IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 29-04-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.499 of 2007 Abdul Latheef Sahib .. Appellant / Defendant Versus Rajambal (died) 1.Mangalakshmi 2.Jayarama Gounder Ramalingam (died) 3.Arumugam 4.Elumalai 5.Elumalai 6.Vinayakamurthi 7.Kamaraj 8.Alamelu 9.Mankaiyarkarasi 10.Govindammal 11.Asokan 12.Amara 13.Sathya 14.Devaraj .. Respondents/Plaintiff PRAYER: Appeal against the judgment and decree, dated 22.12.2006, made in A.S.No.52 of 1995, on the file of the Additional Sub Judge, Tindivanam, confirming the judgment and decree, dated 18.04.1994, made in O.S.No.1229 of 1988, on the file of the District Munsif, Tindivanam. For Appellant : Mr.M.K.Hidayathullah For Respondents : Mr.N.Nagusha J U D G E M E N T The second appeal has been filed against the judgment and decree, dated 22.12.2006, made in A.S.No.52 of 1995, on the file of the Additional Sub Judge, Tindivanam, confirming the judgment and decree, dated 18.04.1994, made in O.S.No.1229 of 1988, on the file of the District Munsif, Tindivanam. 2. For the sake of convenience the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.1229 of 1988. https://hcservices.ecourts.gov.in/hcservices/ 3. The defendant in the suit in O.S.No.1229 of 1988 is the appellant in the present second appeal. The plaintiffs who are the respondents herein had filed the suit praying for the relief of declaration of title and for interim injunction and the plaintiffs had also prayed for an alternative relief for possession in respect of the suit property comprised in S.No.76/1 new Survey No.40/2, measuring 2.25 acres. 4. The case of the plaintiff is that the suit property had originally belonged to one Zograbiammal. On 27.04.1929, one Manickampillai had purchased the said property through a registered sale deed. After purchasing the property, Manickampillai had been in possession and enjoyment of the suit property. After his demise his daughters, Ellammal, Pattammal and Thaivanayagiammal, along with their brother Ramalingampillai, son of Manickampillai had executed a sale deed in favour of the first plaintiff, the deceased Aayeeammal, on 07.08.1961. Since then, Aayeeammal has been in possession of the property and she has been paying the tax. Thereafter, when she was residing at Tindivanam, the land was cultivated by Gulam Moideen Saib Vagaiyara with her consent. The said Gulam Moideen Saib was paying the tax for the suit property on her behalf. The defendant has no right over the suit property. However, he has been attempting to enter the suit property from 25.11.1988. Therefore, the deceased, first plaintiff had filed the suit in O.S.No.1229 of 1988. Subsequent to her death, the plaintiffs 2 to 7 were added as the legal heirs, as they are entitled for the relief of declaration and for interim injunction. When the notice relating to interim injunction had been served on the respondent, he had trespassed into the suit property and took possession of the same. Therefore, the 7th plaintiff had prayed for an alternative relief for possession of the suit property and also for damages. 5. The defendant had filed a written statement stating that the suit property did not belong to Zograbiammal and she has no right over the same. The claim of the plaintiff Aayeeammal that she had sold the property to one Manickampillai, on 27.04.1929, has been denied, stating that the sale deed is neither true nor valid. It will not confer any title on Manickampillai, since the vendor had no right over the suit property. Manickampillai had never enjoyed the property. The claim that after the death of Manickampillai his legal heirs were enjoying the suit property is false. The suit property had originally belonged to one Muthusamypillai and he was in possession and enjoyment of the same. Muthusamypillai had sold the suit property to one Gulab Hussain Khan Sayeb, by way of registered sale deed, dated 27.05.1942. After the purchase of the property, Gulab Hussain Khan Sayeb had taken possession of the property and had also obtained patta in his name. He had been paying the tax in his own right for about 12 years. Thus, he has prescribed title over the suit property by adverse possession. Gulab Hussain Khan Sayeb had mortgaged the suit property in favour of the Cooperative Bank, Tindivanam, for a Well loan. While so, a partition had taken place in the family of Gulab Hussain Khan Sayeb, on 21.03.1979, by a registered partition deed. In the said partition, the suit property https://hcservices.ecourts.gov.in/hcservices/ was allotted to one of his sons Rahimankhan. Since then Rahimankhan had been in possession and enjoyment of the suit property till the defendant had purchased it by way of registered sale deed for a valid consideration, on 12.04.1979. Thereafter, the patta had also been transferred in his name and he is paying the kist for the property. It is false to say that the defendant was trying to trespass into the suit property. After the purchase, the defendant is cultivating paddy and other crops by digging a Well. The suit property is a fertile land and since the market value of the suit property had gone up, the plaintiffs had filed a vexatious suit, by attempting to grab the suit property. 