IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.03.2008 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN SECOND APPEAL No.996 of 1996 1. Raji 2. Govindasami Pillai 3. Balaraman ... Appellants/Appellants/ Plaintiffs vs. 1. Kishta Pillai 2. Perumal Pillai 3. Annamalai 4.Masi ... Respondents/Respondents 1 to 3 & 5 Defendants 1 to 3 and 5 Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 08.02.1996 made in A.S.No.60 of 1993, on the file of the Subordinate Judge, Arni, confirming the judgment and decree of the Additional Munsif, Arni, dated 13.7.1992 and made in O.S.No.230 of 1987. For Appelllants : Mr.N.Vanchinathan For Respondents : Mr.Srinath Sridevan J U D G M E N T Aggrieved by the judgment and decree dated 08.02.1996 made in A.S.No.60 of 1993, on the file of the Subordinate Judge, Arni, confirming the judgment and decree dated 13.07.1992 made in O.S.No.230 of 1987 passed by the Additional District Munsif, Arni, the plaintiffs have come up before this Court with the present appeal. 2. The brief facts leading to the filing of the appeal are as under: i. According to the plaintiffs, originally, the schedule mentioned properties belonged to one Pottu alias Ellappa Pillai, the father of the plaintiffs and the plaintiffs are in possession and enjoyment of the same for a period of 40 years. On 19.06.1985, the father of the plaintiffs and the plaintiffs partitioned the suit schedule properties among themselves. While the defendants 1 and 2 do not have any right or possession of the suit schedule properties, they have trespassed into the https://hcservices.ecourts.gov.in/hcservices/ suit property on the guise that defendants 3 to 5 have sold the said property to them. Hence, they filed a suit in O.S.No.230 of 1987 seeking declaration of title of the suit schedule properties and recovery of possession in their favour. ii. The defendants 1 and 4 filed Written Statement denying the averments in the plaint. According to the defendants, originally the sons of Ponnu Pillai, namely, Pottu Pillai and Karia Pillai were living as a joint family. Pottu Pillai got the Sale Deed in respect of the property in question executed in his favour and he and Karia Pillai were in joint possession and enjoyment of the suit property. Pottu Pillai and Karia Pillai partitioned the suit schedule property between themselves equally before 25 years out of which one equal portion was acquired by the fourth defendant by way of a sale deed, who, along with his brothers, was in joint possession and enjoyment of the same. The fourth defendant enjoyed his share of the property and executed the same in favour of defendants 1 and 2 and from the said date, the defendants 1 and 2 have been in possession of the suit property. On 19.06.1985, the plaintiffs and their father have joined together and executed an agreement, which is not valid in the eye of law and the agreement of partition was created for the purpose of this case out of frustration that the plaintiffs did not get a share in the suit property. Iii. At the time of trial, the Trial Court framed issues and dismissed the suit with costs. Challenging the same, the plaintiffs went on appeal before the Subordinate Judge, Arni in A.S.No.60 of 1993. The Lower Appellate Court, while considering the case, raised the following issues: a. Whether the judgment passed by the Lower Court is right? b. Whether the appeal is liable to be entertained? iv. On consideration of the above issues, the Lower Appellate Court confirmed the decision of the Trial Court that the suit schedule property is not in possession of the plaintiffs. Aggrieved by the said judgment of the Lower Appellate Court in confirming the judgment of the Trial Court, the plaintiffs have approached this Court praying to set aside the judgment made in A.S.No.60 of 1993 dated 08.02.1996. https://hcservices.ecourts.gov.in/hcservices/ 3. This Court, while admitting the Second Appeal, has formulated the following substantial questions of law: i. Whether the Lower Appellate Court erred in law, in not taking note of the fact that the sale deed standing in the name of the plaintiffs' father is in respect of his separate property and the onus of proving the joint family nature of the property is on the defendant? ii. Whether the Lower Appellate Court erred in dismissing the entire suit, when even on the defendants' own showing, that the plaintiffs are entitled to a half share, especially when there is no evidence to show that the entire suit property did not fall to the share of Karia Pillai? iii. Whether the Lower Appellate Court erred in not accepting the case of tresspass put forward by the plaintiffs? 