IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2008 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN A.S.No.988 of 1991 1. Gurusamy Gounder @ Ponniah Gounder (died) 2. Kuppa Gounder (died) 3. Raju 4. Rajammal 5. Dhanalakshmi 6. Pavalakodi 7. Neelavathi 8. Manonmani 9. Sembuselvan (Appellants 4 to 9 are brought on records as LRs of the 2nd Appellant as per order of Court dated 5.12.2003 made in CMP No.9823 of 2003 by NVBJ and SKKJ) 10. Rajammal 11. Ramasamy 12. Semalai (died) 13. Rukmani (Appellants 10 to 13 are brought on records as LRs of the deceased 1st appellant as per orders of the Court dated 5.12.2003 made in CMP No.17765 to 17767/2003 by NVBJ and SKKJ) 14. Muthulakshmi 15. S.Vijay 16. S.Karthik (Appellants 14 to 16 brought on records as per LRs of the deceased 12th Appellant vide order of the Court dated 21.12.2005 made in CMP No.16285/05) ... Appellants vs. 1. E.S.Natarajan 2. Jagadambal 3. Dakshinamoorthy 4. Minor Balasubramaniam 5. Minor Senthilkumar 6. Minor Poongodi 7. Pongia Gounder (died) 8. Thirumayammal 9. Pavayammal 10. Pappal @ Rangammal https://hcservices.ecourts.gov.in/hcservices/ 11. Pongaiammal 12. Sabia Bibi 13. Pongali Gounder 14. Sellappan @ Thadi 15. Chinnaraj @ Ponnuraj 16. Arumugham 17. Sengottian 18. K.Rathnam 19. Ravikumar 20. Angappan 21. Abdul Latheef 22. K.M.Sengottian 23. D.Bhagyam 24. Padmavathi 25. Subramaniam 26. Kamala Navaneetham 27. A.Najimidheen 28. Suryanarayanan 29. Sengodapandaram (died) 30. A.Nanjammal 31. Ramanathan 32. P.Marasamy 33. Kuppayammal 34. Sellammal 35. Kamatchi ... Respondents (R32 to R35 are brought on records as LRs of the deceased 7th Respondent as per order of Court dated 16.4.2004 made in CMP 7058 to 7060 of 2000.) Appeal Suit filed under Section 96 of the Code of Civil Procedure praying to set aside the judgment and decree dated 24.07.1991 on the file of the learned Subordinate Judge of Gobichettipalayam in O.S.No.162 of 1987. For Appellants : Mr.A.K.Kumarasamy For Respondents : Mr.M.M.Sundresh J U D G M E N T Challenging the judgment and decree dated 24.07.1991 made in O.S.No.162 of 1987 on the file of the Subordinate Judge, Gobichettipalayam, the defendants 2 to 4 in the suit have preferred this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the plaintiffs as put forth before the court below is, as under: (i) On 30.09.1943, one Subramaniya Mudaliar along with one Rangasamy Mudaliar, in common, purchased 2.30 acres of land out of 4.93 acres in old S.F.No.568-B, Anthiyur Village, which is the property in question. Another property in S.F.No.569 of Anthiyur Village is also mentioned in the Sale Deed. As per the Sale Deed dated 30.09.1943, Subramaniya Mudaliar and Rangasamy Mudaliar are entitled to 1.15 acres each. Rangasamy Mudaliar sold his share of 1.15 acres to third parties. Subramania Mudaliar died prior to 1956 leaving behind him the 1st plaintiff and Gnanasambandam as his only legal heirs. Gnanasambandam died about an year ago leaving behind him his wife, the 2nd plaintiff, sons-plaintiffs 3 to 5 and daughter, the 6th plaintiff as his legal heirs. The plaintiffs and their predecessors in title have all along been in possession and enjoyment of 1.15 acres as co-sharers and their right to the title and interest are not disturbed by other co-sharers in the suit survey field. (ii) The land under old S.No.568-B measuring an extent of 4.93 acres has been re-surveyed and numbered as R.S.Nos.1035/2 and 1035/3; under re-survey, R.S.No.1035/2 measures 3.94 acres and R.S.No.1035/3 measures 0.92 acres; there is a shortage of 7 cents in the measurement of land under old survey number. If the plaintiffs' share is proportionally reduced, it will come to 1.13 ½ acres. As the plaintiffs are satisfied with 1.13 acres, they claim partition and separate possession of 1.13 acres out of 4.86 acres in new R.S.Nos.1035/2 and 1035/3. (iii) The plaintiffs learnt that defendants 1 to 6 and their predecessors in title, who were originally the other co-sharers have entered into several transactions, some of them purporting to be partition deeds. According to the them, they and their predecessors in title were not parties in the partition deed; defendants 1 to 6 have also sold small extent in the suit properties to various parties; the sales also do not in any way affect the plaintiffs' right, title and interest in the suit property and the defendants 7 to 28 are claiming right in the suit