Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
20. 12 2013 CORAM: THE HONBLE TMT. JUSTICE PUSHPA SATHYANARAYANA S.A. No.424 of 2006 1. Periyasamy Nadar 2. Palanisamy Nadar 3. Karupana Nadar (died) 4. Karuppayee 5. Palanisamy 6. Ayyavoo .. Appellants (Appellants 4 to 6 brought on record as LRs of the deceased R3 vide order dated 03.7.2012) Vs.
1. Karupana Nadar (died) 2. Murugesan 3. Periyasamy 4. Ponnammal 5. Pappammal 6. Murugesan 7. Periyasamy .. Respondents (RR5to 7 brought on record as LRs of the deceased R1 vide order dated 03.7.2012) Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 06.09.2005 in A.S. No.37 of 2004 on the file of the Sub-Court, Dharapuram, confirming the judgment and decree dated 08.7.2004 in O.S. No.20 of 2000 on the file of the District Munsif, Dharapuram. For Appellant : Mr. N. Manokaran R1 died For RR2& 3 : Mr. A.K. Kumarasamy For RR4to 7 : No appearance JUDGMENT
Aggrieved by the concurrent finding of the Courts below, the unsuccessful plaintiffs have come up before this Court as appellants.
2. The case of the plaintiffs is that the lands in Survey Nos. 359 to an extent of 12.20 acres, 360 to an extent of 8.25 acres, 374, an extent of 11.72 acres and 376 an extent of 24.57 acres, totalling an extent of 57.60 belong to S.M.RamasamyGounder, S.M.Palanisamy Gounder, T.S.Hanumantha Rao and one Karuppa Nadar jointly under Ex.A.1 sale deed dated 26.8.1937. The said Hanumantha Rao sold the properties in favour of Karuppa Moopan, Vanji Moopan and Ammasai. Karuppa Moopan had a son by name, Rama Nadar, whose sons are the plaintiffs 1 and 2. The third plaintiff is the son of Vanji Moopan. After the death of Karuppa Moopan and Vanji Moopan, the plaintiffs have been in possession of the suit property without any interruption. Out of the total extent of 57.60 acres as stated above, the plaintiffs were in possession 4.20 acres as per Ex.A.1. However, by efflux of time, as on date, the plaintiffs claim only 1.60 acres available in Survey No.374. While so, it is the case of the plaintiffs that the defendants tried to trespass into the property and object to the plaintiffs to sell the property. Hence, the plaintiffs filed the suit for declaration of title.
3. The case of the defendants is that the properties in survey Nos. 359, 360,376 and 374 did not belong only to the persons mentioned by the plaintiffs but also to several other persons. The defendants also disputed that the plaintiffs were not the only heirs of Rama Nadar, the son of Karuppa Moopan. The said Rama Nadar also had female heirs, who have not been made as parties to the suit. The defendants have purchased the property from one Marakkal, wife of Kali Moopan, under Ex.B.1 dated 02.6.1938. The defendants family had sold away all the properties in the other Survey Nos. and retained only the property in Survey No.374. The defendants had also obtained patta in their name for Survey No.374 as per Ex.B.4 and the defendants are also paying the tax. Further, the defendants have contended that the plaintiffs are aware of the fact that only the defendants are entitled to Survey No.379 and the plaintiffs have got no right in the same. While so, the claim of the defendants that they are the owners of the property in Survey No.374 and for injunction against these defendants is not maintainable.
4. Based on the allegations in the pleadings, the trial Court had framed issues and decided on the question of declaration of title and for injunction. After considering the documents and evidence, the trial Court as well as the first Appellate Court had dismissed the suit as the plaintiffs had not established their title for Survey No.374. Hence, the present Second Appeal again at the instance of the plaintiffs.
5. At the time of admitting the Second Appeal, the following substantial questions of law were framed for consideration:- (i) Whether the Courts below have committed an error in law and misdirected themselves in negativing the relief in its entirety even though there is no contra evidence to disprove the claim of the appellants made under Ex.A.1 dated 26.8.1937 especially when it is a document of presumptive value as per Section 90 of the Indian Evidence Act?. (ii) Whether the judgment of the first appellate Court is defective for non-compliance of the mandatory provision of Order 41 Rule 31 CPC?. (iii) Whether the Courts below are correct in law, in refusing the relief even without discussing the probative value of the oral and documentary evidence adduced by the defendants?.
6. Heard Mr. N. Manokaran, learned counsel appearing for the appellants and Mr. A.K.Kumarasamy, learned counsel for the Respondents 2 and 3 and perused the records.
7. Besides claiming right under the title, the plaintiffs have averred in the plaint that they are entitled to the suit property by way of their long uninterrupted continuous possession. However, P.W.1 in his evidence, has stated that he is basing his claim under Ex.A.1 and that he is not claiming a right or title by adverse possession. The defendants have filed Exs.B.1 to B.18 which go to show that they have purchased the property in 1938. Subsequently, they obtained patta in Ex.B.4 and they have been in possession of the suit property. Further, Patta and copy of Re-Survey Register have been marked as Exs.X.1 and X.2 with regard to Survey No.is 208 which is co-related to the new Survey Nos.375 and 374/9. These two documents support Patta No.88 which is issued in the name of the first defendant. The plaintiffs have not rebutted the admissibility of these two documents. On the other hand, the plaintiffs have filed Exs. A.2 to A.11 which are only Kist receipts but the same will not prove the possession of the plaintiffs. Exs. B.1 to B.18 filed by the defendants substantiated the case of the defendants. The learned first Appellate Judge had dismissed the appeal on the ground that the plaintiffs have not specifically pleaded whether they are claiming right to the property under title or by adverse possession as both the reliefs are mutually exclusive. The learned Appellate Judge had dismissed the appeal stating that the plaintiffs are not entitled to the relief they have asked for. As stated earlier, P.W.1 had admitted in his evidence that the plaintiffs are claiming title only as per the title deeds produced by them and not by adverse possession. Even assuming that the plaintiffs are claiming their right to the property as per Ex.A.1, the same has not been established with respect to the suit property, which is a limited extent of 2.60 acres in Survey No.374.
8. Further more, in a civil case, the preponderance of probability alone need to be considered. The documents filed and the evidence of defendants are more probable than the case of the plaintiffs. Therefore, when the plaintiffs have failed to identify the property to which they had made a claim and to substantiate the same by way of evidence, the suit has to fail. Ex.A.1 which is dated 26.8.1937 though may have a presumptive value as per Section 18 of the Indian Evidence Act, the specific claim of the plaintiffs is only with regard to the limited extent of land in Survey No.374. The plaintiffs have not established as to how their title devolved and how the properties were dealt with after 1937. When the defendants have raised a specific objection that the other legal heirs of Rama Nadar were not added as parties, the suit also is bad for non-joinder of necessary parties. The plaintiffs having failed to establish their title with respect to the suit property, the Courts below are correct in dismissing the suit. In view of the foregoing discussion, the Second Appeal fails and the same is dismissed confirming the concurrent finding of the Courts below. The parties are to bear their own costs. 20 12 2013 Index : Yes / No Internet : Yes gri To 1. District Munsif Dharapuram 2. Sub Judge Dharapuram 3. The Record Keeper V.R. Section High Court Madras PUSHPA SATHYANARAYANA, J.
(gri) Pre-Delivery Judgment in S.A. No.424 of 2006 Delivered on 20 12 2013