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Arumugam & Others v/s State of Tamil Nadu, Rep. by the District Collector, Tiruchirappalli & Others

    S.A.(MD) No. 527 of 2002

    Decided On, 05 July 2021

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE G.R. SWAMINATHAN

    For the Appellant: K. Govindarajan, Advocate. For the Respondents: R1 to R3, R. Ragavendran, Government Advocate, R5 to R13, Raguvaran Gopalan, Advocate.



Judgment Text

(Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree, dated 12.11.2001 in A.S. No.75 of 2000 on the file of the Second Additional District Court, Tiruchirappalli, dismissing the Appeal against the Judgment and Decree, dated 20.12.1999 in O.S. No.15 of 1995 on the file of the District Munsif Court, Manapparai.)

1. The contesting Defendants in O.S. No.15 of 1995 on the file of the District Munsif Court, Manapparai are the Appellants in this Second Appeal.

2. The Suit was filed by Thiru. V. Perumal seeking the relief of Declaration, Permanent Injunction, Mandatory Injunction and Recovery of Possession in respect of the Suit properties which are five in number. The Plaintiff examined himself as PW1 and marked Ex.A1 to Ex.A25. On the side of the Defendants, as many as three Witnesses were examined. Ex.B1 to Ex.B14 were marked. An Advocate Commissioner was appointed and his Report and Plan were marked as Court Ex.1 & 2. By the Judgment and Decree, dated 20.12.1999, the Suit was decreed in respect of Item Nos.1 to 4. It was dismissed as regards Item No.5. Aggrieved by the same, the contesting Defendants filed A.S. No.75 of 2000 before the Second Additional District Judge, Tiruchirappalli. Aggrieved by the dismissal as regards Item No.5, the Plaintiff/Perumal filed Cross-Objection. By the impugned Judgment and Decree, dated 12.11.2001, the Appeal as well as the Cross-Objection were dismissed. Challenging the same, the contesting Defendants filed this Second Appeal.

3. The Second Appeal was admitted on the following Substantial Questions of Law:

“Whether the Judgment and Decree of the Courts below are sustainable in law as the Courts below have not appreciated the relevant evidence available on record and not following the relevant provisions of law applicable to the issue raised.”

4. The learned Counsel appearing for the Appellants reiterated the contentions set out in the Memorandum of Grounds and called upon this Court to answer the Substantial Question of Law in favour of the Appellants and set aside the impugned Judgment and Decree and dismiss the Suit.

5. Per contra, the learned Counsel appearing for the contesting Respondents would submit that the Plaintiff traced his title from his father Venkudaswamy Naidu who purchased the property vide Ex.A1 to Ex.A3. He also would point out that the lands purchased vide Ex.A1 to Ex.A3 are contiguous and that his father Venkudaswamy Naidu has been in possession of the same right from the date of purchase. The said property was bequeathed to the Plaintiff vide Ex.A12. The validity of Ex.A12 was upheld in various Court proceedings. He also pointed out that the Plaintiff had been issued with Patta-Ex.A13. The Plaintiff had also been paying kist for the said items as evidenced by Ex.A4 to Ex.A9. The Counsel would further point out that all these documents were in existence even prior to filing of the Suit. But during the pendency of the Suit, some time in 1997, the contesting Defendant trespassed into the Suit property. Therefore, the Plaint was suitably amended to include the prayer for recovery of possession. Even though according to the learned Counsel for the contesting Respondents, the Defendants claimed to be the owner of the Suit properties by inheritance, the Written Statement is bereft of particulars. However, during trial, certain documents were introduced. But there is no foundation for those documents in the pleadings. The learned Counsel, therefore, called upon this Court to ignore Ex.B11 and Ex.B13. The learned Counsel appearing for the Respondents submitted that the impugned Judgment and Decree do not call for any interference.

