IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A. No.1638 of 1995 1.Ethirajulu Naidu (died) 2.E.Govindammal 3.E.Santhanam 4.E.Mohan Kumar 5.E.Murasoli 6.J.Jayalakshmi 7.L.Janabai 8.M.Vasundara 9.K.Padmavathy 10.S.Usha (Appellants 2 to 10 brought on record as LR of the deceased Sole Appellant vide as per order of court dated 31.12.2002 made in CMP Nos.3153 to 3155 of 2002 by PSDJ) ...Appellants/Plaintiff and nil vs. 1.Yasodammal 2.Ramesh 3.Seethammal 4.R.Bakthavatchalam ... Respondents/Plaintiffs 3 & 4 and LRs of the Defendant Prayer: Appeal filed under Section of 100 of C.P.C. against the Judgment and Decree dated 31.03.1995 made in A.S.No.59 of 1987 on the file of the Subordinate Judge, Tiruvallur in confirming the Judgment and Decree dated 11.12.1986 made in O.S.No.186 of 1979 on the file of the District Munsif, Tiruvallur. For Appellants : Mr.G.Ethirajulu For Respondents : No Appearance https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The Deceased Second Plaintiff/Appellant has filed the present Second Appeal before this Court as against the Judgment and Decree dated 31.03.1995 in A.S.No.59 of 1987 passed by the Learned Subordinate Judge, Tiruvallur. 2. Pending Second Appeal, the Second Plaintiff died and his Legal Representatives have been arrayed as Appellants 2 to 10 in the Second Appeal. 3. The First Appellate Court viz., the Subordinate Judge, Tiruvallur in the Judgment in A.S.No.59 of 1987 dated 31.03.1995 has among other things observed that 'the Plaintiffs are neither entitled to the suit properties nor in possession of the same. On the other hand, the Defendant is found to be entitled to the suit properties as well as possession. Since the Lower Court has also come to the conclusion that the Plaintiffs have not established their right over the property as well as possession, the Judgment and Decree passed by the Lower Court need not to be interfered' and resultantly, dismissed the appeal with costs. 4. The Trial Court on an appreciation of oral and documentary evidence available on record while passing Judgment has come to the conclusion in O.S.No.186 of 1979 dated 11.12.1986 has inter alia mentioned that '...on the other hand, P.W.2 would state that it is possible that the Defendant's family (Vagairah) are in possession of the property from 1967. Defendant's Document of Title are being more probable of acceptance and therefore, the Defendant's title to the property has to be upheld and consequently, held that the Plaintiffs are not the owners in possession of the suit property and the Defendant's title and possession is true' and dismissed the suit directing the parties to bear their own costs. 5. Before the trial Court, on the side of the Plaintiffs, Witnesses P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked. On the side of the Defendants, D.W.1 was examined and Exs.B1 to B3 were marked. 6. At the time of admission of the Second Appeal, this Court has framed the following substantial question of Law: Whether the Courts below committed error in rejecting Ex.A7 which will prove the plaintiffs predecessor in title is in possession of the suit property from the year 1945 coupled with the Property Tax Demand Notice and the Tax Receipt issued by the competent Authority? https://hcservices.ecourts.gov.in/hcservices/ FINDING ON SUBSTANTIAL QUESTION OF LAW: 7. According to the Learned counsel for the Appellants, the Judgments and Decree passed by both the Courts below in the main suit O.S.No.186 of 1979 dated 11.12.1986 and A.S.No.59 of 1987 dated 31.03.1995 are contrary to Law and weight of evidence and against of the probabilities of the case. It is the further contention on the side of the Appellants that both the Courts below should have conferred title on the Plaintiffs holding that the suit property is a Gramanatham poramboke and they are in enjoyment and possession of the same for several decades and prescribed title. 8. Proceeding further, the Learned counsel for the Appellants contends that the Courts below has committed an error in conferring Title on the Defendant merely on the basis of Exs.B1 and B2 Sale Deeds dated 02.03.1967 and 01.02.1979 respectively without examining the vendor and tracing the vendor's right and interest in the property to execute the sale deeds and indeed, without assigning any valid or proper reason, both the Courts below have rejected the Plaintiffs' Documents which will show that they are in possession and enjoyment of the suit property. 