6. Based on the pleadings of the parties concerned, the trial Court had framed the following issues for consideration. 1. Whether the suit property is originally owned and possessed by one Zoharabiammal? 2. Whether the sale deed, dated 17.4.1929, by Manickam Pillai is true and valid? 3. Whether the Manickam Pillai and his legal heirs were in possession of the suit property? 4. Whether the sale deed in favour of the first plaintiff is true and valid? 5. Whether the plaintiffs are in possession of the suit property? 6. Whether the plaintiffs have acquired adverse possession? 7. Whether the sale deed, dated 27.5.1942 as stated by the defendant is valid? 8. Whether the partition as stated by the defendant is true? 9. Whether the sale deed in favour of defendant is true? 10. Whether the defendant has acquired adverse possession over the suit property? 11. Whether the allegation by the defendant that he has improved the suit property is true? 12. Whether the cause of action as stated in the plaint is true? 13. Whether the suit is barred by limitation? 14. Whether the suit is bad for non-joinder of necessary party? 15. What are the reliefs the plaintiffs are entitled to? 7. Based on the averments made on behalf of the plaintiffs as well as the defendant and on examining the evidence on record, the trial Court had come to the conclusion that the plaintiffs were entitled to the declaration of title with regard to 0.73.5 ares of land in Old Survey No.76/1 and New Survey No.40/2. The trial Court had however held that the plaintiffs were entitled to the relief of interim injunction as prayed for in the suit with regard to the extent of land. The other reliefs prayed for by the plaintiffs have been denied by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 8. While partially decreeing the suit, the trial Court had held that the purchase of a portion of the suit property by the plaintiff is true and that the plaintiff has been in enjoyment of 1.82 acres of land in the plaint survey numbers, as seen from Ex.A-8. The plaintiffs cannot claim any right over the other portions of the suit properties by adverse possession. The plaintiffs have title only to the extent of 1.82 acres of the suit property and the adjacent lands on the western side belong to the defendant. Since Ex.A-1 is a 30 years old document, it is to be considered as a registered document. The trial Court had also found that even though the plaintiffs and the defendant have purchased their properties, they have not purchased them with proper description of the extent and their boundaries. From the evidence let in, it was seen that the first plaintiff has no other property. 9. With regard to the issues 7 to 11, the trial Court had found that the remaining portions of land in the suit survey number apart from 1.82 acres, which is with the plaintiff are in accordance with the claims of the defendant., as it was held that the sale, dated 27.05.1942 is true. It was also found that the partition claimed by the defendant is true and the sale, dated 27.05.1942, obtained by the defendant is also true. However, the defendant cannot get any right in the suit property by adverse possession. The trial Court had also found that even though it was stated in the written statement that there was no cause of action for the suit, the reasons for such a claim had not been stated, nor was their any evidence explaining such a stand taken by the defendant. The trial Court had also found that the suit cannot be said to be bad in law due to law of limitation, as well as for non-joinder of necessary parties. Since it was found that the plaintiff is in enjoyment and possession of 1.82 acres in the suit property, the alternative relief sought for by the plaintiff had been rejected as unnecessary. Thus, the trial Court had held that the plaintiff was entitled to the relief of declaration of title of an extent of 0.73.5 ares in Old S.No.76/1 and i.e new Survey No.40/2. Thus, the plaintiffs are entitled for the relief of interim injunction to the said extent as prayed for in the suit. With regard to the other reliefs, the suit had been dismissed. 10. Aggrieved by the judgment and decree of the trial Court, dated 18.04.1994, the defendant had filed an appeal in A.S.No.52 of 1995, on the file of the Additional Sub Judge, Tindivanam. 11. The first appeal had been filed by the defendant raising various grounds. It was stated that the trial Court had failed to appreciate the documentary and oral evidence let in on behalf of the defendant. Suitable issues had not been framed by the trial Court in deciding the suit. The 7th plaintiff had filed a cross appeal being aggrieved by the judgment and decree of the trial Court, dated 18.04.1994. It was stated that the trial Court had committed an error in granting the decree only for 0.73.5 ares i.e 1 acres and 82 cents in respect of the entire extent of the suit property having 2 acres and 25 cents. https://hcservices.ecourts.gov.in/hcservices/ 12. The first appellate Court had framed the following points for determination. 