IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.184 of 2003 Pouvanammal .. Appellant/3rd Respondent/3rd Defendant Vs. 1. Ponnammal 2. Soundrarajan 3. Adhimoolam 4. Sumathi 5. Minor Suseela, rep by her guardian Adhimoolam, third respondent. .. Respondents/Plaintiff/2, 4, 5 and 6th Defendants Second Appeal against the judgment and decree dated 21.10.2002 in A.S.No.12 of 1998 on the file of the Additional Sub- Court, Vridhachalam, against the judgment and decree dated 22.10.1997 in O.S.No.62 of 1996 on the file of the District Munsif- cum-Judicial Magistrate's Court, Thittagudi. For appellant : Mr.N.Maninarayanan For respondents: Mr.V.Raghavachari JUDGMENT The Second Appeal is filed by the third defendant against the judgment and decree dated 21.10.2002 in A.S.No.12 of 1998 on the file of the Additional Sub-Court, Vridhachalam, modifying the judgment and decree dated 22.10.1997 in O.S.No.62 of 1996 on the file of the District Munsif-cum-Judicial Magistrate's Court, Thittakudi. 2. The averments in the plaint are as follows: The suit property is in total extent of 0.57 cents. Northern 28-1/2 cents belong to one Thangavel Kalingarayar of Narasinga Mangalam Village. Southern 28-1/2 cents belong to the plaintiff's and the third defendant's father Sathappa Udayar. The plaintiff purchased the northern portion of 28-1/2 cents on 29.4.1957 from Thangavel Kalingarayar under the registered sale deed and from that date onwards, she is in possession and enjoyment of the same. Out of the Southern 8-1/2 cents of the plaintiff's and the third defendant's father, 8-1/2 cents were used as a thrash floor and the remaining 20 cents were used as cultivable land. Sathappa Udayar executed a Will on 17.5.1965. As per the Will, the plaintiff and the third defendant ought to have enjoyed the https://hcservices.ecourts.gov.in/hcservices/ property equally. In the Will, it was stated that 9 cents in which R.S.No.147 were marked as 'E' schedule in the Will and it has been used as a "Samadhi land" (cemetery land). Since the property allotted to the plaintiff was more than the property allotted to the third defendant, the plaintiff paid Rs.75/- to the third defendant. From the date of partition, the third defendant was not in possession of Southern 28-1/2 cents. Since the third defendant was not in possession for the past 20 years, her right in the property has been extinguished. Since the defendants 1 and 2 have approached the plaintiff for sale of the property, and since the plaintiff refused, they collided with the third defendant and attempted to interfere with the plaintiff's possession. Hence, the plaintiff has come forward with the suit for declaration of title and injunction, or in the alternative, for recovery of possession. She prayed for a decree. 3. The gist and essence of the written statement, filed by the third defendant, adopted by the defendants 1 and 2, are as follows: The plaintiff is in possession of only 27 cents. Remaining 30 cents are in possession of the third defendant from the date of the death of her father on 31.5.1965. So, the third defendant prescribed title by adverse possession. Patta has been changed in the name of the third defendant and her husband. They executed the exchange deed between the first defendant on 4.9.1986. They are in possession and enjoyment of the property. So, the plaintiff is not entitled to any relief. 4. The trial Court considered the averments both in the plaint and in the written statement and framed five issues. Considering the oral evidence of P.Ws.1 and 2, D.Ws.1 and 2 and Exs.A-1 to A-22 and B-1 to B-17, the trial Court granted decree only in respect of northern 28-1/2 cents in respect of the plaintiff and also granted injunction and the suit in respect of southern 28-1/2 cents was dismissed. Against that, the plaintiff preferred appeal. The first appellate Court, after considering the arguments of both sides, allowed the appeal, modifying the judgment and decree of the trial Court. The first appellate Court decreed the suit in entirety as prayed for. Against that, the present Second Appeal is filed by the third defendant. 