Madras High Court
Subramanian vs Chokkalingam (Deceased) on 15 September, 2023
S.A.No.2119 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
S.A.No.2119 of 2002
1. Subramanian
2. Radhakrishnan ... Appellants
Vs.
1. Chokkalingam (Deceased)
2. Valarmathi W/o. Srinivasan
3. Chandra W/o. Late Chockalingam
4. Gajalakshmi W/o. Ramalingam
5. Anbarasi W/o. Late Chockalingam
6. Mahalakshmi W/o. Ramalingam ... Respondents
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code to set aside the decree and judgment in A.S.No.34 of 1999
passed by the Principal Subordinate Judge, Vridhachalam dated 17.04.2002
confirming the judgment and decree in O.S. No.1271 of 1987 dated 26.07.1999
on the file of the Principal District Munsif, Vrudhachalam.
1/13
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S.A.No.2119 of 2002
For Appellant : Mr. D. Shivakumaran
For Respondents : R1 – died.
R2 to R6 - No appearance.
JUDGMENT
The unsuccessful defendants in O.S.No 1271 of 1987 on the file of
the Principal District Munsif Court, Virudhachalam are the appellants herein.
2. The legal heirs of the sole plaintiff in the above-mentioned suit are
the respondents in the second appeal. Infact, during the pendency of the first
appeal in A.S.No.34 of 1999 before the Principal Sub Court, Virudhachalam,
the sole plaintiff who was the 1st respondent in the said first appeal died and his
legal heirs were brought on record as respondents 2 and3 before the first
appellate court. Pending the second appeal, the 1st respondent, that is son of
the sole plaintiff died and his legal heirs have been impleaded as respondents
3 to 6 in the present second appeal. Despite service of notice, none of the
respondents have chosen to appear to defend the concurrent findings in their
favour.
3. The brief facts that are necessary for adjudicating the present
second appeal are as follows. The plaintiff claiming to be a purchaser of 0.21
cents out of 1.23 acres comprised in S.No.236/17, Periyavadavadi village,
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S.A.No.2119 of 2002
Virudhachalam sought for declaring his title to the said property, in view of the
claim of the defendants that the plaintiff did not have any title from 20.11.1987
onwards. The plaintiff also sought for consequential relief of a permanent
injunction.
4. The defendants, namely the appellants herein, contested the said
suit on the grounds that the documents under which the plaintiff traced his title
were not legally enforceable; the defendant’s vendor had purchased the subject
property in a court auction sale; the description of the suit property as set out by
the plaintiffs did not match with the sale deed under which the plaintiff claims
to have purchased the suit property.
5. Before the trial court, the plaintiff examined himself as PW1 and
one Mr.Ramasamy as PW2 and exhibited documents in Ex.A-1 to A-30. On
the side of the defendants, the 1st defendant i.e. 1st appellant herein examined
himself as DW1 and one Mr.Nagamuthu was examined as DW2. On the side of
defendants, Ex.B-1 to Ex.B-8 were exhibited.
6. The trial court after examining the pleadings as well as the oral
and documentary evidence, decreed the suit as prayed for. The defendants
preferred A.S.No.34 of 1999 before the Principal Sub Court, Virudhachalam
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S.A.No.2119 of 2002
and the said appeal also came to be dismissed and as against such concurrent
findings, the defendants, as appellants are before this court.
7. The second appeal had been filed mainly on the following
grounds:
a. The suit property wasalready subject matter of another suit in
O.S.No.189 of 1962,which had ended in a compromise and a final decree
subsequently came to be passed which has not been considered by the courts
below.
b. The predecessor in title of the plaintiff was a party to the said suit
and he cannot plead ignorance of the fact that the suit property stood allotted to
the predecessor in title of the defendants and therefore the documents executed
by him in the nature of the settlement deed in Ex.A-12 dated 19.01.1968, after
the final decree came to be passed 29.09.1964 was void and unenforceable.
The following substantial question of law was framed at the time of
admission of the above second appeal:
“Whether the courts belowerred in law and misdirected themselves in
decreeing the suit without reference to the evidence let in by the appellant and
by misappreciation of relevant documentary evidence?”
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S.A.No.2119 of 2002
8. Heard Mr.D.Shivakumaran, Counsel for the appellants. As already
indicated despite service of notice none of the respondents have chosen to
appear to defend the judgment and findings in their favour. I have also perused
the records.