6. I carefully considered the rival contentions and went through the evidence on record. During the pendency of this Appeal, the Plaintiff/ Perumal had passed away and his Legal Heirs namely R5 to R13 have been brought on record. Though the Suit Schedule contained five items, it is now evident that the Fifth Item is a Pathway and therefore, the contest is confined only to Item Nos.1 to 4. The Plaintiff had not filed any Appeal challenging the dismissal of the Cross-Objection.

7. The specific case of the Plaintiff is that the Suit items 1 to 4 form part of Old Survey No.240/B and that they measure an extent of two acres and that they were purchased under a Registered Sale Deed, dated 24.8.1925 from one Venkittammal for consideration. This document was marked as Ex.A1 by the Plaintiff. The Plaintiff having come out with a very specific case that his title is derived under Ex.A1 in respect of the Suit items 1 to 4 was obliged to establish the same.

8. I bear in mind that in the decision reported in Arumugham (dead) by Legal Heirs and others v. Sundarambal, 1999 (4) SCC 350, it was held that the question of burden of proof would not be relevant, when both sides have adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether. In Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, 2003 (8) SCC 752, it was held that in a Civil case, the Plaintiff cannot be expected to prove his title beyond any reasonable doubt. A high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the Defendant and if the Defendant does not succeed in shifting back the onus, the Plaintiff's burden of proof can safely be deemed to have been discharged.

9. The only question with which I am now concerned is whether the Suit properties can be said to be covered by Ex.A1. Ex.A1 is a registered Sale Deed executed by Venkittammal in favour of Venkudaswamy Naidu. There is no dispute that Venkudaswamy Naidu is the father of the Plaintiff V. Perumal. In the Schedule of property, the following description is found:

10. The learned Counsel for the contesting Respondents contended that the Survey Number mentioned should be understood as referring to S. No.240-B and not Survey No.240D. To find out which survey number is exactly denoted by Ex.A1, it is necessary to have a look at Ex.B12. Ex.B12 is the Re-Survey and Settlement Register of the Village of Sivalur. R.S. Nos.240A to E are mentioned in the said Ex.B12 & Ex.B4. Ex.B4 is the Village Settlement 'A Register' which also correlates the Old Survey Numbers with the present Survey Numbers. There is no dispute that the Suit properties are situated in Survey Nos.717/5, 717/6, 717/7 & 717/8 in Sivalur Village, Manapparai Taluk.

11. As per Ex.B12, the total extent of Survey No.240A was 4 acres 56 cents; 240B was 73 acres; 240C was 22 acres and 240D was 9 acres and 49 cents. In Ex.A1, it is mentioned that two acres are conveyed to Venkudaswamy Naidu out of 9 acres and 49 cents. This single circumstance is sufficient to prove that Ex.A1 was concerned only with 240D and not 240B.

12. The entire case of the Plaintiff is anchored on Ex.A1. The argument put forth was that since the English Letter had been expressed in Tamil, it should be understood as referring to Survey No.240 B and not Survey No.240 D. After perusing Ex.B12, I am satisfied that Ex.A1 pertains only to 240D and not 240B. Therefore, I have to necessarily interfere with the Judgment and Decree passed by the Courts below. Ofcourse, the learned Counsel appearing for the Respondent would submit that the long possession of the Plaintiff has been amply established by the various Reven

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ue records. In a case of this nature, it would be most unsafe to go by Revenue documents. I cannot lose sight of the fact that what has been filed is a Suit for Recovery of Possession and not for injunction. Ofcourse, the learned Counsel for the Respondents would submit that the original prayer was only for Injunction and since during the pendency of the Suit, trespass was committed by the contesting Defendants, the prayer had to be amended. This does not impress me. 13. From a reading of the testimony of PW1, I can come to the conclusion that the Defendants have always been in possession of the Suit property. I answer the Substantial Question of Law in favour of the Appellants. 14. In this view of the matter, the Judgment and Decree passed by the Courts below are set aside. The Second Appeal is allowed. No Costs.
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