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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. Vijayakumar, J.
Ram Monohar (Died) & Others – Petitioners
Versus
S. Rajakani Ammal & others – Respondents
S.A (MD) No. 296 of 2005
Decided On : 18-02-2022
Civil Procedure Code,1960 – Section 100 - Indian Evidence Act – Section 102 - Schedule property - Recovery of possession - Plaintiffs have contended that suit first schedule property is ancestral property of one who is the husband of first plaintiff and father of plaintiffs - According to plaintiffs, first schedule property is the ancestral property and plaintiffs are in possession and enjoyment of said property - Plaintiffs further contended that second schedule property was purchased by said one under Exhibit A1, from one - Plaintiffs contended that said one had died intestate and plaintiffs are legal heirs and they are in physical possession and enjoyment of suit schedule properties - They further claimed title by adverse possession - Whether Courts below are right in decreeing suit completely shifting burden of proof on appellants/defendants in a suit filed by the respondents/plaintiffs for declaration and for injunction in alternative for recovery of possession– Held, Courts below have relied upon some stray answers in cross-examination of defendants and granted a decree in favor of plaintiffs - It is a settled position of law that plaintiffs will be entitled to a decree for declaration of title only on basis of documentary evidence produced from their side and not based upon weakness of the defendants' case or by picking up holes in case of defendant - In the present case, Courts below have chosen to rely upon the alleged weakness on side of defendants and has granted a decree for declaration of title in favor of plaintiffs - Plea of adverse possession in the plaint is bereft of any details with regard to the commencement of date of possession - That apart, the documents filed by defendants coupled with Exhibit A2 reflect a joint possession of plaintiffs and the defendants over the suit schedule properties - Hence, Courts below were not right in holding that plaintiffs have prescribed title by adverse possession - In view of discussion, all substantial questions of law are answered in favor of appellants - Judgment and decree of Courts below are set aside - Second Appeal stands allowed.
JUDGMENT :
(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree, dated 30.06.2003 made in A.S. No. 61 of 2000 on the file of the Principal District Judge, Tuticorin, confirming the judgment and decree, dated 10.02.2000 made in O.S.No.17 of 1998 on the file of Principal District Munsif, Tuticorin.)
1. The defendants are the appellants herein.
2. The plaintiffs filed O.S.No.17 of 1998 before the Principal District Munsif, Tuticorin, for declaration of title and consequential permanent injunction. The plaintiffs have shown 1.48 acres in Survey No.154/1A in Agaram Village as first schedule property and another extent of 74 cents in the same survey number as second schedule property. The suit was decreed by the trial Court. The defendants filed A.S.No.61 of 2000 before the Principal District Court, Tuticorin. The learned District Judge was pleased to dismiss the appeal. As against the concurrent findings, the defendants have filed the above Second Appeal.
3. The plaintiffs have contended that the suit first schedule property is the ancestral property of one Sudalaimani Nadar who is the husband of the first plaintiff and father of plaintiffs 2 to 6. According to the plaintiffs, the first schedule property is the ancestral property and the plaintiffs are in possession and enjoyment of the said property. The plaintiffs further contended that the second schedule property was purchased by Sudalaimani Nadar under Exhibit A1, dated 28.02.1979 from one Bagavath Singh Nadar. The plaintiffs contended that the said Sudalaimani Nadar had died intestate and the plaintiffs are the legal heirs and they are in physical possession and enjoyment of the suit schedule properties. They further claimed title by adverse possession.
4. According to the plaintiffs, Survey No.154/1 is having a total extent of 8.88 acres and the plaint schedule properties are lying on the western extremity of the said survey number. Though the sale deed under Exhibit A1 mentions that there was a partition between the vendor, Bagavath Singh and his brother Rajasekaran, in the schedule of property, it has been mistakenly mentioned as an undivided extent. According to the plaintiffs they are in specific extent in the western extremity. The plaintiffs further contended that the Eastern extent of 8.88 acres is held by some third party. Without any right or title they are attempting to interfere in the physical possession and enjoyment of the plaintiffs. Hence, the present suit.
5. The defendants filed a written statement disputing the title of the plaintiffs over the first schedule property. They further disputed the very existence of Survey No.154/1A. According to the defendants, Survey No. 154/1A is a subject matter of a joint patta in which the defendants father's name is also present. The defendants further contended that the four boundaries and survey number for the second schedule property are erroneous. The defendant also disputed the title and possession of Sudalaimani Nadar for the second schedule property.
6. According to the defendants, Survey No.154/1 is having a total extent of 8.88 acres. The said survey number has been sub-divided into various sub-divisions ranging from 154/1A to 154/1E. According to the defendants, their property having an extent of 2.25 acres has been separately sub-divided and it has been assigned survey number of 154/1A1A. The defendants further contended that West of S.No.154/1A 1A, defendants are having property in S.No.147/3. Both the survey numbers have been fenced together and enjoyed by the defendants. According to the defendants, these properties are owned by Arunachala Nadar ancestrally as well as by way of purchased under various sale deeds.
7. The defendants further disputed the recital in Exhibit A1 sale deed with regard to the oral partition between the Bagavath Singh and his brother Rajasekaran. The defendants also claimed that their property having an extent of 2.25 acres is on the Wes
The judgment emphasizes the importance of documentary evidence in establishing property ownership and the burden of proof in property disputes.
The central legal point established in the judgment is the shift of burden to the defendants to prove lack of possession and title when the plaintiffs have established continuous possession and title....
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