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Rajayal (Died) & Others v/s Pattu & Others

    S.A. No. 2176 of 2004

    Decided On, 08 July 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Appellant: P. Dineshkumar, Advocate. For the Respondents: R2 to R5, C. Parthiban, M.V. Krishnan, Advocates, R1, Died.



Judgment Text

(Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.184 of 1995 dated 08.06.2004 on the file of the Sub Court Ariyalur, reversing the judgment and decree made in O.S.No.112 of 1994 dated 16.10.1995 on the file of the Additional District Munsif Court, Ariyalur.)

1. The plaintiffs in O.S.No.112 of 1994 on the file of the District Munsif Court, Ariyalur, are the appellants herein. The suit in O.S.No.112 of 1994 had been filed by the three plaintiffs namely, Rajayal, her son Kathirvel and daughter Amudhavalli, against two defendants namely, Gangajalam and Pattu who are both sons of Samikannu Padaychi, seeking declaration of title and recovery of possession of vacant land measuring 3 cents in SF.No.74/16 at Ponparappikudikadu village, Sendurai Sub- Regsitry, Ariyalur Taluk. The said suit had been decreed by judgment dated 16.10.1995.

2. The defendants / legal representatives of the defendants then filed in A.S.No.184 of 1995 before the Sub Court Ariyalur. By judgment dated 08.06.2004, the appeal was allowed, thereby reversing the decree granted by the Trial Court, in effect dismissing O.S.No.112 of 1994. This has necessitated the plaintiffs to file the present Second Appeal.

3. The Second Appeal had been admitted on the following substantial questions of law:-

“1.Whether the Lower Appellate Court is correct in law in concluding on the basis of Exs.C1 and C2 Commissioner's Report and Plan that the respondents are in possession, especially when the Advocate Commissioner is not competent to find out who is in possession and it is primary duty of the Court?

2. When Exs.A1 to A3 coupled with the evidence of PW1 and PW2 clearly demonstrates the case of the appellants, whether the lower Appellate Court is correct in law in non-suiting the appellants?”

O.S.No.112 of 1994 (Additional District Munsif Court, Ariyalur):-

4. The plaintiffs contended that the suit property and vacant land surrounding it originally belonged to Aiyakannu Padayachi. This was comprised in S.No.74 / 16 out of a larger area measuring 23 cents. Out of the 23 cents, Aiyakannu Padayachi sold 7 cents to Chinnathambi Padayachi. Chinnathambi Padayachi had a son Kathirvel and the 1st plaintiff is the widow of the said Kathirvel and the 2nd and 3rd plaintiffs are the son and daughter of the said Kathirvel. The properties sold to Chinnathambi Padayachi totally measuring 7 cents can be divided as plots 1 and 2 each measuring 3 cents. Chinnathambi Padayachi in turn sold 3 cents which would be 1/2 of his holding and which is stated to be plot No.2 to Samikannu Padayachi by sale deed dated 12.07.1953. Samikannu Padayachi is the father of the 1st defendant and husband of the 2nd defendant.

5. There were further transactions in the property. Aiyakannu Padayachi after the sale of 7 cents, still retained 15 cents. He devolved that to his son Pitchaimuthu who in turn executed a settlement deed dated 23.05.1965 to the 1st plaintiff Rajayal / wife of Kathirvel. This would indicate that the plaintiffs therefore consolidated their holdings which would mean that they were entitled to 19 cents out of the original holding of 23 cents of Aiyakannu Padayachi. The balance 3 cents had been conveyed to Samikannu Padayachi. It had been contended that however, the defendants took possession also of 3 additional cents immediately to the North of their 3 cents. Seeking declaration of title to that particular piece of land of 3 cents and recovery of possession, the suit had been filed.