9. Expatiating his arguments, the Learned counsel for the Appellants puts forward a plea that Ex.A7 Sale Deed dated 20.06.1945 executed by one Subburayalu Naidu and others in favour of Govindammal being a Registered document of the year 1945 need not be proved independently for relying upon the description of boundaries mentioned in the schedule of the property which will clearly show that the Western boundary is described as suit property belonging to the Plaintiffs predecessors in title from time immemorial and even from the year 1945, Ex.A7 Sale Deed dated 20.06.1945 will prove the possession of the Plaintiffs but these aspects of the matter have not been adverted to by the Courts below in a proper, perspective which has resulted in the miscarriage of justice and therefore, prays for allowing the second appeal to prevent an aberration of justice. 10. The Plaintiffs 3 and 4 before the trial Court have been shown as Respondents 1 and 2 in the Second appeal. Respondents 3 and 4 are the L.Rs of the Deceased Defendant. Though for the Respondents 1 to 4 publication was effected in Malai Murasu, Cehnnai Edition, Evening Tamil Daily as early as on 24.11.2009 and though their names have been printed in the cause list today, they have not chosen to appear before this Court either in person or through counsel. 11. In the Plaint, the Plaintiffs have averred among other things that the suit property being a Gramanatham belonged to the https://hcservices.ecourts.gov.in/hcservices/ deceased First Plaintiff Gopal Naidu and his brother Venkatarayalu Naidu and they reclaimed it more than 42 years ago and made it fit for occupation and started to enjoy the same and later, after reclaimation, they put up a hut in the suit property to reside therein and also raised Velikathan plants around the suit property. 12. Also, the case of the Plaintiffs is that Venkatarayulu Naidu was living in the suit property for a period of more than 20 years till the death of Mangammal and the said Mangammal expired 15 years ago and even after the death of Mangammal, Venkatarayalu Naidu was living in the suit property till his death. Thus, the said Venkatarayulu Naidu till his demise was in possession and enjoyment of the suit property. The First Plaintiff has been employed at Madras and permanently living there. Venkatarayalu Naidu died in the year 1966 leaving the second Plaintiff as his heir and after the death of Venkatarayalu Naidu, with the permission, leave and licence of the Plaintiffs, the Plaintiffs Pangali Subburayalu Naidu, Son of Potti Naidu came to be in permissive possession and enjoyment of the suit property inclusive of then existing hut. One year ago, the hut in the suit property was damaged and dilapidated and Subbarayalu Naidu delivered back to the Plaintiffs' possession of the suit property together with dilapidated hut. The Plaintiffs have removed the materials of the hut. 13. In this background, the Plaintiffs' claim is that they are the exclusive owners of the suit property and they have also prescribed title to the suit property by exclusive, open, uninterrupted possession and enjoyment by them and their predecessor for more than 45 years. Venkatarayalu Naidu and after him, Subburayalu Naidu were paying the house tax for the house in the suit property. 14. The case of the plaintiffs is that the Defendant has no manner of right and from 27.02.1979, he is denying the plaintiffs title to the suit property and also threatening the plaintiffs possession of the suit property and therefore, the Plaintiffs have laid a suit for declaration of their title in respect of the suit property and for the consequential relief of permanent injunction against the Defendant, etc., 15. The Deceased Defendant in his written Statement has taken a plea that the Plaintiffs have no manner of right and title over the suit property and they never prescribed title to the suit item and also the Plaintiffs' alleged predecessors were also never in possession of the suit property and there was no incident on 27.02.1979 and also, there was no occasion either, since the Defendant was already in possession on that day, before and after and as a matter of fact, he became the owner of half the suit site https://hcservices.ecourts.gov.in/hcservices/ as per the Sale Deed dated 01.02.1979, from Jayammal who is the daughter-in-law of Pedda Rangappa Naidu and further, he became the owner of another half as per the Sale Deed dated 02.03.1967 from Subbammal and therefore, he has become the owner of 18 cents. Further, he and his predecessors