IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.11.2011 C O R A M THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.27 of 1997 1. Thangavel Udayar(died) ...1st Appellant/Plaintiff 2. Pitchai Pillai 3. Chinnathambi (Appellants 2 and 3 are brought on record as L.Rs. of the deceased vide order dated 31.10.2003 in C.M.P.Nos. 11204 & 11205 of 2003) ... Appellants 2 & 3/LRs of deceased 1st Appellant (Plaintiff) Vs. 1. Maruthamuthu(died) 2. Murugesan ...Respondents 1&2/Defendants 1&2 3. M.Selvaraj 4. M.Subramanian 5. M.Vadivel. ...Respondents 3 to 5/LRs of 1st Respondent (1st Defendant) (Respondents 3 to 5 are brought on record as L.Rs of the deceased first respondent vide order dated 19.07.2010 in C.M.P.NO.351 of 2007) ... Respondents Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree in A.S.No.229 of 1991 on the file of the Subordinate Judge, Ariyalur dated 04.10.1996, reversing the Judgment and Decree in O.S.No.352 of 1989 on the file of the District Munsif, Ariyalur, dated 06.11.1991. For Appellants : Mr.T.Sellapandian For Respondents : Mr.M.V.Krishnan *** https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The Appellant/First Respondent/Plaintiff has filed the instant Second Appeal as against the Judgment and Decree in A.S.No.229 of 1991 passed by the Learned Sub Judge, Ariyalur, in reversing the Judgment and Decree dated 06.11.1991 in O.S.No.352 of 1989 passed by the Learned District Munsif, Ariyalur. 2. The First Appellate Court viz., the Learned Sub Judge, Ariyalur, while passing the Judgment in A.S.No.229 of 1991 on 04.10.1996 has inter alia observed that "the third Defendant has sold the property to the Defendants 1 and 2 as per Ex.B.3 and therefore, the Plaintiff has not proved his case and his right and that the suit property inclusive of 0.16 cents has come in the hands of the third Defendant as per the Will of Valliammai and from him, the Defendants 1 and 2 have purchased the property and that the said property has been in their enjoyment and viewed in that perspective, the trial Court should have dismissed the suit. However, by not doing the same, allowing the suit and passing the Judgment thereto is not a correct one. As such, the Judgment and Decree of the trial Court will have to be set aside and resultantly allowed the appeal by setting the Judgment and Decree of the trial Court in O.S.No.352 of 1989, on the file of the Learned District Munsif, Ariyalur." Further, the two Courts' costs have been directed to be paid by the Appellant/Plaintiff to the Appellants/Defendants 1 and 2 in the First Appeal. 3. Before the trial Court viz., the District Munsif Court, Ariyalur, while delivering the Judgment in O.S.No.352 of 1989, filed by the Appellant/Plaintiff has among other things opined that the suit property belongs to the Appellant/Plaintiff and the Appellant / Plaintiff's source of title is correct and further, that the suit property belonging to Valliammai has come in the hands of the third Defendant as per Will dated 21.07.1983 and that the Defendants 1 and 2 through evidence and document have not established that they are in enjoyment of the property after their purchase on 31.12.1984 and resultantly decreed the suit as prayed for by the Appellant/Plaintiff in the plaint together with costs. 4. Earlier, dissatisfied by the Judgment and Decree dated 06.11.1991 in O.S.No.352 of 1989, the Defendants 1and 2 as Appellants have projected A.S.No.229 of 1991, on the file of the First Appellate Court viz., the Learned Sub Judge, Ariyalur. https://hcservices.ecourts.gov.in/hcservices/ 5. The First Appellate Court viz., the Learned Sub Judge, Ariyalur, since allowed the Appeal filed by the Defendants 1 and 2, now before this Court, the Appellant/Plaintiff has filed the present Second Appeal as an aggrieved person. 6. At the time of admission of the Second Appeal, this Court has framed the following Substantial Question Law for consideration: "Whether the Lower Appellate Court is correct in reversing the Judgment and Decree of the trial Court and dismissing the suit on the basis of Ex.B.4-Patta issued in favour of the Defendants 1 and 2 which was obtained and filed after the suit was filed ?" 7. The Contentions, Discussions and Findings on point: The Learned Counsel for the Appellant/First Respondent/Plaintiff contends that the First Appellate Court viz., the Learned Sub Judge, Ariyalur has committed an error in setting aside the well considered Judgment of the trial Court. (ii) The Learned Counsel for the Appellant/Plaintiff urges before this Court that the First Appellate Court viz., the Learned Sub Judge, Ariyalur has failed to appreciate that the property in question was originally enjoyed by one Chinnasamy and thereafter, his son-in-law Ramasamy Udayar and thereafter the Appellant/Plaintiff as his sole Legal Heir. (iii) Advancing his arguments, it is the submission of the Learned Counsel for the Appellant/Plaintiff that the Appellate Court has wrongly disbelieved the evidence of P.W.2, which has specifically stated that the entire extent in Survey No.113-2 is being enjoyed by the Appellant/ Plaintiff as well as the third Respondent, which is also evidenced as per Ex.A.1-Patta. (iv) According to the Appellant/Plaintiff, the Revenue Authorities issued patta jointly in the name of the Appellant/Plaintiff as well as in the name of the third Defendant after the UDR scheme and as such the First Appellate Court should have affirmed the Judgment and Decree of the trial Court. (v) That apart, the Learned Counsel for the Appellant/Plaintiff projects a plea that D.W.1 before the trial Court has admitted that the Appellant/Plaintiff as well as the third Defendant, who is a vendor are enjoying the property jointly and therefore, the First https://hcservices.ecourts.gov.in/hcservices/ Appellate Court ought to have confirmed the Judgment of the trial Court in the suit. (vi) Added further, it is the contention of the Learned Counsel for the Appellant/Plaintiff that much importance cannot be given to Ex.B.4-chitta copy, a document procured after filing of the suit and such document should not be looked into by a Court of Law.