Madras High Court
K.K.Paramasivam vs K.R.Thangaswamy (Died) on 25 February, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.No.177 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2025
CORAM
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.177 of 2010
K.K.Paramasivam ... Appellant/Appellant/Plaintiff
-vs-
K.R.Thangaswamy (died)
1. Manian
2. Valliammal
3. Manian
4. Hyther Ali
5. Executive Officer,
Komaralingam Special Panchayat,
Komaralingam,
Udumalpet Taluk. ... Respondents/Respondents/Defendants
Prayer: Second Appeal Suit is filed under Section 100 of CPC against the
judgment and decree dated 07.08.2009 made in A.S.No.26 of 2008 on the
file of Sub-Ordinate Judge, Udumalpet, confirming the judgment and decree
dated 16.07.2008 made in O.S.No.7 of 2005 on the file of District Munsif,
Udumalpet.
For Appellant : Mr.N.Suresh
For Mr.T.R.Rajaraman
For R1 : Mrs.Hema Sampath, Senior Counsel
For Mr.T.Dharani
For R2 & R3 : No Appearance
For R4 : Died
For R5 : Mrs.R.Revathy
*****
JUDGMENT
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Aggrieved over the concurrent findings of the Trial Courts, the
present Second Appeal has been filed.
2. The parties are arrayed as per their own ranking before the
Trial Court in O.S.No.7 of 2005.
3. The case of the plaintiff is that the suit property was
originally owned by one Rangasamy Pandaram, who had three sons, namely,
Kailasa Pandaram, Arunachala Pandaram and Velusamy Pandaram and there
was a partition in the family on 08.08.1908. The suit property in S.No.1072
was allotted to Kailasa Pandaram, who is none other than the father of the
plaintiff and in the above said partition, it is stated that charity should be
performed regularly, namely, providing water in the months of Panguni,
Chithirai and Vaikasi. The plaintiff's father was performing the said charity
till his death.
4. The further case of the plaintiff is that while the plaintiff and
his two other brothers were minors, the plaintiff's father Kailasa Pandaram
passed away and his mother Deivanaiammal was a young widow. At that
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stage, one Ramalinga Pandaram, who was the father of the 1st defendant and
grand father of the 2nd defendant was a measurer in the village and he was
permitted to continue the charity and maintain the suit property. The
building was given on lease to a Police Station and the rent was collected by
Ramalinga Pandaram and given to the plaintiff, his brothers and mother.
5. According to the plaintiff, the said Ramalinga Pandaram died
about 26 years ago and after his death, his son Thangaswamy / 1st defendant
was asked to manage the suit properties in the place of his father and
accordingly, the 1st defendant was in the management of the properties.
Subsequently, the Police Station was shifted to a different place and the
building had become very old and dilapidated. Therefore, the plaintiff and
his brothers wanted to reconstruct the building to continue the charity. The
plaintiff's another brother Rangasamy died in the year 1990 and his elder
brother was not an intellect person and mother died in the year 1992. As the
plaintiff was working in Tamil Nadu Electricity Board, he was not able to
attend the religious work personally. Taking advantage of the fact that the
building could not be reconstructed for long time, the 1st defendant changed
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the tax assessment in respect of the suit property in his name.
6. It is averred in the plaint that in this regard, a representation
dated 14.02.1998 was given to the Executive Officer, Komaralingam Town
Panchayat, stating that there cannot be two assessments for the same
building. Making use of the new assessment in his name, the 1st defendant
permitted one Shandhu Mohammed to occupy the suit properties and
subsequently, the 1st and 2nd defendants permitted one Murugesan Benjamin
and his wife Valliammal to occupy the building by receiving Rs.55,000/-
from them. The plaintiff had also paid Rs.55,000/- to the said Murugesan
Benjamin and his wife Valliammal to vacate the premises. Knowing this, the
defendants 1 & 2 filed O.S.No.216 of 2002, seeking permanent injunction,
restraining the defendants therein from transferring or subletting the suit
properties to any third parties. The said suit was decreed exparte and since
the plaintiff is not a party to the suit, he is not bound by the decree in the
above suit.
7. It is further averred in the plaint that after Murugesan
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Benjamin and his wife Valliammal vacated the premises, the 1st defendant
forcibly occupied the premises in the month of February, 2004 and
thereafter, at the instance of the defendants 1 & 2, the defendants 3 to 5
occupied the premises. Hence, the suit was filed by the plaintiff for
declaration and recovery of possession.