6. A written statement had been filed on behalf of the defendants and they claimed that Samikannu Padayachi had actually purchased 3 cents of vacant land and a house site to the South of the vacant land. They therefore asserted that the 3 cents which is disputed and for which the plaintiffs had claimed declaration of title had been actually conveyed to Samikannu Padayachi by Chinnathambi Padayachi and that their possession was lawful. They disputed that the plaintiffs have a right or title over the said property. They prayed that the suit should be dismissed.

7. On the basis of the above pleadings, the learned District Munsif Ariyalur, had framed the following issues for trial:-

“i).Whether the plaintiffs are entitled for the suit schedule property?

ii).Whether the plaintiffs are entitled for declaration and recovery of possession?

iii).To what other reliefs?”

8. During the course of trial, the 1st plaintiff examined herself as PW-1 and another independent witness was examined as PW-2. The plaintiff marked Exs.A1 to A3. Ex.A1 was a rough sketch and the layout of the land. Ex.A2 was the sale deed executed by Aiyakannu Padayachi to Chinnathambi Padayachi dated 12.09.1941 for 7 cents. Ex.A3 was the settlement deed executed by Pitchaimuthu to the 1st plaintiff dated 23.05.1965 for 15 cents

9. On the side of the defendants, the 1st defendant examined himself as DW-1 and he marked the sale deed executed by Chinnathami Padayachi to Samikannu Padayachi dated 12.07.1953 for 3 cents.

10. The report of the Advocate Commissioner was marked as Ex.C1 and the sketch of the Advocate Commissioner was marked as Ex.C2.

11. The learned Additional District Munsif, Ariyalur, on appreciation of the oral and documentary evidence found as a fact, that Ex.B1 was a sale deed for 3 cents including the house site. It was therefore found that the evidence of the witness on the side of the defendants who claimed that Samikannu Padayachi had purchased vacant site and a separate house site to the south cannot be true and negatived that particular assertion by the witness.

12. The flow of title was also examined. It was also very specifically stated that Ex.B1 showed that only 3 cents with house was sold and that this was what the plaintiffs had claimed in their suit and therefore, had held that the plaintiffs should be entitled for declaration of title with respect to the 3 cents claimed by him. To the fact that whether the plaintiffs are entitled for recovery of possession, again the learned Additional District Munsif, found that since the defendants have stated that they were in possession, they had to hand over possession to the plaintiffs.

A.S.No.184 of 1995 ( Sub Court Ariyalur):-

13. The judgment of the Trial Court was taken up in appeal before the Sub Court, Ariyalur, by the defendants. The 1st defendant / 1st appellant died and legal representatives had been brought on record.

14. The learned First Appellate Court Judge, framed the following points for consideration:-

“i).Whether the appellants are entitled to the suit property?

ii).Whether the respondents are entitled to the suit property?

iii).To what reliefs are the appellants entitled to?”

15. During the course of discussion and analysis of evidence, the First Appellate Court found that in Ex.A3 which was the settlement deed executed by Pitchaimuthu Padayachi to the 1st plaintiff, the property mentioned were S.Nos.74 /8 and 74/16, and observed that the suit schedule property was S.No.74/16 and therefore, stated that the property had not been properly described by the plaintiffs in the plaint and also that the properties settled under Ex.B3 was not the property which was claimed by the defendants.

16. However, a perusal of Ex.A3 would show that there were three items of property. The schedule shows reference to S.Nos.74/8, 74/16A and 74/16B. This fact had not been taken note by the First Appellate Court in its discussion.

17. It was also stated that on the basis of Ex.B1 the finding of the Trial Court should be reversed. More importantly, the First Appellate Court also based its finding on the report of the Advocate Commissioner and stated that since the Advocate Commissioner had stated that the appellants wherein possession, that was a fact established, and therefore, held that the appellants were in possession and holding as above, the First Appellate Court reversed the judgment of the Trial Court and allowed the Appeal and dismissed the suit. This has necessitated the plaintiffs to come before this Court by filing the present Second Appeal.