9. The counsel for the appellants would focus on the issue regarding
the final decree passed in the presence of the plaintiff which would clearly act
as an embargo for the plaintiff to subsequently deal with the subject property
which had been allotted to the predecessor in title of the defendants. The
learned counsel forthe appellant would take me through the pleadings as well as
the judgments of the courts below. He would also place reliance on the
following judgments:-
i. Ramu & others Vs Samuel Nadar reported in 2017 (1) MWN
(Civil) 732
ii. Thayanayaki Ammal Vs Ramachandran reported in 2017 (1)
LW 240.
iii. Sebastiao Luis Fernandes (Dead) through LRS & others Vs
K.V.P. Shastri (Dead) Through LRS & others reported in 2013 (15)
SCC 161.
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S.A.No.2119 of 2002
10. Ex.B-1 is the certified copy of the suit register in O.S.No.189 of
1962.Ex.B-2 is the sale certificate in favour of one Gurusamy Konar who
purchased the suit property in a court auction sale. Thereafter, it is seen that
vide Ex.B-3 the said court auction purchaser, Rajaambal has conveyed the
property to the appellants. On the side of the plaintiff, it is seen that in
Ex.A-12, Perumal Konar has settled the property in and by settlement deed
dated 19.01.1968 in favour of Ramasamy Konar, who in turn sold the property
to the plaintiff, vide Ex.A1 dated 15.09.1984. The courts below have proceeded
to reject the defence set up by the appellants mainly on the ground that they did
not produce even a copy of the plaint in O.S.No.189of 1962 and the
defendantshad also consequently failed to establish that the property which is
the subject matter of Ex.B-1 and the court auction sale in Ex.B-2 are one and
the same.
11. I have perused Ex.B-1. It is the suit register extract of
O.S.No.189 of 1962. The suit had been filed by Rajambal w/o Perumal Konar
against Gunasamy Konar, Anajal Ammal, Perumal Konar, Vasudevan
Padaiyachi and Marimuthu Padaicyachi. The suit was laid for partition and
separate possession of the plaintiff’s 1/4th share in several items of the
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S.A.No.2119 of 2002
properties which become available for partition subsequent to the demise of the
original owner one, Krishna Konar, who died intestate on 23.09.1957. It is
seen from the terms of compromise which forms part of Ex.B-1 that the 4th item
of plaint B schedule property along with items 5,13 and 14 were allotted to
Gurusamy Konar. However, it is noteworthy to notice that the 4th item of the B
schedule property as found in the final decree and the 4th item of B schedule
property as set out in the plaint are not one and the same. The properties
allotted to the 1st defendant in the said suit have been described as No.1 being
Punja lands was of an extent of 42 cents with specific boundaries and such
property being comprised in punja Re-survey No 236/17. The boundaries of
the property allotted to the 1st defendant as mentioned in the final decree are
that it lies to the north of Adhimula Konar’s properties and on the West and
East of Muthusamy Konar’s property and on the south of China Konar’s
property. The specific case of the appellants is that the boundaries mentioned
in Ex.B-8 namely settlement deed dated 25.11.1997 and in Ex.A-12, namely the
settlement deed dated 19.01.1968 and Ex.A-1 namely sale deed dated
15.09.1984 were not matching and there were discrepancies. When the plaintiff
had approached the court seeking to declare his title, he is bound to establish
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S.A.No.2119 of 2002
his lawful title and possessionand in that regard he has to file necessary
documentary evidence to satisfy his claim as against the defence set up by the
defendant. However, as already seen, even in the documents under which the
plaintiff claims right, title and interest, the boundaries do not match with each
other and pitted against such evidence let in before the court, the appellants as
defendant’s have filed Ex.B-1 to B-7 which clearly show that the defendants
vendor had purchased the property only in a court auction sale and moreover
the predecessor in title of the plaintiff was a party to the final decree
proceedings and therefore after having suffered a decree, it was not open to the
said predecessor in interest to thereafter once again deal with the propertywhich
stood allotted to the defendant’s predecessor in title. I have also gone through
Ex.B-2 and Ex.B-3 in which the defendantclaim right title and interest. The
property that the defendant’s had purchased was the property that stood allotted
to Gurusamy Konar. Infact the suit property that was allotted to the said
Gurusamy Konar being one amongst several other items of property was
brought to sale in public auction pursuant to a decree in OS.No 925 of 1969
and an execution proceeding initiated in E.P.No 1795 of 1971. The District
Munsif Court, Virudhachalam executed a sale certificate in favour of the
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S.A.No.2119 of 2002
purchaser, Rajambal.