1. Whether the plaintiffs are entitled for decree declaring they are the absolute owner of the entire suit property and for permanent injunction as against the defendant or in the alternative for delivery of possession of the suit property? 2. Whether there are any infirmities in the judgment and decree passed by the trial Court in O.S.No.1229 of 1988. 13. Considering the contentions raised and the evidence available, the lower Appellate Court had held that it was strange to note as to how Rahuman Khan Saib could get six acres and Subban Khan Saib could get 1.30 acres according to Ex.B-9 when their father had admittedly purchased only 2.26 acres in S.No.76/1 as per the document marked as Ex.B-10. It was also found that the defendant was not in a position to explain as to how he could get two acres of land. 13.1. The lower appellate Court had also noted that Ex.A-1 is a registered deed of the year 1929 and it is the first document available in respect of Survey No.76/1. In Ex.A-7, which is a registered mortgage deed executed by one Munisami Odeyar in favour of one Kuppusamy Pillai. Manickampillai's property has been cited as the western boundary of the mortgaged property. This shows that Manickampillai had property in S.No.76/1. It has also been found that the plaintiffs have filed tax receipts for the years 1962 to 1965 in the name of the deceased Aayeeammal corresponding to the fasli years 1371 to 1374. The tax receipts have been marked as Exs.A-3 to A-6 referring to Patta No.56. The tax receipts for the years 1990 to 1993 in the name of the deceased Aayeeammal referred to Patta No.127. From Ex.A-8, it was seen that the new survey number of the suit property is 40/2 referring to an extent of 0.73.5 ares, which is equivalent to 1.82 acres. Whereas the plaintiffs had admitted the fact that the suit property is comprised in the new Survey number 40/2 and the extent of the said property can only be 1.82 acres or 0.73.5 ares. While so, the plaintiffs are estopped from claiming an extent of 2.25 acres. According to Ex.A-8, it was seen that the plaintiffs are in possession of an extent of 0.73.5 ares only. 13.2. Gulab Hussain Khan Saib, who is shown in Ex.A-2 as the owner of the adjacent property is the purchaser of an extent of 2.26 acres of land in S.No.76/1, vide Ex.B-10. However, it was noted by the lower appellate Court that the defendant had not chosen to file any document to show that the said Gulab Hussain Khan Saib was in enjoyment of the suit property in S.No.76/1, after the purchase in the year 1942 till the filing of the suit by the plaintiffs. Further, the sons of the said Gulab Hussain Khan Saib have divided the property in Survey No.76/1, totalling an extent of 7.30 acres as referred to in Ex.B-8. The vendor of the defendant, namely, Rahuman Khan Saib has wrongly referred the https://hcservices.ecourts.gov.in/hcservices/ extent of his share in Ex.B-9 as six acres in S.No.76/1. Though his father himself had admittedly purchased only an extent of 2.26 acres in S.No.76/1, the said partition deed, marked as Ex.B-9 cannot confer any title on Rahuman Khan Saib to an extent of 6 acres in S.No.76/1. 13.3. The lower Appellate Court had also found that during the cross examination of P.W.1, he had deposed that the defendant had cleaned the Well in the suit property and that he had installed an oil engine. He had also admitted that there is no Well in the property purchased by his mother. Therefore, the lower Appellate Court had held that the defendant is in possession of the property in S.No.76/1. Further, it was noted that the defendant was not in a position to say the extent of the property in S.No.76/1 and no document had been filed to show the possession of the suit property either by Muthusamypillai or Gulam Hussain Khan Saib or Rahuman Khan Saib . P.W.1 had admitted that Gulam Hussain Khan Saib had property on the western side of his property. The fact that Zograbiammal had property in Survey No.76/1 is corroborated by the evidence of D.W.3, who is the brother of D.W.2, the vendor in Ex.B-1. The vendor in Ex.B-1 had categorically admitted that he had no idea about the extent purchased by his father. Though he had claimed four acres of land on the western side he could not explain as to how he had acquired the same. He had also admitted in the cross examination that he does not know the survey number and the total extent of the land. From the evidence of D.W.1 and D.W.2, it was noted that they had no clear knowledge of the extent or the ownership of the lands forming part of survey No.76/1. Though it was evident that the defendant also had property in the said survey number, the extent of the property could not be established. From the records, it was seen that Survey No.76/1 have been divided into Survey No.76/1 and Survey No.40/2. Since the defendant had not produced any document to show his possession over the suit property for 12 years or more, he could not be said to have acquired title by adverse possession. Thus, the lower Appellate Court had come to the conclusion that the plaintiffs had proved their title and possession only to an extent of 1.82 acres in the suit survey number. In such circumstances, the lower Appellate Court had held that the plaintiffs were entitled for a decree of declaration and they are the absolute owners of the suit property to an extent of 1.82 acres and that they were also entitled for the relief of permanent injunction to the said extent. Thus, the lower Appellate Court had confirmed the judgment and decree of the trial Court. 