(if it is produced after filing of the suit.) However, these material aspects have not been adverted to by the trial Court in a real perspective. (vii) Lastly, it is the contention of the Learned Counsel for the Appellant/Plaintiff that the First Appellate Court ought not to have gone into the discrepancy aspect found in the original plaint when the amendment application for amending the plaint has been allowed. (viii) Per contra, it is the submission of the Learned Counsel for the Respondents 2 to 5 that the First Appellate Court has taken into account the oral and documentary evidence available on record and has come to a clear conclusion that the Appellant/Plaintiff has not established either his case or his source of title and allowed the Appeal and consequently dismissed the suit filed by the Appellant/Plaintiff, which need not be disturbed by this Court at this distance point of time. (ix) For better appreciation of the case, this Court makes an useful reference to the evidence of P.W.1, P.W.2 and D.Ws.1 and 2. (x) P.W.1 (Appellant/Plaintiff) in his evidence has deposed that he is in enjoyment of the suit property and that the suit property originally belonged to his grandfather Chinnasamy Udayar and his father has married the daughter of his grandfather and therefore, his father has received the suit property and for his father, he and Narayana Udayar are two sons and since Narayana Udayar has no heir and since he died without marriage, he is the heir for the property of his father. The third Defendant, the Defendants 1 and 2 have not enjoyed the suit property at any point of time and that the total extent of the suit property viz., the land is 16 cents and on the Eastern side of the suit property land measures an extent of 0.8 cents and on the upper portion of the suit property measuring 0.8 cents originally belonged to Muthuvel Udayar and the said Muthuvel Udayar is the brother's son of his grandfather Chinnasamy Udayar and he does not know the brother's name of Chinnasamy Udayar. (xi) P.W.1 proceeds to state in his evidence that Valliammai is the daughter of Muthuvel Udayar and Ex.A.1 is the joint patta in https://hcservices.ecourts.gov.in/hcservices/ respect of the suit property in his name and in third Defendant's name. (xii) continuing further, it is the evidence of P.W.1 (in cross examination) that he does not know that the third Defendant has got the suit property by virtue of the Will and during the life time of Valliammai, the third Defendant has enjoyed Valliammai's property and Valliammai's property has been looked after by the third Defendant and further that the third Defendant's house and Valliammai's house are same and Valliammai has no children and that Valliammai possessed property in ten or fifteen places and he does not know that Valliammai possessed Patta No.83 and that after the marriage of Valliammai, her husband Narayanasamy has died. (xiii) P.W.1 has also stated that for the suit property 16 cents, the entrance is situated on the Western side and for them on the Eastern side, there is an entrance and UDR Patta has been in his name and Valliammai's name earlier and that the said Patta is missing. (xiv) P.W.2 in his evidence has stated that he knows the suit property and in the suit property, originally there were three tamarind trees, which have been enjoyed by Valliammai, Periammal and Thangavel Udayar and Valliammai and Periammal are sisters and in the tamarind trees, fruits have been plucked and they have been divided into two shares and one share has been taken by Valliammai and Periyammal and another half has been taken by Thangavel Udayar, the Appellant/Plaintiff and two or three years before, the three tamarind trees have been sold by the Plaintiff, Valliammai and Periyammal and heir Rangarajan and the sale proceeds amount have been equally divided by the Plaintiff and Rengarajan. (xv) P.W.2 in his evidence has further deposed that the suit property is a single extent and presently, the suit property is remaining as it is and that he does not know who has a right in the suit property. (xvi) It is the evidence of D.W.1 (First Defendant) that in Survey NO.113-2, 16 cents is in his enjoyment and his brother Murugesan, the second Defendant and in this 16 cents, the Appellant/Plaintiff has no right and also he is not in enjoyment of the same and that the tamarind tree in 16 cents has been cut by Valliammai 15, 20 years before and originally, the suit property belongs to Valliammai and Valliammai is the wife of Narayana Udayar and Ex.B.1 is the Chitta copy and in that Ex.B.1, Patta No.83 is mentioned which stands in the name of