12. Even while deposing as PW1, the plaintiff has stated in cross
examination that he was not aware of the boundaries of the suit property. He
has also stated that when he purchased the suit property, he had not perused any
documents and he believed the word of his vendor and went ahead to
purchasethe suit property. Such admissions on the part of the plaintiff clearly
show that he has not taken bonafide steps to even verify the right title and
entitlement of his vendor to convey the said property to him. In any event as
already discussed hereinabove, when his vendor was a party to the compromise
decree which resulted in final decree proceedings and the suit property having
been allotted to Gurusamy Konar and the same having become final, it was not
open to the plaintiff’s vendor to deal with the said item of suit property by
executing a settlement deed, based on which the property has been sold to the
plaintiff. The learned counsel for the appellants also invite my attention to the
very basis on which the plaintiff tracedtitle to the subject property. It is stated
by the plaintiff that one AdhimulaKonar was entitled to suit property and he
executed Ex.B-8 settlement deed in favour of his brother Perumal Konar, the
plaintiff’s predecessor in interest. However, there is no record to show as to
how the said Adhimula Konar become entitled to the said item of suit property.
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S.A.No.2119 of 2002
In fact, it is seen from the available documents that Venkatachalapathy Konar
was the original owner of the suit property which the fact is not denied by the
plaintiff as well. There is force in the said submission made by the counsel for
the appellants. In a suit for declaration of title, the onus is only on the plaintiff
to lead oral and documentary evidence to clinchingly establish his right title
and interest in the property to which he seeks declaration as well as relief of
consequential permanent injunction. Unfortunately, the courts below have
misdirected themselves and have chosen to pick holes in the defence set up in
the defendant’s, instead of examining the plaintiff’s case first.
13. In Ramu’s case, this Court had held that the burden of proof
never shifts and it is only the onus that keeps shifting between the parties like a
pendulum. In a suit for declaration of title and injunction, the burden is always
on the plaintiff to establish his claim.
14. In Thayanayaki Ammal’s case, this Court had held that even
where the defence set up by the defendant was not strong and convincing, it is
for the plaintiff to still establish his claim.
15. In Sebastiao Luis Fernandes’s case, the Hon’ble Supreme court
has explained the power of the High Court exercising jurisdiction under Section
100 of Code of Civil Procedure,1908. The Apex Court held that when the
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S.A.No.2119 of 2002
findings of fact are perverse, even though concurrent, such findings when based
on either wrong assumption of facts or non-appreciation of pleadings of
evidence and records and also where the burden of proof is wrongly placed on
the defendant instead of from the plaintiff, the High Court was entitled to
interfere and set aside the concurrent finding rendered by the courts below.
16. I have already found that the courts below had erroneously
shifted the burden of proof on the defendants and the plaintiff had miserably
failed to lead credible evidence to establish his title. Even the documents under
which he claims title, the boundaries do not match and further the very right
ofhis vendor to deal with the property subsequent to the final decree having
been passed in O.S.No.189 of 1962 being not available to him and even though
the findings are concurrent, in view of the perversity in such findings and also
improper appreciation of the documentary evidence available before this courts
as well as the incorrect fixing of burden of proof on the defendants, I am
constrained to interfere with the concurrent findings rendered by the courts
below. The substantial question of law is answered in favour of the appellant.
The appellant is entitled to succeed.
17. In fine, the second appeal is allowed and the Judgment and
decree in A.S.No.34 of 1999, confirming the decree in O.S.No 1271 of 1987 is
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S.A.No.2119 of 2002
set aside and the suit in O.S.No.1271 of 1987 stands dismissed. There shall be
no order as to costs .
15.09.2023.
Internet:Yes
Index:Yes/No
mjs
To
1. The Principal Subordinate Judge, Vridhachalam
2. The Principal District Munsif, Vrudhachalam.
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S.A.No.2119 of 2002
P.B.BALAJI,J
mjs
S.A.No.2119 of 2002
15.09.2023
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