S.A.No.2176 of 2004:-

18. The Second Appeal had been admitted on 17.12.2004 on the following substantial questions of law:-

“1.Whether the Lower Appellate Court is correct in law in concluding on the basis of Exs.C1 and C2 Commissioner's Report and Plan that the respondents are in possession, especially when the Advocate Commissioner is not competent to find out who is in possession and it is primary duty of the Court?

2.When Exs.A1 to A3 coupled with the evidence of PW1 and PW2 clearly demonstrates the case of the appellants, whether the lower Appellate Court is correct in law in non-suiting the appellants?”

19. Heard arguments advanced by Mr.P.Dineshkumar, learned counsel for the appellants and Mr.C.Parthiban, learned counsel for the respondents.

20. It is the contention of the learned counsel for the appellants that the First Appellate Court had misdirected itself with respect to the schedule of the property and had not correctly noticed Ex.B3 which contained three separate survey numbers. It is pointed out by the learned counsel that the property owned by Aiyakannu Padayachi had been sub-divided as S.No.74/16 and it was stated that the said survey number had been given by the plaintiffs in the schedule. The learned counsel pointed out Ex.B1 which was the sale deed in favour of Samikannu Padayachi and stated that the schedule to the said sale deed contained vacant land with a house site and not vacant land and house separately. It was therefore stated that Aiyakannu Padayachi sold 3 cents. The learned counsel also placed reliance on the report of the Advocate Commissioner who had measured the disputed site and its area was to 3 cents and stated that if that area was to be taken then the house site could not be just 3/4 cents. The learned counsel also found fault with the reasoning of the First Appellate Court regarding the possession on the basis of the Advocate Commissioner's report. It was therefore urged that this Court should interfere with the judgment of the First Appellate Court.

21. Mr.C.Parthiban, learned counsel for the respondents, on the other hand very emphatically contended that the schedule to the plaint very specifically mentioned only S.No.74/16. It was stated that this was not the property which is now claimed by the plaintiffs. It was therefore contended by the learned counsel that the property which is now sought belongs to the respondents and the plaintiffs cannot claim that particular property. The learned counsel also pointed out Ex.A3 settlement deed. It was stated that the survey number was different in Ex.A3. It was also stated that the First Appellate Court had correctly pointed out this particular discrepancy between Ex.A3 and the property which is now sought to be recovered by the plaintiffs and stated that the suit will necessarily have to fail. The learned counsel pointed out that the report of the Advocate Commissioner and stated that a clear finding have been given that the respondents were in possession and there was no dispute on that particular fact. The learned counsel urged that the Second Appeal should be dismissed and the judgment of the First Appellate Court should be upheld. 22.I have given my careful consideration to the arguments advanced and perused the materials on record.

23. The first substantial question of law is whether the Lower Appellate Court is correct in law in concluding on the basis of Exs.C1 and C2 that the respondents are in possession. The findings of the First Appellate Court with respect to possession, is based only on the report of the Advocate Commissioner. In my opinion the approach is not legally sustainable. A Commissioner is appointed under Order 26 Rule 9 CPC as an extended arm of the Court. He cannot be at behest of either one of the two parties and collect evidence. The report can only be a fact finding report with respect to the lay of the land or regarding the physical features of a property. The Commissioner can also be appointed to examine witnesses, if the witnesses are not able to come to Court in special circumstances. The Commissioner can never give any finding regarding possession of a property. If he does so, then he would be stepping into the shoes of either the plaintiff or the defendant, which is impermissible, since the Commissioner is an officer of the Court and cannot give a finding either for the benefit or to the advantage of the plaintiff or to the disadvantage of the defendant. The law is clear on that point.

24. I would therefore answer the first substantial question of law that the First Appellate Court had misdirected itself by placing reliance on the report of the Advocate Commissioner so far as possession is concerned.