8. The stand of the defendants 1 & 2 in the written statement
was that the property was an ancestral property and in fact, the properties
have been earmarked for doing religious charity with a condition that the
charity has to be continued by the senior male legal heir. The property was
being enjoyed ancestrally and had been let out to the Police Station in the
year 1948 by the 1st defendant's father and rent was collected by him and he
died in the year 1979. During his lifetime itself, house tax has been changed
in his name and after the death of the 1st defendant's father, the 1st defendant
was collecting the rent from the Police Station and revenue records have also
been changed in his name. Even in the partition deed executed in the year
1980, it has been clearly indicated that the 1st defendant has to perform the
charity. From the year 1987, one Shandhu Mohammed Rawther is a tenant
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and thereafter, Murugesan Benjamin and his wife Valliammal were tenants
and a lease deed has been executed in their favour on 16.04.2000. According
to the defendants, the property belongs to them absolutely and they are in
possession of the property.
9. The Trial Court, on the basis of the aforesaid pleadings,
framed the following issues:
i) Whether the suit property belongs to the plaintiff?
ii) Whether the plaintiff is entitled to declaration and
recovery of possession?
iii) Whether the tax assessment issued by the 6th defendant
in favour of the 1st defendant is to be cancelled?
iv) As to what other relief?
10. On the side of the plaintiff, he examined himself as P.W.1
and Ex.A1 to Ex.A14 were marked. On the side of the defendants, D.W.1 to
D.W.3 were examined and and Ex.B1 to Ex.B80 were marked.
11. The Trial Court, after considering the entire evidence, held
that the plaintiff has not established the identity of his property and the
defendants are in long possession of the property even in the year 1966
onwards and only the 1st defendant's father name was found in the house tax
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assessment. The said finding of the Trial Court has been confirmed by the
First Appellate Court. Challenging the concurrent findings, the instant
Second Appeal has been filed.
12. The question of law framed in this appeal is as to whether
the judgments of Courts below are perverse on the ground that substantial
evidence is not considered.
POINTS:
13. Learned counsel for the appellant would mainly submit that
as per Ex.A1 / registered partition deed, the suit properties were allotted to
the father of the plaintiff. According to the learned counsel for the appellant,
the suit property was allotted to the plaintiff's father with a condition to
perform charity attached to the property. His further contention is that as per
Ex.A3, there was a partition among the family members of the plaintiff. In
the written statement, it was clearly admitted that charity, namely, providing
water, should be performed from and out of the property. Similarly, in
Ex.B56 / partition deed entered into between the parties, the names of
defendants have not been included. If the suit properties are ancestral owned
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by the defendants, while partitioning the family properties, the suit
properties should have been included in Ex.B56, which was of the year
1980. These facts have not been considered by the Courts below. Further,
though adverse possession has not been pleaded, Courts below non-suited
the plaintiff on the ground of non possession of the property. D.W.1 in his
evidence admitted the identity of the property and therefore, the judgments
of the Court below are not based on the proper appreciation of the evidence.
Since relevant evidence has not been considered, the judgment is nothing,
but perverse.
14. Whereas learned Senior Counsel appearing for the 1st
respondent contended that the plaintiff sought for declaration of title and
recovery of possession only on the basis of Ex.A1, which does not establish
the identify of the property. The plaintiff failed to establish the identity of
the property and Ex.A1, Ex.A3 and all other documents have been obtained
by the plaintiff only after 2003 for the purpose of case. The defendants are in
possession of the property ancestrally and D.W.1 also admitted the
genuineness of the document, which stands in the name of the defendants 1
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and 2. She further contended that the plaintiff's case is that only his father let
out the property to the Police Station, whereas in the pleadings, it is the case
of the plaintiff that only the 1st defendant's father had leased out the property.
P.W.1 clearly admitted in his evidence that he was not in a position to
establish the identity.
15. The suit was filed for declaration and recovery of
possession. The suit proceeded as if the property was allotted to the
plaintiff's father with a condition to perform charity, namely, providing
water. As the plaintiff's father Kailasa Pandaram died leaving behind the
plaintiff, his two brothers and his mother Deivanaiammal, the mother of the
plaintiff, being a young widow at that time, permitted Ramalinga Pandaram
to manage the suit property, who, in turn, let out the property to the Police
Station. As the said Police Station was shifted in the year 1986, the plaintiff
along with his brothers wanted to renovate the building. After the death of
Ramalinga Pandaram, the defendants 1 & 2 forcibly occupied the premises
and started the dispute.
16. The plaintiff relied upon Ex.A1 to contend that the suit
properties were allotted to his father. On perusal of Ex.A1, there is no
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description of the property and the identity of the property has also not been
established except mentioning S.No.1072. Though it is contended that
certain properties were allotted to Kailasa Pandaram with specific
boundaries, in the entire evidence, the plaintiff has not established the
identity of the property by correlating the boundaries in proper manner.
