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S.P.A. Legends Resorts Private Ltd., Rep.by its Director, Farooq Ahamed Quazi v/s Jayamurthy

    SA No. 240 of 2017

    Decided On, 01 March 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.S. SUNDAR

    For the Appellant: M/s. Surana & Surana, Advocate. For the Respondent: -------



Judgment Text

(Prayer: Second Appeal preferred under 100 of CPC against the decree and judgment dated 16.09.2016 in AS.No.1/2014 passed by the Lower Appellate Court namely the Court of the Principal Subordinate Judge, Tindivanam, dismissing the appeal and confirming the decree and judgment dated 23.10.2013 passed in OS.No.69/2011 passed by the learned Principal District Musif, Tindivanam.)

1. The plaintiff in the suit in OS.No.69/2011 on the file of the learned Principal District Munsif, Tindivanam, is the appellant in the above Second Appeal.

2. The appellant, a private Ltd. Company, filed the suit in OS.No.69/2011 for declaration of appellant’s title in respect of the suit property and for consequential permanent injunction restraining the defendant from interfering with its possession and enjoyment of the suit property.

3. The suit property is described as a property measuring an extent of 3.29 acres in Old S.No.128/3, New S.No.200/3 in Marakkanam Village, Tindivanam Taluk.

4. The case of the plaintiff in the plaint is that the plaintiff is entitled to an extent of 2.89 acres in the suit property by virtue of a Sale Deed dated 22.12.2004 and the remaining 40 cents was purchased by the plaintiff under two Sale Deeds dated 14.02.2007, each for an extent of 20 cents. It is stated that the suit property originally belonged to one Narayanasamy Gramani and Ponnusamy Gramani who were in possession and enjoyment of the property and that after their demise, the legal representatives of the owners by name Narayanasamy Gramani and Ponnusamy Gramani executed a Power of AttorneyDeed under Ex.A1 dated 10.01.1994 in favour of one Devi Palaniswamy. The said Power of Attorney agent executed a Sale Deed dated 07.01.2004 in favour of one Sethurama Pandiyan under Ex.A2. The said Sethurama Pandiyan after mutation of patta in his name, appointed one Vijayalakshmi as his Power of Attorney agent vide a document under Ex.A3 dated 22.07.2004. The Power of Attorney agent Vijayalakshmi executed a Sale Deed under Ex.A4 dated 08.11.2004 in favour of one Bagiratha Marthandan. The said Bagiratha Marthandan thereafter executed a Sale Deed in favour of the plaintiff under the document Ex.A5 dated 22.12.2004. The Sale Deed was in respect of 2.89 acres. It is also stated that the said Bagiratha Marthadan executed a Sale Deed in favour of his wife in respect of 20 cents by a document dated 01.11.2004. Thereafter, the said Vijayalakshmi, as Power of Attorney agent or the original owner, executed another Sale Deed in respect of the remaining extent of 20 cents in favour of one Srividhya Subramaniayan. It is also stated that the said Srividhya also executed a Sale Deed in favour of the plaintiff in respect of 20 cents under the document dated 14.02.2007. It is further stated that the said Vijayalakshmi executed another Sale Deed dated 14.02.2007 through her Power of Attorney agent, Bagiratha Marthandan. The two Sale Deeds were also marked as Exs.A6 and A7.

5. The defendant filed a written statement specifically denying the title of plaintiff in respect of the whole extent of 3.29 acres as claimed by the plaintiff. It is the specific case of the defendant that one Kannu @ Rangasamy Gramani who is also the brother of Narayanasamy Gramani and Ponnusamy Gramani is entitled to equal share along with the other two brothers under whom the plaintiff claim title. Various title deeds and documents from the year 1915 was relied upon by the defendant to state that the property belonged to three brothers equally. It is the further case of the defendant that Kannu @ Rangasamy Gramani died intestate and that one Muniyammal and Padmavathy inherited the property as the legal heirs of Kannu @ Rangasamy Gramani. By referring to the mortgage and other transactions by which Kannu @ Rangasamy Gramani was dealing with his right in the property, the defendant contended that an extent of 1.10 acres in S.No.128/3 which is the suit property belonged to the predecessors in title of the defendant as evident from the documents. The suit was also contested on other grounds with regard to possession and enjoyment of the suit property questioning the right of the plaintiff to claim exclusive title or enjoyment over the entire property, viz., 3.29 acres.

6. The Trial Court framed necessary issues on the question of title and considering the documents filed by the plaintiff and defendant and on proper appreciation of oral evidence, the Trial Court came to the conclusion that the plaintiff has not proved their case that they are entitled to the entire extent of the property exclusively. Since no document was produced by the plaintiff before 10.01.1994 to show the exclusive title of their predecessor in interest, viz., the two brothers, the Trial Court found that the plaintiff failed to establish their case of exclusive title. Considering the documents filed by the defendant under Exs.B8 to B11, the Trial Court found that one of the co-owner, namely, Kannu @ Rangasamy, had been dealing with the property in respect of an extent of 1.10 acres out of the total extent. Since the plaintiff’s predecessor in interest had no title in respect of the entire extent of 3.29 acres and that the defendant had purchased the property measuring an extent of 1.10 acres from the legal heirs of Kannu @ Rangasamy Gramani, the Trial Court declined to grant the declaratory the relief for the entire extent, even though it was found that the plaintiff is entitled to an extent of 2.19 acres out of the total extent of 3.29 acres.