5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration: "(a) Whether the Lower Appellate Court is legally right in holding that fraud was committed by the appellant without any plea of fraud raised by the plaintiff? (b) Whether the lower appellate Court is legally right in placing the burden of proof on the side of the appellant/defendant? (c) Whether the appellate Court is legally right in decreeing the suit on the ground that the defendant had not proved her case without noticing that plaintiff had not proved her title to the suit property? https://hcservices.ecourts.gov.in/hcservices/ (d) Whether the appellate Court is legally right in not considering the terms of the Will to decide the question of title to the suit property?" 6. The first respondent as plaintiff filed the suit for declaration of title and injunction in respect of entire 57 cents in the suit S.No.121/2, stating that the northern 28-1/2 cents have been purchased from one Thangavel Kalingarayar and the southern 28- 1/2 cents belong to her father Sathappa Udayar. As per the Will, the plaintiff is entitled to the property. She is in possession and enjoyment of the suit property in respect of entire 57 cents. She prayed for declaration and injunction or in the alternative, for recovery of possession. 7. The appellant as third defendant resisted the suit stating that she is in possession of 30 cents and 27 cents alone are in possession and enjoyment of the plaintiff. The third defendant stated that she prescribed title by adverse possession and prayed for dismissal of the suit. 8. The trial Court, after framing necessary issues, and considering the oral and documentary evidence, came to the conclusion that the first respondent-plaintiff is entitled to only northern 28-1/2 cents as per Ex.A-1 sale deed and for the remaining southern 28-1/2 cents, the suit was dismissed. Against that, the plaintiff preferred appeal and the appeal was allowed, decreeing the suit in its entirety and the first respondent-plaintiff was granted decree as prayed for in the plaint. Against that, the third defendant has come forward with the present Second Appeal. 9. Learned counsel for the appellant-third defendant would contend that the first respondent-plaintiff and the appellant-third defendant are sisters. In respect of northern 28-1/2 cents, there is no dispute. Southern 28-1/2 cents admittedly belongs to the father of the plaintiff and third defendant, namely Sathappa Udayar. It is also true that the said Sathappa Udayar executed a Will, which has been marked as Ex.A-2. There was an oral partition between the appellant-third defendant and the first respondent- plaintiff. Oral partition has not been proved and there are no particulars for oral partition. In such circumstances, the first appellate Court has committed error in coming to the conclusion that in the oral partition, the entire property has been allotted to the first respondent-plaintiff. So, the first appellate Court has committed error in allowing the appeal. Learned counsel further contended that the appellant-third defendant has not played any fraud, but the first appellate Court has come to the conclusion that fraud has been played by the appellant-third defendant and a document was created, which is against law. Hence, the learned counsel for the appellant-third defendant prayed for allowing the Second Appeal. 10. Learned counsel for the first respondent-plaintiff relied upon paragraphs 20 and 21 of the judgment of the first appellate Court and urged that as per Ex.A-1, there is no dispute https://hcservices.ecourts.gov.in/hcservices/ with regard to the extent of the property and the oral partition has been proved. The plaintiff is entitled to entire property. The first appellate Court has considered this aspect in proper perspective and came to the correct conclusion. Learned counsel for the first respondent-plaintiff prayed for dismissal of the Second Appeal. Substantial question of law (d): 11. The first respondent as plaintiff filed the suit for declaration of title and for injunction or in the alternative, for recovery of possession, stating that the suit property is belonging to her and she purchased the northern 28-1/2 cents from one Thangavel Kalingarayar under Ex.A-1. In the oral arrangement, the remaining 28-1/2 cents has been allotted to her and hence, she is in possession and prayed for declaration of title and injunction or in the alternative, for recovery of possession. 