There was no evidence whatsoever available on record to show that the suit
property is the subject matter of Ex.A1.
17. It is the specific case of the defendants 1 & 2 that they are
in possession of the property ancestrally and father of the 1st defendant let
out the property to the Police Station as early as in 1948. Though it is stand
of the plaintiff that his father had let out the property to the Police Station,
there was no evidence available on record to substantiate the same. In his
pleadings, the plaintiff categorically admitted that the 1st defendant's father
only let out the premises to the Police Station. Whereas, in the evidence, he
took a different stand that his father alone let out the property and there is no
material whatsoever placed on record to prove his stand. Further, identity of
the property has not been established. That apart, the plaintiff stated that his
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mother permitted the father of the 1st defendant Ramalinga Pandaram to
manage the property, as the plaintiff and his brothers were minors and no
document whatsoever has been filed to show that his mother was a young
widow at the relevant point of time.
18. It is relevant to note that the defendants 1 & 2 duly
established the fact that they were in possession of the property and that the
father of the 1st defendant only let out the premises not only to the Police
Station, but also to some third parties, which was admitted by the plaintiff.
Though it is the contention of the plaintiff that he had paid the advance
amount to Murugesan Benjamin and his wife Valliammal, the said fact has
not been established and they have not been examined. The fact remains that
the defendants 1 & 2 filed O.S.No.216 of 2002, seeking permanent
injunction, restraining the defendants in the said suit from transferring or
subletting the suit properties to anyone. Though it is the stand of the plaintiff
that the defendants forcibly occupied the premises in the year 2004, in the
cross examination, the plaintiff admitted that he does not know as to when
the 1st defendant took possession of the property. Similarly, he is also not
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aware of the fact as to when defendants 3 to 5 were inducted as tenants by
the 1st defendant. Merely because the suit properties have not been included
in Ex.B56 / partition deed, it cannot be said that the plaintiff proved his title
to the suit property.
19. It is the specific case of the defendants that they are in
possession and enjoyment of the property ancestrally and also performing
charity. In Ex.A1, except one boundary, no other boundaries are mentioned.
Therefore, merely because the plaintiff included the suit property in the
partition deed in Ex.A3, it cannot be held that the plaintiff has established
the identity of the suit property. The details as to how the suit property was
included and the measurement arrived at in Ex.A3 have not been clarified by
the plaintiff. P.W.1 admitted in his evidence that the measurement has been
given in Ex.A3 as per actuals, which clearly indicates that the exact
measurement of the property now available has been included in Ex.A3 for
some other purpose. There was no correlation established, whereas Ex.B1 to
Ex.B28 indicate that Ex.B1 is of the year 1966 and Ex.B2 to Ex.B28 were
house tax receipts paid from the year 1967 continuously. No document
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whatsoever has been adduced on the side of the plaintiff to show that the
property tax assessment was made in the name of his father at the very
inception. Whereas, the documents marked on the side of the defendants
clearly show that from the year 1966, the tax assessment has been changed
in the name of the defendant's father and no attempt has been made to
disprove those documents.
20. Further, the pleadings of the plaintiff indicate that aggrieved
by the mutation of the assessment order made in the name of the 1st
defendant's father, there was an objection raised by the plaintiff and a
representation was also made in the year 1998. It is relevant to point out that
when the dispute, as to the immovable property arose in the year 1998 itself
and the plaintiff himself was aware of the said fact, particularly, the
defendants set up independent title, a suit ought to have been filed within
three years, when the right to sue had accrued. Whereas the suit has been
filed only in the year 2005 after a lapse of five years. When the plaintiff
seeking declaration on the basis of a document, which is bereft of details as
to the extent, measurement, boundaries, etc., it is for the plaintiff to establish
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the above fact by correlating old survey number with the new survey
number, boundaries, measurement, etc. In the absence of establishing the
identity of the property, merely on the basis of an old document, one cannot
succeed in the declaration relief. It is for the plaintiff to prove his stand and
he cannot pick holes in the defendants' case. Hence, this Court is of the view
that both Courts below in fact appreciated the evidence and documents
properly, warranting no interference by this Court.
21. In the result, the Second Appeal is dismissed as devoid of
merits and the judgments and decree passed by the Courts below are hereby
confirmed. The question of law is answered accordingly. No costs.
25.02.2025
Index: Yes / No
Internet: Yes / No
ar
To:
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1. The Sub-Ordinate Judge,
Udumalpet.
2. The District Munsif,
Udumalpet.
3. The Executive Officer,
Komaralingam Special Panchayat,
Komaralingam,
Udumalpet Taluk.
4. The Section Officer,
V.R.Section,
High Court,
Madras.
N.SATHISH KUMAR,J.,
ar
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25.02.2025
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