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2009 Supreme(Mad) 2116

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
Maragatham @ Krishnammal
Versus
Marimuthu
Second Appeal No.924 of 2000
Decided on: 06-07-2009

Advocates Appeared:
For the Appellant:A. Muthukumar, Advocate.
For the Respondent:M. Arunachalam, C. Prakasam, Advocates.

Ratios:
a. A person cannot plead title by document and also adverse possession simultaneously.
b. A document that requires registration compulsorily, if not registered, cannot be looked into by the Court for any purpose.
c. The plaintiff must establish his own case and mere failure of defendant to establish his case, will not entitle the plaintiff to succeed automatically.


Headnote:(A)Indian Evidence Act, 1872 (1 of 1872)-Sec.102-Indian Registration Act, 1908 (16 of 1908)-Sec.35-Limitation Act, 1963 (36 of 1963)-Art.65-Adverse possession-Burden of proof-Family settlement-Registration-Unregistered document-Marking-Evidence-Evidentiary value-Plaintiff filed suit for recovery of possession by stating that the property was settled to him by his father and the defendant was permitted by him to occupy and the permission was revoked-Defendant contended that it was given to him in a family settlement and claimed ownership and alternatively pleaded title by adverse possession-Trial Court dismissed the suit and the appellate Court also dismissed the appeal-Second appeal by the plaintiff-Parties stood by their stands-Held, a person cannot simultaneously plead title by document and also adverse possession-A document that requires registration compulsorily, if not registered, cannot be looked into for any purpose-Plaintiff should establish his own case to succeed and cannot fall back on the flaw of the defendant-Appeal dismissed.

       

        (B)Limitation Act, 1963 (36 of 1963)-Art.65-Adverse possession-Title-Pleadings-Simultaneous plea-A person cannot plead title by document and also adverse possession simultaneously.

        The respondent/defendant cannot plead title based on document and adverse possession simultaneously. Para 14

        (C)Indian Registration Act, 1908 (16 of 1908)-Sec.35-Family settlement-Registration-Unregistered document-Marking-Evidence-Evidentiary value-A document that requires registration compulsorily, if not registered, cannot be looked into by the Court for any purpose.

        Therefore, applying the principles laid down in the above judgment, Exs.B18 and B19 family arrangements, which are unstamped and unregistered, cannot be looked into. The respondent/defendant cannot claim any right or title to the suit property under the said documents. Para 16

        (D)Indian Evidence Act, 1872 (1 of 1872)-Sec.102- Burden of proof- The plaintiff must establish his own case and mere failure of defendant to establish his case, will not entitle the plaintiff to succeed automatically.

        The appellant/plaintiff must establish his own case and mere failure of defendant to establish his case, will not entitle the appellant/plaintiff to succeed automatically. Para 21

        Merely because the respondent/ defendant failed to establish his case, would not mean that the appellant/plaintiff could succeed automatically. The courts below after taking into consideration the oral and documentary evidences of both the parties have correctly came to the conclusion that the appellant/plaintiff failed to prove her case by producing any acceptable evidence. Para 22

       

Judgment :-

The above Second Appeal arises against the judgment and decree in A.S.No. 53 of 1999 on the file of Sub Court, Mayiladuthurai confirming the Judgment and Decree in O.S.No.349 of 1995 on the file of the District Munsif Court, Sirkali.

2. The plaintiff in the suit is the appellant in the above second appeal. The respondent is the defendant in the suit.

3. The plaintiff filed suit in O.S.No.349 of 1995 on the file of the District Munsif Court, Sirkali. for delivery of possession in respect of B schedule property and for past and future mesne profits.

.4. The brief case of the plaintiff is as follows:-

.The plaint B schedule property is part of A schedule property and the B schedule property alone is the subject matter of the suit. The plaintiff is the daughter of Lakshmanasamy Nadar, who died in the year 1981. The plaintiffs father Lakshmanasamy Nadar, by virtue of Inam registered sale deed dated 23. 1968, conveyed the A schedule property to the plaintiff. The defendant, who is the brothers son of the said Lakshmanasamy Nadar, was permitted to reside in a portion of A schedule property, which is the suit B schedule property. The rest of the A schedule property is in the possession of the plaintiff. The plaintiff also accepted the permissive occupation of the defendant in the suit B schedule property to which the plaintiff is the owner from the date of Inam sale deed. By notice dated 20.3.1990, the plaintiff revoked the permission and demanded to surrender possession of the suit property. The defendant, on receipt of the said notice, sent a reply notice raising false allegations. Since the defendant failed to deliver possession, the plaintiff filed the suit.

.5. The brief case of the defendant is as follows:

.According to the defendant, the description of the suit property is not correct. The suit property is the self acquired property of the plaintiffs father, Lakshmanasamy Nadar. The defendant is in peaceful possession and enjoyment of the B schedule property on his own right by paying tax in his name for the past so many decades and treating the property as his own. According to the defendant, the suit A schedule property originally belonged to one Duraisamy Nadar. After his death, it was inherited by his four sons, namely, Lakshnamasamy Nadar, Mahalingam, Muthukumarasamy and Amirthalingam. Muhukumarasamy and Amirthalingam left the village by not claiming any right over the A schedule property. The property was enjoyed by Lakshnamasamy Nadar and Mahalingam. Lakshnamasamy Nadar is the father of the plaintiff and Mahalingam is the father of the defendant. On 18. 1955, a family arrangement took place between Lakshmanasamy Nadar, Muhukumarasamy, Amirhaligam and Mahalingam. Another family arrangement took place on 29. 1955 between Lakshmanasamy Nadar, Muthukumarasamy, Amirhaliingam, Marimuthu, Gurumurthy and Periyasamy @ Pesal Nadar. As per the said family arrangement, the property situate west of the suit B schedule is to be taken by all the 3 and the B schedule property to be taken by Marimuthu and 2 others. 10 days time was fixed for completing the family arrangement. Otherwise, it was alternatively agreed, the said arrangement will be confirmed by engrossing in the stamp papers and have it registered. After the second family arrangement, Muthukumarasamy and Amirthalingam without laying any claim over the property left the village. So far as B scheduled property is concerned, the defendant is in actual possession and enjoyment of the same from the year 1955 in his own right and residing there even 10 years prior to 1955. From 1995 onwards, the B schedule property was given Door No.5A by the Panchayat Board. Therefore, the defendant prayed for dismissal of the suit.

6. In the additional written statement filed by the defendant, the defendant pleaded adverse possession.

7. Before the trial court, on the side the plaintiff, 3 witnesses were examined and 8 documents Exs. A1 to A8 were marked. On the side of the














































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