12. The appellant-third defendant admitted that the northern 27 cents belong to the first respondent-plaintiff, but 30 cents belongs to her father Sathappa Udayar and he executed Ex.A-2 Will. In that 'E' schedule property has been retained for "Samadhi" (cemetery) and for maintenance of cemetery. After his death, the property has been in possession and enjoyment of the appellant- third defendant and she is in possession and enjoyment. The trial Court, after considering the oral and documentary evidence, and after framing necessary issues, came to the conclusion that the northern 28-1/2 cents belong to the first respondent-plaintiff. Hence, the declaration and injunction has been granted. Now, the dispute is only in respect of southern 28-1/2 cents. 13. Admittedly, southern 28-1/2 cents were owned by Sathappa Udayar. He is having 3 daughters. Pounammal, the appellant-third defendant, Ponnammal, the first respondent- plaintiff and one more daughter Viruthambal, who died. He retained 'E' schedule property in the Will for putting up "Samadhi" (cemetery) and also for maintenance of "Samadhi". But as per the decision of the Apex Court, the Will or Trust in respect of the maintenance of some doom, is invalid, as per the decision reported in AIR 1953 SC 491 (Saraswathi Ammal and another Vs. Rajagopal Ammal). On that basis only, the trial Court has come to the conclusion that the property has been inherited by both daughters, i.e. the appellant-third defendant and the first respondent- plaintiff. So, the trial Court has decided as per the Will and against that, no appeal has been preferred by the appellant-third defendant. The first appellate Court and the trial Court have considered the terms of the Will and decided the title to the suit property. Substantial question of law (d) is answered accordingly. Substantial question of law (a): 14. 'E' schedule property in the Will has been succeeded by the two daughters, i.e. the appellant-third defendant and the first respondent-plaintiff. It is appropriate to consider whether the oral arrangement pleaded by the first respondent-plaintiff has been proved or whether the appellant-third defendant is in https://hcservices.ecourts.gov.in/hcservices/ possession and enjoyment of the suit property after the death of her father. The trial Court has come to the conclusion that as per the purchase, the first respondent-plaintiff is entitled to northern 28-1/2 cents and the remaining 28-1/2 cents have not been in possession of the plaintiff. The first respondent-plaintiff has not filed any document to show that after the death of her father, she is in possession of the entire property and the trial Court dismissed the suit in respect of the same. Against that, the plaintiff preferred appeal. The first appellate Court accepted the oral arrangement alleged by the first respondent-plaintiff. It is as per law, in respect of southern 28-1/2 cents and the father died intestate and the property has been allotted for "Samadhi" (cemetery) and maintenance of the same is invalid. So, each daughter is entitled to 1/2 share in the property. 15. It is appropriate to consider the averments in the plaint and in the written statement. The first respondent-plaintiff has stated in paragraph 4 of the plaint that the appellant-third defendant has received Rs.75/- and she has relinquished her right in favour of the first respondent-plaintiff and from that day onwards, the first respondent-plaintiff is in possession and enjoyment of the property. The trial Court has not accepted the same, stating that no one has been examined to prove the same. Furthermore, the plaintiff has pleaded that since she in possession for 20 years, the appellant-third defendant's right has been extinguished. Per contra, the appellant-third defendant has raised a contention in paragraph 3 of the written statement that she is in possession of 30 cents and she prescribed title by adverse possession. In paragraph 4 of the written statement, it is stated that the patta has been changed in the name of herself and her husband's name. The first appellate Court, in its judgment, in paragraphs 21 to 23, came to the conclusion that the appellant- third defendant has not proved that she is in possession and enjoyment of the property, but as per the documents filed by the appellant-third defendant, i.e. Exs.B-3 and B-5 to B-16, which were all in the name of only Velayutha Udayar, the husband of the appellant-third defendant and he is not the legal heir of the deceased Sathappa Udayar. So, the first appellate Court came to the conclusion that fraudulently, they obtained patta in the name without any document, and so, the first appellate Court has not placed any reliance on Exs.B-3 and B-5 to B-16. 