property as vendees under defendants 1 to 6 or in their own individual right. (iv) Therefore, the plaintiffs approached defendants 1 to 6 and demanded partition of the suit property and allotment of their share amicably; since the defendants 1 to 6 were postponing the same on one ground or the other and were making hectic attempts to sell away the property, the plaintiffs filed a suit in O.S.No.162 of 1987 seeking division of the suit property by metes and bounds with reference to good and bad soil and allotting 1.17 acres out of such division to them and for a direction to the defendants to deliver the possession of 1.17 acres so allotted to them. https://hcservices.ecourts.gov.in/hcservices/ 3. In the Written Statement filed by the second defendant, adopted by the defendants 1 and 3, the plaint averments are denied. It is the case of the 2nd defendant that up to his knowledge, the suit land along with other lands belong to the vendees of the plaintiffs, namely, Pavayammal, the 6th defendant, Thirumayammal, the 5th defendant and Raju, the 4th defendant and they along with their predecessors are in possession and enjoyment of the suit lands. From their share, the 6th defendant and the 5th defendant sold an extent of 1 acre each to the defendants 2 and 3 on 15.12.1977 and 30.12.1978, respectively and the defendants are in possession and enjoyment of their respective share of land. 3a. The defendants 1 to 6 before and after partition of lands have converted them into house sites and sold the same to third parties. According to the 2nd defendant, even as per the sale that took place on 30.09.1943, since Subramania Mudaliar was not in possession of the property, he is not entitled to claim right over the same. Moreover, the plaintiffs have erred in impleading defendants 7 to 28 as parties to the suit, since they are not related to the sale of the suit property and the suit ought to be dismissed on the ground of 'misjoinder of parties'. Moreover, the 1st defendant has no right over the suit property and the averment that the partition was postponed is false. According to the 2nd defendant, since the defendants 1 to 6 and their predecessors are in possession and enjoyment of the suit property, they are entitled to claim right over the property and the plaintiffs have no cause of action to institute a suit against the defendants and the suit ought to be dismissed. 4. Even in the Written Statement filed by the 4th defendant and adopted by the defendants 5 and 6, the plaint allegations are denied. According to the 4th defendant, neither the plaintiffs nor their predecessors enjoyed the suit property and were in possession at any point of time. It is his further case that even if the plaintiffs had got any title as per the alleged sale deed dated 30.09.1943, they are not entitled to ask for a partition, after a period of 47 years; moreover, they have to prove the extent of land, corresponding new number to the old S.F.No.568-B and the proportion alleged in the plaint. He further stated that he and defendants 5 and 6 own an extent of 3.94 acres in S.F.No.568-B, which is now re-classified as R.S.No.1035/2 and 1035/3; out of the said 3.94 acres, the 5th and the 6th defendants, respectively, sold an extent of 1 acre each to the defendants 2 and 3 and the remaining 1.94 acres is in possession and enjoyment of him and the 5th defendant; out of 1.94 acres, the 4th defendant has got title over an extent of 1 acre and the 5th defendant has got title over an extent of 0.94 cents; as on ground, the 5th defendant is in enjoyment of 0.88 cents only; the entire extent in https://hcservices.ecourts.gov.in/hcservices/ old S.F.No.568-B is in possession and enjoyment of him and the 5th defendant and their vendors. 4a. According to the 4th defendant, the defendants and their predecessors in title were and are in possession and enjoyment of the suit property without any objection or claim; therefore, he prayed for dismissal of the suit that the plaintiffs are not entitled for partition of the suit properties. 5. The Trial Court on consideration of the entire facts and circumstances of the case and on an analysis of the evidence on record has decreed the suit in favour of the plaintiffs thereby ordering possession of 1.13 acres of the suit property to them by means of partition. Aggrieved by the judgment of the Court below, the defendants 2 to 4 have come on appeal before this Court. 