4. Heard Mr.N.Vanchinathan, learned counsel for the appellants and Mr.Srinath Sridevan, learned counsel for the respondents. 5. Learned counsel for the appellants has put forth the following contentions: (a) The Lower Appellate Court erred in framing proper points for determination, as is mandatory under the Code of Civil Procedure. (b) The Lower Appellate Court failed to note that what the plaintiffs stated was, that the acquisition was prior to the partition between them and their father and not between Ella Pillai and consequently the learned Judge erred in thinking that the plaintiffs had conceded that it was joint family property. (c) The Lower Appellate Court failed to note that if a member of the joint family says that a particular item standing in the name of a member or manager of the joint family, the burden lay heavily on him to prove the same. (d) The Lower Appellate Court failed to note that almost all the documents are records like chitta extract, adangal extract, etc and all of them show the possession of Ella Pillai and the plaintiffs. (e) The Lower Appellate Court ought to have found that the sale deeds executed by the third defendant in favour of defendants 1 and 2 are https://hcservices.ecourts.gov.in/hcservices/ totally invalid and cannot confer any title on them and that the defendants 1 and 2 have trespassed on the suit property, after their purchase from Karia Pillai. (g) The Lower Appellate Court failed to note that even assuming for the sake of argument that the suit property is the joint family property of Karia Pillai and Pottu @ Ella Pillai, still the plaintiffs are entitled to a half share and there is no scrap of paper or any evidence to show that in the oral partition, the suit property was allotted to the share of Karia Pillai, which alone can confer title on him. 6. Per contra, learned counsel for the respondents has submitted that originally, the sons of Ponnu Pillai, namely, Pottu Pillai and Karia Pillai were living as a joint family; Pottu Pillai got the Sale Deed in respect of the property in question executed in his favour and he and Karia Pillai were in possession and enjoyment of the suit property; Pottu Pillai and Karia Pillai partitioned the suit schedule property between themselves equally before 25 years out of which one equal portion was acquired by the fourth defendant by way of a sale deed, who, along with his brothers, was in joint possession and enjoyment of the same; The fourth defendant enjoyed his share of the property and executed the same in favour of defendants 1 and 2 and from the said date the defendants 1 and 2 have been in possession of the property. By virtue of his enjoyment of the property for 25 years, the fourth defendant had gained adverse possession. On 19.06.1985, the plaintiffs and their father joined together and executed an agreement, which is not valid in the eye of law and the agreement of partition was created for the purpose of this case out of frustration that the plaintiffs did not get a share in the suit property. According to the learned counsel, the plaintiffs are not entitled to any share in the suit property and the appeal is liable to be dismissed. 7. While it is the case of the plaintiffs that their father Pottu alais Ellappa Pilla and the fourth defendant had partitioned the suit property subsequent to which their father had executed a sale deed in their favour, the case of the defendants is that subsequent to partition of the suit property between the plaintiffs' father and the fourth defendant, the fourth defendant had been in possession of the same and he has executed the same in favour of defendants 1 and 2 by way of a sale deed. 8. The main point for consideration which is necessary to answer the substantial questions of law is whether the suit property was a family property or self-acquired property of the plaintiffs' father. https://hcservices.ecourts.gov.in/hcservices/ 9. Though it is the stand of the plaintiffs that they got the suit property executed in their favour, it is to be noted that the plaint is bereft of any particulars like as to when exactly they got the suit property executed in their favour by their father Pottu alias Ellappa Pillai and as to when exactly the defendants have trespassed into the suit property. More importantly, the plaintiffs have not marked the sale deed, on which their case rests, before the Trial Court. Even assuming but without conceding that the plaintiffs' father had been in possession of the suit property as his self- acquired property before