14. In such circumstances, the defendant in the suit had filed the present second appeal raising the following substantial questions of law: "1) Whether the lower Appellate Court is right in rejecting the law laid down by this Hon'ble High Court reported in 2006(1) TLNJ Civil 11, wherein it is held that in a suit for injunction the plaintiff has prove that he is the actual possession and decree the suit partially for 1.82 acres? 2) Whether the Courts below are right in ignoring the crucial fact that under Ex.B9 partition deed, dated 21.3.1979, https://hcservices.ecourts.gov.in/hcservices/ Rahman Khan was allotted 6 acres of land out of which the defendant purchased 2 acres under Ex.B1? 3) Whether the courts below who rightly found that the plaintiffs did not file the kist receipts for 12 years is correct in partially decreeing the suit?" 15. The learned counsel for the defendant/appellant had contended that both the Courts below had failed to appreciate the documentary and oral evidence in a proper perspective. He has also contended that the Courts below had failed to note that Ex.B-10 under which the property was sold by Muthusamypillai to Gulam Hussain Khan Saib, on 27.05.1942, had clearly mentioned that the area is 2.26 acres situate in the middle of a larger extent of 11.30 acres which fell to the share of the defendant's vendor. The Courts below had also erred in ignoring the boundaries mentioned in Ex.B-1, dated 12.04.1979, under which the defendant had purchased the suit property measuring 2 acres. The Appellate Court had gone wrong in holding that the defendant could not establish the extent purchased by him though Ex.B-1. The Courts below had also erred in not coming to the conclusion that the plaintiffs have not proved the accurate position of the suit property even in respect of 1.82 acres. 16. The learned counsel appearing on behalf of the plaintiffs/respondents had submitted that both the Courts below have concurrently arrived at the right conclusion that the plaintiffs are entitled to 1.82 acres of land in the suit property. However, the claim of the plaintiffs in respect of the remaining 43 cents of the suit property had been rejected, since the plaintiffs' suit property and the defendant's property are different properties. The defendant having purchased the property in S.No.40/1 cannot claim right over the plaintiffs suit properties. 17. The learned counsel had also submitted that the defendant had admittedly purchased the property only in Survey No.40/1. In such a case, he cannot claim any right over the plaintiffs suit property in S.No.40/2. The plaintiffs suit property and the defendant suit property are different properties. Further, it is not the case of the defendant that he has right over survey No.40/2. There is nothing on record to show that the defendant's/appellant's vendor had acquired more than 2.2 acres in S.No.76/1. From Ex.B-1 sale deed, it is seen that the defendant had purchased only the property comprised in S.No.76/1 with the new survey No.40/1. Therefore, it is clear that the defendant/appellant had purchased the property in S.No.40/1. 18. Considering the contentions raised on behalf of the parties concerned and in view of the evidence adduced and the records available, this Court is of the considered view that the Courts below had come to the right conclusion of decreeing the suit partially in favour of the plaintiffs. From the evidence available, it is clear that both the plaintiffs and the defendant had properties which were allotted adjacent to each other. However, no sufficient evidence was adduced before the https://hcservices.ecourts.gov.in/hcservices/ Courts below with regard to the extent and the boundaries and the ownership of the lands adjoining the suit property. Both by the oral and documentary evidence adduced before the Courts below, it could not be found that the plaintiffs had more than 1.82 acres of land in the suit property. The plaintiffs have not been in a position to show sufficient proof to substantiate their claims that they were also entitled to the remaining 43 cents of land in the suit survey number. 19. In such circumstances, this Court is of the considered view that the defendant/appellant had not shown sufficient cause or reason for this Court to interfere with the concurrent findings of the courts below based on the facts emerging from the evidence available. Accordingly, the second appeal stands dismissed. No costs. Kaki's case. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar csh To 1. The Additional Subordinate Judge, Tindivanam. 2. The District Munsif, Tindivanam. +1 cc to Mr.N.Nagu Sah, Advocate, SR.No.25122. Ra (co) krd / 16.6.08 S.A.No.499 of 2007 https://hcservices.ecourts.gov.in/hcservices/