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2019 Supreme(Mad) 1490
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. Ravindran, J.
Kannan @ Palani - Appellant
Versus
Mayilal @ Pappathi & Others - Respondent
S.A. No. 1288 of 2005
Decided On : 22-03-2019
For the Appellant :K. Ponmani, M/s. V. Rajesh, Advocates.
For the Respondents: N. Manokaran Adv., N. Manikandan, GA (CS).
Headnote:
Civil Procedure Code - Section 100 - Challenge is made to the judgment and decree - Whether a suit for declaration of title can be decreed in absence of any documents filed by plaintiff to prove title or possession - Plaintiff against defendants for reliefs of declaration and permanent injunction - Suit has been laid by plaintiff against defendants for reliefs of declaration and permanent injunction plaintiff claims title to suit property, as averred in original plaint based upon said to have been issued in her favor in year 1981 under and in original plaint plaintiff described herself as wife of - On that basis plaintiff has sought for above said reliefs in respect of suit property contending that it is only she who has title to suit property based upon issued by Government and suit property is in her possession and enjoyment and inasmuch as, the fourth defendant in particular, attempted to interfere with her possession and enjoyment and the defendants 1 to 3 are endeavoring to issue a patta in favor of fourth defendant in respect of suit property without sending intimation or notice to her and obtaining her consent – Held, Somehow or other it is seen that plaintiff and fourth defendant at first instance seem to have acted in collusion one way or other in matter and accordingly endeavored to project evidence in such a fashion with a view to enable the plaintiff to secure reliefs claimed in suit - However when plaintiff has miserably failed to establish her case to hold that she is and when her specific case is that she is only described as and her husbands name is described as in voters list ration card and despite having admitted that she is having the duplicate copy of plaintiff not endeavoring to produce original or duplicate to evidence that it is only she who has been issued in respect of the suit property merely on certain admissions of defendants witnesses and pleas put forth by fourth defendant court cannot accept plaintiffs case straightway and in such view of matter in court considered opinion judgment and decree of Courts below accepting plaintiffs case sans any proof whatsoever placed on part of plaintiff for upholding her claim of title possession and enjoyment of suit property and having failed to appreciate the evidence of defendants witnesses as well as put forth by them to resist plaintiffs suit cumulatively they are found to have misdirected themselves and hence judgment and decree of Courts below could only be described as perverse illogical and irrational as being founded upon improper and erroneous appreciation of materials placed on record and against provisions of law pertaining to same and in such view of matter judgment and decree of Courts below are liable to be seaside - Courts below seem to have shifted burden upon defendants for upholding plaintiffs case and thereby on basis of certain stray admissions on part of defendants during course of evidence endeavored to grant reliefs in favor of plaintiff which cannot be legally sustained - Substantial questions of law formulated in second appeal are accordingly answered against plaintiff and in favor of defendants - Appeal is allowed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 25.11.2002 made in A.S.No.59 of 2002 on the file of the Sub Court, Bhavani confirming the judgment and decree dated 28.06.2002 made in O.S.No.519 of 1999 on the file of the II Additional District Munsif Court, Bhavani.)
1. In this second appeal, challenge is made to the judgement and decree dated 25.11.2002 passed in A.S.No.59 of 2002 on the file of the Subordinate Court, Bhavani, confirming the judgment and decree dated 28.06.2002 passed in O.S.No.519 of 1999 on the file of the Second Additional District Munsif Court, Bhavani.
2. The second appeal has been admitted on the following substantial questions of law:
1. Whether a suit for declaration of title can be decreed in the absence of any documents filed by the plaintiff to prove title or possession?
2. In a suit for declaration of title whether the burden can be cast on the defendant to prove title?
3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. For the sake of convenience, the parties are referred to as per the rankings in the trial court.
5. The suit has been laid by the plaintiff against the defendants for the reliefs of declaration and permanent injunction. The plaintiff claims title to the suit property, as averred in the original plaint, based upon the patta said to have been issued in her favour in the year 1981 under the patta No.22 and in the original plaint, the plaintiff described herself as Mylal @ Papathi, wife of Govindhan. On that basis, the plaintiff has sought for the abovesaid reliefs in respect of the suit property contending that it is only she, who has title to the suit property based upon the patta issued by the Government and the suit property is in her possession and enjoyment and inasmuch as, the fourth defendant in particular, attempted to interfere with her possession and enjoyment and the defendants 1 to 3 are endeavoring to issue a patta in favour of the fourth defendant in respect of the suit property without sending intimation or notice to her and obtaining her consent, according to the plaintiff, she has been necessitated to lay the suit against the defendants.
6. The plaintiff has been examined as P.W.1 and P.W.1 during the course of her evidence, has admitted in the cross examination that only after the defendants 1 to 3 had filed the written statement, later she had come forward to amend the plaint as describing her husband's name as Kittan @ Govindhan and accordingly, it is found that subsequent to the filing of the written statement on the part of the defendants, as such, the plaintiff has chosen to amend the original plaint and in the amended plaint, the plaintiff has described herself as Mylal @ Papathi, wife of Kittan @ Govindhan and furthermore, she has also amended the plaint that the patta had been issued in her favour by the Government in respect of the suit property in the year 1980 for the plot No.22 and accordingly on that premise proceeded to prosecute the suit further.
7. The defendants 1 to 3 resisted the plaintiff's case contending that in respect of the suit property comprised in patta No.22 in survey No.502/11 of Athaani village, Bhavani Taluk, the patta had been issued on 13.11.1980 in favour of Papathi, W/o Kittan. Therefore disputed the claim of the plaintiff that she had been issued the patta in respect of the suit property comprised in plot No.22 in the year 1980. Furthermore, according to the defendants 1 to 3, no patta had been issued in respect of the suit property in favour of the fourth defendant and no endeavor had been made by them to transfer the patta to the fourth defendant fraudulently as alleged in the plaint and also disputed the claim of the plaintiff that she has been in the possession and enjoyment of the suit property following the patta said to have been issued
