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Manjini (died) Represented by Power of Attorney, Poongavanam & Others v/s Gurunathan & Others

    Second Appeal Nos. 1301 & 1302 of 1998
    Decided On, 29 August 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN
    For the Appearing Parties: G.M. Mani Associates, Advocates, R1 & R6, No Appearance, T. Sathyamoorthy, R2, R3 & R7, Died, R9, N. Raja Gopalan, R4, R5, R8, R10 to R12, M. Sriram, Advocates.


Judgment Text
(Prayer: This Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and decree dated 28.11.1997 made in A.S.No.62 of 1996 on the file of the Principal District Judge at Pondicherry confirming the Judgment and decree dated 13.02.1996 made in O.S.No.196 of 1993 on the file of the I Additional Sub Judge at Pondicherry.

This Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and decree dated 28.11.1997 made in A.S.No.11 of 1997 on the file of the Principal District Judge at Pondicherry setting aside the Judgment and decree dated 13.02.1996 made in O.S.No.196 of 1993 on the file of the I Additional Sub Judge at Pondicherry.)

Common Judjment

1. The plaintiff in O.S.No.196 of 1993 on the file of the I Additional Sub Court at Pondicherry, is the appellant in both the Second Appeals.

2. The suit in O.S.No.196 of 1993 had been filed by the plaintiff seeking partition and allotment of 1/3rd share in the suit property and also for a declaration that a preliminary decree passed in an earlier suit in O.S.No.5 of 1981, dated 30.06.1982 vide order in S.A.No.1914 of 1996, dated 23.08.1996 and the final decree passed on 09.06.1993 are not binding on the plaintiff and that they are null and void.

3. By Judgment dated 13.02.1996, the learned I Additional Sub Judge, Pondicherry, dismissed the suit but stated that the plaintiff was entitled to occupy the area under his possession in the portion of the suit property as described in Ex.A1.

4. It must be mentioned that the schedule mentioned in the plaint was land and building measuring 1820 sq.ft at Angalankuppam Village in Pondicherry.

5. However in Ex.A1, which was a Power of Attorney given by the plaintiff to his own son-in-law, the area for which such Power of Attorney was granted was land measuring 16 feet from East to west and 11 feet from South to North in the aforementioned 1820 sq.ft of land and building. 6. Questioning that Judgment, the plaintiff filed A.S.No.62 of 1996 and the 2nd and 3rd defendants filed A.S.No.11 of 1997. Both the appeals were filed before the Principal District Court at Pondicherry.

7. By Judgment dated 28.11.1997, the learned Principal District Judge, Pondicherry, dismissed A.S.No.62 of 1996 and allowed A.S.No.11 of 1997. This in effect meant that even for the restricted area for which the plaintiff was granted the right of possession was interfered with and the suit in O.S.No.196 of 1993 was dismissed in entirety.

8. Aggrieved by the said common judgment of the Principal District Court at Pondicherry, the plaintiff filed S.A.No.1302 of 1998, questioning the findings in A.S.No.11 of 1997 and S.A.No.1301 of 1998, questioning the findings in A.S.No.62 of 1996.

9. Both the Second Appeals had been admitted on 28.01.1999, and the following substantial questions of law were framed.

“(a) Whether in a suit for partition the onus of proving the defence of ouster/adverse possession are not on the shoulders of the defendants and consequently, was the Court below right in holding that the onus of proving that the respondents 2 & 3 have perfected their title by prescriptive right, is not on them, especially when, the question of claiming title by adverse possession would not arise in a suit for partition?

(b) Whether in view of the respondents 2 & 3 are not estopped from contenting contrary to the admissions made by them in Ex.A3, 21 & 22 and in their written statement that (i) the suit property is the ancestral property of their and appellant's ground father Govinda Naicker, (ii) the same stood in the name of the appellant's father in the matrice records and (iii) the relationship between them and the appellant and consequently, was the court below right in accepting such contentions of them and dismissing the suit? And

(c)whether Ex.A4 & A5 and the conduct of the second respondent in not filing any suit and obtaining a decree, declaring his title over the suit property and recovering possession of the portion of the same in occupation of the appellant for about 17 years from the date of Ex.A5 and till the date of suit, would not lead to an inference that he has accepted the right of the appellant over the suit property and all of them are in joint possession of portion of the same as co-owner?”

10. Pending the Second Appeals, the appellant died and his legal representatives had been brought on record as 2nd - 6th appellants.

