In the High Court of Judicature at Madras Dated: 29.08.2008 Coram The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.122 of 1999 Chinnammal ..Appellant/1st plaintiff v Thiru Muthusamy ..Respondent/1st defendant This Second appeal filed against the judgment and decree dated 29.6.1998 made in A.S.No.7 of 1997 on the file of the Subordinate Judge, Attur confirming the Judgment and decree dated 14.8.1996 passed in O.S.No.408 of 1990 on the file of Court of the District Munsif', Attur. For Appellant : Ms.M.Srividya,Advocate For Respondent : Mr.T.Murugamanickam,Advocate JUDGMENT This appeal has been directed against the Judgement in A.S.No.7 of 1997 on the file of the Court of Subordinate Judge, Attur dated 29.6.1998 which had arisen out of a decree and Judgment in O.S.No.408 of 1990 on the file of the Court of District Munsif, Attur. The unsuccessful first plaintiff, who had lost her case before the Courts below, is the appellant herein. The suit was filed by the first plaintiff for declaration of her title and recovery of possession of the plaint schedule property which is about 648 sq.ft in Survey No.78/1, in Malliakarai Village, Attur Taluk, Salem District. 2. The short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaint schedule property belongs to the plaintiffs ancestrally. The first plaintiff's paternal grand father Ramasami Gounder purchased them on 1.6.1938 under Document No.2081/38 on the file of the Sub Registrar of Valapady from T.K.Chandrapillai of Thalavaipatti Village for Rs.100/-. The said Ramasami Gounder died about 20 years ago leaving his three sons, namely Karuppanna Gounder, Marimuthu Gounder and Perumal Gounder. Karuppanna Gounder and Perumal https://hcservices.ecourts.gov.in/hcservices/ Gounder died issueless. The second plaintiff is the wife and the first plaintiff is the daughter of Marimuthu Gounder and they are the legal heirs of Ramasamy Gounder. According to the first plaintiff, the suit property was looked after by the second plaintiff, who was mentally ill, who had put up her mother Kammanthattai Muthammal in possession of the plaint schedule property. The said Kammanthattai Muthamma died five years ago, till her death she was paying the house tax to the suit property. Thereafter, the first plaintiff was in possession and enjoyment of the suit property till 9.11.1987. The first plaintiff was dispossessed on 9.11.1987 by the first defendant, who has denied the title of the first plaintiff to the suit property. The third defendant had purchased the adjoining portion of the suit property for a sum of Rs.50/- from T.K.Chandrapillai, the common vendor of the first plaintiff's grand father Ramasami Gounder and the third defendant under the registered document No.2082/38 on 1.6.1938. The plaintiffs' grand father had purchased undivided 2/3rd share in the suit survey number and the remaining 1/3rd was purchased by the third defendant. The first plaintiff was living on the western 2/3rd portion and the third defendant was living on the eastern 1/3rd portion. The third defendant had sold her property to one Chinnasamy Chettiar on 4.11.1940 under document No.2486/40 under which north south 28 yards and east west 27 ½ yards of land was sold as Item No.1 and another east west 12 ½ yards and north south 10 yards of land was sold as Item No.II. The total extent comes to 3989 ½ sq.ft. Out of this, the plaintiffs' grand father had purchased 2/3rd share ie., 2659 ½ sq.ft and the third defendant had purchased 1329 ½ sq.ft. The first plaintiff had sold 1/3rd of her property to one Maruthai keeping with her 1772 sq.ft. The first defendant with the active connivance of the second defendant has trespassed into the first plaintiff's possession and had forcibly occupied 648 sq.ft. The defendants 1 and 2 are denying the title of the first plaintiff. Hence the suit. 3. The first defendant alone is the contesting defendant in the suit. In his written statement, the first defendant would contend that there is no cause of action for the plaintiffs to file the suit. The suit was not properly valid for the purpose of Court fee and Jurisdiction. The plaintiffs are in no way concerned with the suit property. The vacant house site measuring about 13 ½ feet east to west , 48 sq.ft north to south(648 sq.ft) with specific boundaries situated in village natham in S.No.78/1 of Malliakarai Village was originally belonged to one Kamatchiammal, wife of Chidambara Gounder. The above said Kamatchiammal had executed a registered gift settlement deed on 9.1.1973 in favour of Kullammal, wife of Ramasamy Gounder in respect of the above said property. The first defendant had purchased the above said property from the abovesaid Kullammal by virtue of the registered sale deed dated 9.11.1987 for a valid consideration of Rs.5000/-. From that date onwards, the first defendant has been in peaceful possession and enjoyment of the above said property by exercising all sorts of ownership by paying house https://hcservices.ecourts.gov.in/hcservices/ tax to Malliakarai Panchayat. The first defendant's vendor had been in possession and enjoyment of the above said property from the date of the above said gift settlement deed dated 9.1.1973. Under the sale deed dated 