executing the said sale deed in 1985, the plaintiffs could have very well marked documents like patta, chitta, adangal, kist receipts, etc. before the Trial Court in support of their case. But, for the reasons best known to them, these documents have not been marked and the only document marked before the Trial Court is the partition deed entered into between the plaintiffs' father and the fourth defendant. On the contrary, Exs.D.1 to D.50 have been marked on the side of the defendants to substantiate their case that the fourth defendant had been in possession and enjoyment of the suit property way back from 1970. Further, though Ex.D.1, patta cannot stand as a proof for the right of the fourth defendant, the plaintiffs have not objected in the plaint, the issuance of patta in the name of the fourth defendant. These aspects have been rightly taken cognizance of by the Trial Court while dismissing the case of the plaintiffs. 10. Admittedly, though the plaintiffs had initiated the suit claiming that the property in question is their father's individual property, before the Lower Appellate Court, it has been candidly admitted by them that the suit property is a family property. Of course, the plaintiffs have marked Exs.P.5 to P.64 as additional documents before the Lower Appellate Court. But, even from a close scrutiny of Ex.44, patta pass- book, it can only be seen that that it is only a joint-patta. To put it otherwise, in addition to the name of the plaintiffs' father, the names of others also do appear in the patta pass- book. That apart, even as per Ex.D.1, patta pass-book, it is seen that the suit property stands in the name of not only the plaintiffs' father i.e. Pottu alias Ellappa Pillai but also in the name of others. These pieces of evidence make it crystal clear beyond any reasonable doubt that the suit property is not the individual property of the plaintiffs' father but also belongs to the fourth defendant and others. 11. Further, though Exs.P.61 and P62, chittas pertaining to patta No.176 have been marked on the side of the plaintiffs, the same can hardly be of any help to them for the reason that it has not been specifically stated therein that the plaintiffs have been in possession of 14½ cents of land in S.No.27/3, which according to the plaintiffs, is their case. Added to this, Ex.D.16, patta reveals that the suit property belongs not only to the plaintiffs' father but also to five others. Even viewing from this angle, it can not at all be concluded that https://hcservices.ecourts.gov.in/hcservices/ the suit property was in individual possession and enjoyment of the plaintiffs' father. Similarly, though the plaintiffs had marked Exs.P.51 to P.66, adangals, from the adangals marked as Exs.D.20 to D.35 before the Lower Appellate Court, it can quite vividly be seen from the said documents that the suit property has been held only as a joint-property by Pottu alais Ellappa Pilla, Karia Pillai and several others and not as the individual property of Pottu alias Ellappa Pillai, as claimed by the plaintiffs. Last but not the least, it has to be noted that at the stage of trial, the plaintiffs have denied the execution of sale deed by their father after the partition of the suit property. Whereas, before the Lower Appellate Court, it has been categorically admitted by the plaintiffs themselves that only after partition of the suit property between their father and the fourth defendant, the sale had taken place. Thus, when it is amply clear that the suit property was not held by the plaintiffs' father as an individual property and was held only as a joint- property, it cannot be concluded that the defendants 1 and 2 have encroached the suit property inasmuch as they had only got it executed from the fourth defendant vide Ex.D.1, patta pass-book and in view of the same, it only leads to come to a conclusion that the plaintiffs' have not approached the Court with clean hands. 12. In view of the foregoing discussion, this Court is not able to find any points to interfere with the well-merited judgments passed by the Courts below. In such view of the matter, the substantial questions of law involved in this Second Appeal are answered against the appellants. Resultantly, this Second Appeal which deserves dismissal is accordingly dismissed. However, there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Abe To : 1.The Subordinate Judge, Arni. 2.The Additional District Munsif, Arni. 3.The Section Officer, V.R.Section, High Court, Madras. S.A.No.996 of 1996 NM[CO] SKY/10/4 https://hcservices.ecourts.gov.in/hcservices/