Valliammai of the year 1978. https://hcservices.ecourts.gov.in/hcservices/ (xvii) The evidence of D.W.1is to the effect that Narayana Udayar and Valliammai have no children and Narayana Udayar died, when Valliammai has been young and after the death of Valliammai, Ex.B.2 - Will property has been enjoyed by the third Defendant and the third Defendant on 31.12.1984 has sold the suit property 113-2 measuring 16 cents for Rs.720/- to him and the second Defendant and Ex.B.3 is the sale deed and after his purchase, the patta has been transferred in their name and Ex.B.4 is the Chitta copy for 1988 and Ex.B.5 is the Kist paid by Valliammai for Patta No.83, for fasli 1374 and after the sale, in Patta No.1284 on 18.06.1986, Ex.B.6 is the Kist paid by them and on the Eastern and Southern side of the suit property, there is a land of Arumugam and he has purchased the suit property on the basis Rengarajan has obtained the same on the basis of Will. (xviii) D.W.2 in his evidence has stated that the suit property is 1/8 Kani and in the suit property, there have been 10, 12 tamarind trees and they have been cut by Valliammai, who has sold the same and in the suit property, the Appellant/Plaintiff and others are not in enjoyment of the same and after Valliammai, the Appellant/Plaintiff has not enjoyed the same and after Valliammai, Rengarajan, and the Defendants 1 and 2 are in enjoyment of the suit property. (xix) D.W.2 in his further evidence has stated that three tamarind trees have been sold by Valliammai prior to her death in the suit property and he does not know how the sale proceeds amount have been divided by the concerned persons. (xx) D.W.1 in his cross examination has stated that he does not know what are the properties mentioned in the Will and as per Valliammai's Will, he knows that the properties have been enjoyed by Rengarajan and that Rengarajan and the Appellant/Plaintiff have been in enjoyment of some properties in half portions. (xxi) Significantly, in the plaint, the Appellant/Plaintiff has not stated that he and the third Defendant are enjoying the property as per Will in half portions and the said fact has also not been spoken to on behalf of the Appellant/Plaintiff. In Ex.A.1, Patta No.1284, for fasli 1395 in respect of Survey No.113-2, 0.06.5 Ares and Survey No.158/9C, 0.92.0 Ares, the name of the first Defendant Maruthu Padayachi's son Rengarajan and Ramasamy's son Thangavel are found. As per Ex.B.4 Chitta, in respect of Survey No.113-2, 006.5 Ares, the name of Vadivel Padaiyachi's Sons Maruthamuthu and Murugesan are seen. The said Maruthamuthu and Murugesan are the Defendants 1 and 2 in the suit. Admittedly, the suit has been filed https://hcservices.ecourts.gov.in/hcservices/ on 21.09.1989 before the trial Court. The patta transfer in the name of the Defendants 1 and 2 has been made as per order dated 22.09.1989, as seen from Ex.B.4 Chitta. One day after filing of the suit viz., on 22.09.1989, Ex.B.4 Chitta has come into existence. As per Ex.B.4 Chitta, in respect of Survey No.113-2 measuring an extent of 006.5 Ares, the same has been in the name of the Defendants 1 and 2. The third Defendant has not been examined before the trial Court. D.W.1 has deposed that he has known about the execution of Ex.B.2 Will dated 21.07.1983. The Appellant/Plaintiff (P.W.1) has admitted in his evidence that as per Will, the third Defendant has not been in enjoyment of the property and that the Western portion of the suit property has been in enjoyment of the third Defendant. In view of the fact that the third Defendant has been in enjoyment of 16 cents in Survey No.113-2 as per the Will of Valliammai and since the third Defendant has sold the property as per Ex.B.3 sale deed dated 31.12.1984 to the Defendants 1 and 2, it is crystal clear that the Appellant/Plaintiff has not established either his case or his source of tracing of the title. The third Defendant has only been in enjoyment of the suit property inclusive of 16 cents as obtained by the third Defendant from whom the Defendants 1 and 2 have purchased the same and they have been in enjoyment of the suit property. If the Defendants are in enjoyment of the suit property as a logical corollary, the suit filed by the Appellant/Plaintiff is per se not maintainable before the trial Court. However, the trial Court has taken a contra view and has decreed the suit, which is not a correct and proper one, based on the available, overwhelming oral, cogent, coherent and acceptable documentary evidence on record. As such, the conclusion arrived at by the First Appellate Court in allowing A.S.No.229 of 1991 filed by the Defendants 1 and 2 as Appellants does not suffer from any material irregularity or patent illegality and resultantly, the Substantial Question of Law is answered against the Appellant/Plaintiff. (xxii) In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree dated 04.10.1996 of the First Appellate Court viz., the Subordinate Judge, Ariyalur in A.S.No.229 of 1991 are affirmed by this Court for the reasons assigned in this Appeal. ssl Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Judge, Ariyalur. 2. The District Munsif, Ariyalur. Copy to: The Section Officer, VR Section, High Court, Madras. + 1 cc to M/s. C.S. Associates, Advocate SR No.67266 SV(CO) SR/5.1.2012 Judgment made in S.A.No.27 of 1997 https://hcservices.ecourts.gov.in/hcservices/