in title alone are the owners and that the plaintiffs have no manner of right in the suit item and has prayed for dismissal of the suit. 16. P.W.1 (the Deceased Second Plaintiff ) in his evidence before the trial Court has deposed that the suit property was a Gramanatham Poramboke with ups and downs and the suit property was enjoyed by his father and his uncle and constructed the house after cleaning the place and around the residential house, they planted velikathan plants and his father's concubine is Mangammal and they resided in the suit property for the last 20 years and Mangammal died before filing of the suit and afterwards, his father is residing the suit property. 17. It is the evidence of P.W.1 in his cross-examination that only when the suit property has been purchased from Jayammal in the year 1979, dispute has arisen but not at the time when it has been purchased from Subburayan in the year 1969. 18. The evidence of PW1 is also to the effect that the witnesses mentioned in Ex.A7 Sale Deed dated 20.06.1945 are not alive and to the west of the suit property, Govindammal property is situated and he purchased the same in the year 1945 and executed the document and that he purchased from Subburayalu and Chengalvarayan, who are not alive. 19. Significantly, it is the evidence of P.W1 that Ex.A5 and Ex.A6 are the kist receipts paid by his father. P.W2 in his evidence has stated that he does not know about the measurement of the suit property and to a suggestion whether from the year 1967, the property has been in possession of the defendant's family, he has deposed that the possession might have been with them and even today, the Defendant is in possession of the suit property. The evidence of PW2 is silent as to the possession of other 9 cents of the suit property by the Defendant, but these aspect of the matter have not been adverted to by both the Courts below in a proper perspective. 20. The evidence of DW1 is to the effect that he is the son- in-law of the Defendant and he knows about the suit property and during the year 1973, the suit property has been in vacant site in which he is residing and it belongs to the Defendant who purchased from Subbamma and Jayamma as per Exs.B1 and B2 and that the witnesses mentioned in the Sale Deeds have expired and at any point of time, the suit property has not been in possession of the Second https://hcservices.ecourts.gov.in/hcservices/ Plaintiff. Moreover, it is his further evidence that the Defendant is in possession of the property for the past 20 years. 21. It is useful to refer to the evidence of DW1 who in his cross-examination has stated that he does not know about the parent document and further, he does not know whether the Subbamma and Jayamma have got any right or otherwise. 22. On the side of the Appellants, much stress is placed upon Ex.A7 Sale Deed boundary description by pointing out in the Deed, the suit property is situated to the West of Gopal Naidu and Kandappa Naidu's land to show the plaintiffs' predecessors in title. In this connection, it is to be remembered that the boundary description will not establish one's title or possession to the suit property. At best, it may be a slender method of collateral proving of the case by the Plaintiffs. That apart on the side of the Appellants, it is contended that Exs.A1 to A6 Documents filed on the side of the Plaintiffs referred to the House Tax Receipts pertaining to the year 1974-1975, etc., will clearly prove the enjoyment and possession of the Plaintiffs in respect of the suit property Gramanatham and therefore, by virtue of these clinching documents in their favour, they are entitled to get the relief of declaration and possession as prayed for by them in the plaint. 23. Exs.A1 to A4, House Tax Receipts and House Tax Demand Notices for concerned years are in the name of Subburayalu. According to the Appellants, these receipts are earlier to the Exs.B1 and B2 Sale Deeds and naturally, one has to give weight to these documents. Ex.A5 (House Tax Receipt) for March 1960 and Ex.A6 Notice of Demand for House Tax are in the name of Venkatarayulu Naidu. 24. Admittedly, Ex.B1 Sale Deed dated 02.03.1967 is in the name of Ramasamy Naidu, Son of Pandara Govindasamy Naidu executed by one Subbammal Wife of Govindha Naidu in respect of the property 312 No. pertaining to including 9 cents. Likewise, Ex.B2 is the Sale Deed dated 01.02.1979 executed by Jayammal, Wife of Munusamy Naidu in favour of Ramasamy Naidu, Son of Vanganur Pandara Govindasamy Naidu in respect of half share in Survey No.22. 