16. It is appropriate to consider Ex.A-3 patta filed by the first respondent-plaintiff. The appellant-third defendant has marked the patta as Ex.B-2. In Ex.A-3, Ponnammal's name has been given. In Ex.B-2, Velayutham Udayar's name has been given, along with other pattadars, and the said Velayutham Udayar is none other than the husband of the appellant-third defendant. He has not given any reason as to why his name has been given in respect of the property inherited by his wife from his father-in-law Sathappa Udayar. Considering the same only, the first appellate Court has in paragraphs 21 to 23 of its judgment, came to the conclusion that Velayutha Udayar obtained joint patta without even giving application. So, the first appellate Court has given reasoning that the documents Exs.B-2, B-3 and B-5 to B-16 have been obtained by fraud. In paragarph 23 of its judgment of the first appellate https://hcservices.ecourts.gov.in/hcservices/ Court, it is stated as follows: @23/ capy; rhrdj;jpd; go jdf;F fpilj;jr; brhj;Jf;fis jd; fztd; ntyha[j cilahUf;F brl;oy;bkz;l; bra;J bfhLf;fnt ,y;iy vd;W gp/rh/1 FWf;F tpruhuzapy; mspj;Js;s rhl;rpak; Vw;Wf; bfhs;sg;gl;lhy; gp/rh/1d; rhh;gpy; jhf;fy; bra;ag;gl;Ls;s gl;lh g[j;jfKk;. fp!;J urPJfSk;. gp/rh/1d; fztdhy; jd; bgaUf;F nkhroahf cw;gj;jp bra;ag;gl;l Mtz';fs; vd;W bjspthfj; bjhpfpwJ/ ////@ 17. The first respondent-plaintiff has not raised a plea that the appellant-defendant has obtained documents by fraud, because, the first respondent-plaintiff filed the suit for declaration of title and injunction, or in the alternative, for recovery of possession. At the time of oral evidence, the appellant-third defendant has filed documents. On a perusal of the documents, it has been revealed that Exs.B-2, B-3 and B-5 to B-16, stand in the name of Velayutham Udayar, who is having no legal right or interest in the property. So, the first appellate Court has given a finding that those documents were obtained by fraud. Moreover, the first respondent-plaintiff has proved her possession, she filed patta and kist receipts to show that the kist receipts stand in her name, namely Exs.A-4 and A-5 and then Raju Udayar, her husband's name in Exs.A-6 to A-21. The first respondent-plaintiff has only possessed the property by testamentary succession of 'B' schedule property mentioned in Ex.A-2 Will. The first respondent- plainitiff was not aware of the fact whether the joint patta stands in the name of the appellant-third defendant--Povunammal or her husband and also the kist receipts. So, the first respondent- plaintiff is not in a position to plead fraud. So, the first appellate Court has not committed any error while deciding that the documents, Exs.B-2, B-5 to B-16, were obtained by fraud. The substantial question of law (a) is answered accordingly. Substantial questions of law (b) and (c): 18. The suit has been filed for declaration of title in respect of the suit property. So, the burden is heavily upon the first respondent-plaintiff to prove that the suit property is belonging to her. The trial Court and the first appellate Court have placed burden on the plaintiff to prove her case. At this juncture, it is appropriate to consider the evidence let in by both parties. In her chief examination and in the plaint, P.W.1 has pleaded that 'E' schedule property has been divided between them and she has taken Southern 28-1/2 cents and instead of 'E' schedule property, she gave 9 cents for Rs.75/- to her sister. In her cross examination, she fairly conceded that she is not having any document to exchange the same. She has stated that no one has known, except the appellant and the first respondent with regard to exchange of title. P.W.1 has also fairly conceded that the property has been lying vacant for the past ten years. 