fpuak; th';fpapUg;gjhf mwpe;Js;nsd;/" This is a notice issued not through a lawyer, but had been issued by

the plaintiff to the defendants. Therefore, when a party himself admits to the

fact that the sale deed had been executed by his mother in favour of the

second defendant, through the first defendant as his guardian, the findings

of the lower appellate Court to the contra cannot be termed but perverse.

* In the mortgage deed Ex.A2, the suit property is listed as item No.1

of the mortgage and there are other properties which have been included in

the same. It would be clear from the evidence of PW1 and PW2 that since

other properties were included, Mangaiarkarasi and Dhanapal Pillai, the

plaintiff, had joined together and had executed the document. The document

was executed on 11.09.1970 and the alleged purchase made by the plaintiff

was on 11.04.1969. Had the plaintiff being the owner of the property on

11.09.1970, there is no necessity for the plaintiff to include his mother in the

same. I hold that the mother and son (Dhanapal Pillai) had jointly executed

the mortgage deed in favour of Kasthuriammal because the mother was the

owner of item No.1 and the plaintiff was the owner of the other items. It is

pertinent to point out that Ex.A2 and Ex.A4, the mortgage deed and the

https://www.mhc.tn.gov.in/judis S.A.No.704 of 2006

notice were not filed by the defendants but produced by the plaintiff.

Furthermore, the fact that the plaintiff was aware of the facts but kept quiet

right from 1983, till the date of presentation of the plaint has been admitted

by the plaintiff himself in the following terms:

" 1983Mk; Mz;oypUe;J 1997 Mk; Mz;L tiuapy; ehd; gpujpthupfs; ngupy; tHf;F brhj;jpypUe;J btspnaw;w ePjpkd;w eltof;if vJt[k; vLf;ftpy;iy/ Mdhy; fhty; epiya g[fhu; bfhLj;njd;/ "

* Apart from patta and kist receipt filed by the defendants, the

plaintiff himself agrees that from 1983 to 1997, the defendants have been in

possession and in their own right. The plaintiff has not let in any evidence in

order to substantiate that the property fell to the share of Palanisamy at the

time of partition.

16. Mr.P.K.Harinath Babu would vehemently argue that the

defendants have not let in any evidence to substantiate that the property fall

to the share of Mangaiarkarasi. However, I am unable to accept this

contention on two grounds namely:

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* The first ground is Ex.A2 under which Mangaiarkarasi had

executed the document along with the plaintiff (Dhanabal Pillai) in favour

of Kasthuriammal implying that she is the owner of the property and was

exercising her right as an owner to mortgage the property.

* It is not for the defendants to disprove the case of the plaintiff. But

the plaintiff would have let in positive evidence that the partition in the

family of Sundaramal had taken place and the suit schedule property fell to

the share of Palanisamy. There is some evidence in the form of DW2 that

the property was partitioned and the daughter was not given any share

excepting the suit schedule property.

17. The burden of proof in the suit for declaration of title and for

recovery of possession is on the plaintiff and it is not for the defendants to

disprove the same. Though the plaintiff had pleaded that Panchayat had

taken place some time in the year 1995, no one was examined in order to

prove the same. The plaintiff had miserably failed to plead and prove his

case and he cannot pick holes in the case of the defendants in order to get

the suit decreed.

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18. The fact that the witnesses were old and therefore, it can be

presumed that the documents executed in the year 1969 conveyed title is to

be too much on the basis of ocular evidence. PW2 and PW3 could have

been relied upon the plea in the suit, had they spoken about the partition.

Both of them have not spoken about it and merely because they are senior

citizens, the suit cannot be decreed on the basis of their evidence.

19. The other crucial fact which goes against the plaintiff is that the

notice was issued by him on 07.07.1983 conceding the possession of the

defendants and the plaint was presented on 26.08.1997. The period of more

than 14 years and one month had lapsed. If the time is to be taken from the

date of execution of the sale deed by his mother in favour of the defendants,

the period is about 14 years and two months. The period of limitation for

presentation of the suit for recovery of possession is 12 years from the date

of dispossession. If the date of sale deed is taken as date of dispossession,

the plaintiff's suit is hopelessly barred by limitation.

20. In fine, I accept the appeal and the same is allowed. The judgment

and decree passed in A.S.No.38 of 2005 on the file of the Subordinate

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Court, Panruti dated 12.12.2005 is set aside and that of the trial court in

O.S.No.336 of 1997 dated 27.07.2005 on the file of the learned District

Munsif is restored and the suit filed by the respondent/plaintiff shall stand

dismissed. The parties having litigated for more than 26 years, I am not

inclined to impose any costs as they had already suffered enough in court

and hence, no costs.

08.03.2023 nl

Index: Yes/No Speaking order/Non-Speaking Order Neutral Citation : Yes/No

https://www.mhc.tn.gov.in/judis S.A.No.704 of 2006

To

1.The Sub Court, Panruti.

2.The District Munsif Court, Panruti.

https://www.mhc.tn.gov.in/judis S.A.No.704 of 2006

V.LAKSHMINARAYANAN, J.

nl

S.A.No.704 of 2006

08.03.2023

https://www.mhc.tn.gov.in/judis