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HIGH COURT OF JUDICATURE AT MADRAS
T. RAJA, J.
Veerappa Asari – Petitioner
Versus
M. Subramani – Respondent
S.A.No. 546 of 2011
Decided On: 19-02-2015
Tamil Nadu Patta Pass Book Act, 1986 - Section 4 - Tamil Nadu Patta Passbook Rules - Rule 4(4) - Evidence Act - Section 58 - Civil Procedure Code - Order 12 - Rule 6 - Recovery of possession – Claim of compensation - Whether suit is barred by limitation - Possession of B schedule property - Plaintiff who is respondent herein filed suit for a declaration that he is absolute owner of suit B schedule property covered in Survey having an extent of acres situated at Village and also for recovery of possession from defendant who is appellant herein after removing superstructure put up on B schedule property on ground that A schedule property which originally belonged to plaintiffs joint family was taken over and maintained by plaintiff by paying necessary kits and other charges to concerned authority that A schedule property covered an extent of acres for which patta originally stood in name however said patta has been subsequently transferred in favor plaintiff and that out of acres of land members of plaintiffs joint family having sold acres to third parties remaining acres was taken over by plaintiff - When mater stood as above suit property was measured with help of surveyor and it was found that defendant has trespassed into B schedule property which forms part of A schedule property - After finding that defendant had trespassed into B schedule property illegally and put up a tiled house without taking permission from concerned authority plaintiff filed suit for relief as stated above – Held, Curiously at second appellate stage has been filed by defendant to produce documents namely settlement deed partition sale deed sale certificate etc on ground that though exhibits B-1 to B-5 were marked before trial Court due to oversight and inadvertence aforesaid documents could not be marked - However it was argued that if above documents are allowed to be placed on record all additional documents will prove that suit properties are belonging to defendant - Adding further senior counsel submitted that these documents are very much necessary to decide long pending lies - Pleading further contended that these documents will have a material bearing on crucial issue involved in this second appeal and will also assist this Court to arrive at a just decision in case therefore ignoring long delay these documents should be taken on record - Senior counsel for plaintiff raising heavy objections submitted that additional documents now sought to be produced after a period of more than fifteen years of filing of suit that too at second appeal stage should not be entertained since defendant had not produced said documents either before trial Court or before first appellate Court when he has suffered repeated downfall - That apart jurisdiction of appellate Court to receive additional evidence is also very limited on this score also sought for rejection of belated prayer – Therefore reasons adduced for marking documents as new documents do not impress this Court to let them in fresh evidence as this would procrastinate issue further - Time lag in matter under consideration is also enormous and additional evidence sought to be produced after a period of more than years of filing of suit cannot be accepted in view of ratio laid down by judgment of Apex Court in case - Now suit instituted having been decreed in favor of plaintiff by trial Court and first appeal also came to be dismissed in favor of plaintiff petition for producing additional evidence at such a belated stage cannot be entertained – Hence this Court is not inclined to entertain said petition and accordingly is dismissed as unnecessary – Appeal is dismissed
1. The unsuccessful defendant, aggrieved by the concurrent findings of the Courts below, has brought this second appeal. For convenience, the parties are referred to as per their litigative status in the suit.
2. The facts in brief leading to the filing of the second appeal are given as under:-
The plaintiff, who is the respondent herein, filed the suit for a declaration that he is the absolute owner of the suit 'B' schedule property covered in Survey No.1471/13, having an extent of 3.80 acres, situated at Madhavaram Firka Village, Saidapet Taluk and also for recovery of possession from the defendant, who is the appellant herein, after removing the superstructure put up on the 'B' schedule property, on the ground that the 'A' schedule property, which originally belonged to the plaintiff's joint family, was taken over and maintained by the plaintiff by paying necessary kist and other charges to the concerned authority; that the 'A' schedule property covered an extent of 3.80 acres, for which patta originally stood in the name of Chellappa Naicker, however, the said patta has been subsequently transferred in favour of Deivasigamani, Thiripurasundari and Subramani, the plaintiff and that, out of 3.80 acres of land, the members of the plaintiff's joint family having sold 2.10 acres to third parties, the remaining 1.70 acres was taken over by the plaintiff. When the mater stood as above, the suit property was measured with the help of the surveyor and it was found that the defendant has trespassed into the 'B' schedule property, which forms part of 'A' schedule property. After finding that the defendant had trespassed into the 'B' schedule property illegally and put up a tiled house without taking permission from the concerned authority, the plaintiff filed the suit for the relief as stated above.
3. By filing a detailed written statement, the defendant specifically denied the case of the plaintiff that the entire extent of 'A' schedule property was originally belonging to the plaintiff's joint family and that the plaintiff took over and maintained the same. The defendant further denied the claim of the plaintiff that the patta originally stood in the name of Chellappa Naicker. On the other hand, it was stated that at the time of re-settlement of the suit village, the patta for 'A' schedule property i.e. the land in Survey No.1471/13, measuring an extent of 3.80 acres in Madhavaram Village, Saidapet Taluk, stood in the name of Murugappa Naicker, Seenupillai and Periya Govinda Naicker. The said three persons owned different extent of land covered in Survey No.1471/13, having an extent of 3.80 acres. But at no point of time, the entire extent of 3.80 acres belonged to any single person or single family. It was further stated that neither Murugappa Naicker, who is the maternal grandfather of the plaintiff nor Chellappa Naicker, who is the father of the plaintiff, had purchased any property in the suit village. Therefore, the claim of the plaintiff on the basis of patta obtained in the name of Chellappa Naicker would not confer any title for the entire extent of 3.80 acres in Survey No.1471/13. Further claim of the defendant was that the said Murugappa Naicker or his descendants i.e. the plaintiff and his brothers never possessed or enjoyed the entire extent of 3.80 acres in Survey No.1471/13 at any point of time, hence, the plaintiff's claim of the 'A' schedule property as his joint family property is totally false and untenable in law.
4. It was further claimed that the plaintiff got his share and separate possession of it, after filing a suit for partition of his joint family property in O.S.No.361 of 1962 on the file of learned District Munsif, Poonamallee. However, in the said suit plaint, the extent of land in Survey No.1471/13 was mentioned as a lesser one and not the entire extent of 3.80 acres, as mentioned by the plaintiff, therefore, with a view to grab the property of others, the plaintiff has filed the present suit
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