25. It is to be pointed out that in both Exs.B1 and B2 dated 02.03.1967 and 01.02.1979, there is no averment as to how the vendor has traced the title in respect of the property that has been conveyed. Admittedly, only the son-in-law of the Defendant DW1 has been examined before the trial court. The Defendant during his life time has not been examined as a witness before the trial Court. Merely because in the third party Sale Deed Ex.A7 dated 20.06.1945 and that too in the Schedule of the said document, there has been a reference about the location of the schedule property being situated https://hcservices.ecourts.gov.in/hcservices/ to the land of Gopal Naidu and Kandappa Naidu, etc., the same will not go to prove the one's right over the property. On the side of the Appellants/Plaintiffs, Field Map Book, Revenue Entry or Patta has not been marked to know the nature and character of the suit property inasmuch as the Plaintiffs before the trial Court has prayed for the relief of declaration and they are title to the suit property. However, it is to be borne in mind that on both sides viz., the Plaintiffs and Defendants oral and and documentary evidence are not quite sufficient to decide the controversy involved between the parties. 26. More importantly, since the suit property is Gramanatham and inasmuch as the Plaintiffs have filed Exs.A1 to A6 the House Tax Receipts, etc., from the year , certainly these documents are earlier to that of Exs.B1 and B2 Sale Deeds. Besides the above, this Court pertinently at this juncture points out that in Exs.B1 and B2 there is no tracing of antecedent title deeds by the vendor. Generally, a Sale Deed will refer to tracing of title to the property that is particularly conveyed. Therefore, this Court is of the considered opinion that mere description of the Western boundary as the suit property belonging to the Plaintiffs' predecessors in title for time immemorial will not prove the case of the Plaintiffs. Equally, the same logic will also apply to the Defendant who in Exs.B1 and B2 has not traced the Antecedent Title. Both the Plaintiffs and the Defendant have not discharged the principle of burden of proof and also the facts specially within their knowledge as required under Section 101 and 106 of the Indian Evidence Act. Therefore in the interest of justice, this Court provides an opportunity to both sides to adduce further oral and documentary evidence and also to examine additional witnesses and mark additional documents to prove their respective stands so as to enable a Court of Law to resolve their disputes/controversies in a complete and comprehensive manner. In that view of the matter, this Court sets aside the Judgments of both the Courts below,viz., the Appellate Court and the trial Court passed in A.S.No.59 of 1987 dated 31.03.1995 and O.S.No.186 of 1979 dated 11.12.1986 respectively and remands the matter to the trial court for fresh disposal, in accordance with law and allows the Second Appeal to prevent an aberration of justice. As such, this Court is not answering the substantial question of law and leave the same open. 27. In the result, the Second Appeal is allowed without costs. The Judgment and Decree passed by both the Courts below viz., the Appellate Court as well as the trial Court in A.S.No.59 of 1987 dated 31.03.1995 and and O.S.No.186 of 1979 dated 11.12.1986 are set aside. The parties are directed to let in further oral and documentary evidence to prove their respective stands and also, the parties are directed to summon the Revenue Records from the concerned Authorities and to examine appropriate persons as https://hcservices.ecourts.gov.in/hcservices/ witnesses from the concerned Officers to prove their case, if they are so advised and in any event, the trial court is directed to dispose of the main suit O.S.No. 186 of 1979 within a period of three months from the date of receipt of a copy of this order and report compliance to this Court without fail. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri To 1. The Subordinate Judge, Tiruvallur 2. The District Munsif, Tiruvallur. 3.The Sub Assistant Registrar (Appellate Side), High Court, Madras. (To Watch the Report) 4.The Section Officer, VR Section, High Court,Madras-104. 5.The Section Officer, Judicial Department, High Court,Madras (To watch the report) +1cc to M/s.G.Ethirajulu, Advocate Sr 43911 KSK(CO) km/15.7. S.A.No.1638 of 1995 https://hcservices.ecourts.gov.in/hcservices/