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2017 Supreme(Mad) 99
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. SUNDAR, J.
G.Samikalai - Appellant
Vs.
Sengamalanachiarpuram Kammavar Sangam, Represented by its President Ayyappan – Respondent
Second Appeal (MD) No.325 of 2016
Decided on : 09-01-2017
Advocate Appeared:
For the Appellant : Mr.Veera Kathiravan
For the Respondents: Mr.M.Vallinayagam Senior Counsel for Mr.N.Damodaran
The plaintiffs' right to the suit properties was proved by virtue of the sale deed obtained under Exs.A2 and A10. The individuals who purchased the property under the sale deeds were members of the Kammavar community and purchased the property only on behalf of the community.
Headnote:
presumption - title - Evidence Act, Section 90 - The trial Court found that the documents Ex.A2 dated 11.10.1946 and Ex.A10 dated 28.10.1946 are true relying upon Section 90 of the Evidence Act whereby the Court can presume the due execution of any document which were brought from proper custody. The trial Court also relied upon the judgment of this Court reiterating the same principle in a similar situation. The trial Court found, as a matter of fact, that the defendants 1 to 8 are bound by the sale deed executed by their predecessor-in-interest. Similarly, the trial Court also found that the defendants 9 to 12 who are the legal heirs of Sundara Kudumban who had executed the sale deed in favour of the founders of plaintiffs in the year 1946, are not entitled to claim any right over the suit property. Hence, the trial Court has given a categorical finding that the plaintiffs have proved their right to the suit first and second schedule properties by virtue of the sale deed obtained under Exs.A2 and A10. As regards the other contention, regarding the locus standi of plaintiffs to file the suit on the ground that the suit property was not purchased by the Sangam, the trial Court rejected the said contention by stating that the dispute between the plaintiffs and defendants started several years before filing of the suit and that the individuals who are shown as purchasers under Ex.A2 and Ex.A10 being the members of the Kammavar community, they have purchased the property only on behalf of the community.
Fact of the Case:
The plaintiffs filed a suit for declaration of title and recovery of possession from defendants 1 to 8 and 13 in respect of the suit first schedule property and for declaration of title and recovery of possession from defendants 9 to 13 in respect of suit second schedule property. The defendants disputed the title deeds of the plaintiffs, and the 13th defendant raised an issue that the plaintiffs have no locus standi to file the present suit as the suit properties were not purchased by the plaintiffs.
Finding of the Court:
The trial Court found that the plaintiffs have proved their right to the suit first and second schedule properties by virtue of the sale deed obtained under Exs.A2 and A10. The trial Court rejected the contention that the plaintiffs have no locus standi to file the suit, stating that the individuals who are shown as purchasers under Ex.A2 and Ex.A10 being the members of the Kammavar community, they have purchased the property only on behalf of the community.
Issues: Dispute over title deeds, locus standi of plaintiffs to file the suit
Ratio Decidendi: The trial Court relied upon Section 90 of the Evidence Act to presume the due execution of the sale deeds obtained by the plaintiffs. The trial Court rejected the contention that the plaintiffs have no locus standi to file the suit, stating that the individuals who are shown as purchasers under the sale deeds being the members of the Kammavar community, they have purchased the property only on behalf of the community.
Final Decision: The Second Appeal is dismissed.
The 13th defendant in the suit in O.S.No.223 of 2002 on the file of the District Munsif Court, Sivakasi, is the appellant in the above Second Appeal.
2. The respondents 1 and 2 herein, as plaintiffs, filed the suit in O.S.No.223 of 2002 for declaration of title and recovery of possession from defendants 1 to 8 and 13 in respect of the suit first schedule property and for declaration of title and recovery of possession from defendants 9 to 13 in respect of suit second schedule property. The suit is also for a consequential permanent injunction restraining the defendant from alienating the suit property or from putting up any construction in the suit property. The suit first schedule is the northern half of 1 acre 8 cents out of two acres 16 cents in Survey No.658/1 in Thiruthangal Village, Virudhunagar District. The suit second schedule is the southern half measuring 1 acre 8 cents in Survey No.658/1 out of the total extent of 2 acres 16 cents in the same village.
3. The case of the plaintiffs in brief are as follows:
3.1. The plaintiff is a society by name Sengamalanachiarpuram Kammavar Sangam represented by the present President and Secretary. The suit is also filed in a representative capacity by seeking permission from the Court.
3.2. The first schedule originally belonged to one Irulappa Kudumban and Minninttan Kudumban, the sons of one Perumal Kudumban. They sold the property by a registered sale deed dated 21.08.1929 in favour of one Sundaran Pakadai and seven others for a valid consideration. The purchasers under the document dated 21.08.1929 sold the first schedule property in favour of the plaintiffs by another registered sale deed dated 11.10.1946. Though the sale deeds were obtained in the name of the representatives of plaintiffs namely Rangasamy Naicker, Ayyasamy Naicker and Alagiri Naicker, it was purchased only for the plaintiffs. The first schedule was in the possession and enjoyment of the plaintiffs. The plaintiffs were given patta and kists were paid only by the plaintiffs. Similarly, the second schedule namely the southern 1 acre 8 cents out of the total extent of 2 acres 16 cents in Survey No.658/1 originally belonged to one Aryamuthu Asari. The said Aryamuthu Asari sold the property by a registered sale deed dated 12.02.1945 in favour of one Sundara Kudumban. Again the said Sundara Kudumban executed a sale deed in respect of the second schedule property in favour of the plaintiffs under a registered sale deed dated 28.10.1946. Though the sale deed was in the name of three individuals belong to the plaintiffs community, it was purchased only on behalf of the plaintiffs. As in the case of first schedule property, patta also was given in respect of the second schedule in favour of the plaintiffs and both first and second schedule properties were brought under single patta and plaintiffs were paying kists. Though at the time of updating registry, patta was not given to the plaintiffs by mistake, the mistake was corrected in the year 1992 and order was passed to grant patta in favour of the plaintiffs and patta was also issued.
3.3. However, in the year 1994, 11th defendant and his brother one Irulappan applied for patta, suppressing the fact that the father of 11th defendant had already sold the property in favour of the plaintiffs in respect of the suit second schedule by a sale deed dated 28.10.1946. However, the Tahsildar, after considering the sale deed, refused to grant patta by order dated 12.04.1995. However, in the order liberty was given to the 11th defendant to approach the Civil Court to establish his right. Though the 11th defendant preferred an appeal before the Sub Collector, the appeal was also dismissed by order dated 13.11.1995. Without filing any suit, to establish his right, the 11th defendant suppressing the order of the appellate authority, filed another application for change of patta in his name after Sivakasi Taluk was bifurcated from Sattur Taluk. Though an order was passed in fa