25. Further, a perusal of the settlement deed itself shows that on the date of the execution of the settlement deed, possession had been handed over. Moreover, under Ex.B1, Chinnathambi Padayachi had sold 3 cents to Samikannu Padayachi. The respondents herein claim through Samikannu Padayachi. They can claim only 3 cents. The disputed portion is 3 cents. Evidence on behalf of the respondents is that they had purchased the vacant site and a house of the South to the vacant site. However, Ex.B1 stated that what was conveyed to Samikannu Padayachi was a vacant land with a house in it. No amount of oral evidence can be adduced as against such written document. Section 92 of the Indian Evidence Act, 1872, is clear on that aspect.

26. If ever conflicting oral evidence has been adduced in contradiction to the covenants of a written document then what is reduced in writing alone can be considered admissible.

27. In this particular case, if the oral evidence of the respondents is taken into consideration, it would mean that they had purchased 3 cents of vacant land and a house site to the South of it which would further meant that house would only be 3/4 cents. But Exs.A1 and C2 clearly show that the property to the South side retained by Chinnathambi Padayachi is in equal measure to the properties sold by him to Samikannu Padayachi.

28. Therefore, even on facts, I will have to interfere with the statement that the respondents were in lawful possession of the disputed property. The position of law is clear. The first substantial question of law is answered in favour of the appellants that the First Appellate Court had misdirected itself in relying on the report of the Advocate Commissioner insofar as possession is concerned.

29. The second substantial question of law is whether the First Appellate Court had correctly appreciated Exs.A1, A2 and A3 and the evidence of PW1 and PW2. Ex.A1 is the rough sketch appended to the plaint. Ex.A2 is the sale deed executed by Aiyakannu Padayachi to Chinnathami Padayachi of land 7 cents. Ex.A3 is the settlement deed executed by Pitchaimuthu Padayachi to the 1st plaintiff. These three documents clearly mention possession. They have also mentioned the title of the executant of the documents to so convey or settle the respective properties. It is also to be noted that in vacant land, if title is established, possession follows. The evidence of the witness on the side of the respondents are very clear that possession had been granted to him, but that 3 cents have been occupied by the appellants. The evidence of the respondent / DW-1 that they had purchased 3 cents of land with a house site at South side cannot be taken as a true statement. The reliance on the Advocate Commissioner's report shows that the First Appellate Court had total

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ly misdirected itself and should have concentrated only on the documents produced by the respective parties. 30. One issue raised is about the survey number. Aiyakannu Padayachi originally held 23 cents in Survey No.74/16. Thereafter, there had been sub-division on sale to Chinnathambi Padayachi, and on subsequent sale to Samikannu Padayachi and on subsequent settlement by Pitchaimuthu Padayachi to the first plaintiff herein. The sub-divisions can only be under Survey No.74/16 and the sub-divisions are Survey Nos.74/16A, 16B. In the First Appellate Court, there is no reference at all to Survey No. 74/16B which is given as the 3rd item in Ex.A3, the settlement deed by Pitchaimuthu Padayachi to the 1st respondent. Unfortunately, the First Appellate Court, had examined Ex.A3 or rather the schedule to Ex.A3 with skewed eyes overlooking the obvious fact of Survey No.74/16B which is also given in the schedule to the document. 31. In view of these fact, I hold that the First Appellate Court had improperly appreciated the evidence adduced on behalf of the appellants and had not come to the correct conclusion either with respect to title or with respect to possession. The second substantial question of law is answered accordingly. 32. In view of the above findings, the only result is that the Second Appeal has to be allowed and it is therefore consequently, allowed. 33. In the result, i) The Second Appeal is allowed with costs. ii)The judgment and decree dated 08.06.2004 in A.S.No.184 of 1995 on the file of the Sub Court, Ariyalur, is set aside. iii)The judgment and decree dated 16.10.1995 in O.S.No.112 of 1994 on the file of the Additional District Munsif Court, Ariyalur, is confirmed.
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