11. Pending the Second Appeals, the 2nd - 3rd respondents also died and their legal representatives were brought on record as 4th - 12th respondents.

O.S.No.196 of 1993, the I Additional Sub Court, Pondicherry:

12. The plaintiff Manjini represented by his Power of Attorney, Poongavanam, stated that the suit property originally belonged to Govinda Naicker, who had inherited the same from his father Muthusamy Naicker. Govinda Naicker died leaving behind 5 sons namely Veerasamy, Krishnasamy, Perumal, Thangavelu and Nadesan. They inherited the properties. Veerasamy and Perumal died issueless. Krishnasamy died, leaving behind the 2nd and 3rd defendants as his only legal representatives. Thangavelu died, leaving behind the plaintiff. Nadesan died leaving behind the 1st defendant. Claiming that the property should be divided into 3 parts namely to the benefit of the branches of Krishnasamy, Thangavelu and Natesan, the suit had been filed seeking partition and separate possession of 1/3rd share in the suit schedule property.

13. The 2nd defendant issued a notice on 03.06.1980, claiming absolute right over the entire property. The plaintiff issued a reply on 23.06.1980. The plaintiff further stated that the 2nd and 3rd defendants namely the sons of Krishnasamy had filed O.S.No.5 of 1981, before the Sub Court at Pondicherry and had obtained a decree of partition and separate possession on the entire property in two equal halves. It was under those circumstances, that the plaintiff filed a suit claiming 1/3rd undivided share and also to set aside the preliminary decree and the final decree in O.S.No.5 of 1981.

14. The 1st defendant Gurunathan, son of Nadesan remained exparte.

15. The 2nd and 3rd defendants, sons of Krishnasamy, filed a written statement, denying the relationship as set out by the plaintiff. They claimed that their father Krishnasamy migrated from Thirumakarai in Tindivanam District around 1907 and died on 20.12.1952. They claimed that their father was in exclusive possession of the entire property for more than 45 years and after that the 2nd and 3rd defendants, as his sons, took possession and also filed O.S.No.5 of 1981 for partition and separate possession.

16. The Northern portion had been allotted to the 3rd defendant and the Southern portion had been allotted to the 2nd defendant. The 2nd defendant filed A.S.No.149 of 1983. That was dismissed. It was therefore stated that the said suit was not a collusive suit. It was further stated that the plaintiff was a permissive occupier of a small portion of the property from the year 1978. It was therefore stated that the suit for partition should be dismissed.

17. An additional written statement had been filed stating that the Power of Attorney granted by the plaintiff was only to an extent of 16 feet from East to West and 11 feet from South to North and not for the entire property. It was therefore stated that the suit should be dismissed.

18. The learned Trial Judge framed the following issues for trial in the suit

“1)Whether the suit property has not been properly valued and correct court fee has not been paid?

2)Whether the suit property originally belonged to Muthusamy Naiker and thereafter to his son Govinda Naicker? If so, whether the sons of Govinda Naicker inherited the suit property?

3)whether the second and third defendants acquired prescriptive title over the suit property by virtue of their enjoyment and the enjoyment of their father Krishnan for over a period of 45 years openly, continuously and hostile to the plaintiff, D1 and their forefathers?

4)whether the plaintiff is entitled for partition of 1/4 share in the suit property after getting the preliminary decree in O.S.No.5/81 dated 30.06.1992 and the final decree in I.A.No.625 of 1983 dated 09.06.1993 passed by the First Additional Sub Court, Pondicherry set aside as null and void?

5)whether the plaintiff is entitled for a preliminary decree and consequently for a final decree? 6)To what relief the plaintiff is entitled?”

19. During trial, the Power Agent of the plaintiff was examined as P.W.1 and he marked Exs.A1 to A23 and another witness, Govindammal was examined as P.W.2. On the side of the defendants, the 2nd defendant, Palani was examined as D.W.1 and another witness Palanivel was examined as D.W.2. They marked Exs.B1 to B9. Among the documents filed by the plaintiff, Ex.A1 was the general Power of Attorney dated 22.03.1993. Ex.A2 was the copy of the preliminary decree in O.S.No.5 of 1981, dated 30.06.1982. Exs.A8 – A16 related to House Tax Receipts/Demand Notices. Ex.A23 was the Rectification Deed of Power of Attorney, dated 09.11.1995. Among the documents filed on the side of the defendants Ex.B2 was the copy of the Patta and Exs.B5 – B9 were the Tax Receipts.