9.11.1997, the first defendant had acquired valid title to the suit property. After the death of Ramasamy Gounder, the suit property was not looked after by Mariyaee, or by Muthammal as stated in the plaint. The first plaintiff was never in possession and enjoyment of the property during the relevant point of time. Hence there is no question of dispossession of the plaintiff from the suit property. Since the first defendant is not a party to the documents referred to in the plaint, he is not bound by those documents. The first defendant has not trespassed into the first plaintiff's possession of the suit property. The first plaintiff has not filed the suit on the basis of the documentary evidence. The first defendant is not liable to deliver the vacant possession of the suit property. Hence the suit is liable to be dismissed. ` 4. The defendants 2 and 3 died pending suit. No legal representatives of defendants 2 and 3 were impleaded before the trial Court. 5. On the above pleadings, the trial Court had framed six issues for trial . On the side of the plaintiffs, the first plaintiff has examined herself as P.W.1 besides examining another witness by name Thangavelu as P.W.2 and exhibited Exs A1 to A10. On the side of the defendants, first defendant was examined as D.W.1 and one Manoharan was examined as D.W.2. Exs B1 to B19 were marked . The learned trial Judge,after giving due considerations to the evidence both oral and documentary and after hearing the submissions made by the learned counsel appearing for both sides , has come to a conclusion that the plaintiffs are not entitled to any relief asked for in the plaint and accordingly dismissed the suit. Aggrieved by the findings of the learned trial Judge, the first plaintiff has preferred an appeal in A.S.No. 7 of 1997 before the Court of Subordinate Judge, Attur, finding no material to interfere with the decree and Judgment of the learned trial Judge in O.S.No.408 of 1990 on the file of the Court of District Munsif, Attur, has dismissed the appeal thereby confirming the decree and Judgment of the trial Court which necessitated the first plaintiff to come forward with this second appeal before this Court. 6. The substantial questions of law involved in this appeal are i) Whether the findings of the Courts below that the plaintiff/appellant has filed the suit to establish her title to the suit property is correct in law even though the truth and veracity of Exs A1 to A3 has been admitted by the defendant? ii) Whether the finding of the Courts below regarding Exs A6, A9 and A10 is correct in law? https://hcservices.ecourts.gov.in/hcservices/ 7. Subsequential Question of Law No.1 According to the first plaintiff/appellant, the plaint schedule property ie., 648 sq.ft in Survey No.78/1, in Malliakarai Village, Attur Taluk, Salem District belongs to one T.K.Chandra Pillai from whom the first plaintiff's grand father Ramasami Gounder had purchased the same under Ex A1 sale deed dated 1.6.1938. According to the first plaintiff, her paternal grand father Ramasami Gounder had three sons by name Karuppanna Gounder,Marimuthu Gounder and Perumal Gounder and that Karuppanna Gounder and Perumal Gounder died issueless and that she is the only daughter of Marimuthu Gounder. The second plaintiff Mariyayee was the wife of Marimuthu Gounder. She also died pending suit. A perusal of Ex A1 sale deed would go to show that the grand father of the first plaintiff viz., Ramasami Gounder had purchased east west 13 yards and north south 23 ½ yards under Ex A1 within the following four boundaries. North of Raja street, east of Chengagounder's house, west of Venkatachala Gounder and south of Perumal Muppan's house. There is no survey number is given for the said property purchased under Ex A1 by Ramasami Gounder. It is the admitted case of the first plaintiff that the remaining 1/3rd share in the suit property was purchased by the third defendant Kamatchiammal under Ex A2 sale deed dated 1.6.1938, who in turn had executed Ex A3 sale deed dated 4.11.1940 in favour of one Chinnachamy Chettiar, who is none other than the husband of the third defendant. Under Ex A2, east west 5 yards and north south 11 yards, out of north south 23 ½ yards east west 9 yards of the total extent of property in S.No.78/1 was sold by T.K.Chandrapillai to the third defendant. Under Ex A3, the third defendant had sold more extent viz., east west 12 ½ yards and north south 10 yards, than what she had purchased under Ex A2 from T.K.Chandrapillai. We are not going to declare the right of the defendants in the suit survey number property but the only point is whether the first plaintiff has proved her title in respect of the plaint schedule property i.e, 648 sq.ft in S.No.78/1, in Malliakkarai Village. There is a vague reference in the plaint at paragraph 8 as to the effect that the first plaintiff had executed a sale deed in favour of one Maruthai to an extent of 1/3rd share of the total extent of 2/3rd share, her grand father had purchased under Ex A1 sale deed and that she was keeping with her 1772 sq.ft. So this is the basis for the suit for declaration of 648 sq.ft in S.No.78/1. But the plaint is silent with regard to the sale deed said to have