19. P.W.2 Ramasamy also stated that for the past ten years, the property was vacant. In chief examination, he has stated that the defendants were not cultivating the land. https://hcservices.ecourts.gov.in/hcservices/ 20. D.W.1 Pouvanammal, the appellant-third defendant in her evidence has gone to the extent of saying that Thangavel Kalingarayar is having only 27 cents and not 28-1/2 cents. But Ex.A-1 sale deed, which came into existence on 29.4.1957, was much before the litigation, and in that, he has sold northern 28-1/2 cents to his sister, the first respondent-plaintiff. In this document, the father of the appellant-third defendant and the first respondent-plaintiff, was one of the attestors. In such circumstances, both the Courts below have come to the correct conclusion that northern 28-1/2 cents has been absolutely belonging to the first respondent-plaintiff. 21. Besides that, in 'A' schedule property of Ex.A-2 Will, the father has stated only 20 cents and in Ex.A-2 Will, it is further stated that, @//// 121-2 0/57y; bghJtpy; 0/20 Mf@, which he has stated that he was having only 20 cents, but whereas, the appellant-third defendant is claiming that 30 cents are in her possession and enjoyment. A suggestion was posed to D.W.1 (appellant-third defendant) in her evidence that the plaintiff has given 9 cents as well as Rs.75/- and the plaintiff has released her right in the property, and the same has been denied by D.W.1 in her evidence. She further deposed that she prescribed title by adverse possession in respect of southern 30 cents. She said that the above 30 cents have been exchanged between the parties. After that only, the suit has been filed. Admittedly, the property was lying fallow. The first respondent-plaintiff fairly conceded that she has taken the entire 27-1/2 cents and she has paid Rs.75/- and the same has been denied by D.W.1 (third defendant). A suggestion was posed to her that the entire 57 cents belong to the first respondent-plaintiff, which has also been denied by D.W.1. 22. D.W.2 Anjapuli has stated during cross examination that even today, he is cultivating the suit property and last year, he has raised paddy. In the very next line, he has stated that for the past ten years, it was lying fallow. In his evidence, D.W.2 has stated that, @tHf;Fr; brhj;ij ,g;bghGJk; ehd; jhd; gaphpl;L tUfpnwd;/ brd;w Mz;L bey; gaph; itj;njd;/ tHf;F brhj;J 10 Mz;Lfshf Rk;kh ,Uf;fpwJ/ ///@ This shows that the evidence of D.W.2 is not trustworthy. 23. Considering the evidence of P.W.1, D.W.1 and D.W.2 and the documentary evidence, it is clearly proved that the appellant- third defendant is not in possession of 30 cents, as stated by her in her written statement. Her father has got 20 cents and 8-1/2 cents as "Kalam" (thrash floor). As per the evidence of P.W.1, she has given 9 cents as well as Rs.75/- and she has pleaded the same in her plaint and the same has also been proved in her evidence. In such circumstances, the first appellate Court, as the last fact finding Court, considered both the oral and documentary evidence and came to the correct conclusion that the first respondent- plaintiff is entitled to declaration of title in respect of the entire property consisting of 57 cents. In respect of northern 28- 1/2 cents, there is no dispute. In southern 28-1/2 cents, after the filing of the suit, admittedly, it is lying fallow. It is well settled principle of law that the possession follows title and https://hcservices.ecourts.gov.in/hcservices/ since the first respondent-plaintiff is the owner of the property, she is entitled to declaration and injunction as prayed for in the plaint. The substantial questions of law (b) and (c) are answered accordingly. 24. In view of the answers given to the substantial questions of law (a) to (d), it is seen that the first appellate Court has considered the oral and documentary evidence and came to the correct conclusion that the first respondent-plaintiff is entitled to declaration of title and injunction as prayed for in the plaint. I do not find any infirmity or illegality in the judgment and decree passed by the first appellate Court. Hence, they are liable to be confirmed. 25. In the result, (a) the Second Appeal is dismissed. (b) The judgment and decree of the first appellate Court are confirmed. (b) No costs. cs Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Additional Subordinate Judge, Vridhachalam. 2. The District Munsif-cum-Judicial Magistrate, Thittagudi. 3. Record Keeper, V.R. Section, High Court, Madras. + 1 cc to Mr. V. Raghavachri, Advocate SR No.5247 PUR(CO) SR/9.2.2010 Judgment in S.A.No.184 of 2003 https://hcservices.ecourts.gov.in/hcservices/