20. On the basis of the pleadings and the oral and documentary evidence adduced, the learned First Additional Subordinate Judge, Pondicherry held that the documents relied on by both the plaintiffs and the 2nd and 3rd defendants do not substantiate the fact that either one of them were the owners of the suit property. The relationship however as stated by the plaintiff was affirmed. The learned Trial Judge found that no document had been produced to show that either the grandfather, Govinda Naicker or the great grandfather, Muthusamy Naicker ever owned the property. The documents filed in both the sides were rejected with respect to the title of the property.

21. It was stated that the title cannot be granted based on presumptions. However, the possession of the plaintiff and the 2nd and 3rd defendants were said to have been established by the property tax receipts, Patta and the tax receipts produced by both the parties. It was stated that the documents reflected enjoyment of the property for a considerable period of time. With respect to the documents filed by the defendants, it had been stated that Ex.B1 had emerged around the time of filing of the previous suit in O.S.No.5 of 1981. Exs.B2 to B4, the proposed Patta was stated to be only a document of possession. With respect to Exs.B5 to B9 it was observed that the defendants were paying land rent to the Government and it was stated that the document actually worked against the claim of the defendants.

22. The evidence of P.W.1 was also analysed and it was mentioned that he had no knowledge about the family of the plaintiff. It was specifically held that “neither the plaintiff nor the defendants have established their ownership over the suit property”. It was also found that there is no evidence to show that the plaintiff was a permissive occupier under the 2nd and 3rd defendants. It was finally held that since the plaintiff had come to Court seeking partition and separate possession, that particular relief cannot be granted but probably, exercising power under Order VII Rule 7 CPC, the learned Trial Judge held that the plaintiff is entitled to occupy the property as mentioned in the Power of Attorney given to P.W.1 namely the area measuring 16 feet from East to West and 11 feet from South to North within the suit schedule property. A decree was passed accordingly, on 13.02.1986.

A.S.No.62 of 1996 and A.S.No.11 of 1997 (The Principal District Court, Pondicherry).

23. Aggrieved by the Judgment of the Trial Court, the plaintiff filed A.S.No.62 of 1996 and the defendant filed A.S.No.11 of 1997.

24. The learned Principal District Judge by common Judgment dated 28.11.1997, re-examined the evidence on record. The following points were framed for determination under Order 41 Rule 31 CPC.

“1)whether the plaintiff is entitled to 1/3rd share in the suit property?

2)If, so, is a preliminary decree for partition for 1/3rd share be ordered?

3)whether the preliminary decree passed in O.S.No.5/81 dated 30.06.1982 is to be set aside?

4)whether the final decree in I.A.625/83 dated 9.6.93 is to be set aside?

5)whether the defendants 2 and 3 are the owners of the suit property with absolute rights?

6)To what relief are the parties entitled to?”

25. The learned Principal District Judge examined Ex.A1, the Power of Attorney, and found that it was only with respect to a restricted area of 16 feet from East to West and 11 feet from South to North. It was therefore observed that the plaintiff was interested only in that particular area out of the total area by 1825 sq.ft. It was held that the plaintiff was not sure as to the relief that should be sought in the suit. It was also found that the Rectification Deed of the Power of Attorney under Ex.A23 dated 09.11.1995, was not a registered document whereas, Ex.A1 was a registered document. It was also found that no reason had been given by the plaintiff as to why he did not graze the witness box.

26. The evidence of the Power of Attorney, P.W.1 was examined in detail and it was found that he knew nothing about the family of the plaintiff or the 2nd and 3rd defendants. It was also found that both the plaintiff and P.W.1 admitted that they did not know English and therefore it was stated that Ex.A23 had been prepared for the purpose of the case. It was also found that the plaintiff cannot rely on the statement made by the defendants that the property was an ancestral property. It was stated that the plaintiff should establish the case and cannot lean on to the defendants to establish his case. It was found that the Trial Court had erred in granting relief for the area mentioned in Ex.A1 namely 16 feet x 11 feet and the learned Principal District Judge, by a common Judgment dated 28.11.1997, dismissed A.S.No.62 of 1996 and allowed A.S.No.11 of 1997. S.A.Nos.1301 & 1302 of 1998:

27. Questioning the said common Judgment, the plaintiff then filed the aforementioned two second Appeals.

28. The Second Appeals had been admitted on 28.01.1999, on the following three substantial questions of law.

“(a) Whether in a suit for partition the onus of proving the defence of ouster/adverse possession are not on the shoulders of the defendants and consequently, was the Court below right in holding that the onus of proving that the respondents 2 & 3 have perfected their title by prescriptive right, is not on them, especially when, the question of claiming title by adverse possession would not arise in a suit for partition?