6. Learned counsel for the appellants contended that the plaintiffs or their predecessors in interest have no title or possession of the suit properties at any time. It is his further contention that the court below has failed to see that one Karuppa Gounder owned an extent of 3.94 acres in S.F.No.568-B as his ancestral property out of 4.93 acres and an extent of 0.92 acres was owned by one Santhanagopala Gounder. He also contended that the learned Trial Judge ought to have seen that it has not been proved that pursuant to the sale deed dated 30.09.1943, Subramania Mudaliar took possession of the lands purchased by him and he cultivated the same and that the plaintiffs have not produced any kist receipt or adangal extract from 1944 till date of the suit to show that either Subramania Mudaliar and after him the plaintiffs are in possession of the suit property. 6a. According to the learned counsel, the Court below ought to have seen that the plaintiffs have failed to prove their title to the suit lands and none connected with the sale deed dated 30.09.1943 is examined to show that it was a genuine transaction and it was acted upon. It was his further contention that the learned Judge ought to have seen that even assuming, without admitting that the plaintiffs have got a share in the suit lands, the same is lost by the principle of ouster and adverse possession. In support of his contentions, learned counsel has relied upon a decision of this court reported in (1987) 100 L.W. 486 in the case of A.Ramachandra Pillai vs. Valliammal (died), wherein it was held as under: “7. Though O.1, R.9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of mis- joinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of parties actually https://hcservices.ecourts.gov.in/hcservices/ before it, there is a proviso which says that nothing in that rule will apply to non-joinder of necessary parties. In a suit for general partition, there could be no doubt that all the sharers are necessary parties as mentioned above. Apart from this, the main part of R.9 is only an enabling provision and the Court shall deal with each case with reference to the particular facts in that case. It is in that context, the decision of the Supreme Court in Kanakarathnammal vs. Loganatha, is relevant. In that case, also, the plaintiff filed a suit for declaration and possession on the ground that the properties belonged to her mother and on her death she, as the sole heir, was entitled to the entirety of the properties. The suit was filed against two defendants who claimed that the father of the plaintiff had executed a will under which the first defendant had been appointed as executor and that as such executor has obtained probate of the said will got possession of the properties and handed over possession to the second defendant therein as directed in the will. Thus the defendants set up a title in respect of the suit properties in the appellant's father. Alternatively they also added that if the properties belonged to the plaintiff's mother, she would not be entitled to claim exclusive title to the same, because by succession, the suit properties would devolve upon the appellant and her two brothers and the appellant's failure to join her brothers made the suit incompetent for non-joinder of necessary parties. The trial Court held that the mother was the owner of the properties. However, it held that the suit is bad for non-joinder of necessary parties and on that ground the suit was dismissed. On appeal however, the High Court held that the properties belonged to the father. The appeal was dismissed on this ground and therefore there was no necessity to go into the question whether the suit was maintainable or not. On a further appeal, the Supreme Court accepted the contention of the plaintiff that the properties belonged to the mother. However, the Supreme Court held that since she was one of the three heirs of her mother and since she had not impleaded her two brothers to her suit, the suit was liable to be dismissed. " 7. On the other hand, learned counsel for the respondents submitted that the plaintiffs and their predecessors in title were not parties in the partition deed and the defendants do not have any right of entitlement in the suit property. According to the learned counsel, the Trial Court has rightly decreed the suit in favour of the plaintiffs and it does not require any