7. After holding that the defendant is entitled to an extent of 1.10 acres in the suit property, the suit was decreed in favour of the plaintiff in respect of an extent of 2.19 acres alone. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff preferred an appeal in AS.No.1/2014 before the learned Subordinate Judge, Tindivanam.

8. The Lower Appellate Court also confirmed the findings of the Trial Court and dismissed the Appeal Suit holding that the three brothers, namely, Narayanasamy Gramani, Ponnusamy Gramani and Kannu @ Rangasamy Gramani, are the legal heirs of the original owner Venkatachalam Gramani and his wife Ammakannu Ammal and that they have divided the properties by allotting 1.10 acres of land each. Considering the documents and pleadings, the Lower Appellate Court also found that the plaintiff has not produced any evidence to show their exclusive title in respect of the entire extent, especially when no document is produced before the Court to show that the share of Kannu @ Rangasamy Gramani was ever purchased by the plaintiff. Aggrieved by the judgment and decree, dismissing of the Appeal Suit by the Lower Appellate Court, the plaintiff has preferred the above Second Appeal.

9. This Court, admitted the above Second Appeal on 30.06.2017 on the following substantial questions of law:-

[1] Whether the Lower Appellate Court misread the written statement with reference to Exhibit B3 resulting in miscarriage of justice?

[2] Whether the Lower Appellate Court substantially erred in law in not placing the burden of proof on the defendant in respect of title and possession of 1.10 acre of the suit property?

[3] Whether the Lower Appellate Court substantially erred in law in dismissing the suit in respect of 1.10 acre of the suit property in the absence of finding of fact Ex.A1 was not valid in respect of 1.10 acre of the suit property?

10. It is to be seen that in the course of evidence, PW1 has categorically admitted that the defendant has purchased an extent of 1.10 acres from the legal heirs of Kannu @ Rangasamy Gramani and that they cannot object to the sale in favour of defendant. Further, the plaintiff has admitted the position that the entire property belonged to the three brothers. However, no document is produced by the appellant herein to claim any inch of property of the defendant’s predecessor in interest. Since the admitted facts clearly indicate that the plaintiff has established title through documents only in respect of 2/3rd share of whole extent, this Court is unable to find any error or illegality in the judgments and decrees of the Courts below.

11. Further, none of the substantial questions of law raised and framed by this Court reflect the factual findings of the Courts below. In a suit for declaration of title and consequential relief, the burden lies on the plaintiff to prove his title. In the case on hand, the appellant/plaintiff has not established its case as to how their predecessor in interest was entitled to the entire extent of 3.29 acres. When the property originally belonged to the three brothers and the plaintiff has purchased the property only from the legal heirs of two of the brothers, this Court is unable to find any substance in any of the substantial questions of law raised by the appellant.

12. The learned counsel for the appellant submitted that the defendant’s predecessor in title has attested the Power of Attorney Deed executed under Ex.A1 in the year 1994. Signing a document as an attestor without any further proof that the attestor signed the document knowing the contents of the document, cannot help the plaintiff. There is no estoppel which can be pleaded by referring to mere attestation. Further, the plaintiff cannot claim title by pleading estoppel. In this case, even as a matter of fact, the plaintiff cannot claim or plead against the defendant whose predecessors has never admitted the title under any document at any point of time. The learned counsel then submitted that the Trial Court as extracted the evidence contrary to the deposition/statement of the witness PW1. The evidence of PW1 as extracted by the Trial Court read as follows:-

“TAMIL”

13. The learned counsel for the appellant relied upon the photocopy of the deposition of PW1 which reads as follows;-

“TAMIL”

14. Though there is a small discrepancy while extracting the evidence of PW1, this Court is unable to find any material difference having regard to the entire evidence of PW1. PW1 has categorically stated that he is aware of the right of another son by name Kannu @ Rangasamy Gramani and his legal heirs. He has also admitted several transactions by which Kannu @ Rangasamy Gramani had dealt with in respect of the property to an extent of 1.10 acres which according to him, was allotted to him.

15. The learned counsel for the appellant relied upon a judgment of the Hon’ble Supreme Court in the case of Ramlal and Another V. Phagua and Others reported in 2006 [1] SCC 168, wherein the Hon’ble Supreme Court has held that the High Court can interfere with the findings of fact when a finding is manifestly unreasonable and unjust in the context of evidence on record. It is also held by the Hon’ble Supreme Court that the High Court can reappreciate the evidence and record its own conclusion reversing the judgment of the Lower Courts when the Lower Courts have concurrently erred in not appreciating the oral and documentary evidence properly. This judgment of the Hon’ble Supr

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eme Court should be understood in the context in which it was said. In the instant case, the Courts below have considered the entire evidence and it is not demonstrated before this Court that findings of the Courts below are perverse by not considering any material evidence in favour of the plaintiff. 16. The plaintiff who has filed the suit for declaration of title in respect of the property, miserably failed to prove his title. Rather, the plaintiff admitted the title of one of the three brothers, namely, Kannu @ Rangasamy Gramani and the fact that the plaintiff had never purchased the right of the other brother under any of the documents produced by him. In such circumstances, as it was suggested to PW1, the plaintiff has made an attempt to grab the property of the other brother by purchasing the entire property from the legal heirs of Narayanasamy Gramani and Ponnusamy Gramani who are entitled only to 2/3rd share in the entire property. 17. In view of the foregoing discussions, this Court is not inclined to entertain this Second Appeal and the substantial questions of law are to be answered against the appellant/plaintiff. 18. In the result, the Second Appeal is dismissed with cost.
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