(b) Whether in view of the respondents 2 & 3 are not estopped from contenting contrary to the admissions made by them in Ex.A3, 21 & 22 and in their written statement that (i) the suit property is the ancestral property of their and appellant's ground father Govinda Naicker, (ii) the same stood in the name of the appellant's father in the matrice records and (iii) the relationship between them and the appellant and consequently, was the court below right in accepting such contentions of them and dismissing the suit? And

(c)whether Ex.A4 & A5 and the conduct of the second respondent in not filing any suit and obtaining a decree, declaring his title over the suit property and recovering possession of the portion of the same in occupation of the appellant for about 17 years from the date of Ex.A5 and till the date of suit, would not lead to an inference that he has accepted the right of the appellant over the suit property and all of them are in joint possession of portion of the same as co-owner?”

29. The first substantial question of law relates to proof of ouster/adverse possession. In a suit for partition and separate possession, where the plaintiff comes to Court that he is one of the co-sharer along with the 2nd and 3rd defendants, then if at all, adverse possession is claimed by the defendants or by the plaintiff then, ouster must be established.

30. In the instant case, the plaintiff claimed that he and the 2nd and 3rd defendants were both sons of two brothers. The 2nd and 3rd defendants on the other hand claimed that the plaintiff is a stranger to the family and that he was permitted to occupy a portion of the property from the year 1978. The plaintiff claimed partition and separate possession of a larger area of 1820 sq.ft. However, under Ex.A1, which is a registered document, he had granted Power of Attorney to his son-in-law to depose evidence only with respect to 16 feet from East to West and 11 feet from South to North.

31. By a Rectification Deed under Ex.A23, the larger area of the schedule had been mentioned, but, as correctly pointed out by the learned I Appellate Judge, the said document under Ex.A23 is not a registered document and therefore it cannot set right the defects in the schedule in Ex.A1.

32. The trial Court had granted a right to possess the aforementioned 16 feet x 11 feet. However, the First Appellate Court had interfered with such finding and had not granted any such right to the appellant herein. Both the Courts below had very clearly found that neither the plaintiff nor the defendants had produced any document of title.

33. But let me take the statements of the defendants in the written statement that the respondent was put in possession of a small portion from the year 1978. There is therefore no question of ouster. Neither does adverse possession arise for consideration.

34. The learned Trial Judge had correctly held that the plaintiff can retain possession of that smaller area of 16 feet x 11 feet. I would retain that particular decree granted by the learned Trial Judge and to that extent interfere with the Judgment o

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f the First Appellate Court. 35. With respect to the second substantial question of law, I would endorse the view of both the Courts below that neither the plaintiff nor the defendants have produced any document to establish title, either in the name of the father or in the name of grandfather or in the name of the great grandfather. As a matter of fact, I would raise a doubt over the documents produced by the defendant who claims possession by right but are paying land rent to the Government. This would be done only if the land belongs to the Government. Therefore, I hold that the defendants, had not produced any document of title. The second substantial question of law is answered accordingly. 36. The third substantial question of law is with respect to the 2nd defendant not filing any suit claiming declaration of title. This is a fact which the plaintiff cannot insist on. As a matter of fact, the plaintiff has not filed any suit seeking declaration of title. He had filed a suit claiming partition and that had been correctly rejected by both the Courts below. 37. The Trial Court had granted a decree to continue to be in possession of a small portion of 16 feet x 11 feet. I would retain that particular decree as granted by the Trial Court but dismiss the suit with respect to other aspects. 38. The substantial question of law relating to filing a suit for declaration, becomes otiose, since the plaintiff also should have a suit for declaration of title. The third substantial question of law is answered accordingly. 39. In view of the above discussion, (1) Both the S.A.Nos.1301 & 1302 of 1998 are partly allowed. (2) The Common Judgment and decree in A.S.No.62 of 1996 and A.S.No.11 of 1997, dated 28.11.1997 of the Principal District Court, Pondicherry is set aside. (3) The Judgment and decree of the I Additional Sub Court, Pondicherry, dated 13.02.1996 in O.S.No.196 of 1993 is restored and confirmed. (3) No order as to costs.
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