been executed by the first plaintiff in favour of Maruthai, even though the first plaintiff in the plaint would state that out of 2/3rd total extent of S.No.78/1, 1/3rd was sold by the first plaintiff to Maruthai, there is no reference to the sale deed in favour of Maruthai. But on the side of the defendants, the said sale deed in favour of Maruthai executed by the first plaintiff, the second plaintiff and the husband of the first plaintiff was produced and exhibited as Ex B1. Ex B1 is dated 3.12.1984. A perusal of the schedule of property for the property sold under Ex B1 shows that 19 feet east west and 22 1/2sq.ft north https://hcservices.ecourts.gov.in/hcservices/ south measuring 427 ½ sq.ft was sold by the first plaintiff, second plaintiff and the husband of the first plaintiff in favour of Maruthai in S.No.78/1. Under Ex B1 another east west 19 feet and north south 22 ½ feet with a total extent of 446 ½ sq ft was also sold in the same S.No.78/1 by the first plaintiff, second plaintiff and the husband of the first plaintiff in favour of Maruthai. So under Ex B1 out of 2658 sq.ft purchased under Ex A1 by Ramasami Gounder ie., the paternal grand father of the first plaintiff, the first plaintiff along with the second plaintiff and the husband of the first plaintiff have sold 874 sq.ft. The remaining extent purchased under Ex A1 comes to 1784 sq.ft. It is the case of the first plaintiff that out of 1784 sq.ft, the defendants have trespassed about 648 sq.ft. As rightly observed by the Courts below, the plaintiffs have no doubt failed to identify the property trespassed out of the total extent of 1784 sq.ft remains in their possession after executing Ex B1 sale deed. As correctly contended by the learned counsel appearing for the respondent, the plaintiffs ought to have impleaded the vendee under Ex B1 sale deed also, since the plaintiffs have scheduled only 648 sq.ft ie., alleged trespassed area by the defendants. They have not shown four boundaries for the above said 648 sq.ft, but they have given only four boundaries for 2/3rd share of the property purchased by their paternal grand father Ramasami Gounder under Ex A1. Under such circumstances, I do not find any reason to interfere with the findings of the first appellate Court in A.S.No.7 of 1997on the file of the Court of Subordinate Judge, Attur. Without properly identifying the property alleged to have been trespassed by the defendants, the plaintiffs cannot ask for a declaration for the title in respect of alleged 648 sq ft. scheduled to the plaint and also cannot ask for redelivery of the alleged trespassed portion without giving four boundaries for the said 648 sq.ft said to have been trespassed by the defendants. Hence I hold on first substantial question of law that even though the plaintiffs have produced Exs A1 to A3 to show their title in respect of the property scheduled to the plaint, they have failed to identify the trespassed portion in the suit survey by identifying the same by giving four boundaries for the alleged trespassed portion ie., 648 sq.ft in the plaint S.No.78/1, it cannot be said that the findings of the Courts below are perverse or against the law. The first Substantial question of law is answered accordingly. 8. Substantial Question of Law No.2 Ex A6 is the voter's identification card; Ex A9 is the Voter's list for Block No.1 in Malliakkarai Village for the year 1988; and Ex A10 is the legal heir certificate issued by the President Panchayat Board who under law is not a competent authority to issue Ex A10 legal heir certificate. The learned counsel appearing for the respondent would contend that in Ex A6 there is an over writing in door No.1/36 and hence it cannot be taken as the foolproof to show that in door No.1/36 , the plaintiff, his mother and husband were residing during the relevant point of time. But in Ex A9 voter's list, it is shown https://hcservices.ecourts.gov.in/hcservices/ that the first plaintiff, her mother Mariyayee, second plaintiff and first plaintiff's husband were residing at Door No.36 in Block No.1 Malliakkarai Village but the entire voter's list was not produced by the plaintiff, but only one sheet was produced. So under such circumstances, no credibility can be attached to Exs A6, A9 and A10, as correctly held by the Courts below. The second substantial question of law is answered accordingly. 9. In fine, this second appeal is dismissed confirming the decree and Judgment in A.S.No.7 of 1997 on the file of the Court of Subordinate Judge, Attur. No costs. The first plaintiff is at liberty to file another suit after scheduling the property alleged to have been trespassed by the defendants by showing four boundaries to the same and also after impleading the vendees under Ex B1, if so advised. The Judgment in the appeal will not form as res judicata for the future litigation. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sg To 1. The Subordinate Judge, Attur 2. The District Munsif ,Attur 3. The Section Officer, VR Section, High Court, Madras. + 1 CC To M/s.T.Murugamanickam, Advocate SR NO.48809 + 1 CC To Ms.V.Ambika, Advocate SR NO.48919 Second Appeal No.122 of 1999 KSK(CO) SRA(17/09/2008) https://hcservices.ecourts.gov.in/hcservices/