interference. https://hcservices.ecourts.gov.in/hcservices/ 7a. To support his case, learned counsel for the respondents has relied on the following decisions: (i) In AIR 1989 SC 1809 in the case of Corporation of the City of Bangalore vs. M.Papaiah and another, the Supreme Court has held as under: 5. In reversing the decision of the first appellate court the High Court committed several serious errors of law. The High Court appears to have been confused on the question whether the issue of title to the disputed property was involved in the suit or not. The judgment shows that the High Court has made several inconsistent observations. By way of illustration, the following passage at page 13 of the paper-book (of this Court) may be seen: “This Court must accept this argument in view of the circumstances that there was no issue involving the title. The title has been satisfactorily established by the appellants and the respondent has failed to establish its title. Therefore, the first appellate court is wholly wrong in raising issues which did not arise in the case and reaching the conclusion that the suit was bad since the appellants did not seek the relief of declaration of title and possession.” We do agree that the suit cannot be dismissed on the ground that the relief of declaration of title and possession has not been specifically mentioned in the plaint. But the observations on the question whether the issue of title is involved in the suit or not are clearly discrepant. In some other part of the judgment the High Court has mentioned a portion of the relevant evidence on the question of title and possession and made adverse comments against the findings of fact recorded by the first appellate court without giving any valid reason therefor. So far the revenue records are concerned, the appellate court considered the same and held that they did not support the plaint. The High Court has reversed the finding saying that the interpretation of the first appellate court was erroneous. It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law. These errors have seriously vitiated the impugned judgment of the High Court which must be set aside." https://hcservices.ecourts.gov.in/hcservices/ (ii) The Supreme Court in yet another judgment reported in AIR 1996 SC 2823 in the case of Smt.Sawarni vs. Smt.Inder Kaur and others has held as under: “7. ... The learned trial Judge after elaborate discussion of the evidence on record both oral and documentary came to the positive conclusion that it was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower appellate Court without focusing his attention to the weighty reasons advanced by the trial Court and without examining the materials on record in that respect even did not set aside the said finding of the trial Judge and yet reversed the decree of the trial Judge. We have no hesitation to come to the conclusion that the said judgment of the Additional District Judge is wholly unsustainable in law. The crucial point being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roor who was the second daughter of Gurbax Singh, the lower appellate Court was not justified in not considering the material evidence as well as reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file do not prove Roori to be the daughter of Gurbax Singh. Further, the lower appellate Court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question." (iii) In one another judgment of the Supreme Court reported in 2003 (4) CTC 565 in the case of Dalip Singh and others vs. Sikh Gurudwara Prabhandak Committee and others, it was held as under: "9. We do not find much force in the contention urged by the counsel for the appellants. There are documents to show that the suit property was included in the list of properties in the notification dated 19-2-1932. If anybody had filed any claim in respect of these properties, there would have been an adjudication and only after the adjudication, the notification under Section 10(3) would have to be issued. It is not the case of the appellant that Jeeta Singh, the alleged predecessor-in-interest of Bhola Singh made any claim over any of the properties included in the list forming part of the notification under sub-section https://hcservices.ecourts.gov.in/hcservices/ (3) of Section 7. True, the notification issued under sub- section (3) of Section 10 serves as a conclusive proof of the fact that no claim was made in respect of any right, title or interest in any properties specified in the notification. But, the failure to produce the notification issued under Section 10(3) by itself does not lead to the logical or necessary conclusion that the landed properties which are being claimed by the appellants were not the properties of the Gurdwara, but they were the private properties of Jeeta Singh and Bhola Singh. It is for the appellants who had filed a suit for the declaration of title to prove that Bhola Singh acquired right, title or interest over the suit properties either under the general law of succession or tenancy law. The appellants utterly failed to prove the same and this flaw cannot be got over by relying on the fact that the notification under Section 10(3) was not produced. The appellants who had filed a suit for declaration of their title could not produce any document to prove that the suit properties had been later divested from the ownership and management of Gurdwara Jeeta Singh Wala, Lohara. " (iv) This Court in (2006) 3 MLJ 225 in the case of Panduranga Gramani vs. Sundaram and others has held as under: "20. ... Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons." 8. Heard the learned counsel for the respective parties and carefully considered their submissions and the decisions relied on by them and perused the relevant material documents. 9. In this case, it is seen that one Subramania Mudaliar had two sons, by names, Natarajan and Gnansambandam; Gnansambandam https://hcservices.ecourts.gov.in/hcservices/ Mudaliar predeceased his brother Natarajan leaving behind his wife, Jagadambal, three sons, namely, Dakshinamoorthy, minor Balasubramaniam and minor Senthilkumar and one minor daughter, Poongodi. Originally, Subramaniya Mudaliar and one Rangasamy Mudaliar, in common, purchased an extent of 2.30 acres of land out of 4.93 acres in old S.F.No.568-B of Anthiyur Village, Gobichettipalayam; by way of a registered Sale Deed dated 30.09.1943, each were entitled to 1.15 acres of land. It is further seen that Rangasamy Mudaliar had sold his half share of 1.15 acres of land in S.F.No.568/B to third parties. By virtue of the Sale Deed dated 30.09.1943 marked as Ex.A1, Subramaniya Mudaliar was entitled to 1.15 acres of land in S.F.No.568-B and the same devolved upon his sons, Natarajan and Gnasamabandam Mudaliar. Since Gnanasambandam Mudaliar died, his legal heirs, the plaintiffs 2 to 6 along with the 1st plaintiff claim that they had been in possession and enjoyment of 1.15 acres of land along with their predecessors as co-sharers. 9a. A perusal of the records shows that the old S.No.568-B measuring 4.93 acres has been re-surveyed and numbered as R.S.Nos.1035/2 and 1035/3 measuring an extent of 3.94 acres and 0.92 acres, respectively, resulting in a shortage of 7 cents in the measurement under old survey number. Consequently, the share of the plaintiffs has been proportionally reduced to 1.13 ½ acres. It is seen that the plaintiffs are satisfied with the share of 1.13 acres of land in the suit property and claim partition and separate possession of the same out of an extent of 4.86 acres in R.S.Nos.1035/2 and 1035/3. 10. On the other hand, it is the case of the defendants 1 to 3 that to their knowledge, the suit land along with other lands belong to the vendees of the plaintiffs, namely, Pavayammal - the 6th defendant, Thirumayammal - the 5th defendant and Raju – the 4th defendant and they along with their predecessors are in possession and enjoyment of the suit property. It is seen that the defendants 5 and 6 sold an extent of 1 acre of land for Rs.10,000/- each to the defendants 2 and 3 on 30.12.1978 in Ex.B2 and on 15.12.1977 in Ex.B1, respectively. According to the defendants 1 to 3, the defendants 4 to 6 are the original owners of the suit land and the defendants 7 to 28 are the subsequent purchasers; they deny the plaintiffs' claim of share in the suit properties and according to them, the entire extent of land measuring 3.94 acres in R.S.No.1035/2 belong to one Karuppa Gounder and the defendants 4 to 6, namely, Thirumayammal, Pavayamammal and Raju are his legal heirs. After the purchase of lands by means of registered Sale Deeds in Exs.B1 and B2, the defendants 2 and 3 partitioned the lands and converted them into house sites and sold the same to third parties, who are arrayed as defendants 7 to 28 in the suit. It is