K.Kasi v. Bommi Ammal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.03.2022

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH S.A.NO.181 OF 2012 K.Kasi .. Appellant/ Appellant/Defendant -VsBommi Ammal ..Respondent/ Respondent/Plaintiff PRAYER :

Second Appeal filed under Section 100 of C.P.C., against the Decree and Judgment dated 28.10.2011 in AS.No.2 of 2011 on the file of Principal Sub Court, Thiruvannamalai, confirming the Decree and Judgment dt.02.11.2010 in OS.No.395 of 2006 on the file of Principal District Munsif, Thiruvannamalai. For Appellant : Mr.R.Rajarajan For Respondent : Mr.K.V.Sajeev Kumar Ms.Reshmi Christy

JUDGMENT

The defendant is the appellant in this second appeal. 2.The case of the plaintiff is that the suit property along with larger extent of property measuring 3 ares was originally owned by one Kanna Udaiyar. On his demise, the property was inherited by his wife and children. They executed a registered sale deed dated 12.05.1985, marked as Ex.A-1 in favour of the father of the plaintiff and the possession and enjoyment of the property was also handed over to the father of the plaintiff. The further case of the plaintiff is that her father died intestate on 21.05.1997 leaving behind the plaintiff alone as

his legal heir. According to the plaintiff, she was in possession and enjoyment of the entire property left behind by her father.

3.The grievance of the petitioner is that the defendant attempted to trespass into the suit property and a legal notice was also issued on 07.03.2006, marked as Ex.A-3, to the defendant. On receipt of the same, the defendant issued a reply notice dated 10.04.2006, marked as Ex.A-4 containing false claims. Left with no other alternative, the suit was filed seeking for the relief of declaration of title and for delivery of possession.

4.The case of the defendant is that the disputed property totally measuring 71⁄2 cents belonged to three brothers viz., Appadurai Udaiyar, Angappa Udaiyar and Iyyakannu Udaiyar. They partitioned among themselves and Appadurai Udaiyar was allotted the western portion of 2 1⁄2 cents and the remaining 5 cents was allotted in favour of the other two brothers. The said Appadurai Udaiyar died and the property allotted to him was inherited by his son Kasi Udaiyar. The said Kasi Udaiyar sold the property in favour of the defendant and his brother under a registered sale deed dated 20.08.1982 which was marked as Ex.B2. The further case of the defendant is that he also purchased his brother's share under a registered sale deed dated 11.04.1983, marked as Ex.B-3.

Thus, the defendant claims to be the absolute owner of the property and he has taken a specific plea that he is in possession and enjoyment of the same. 5.According to the defendant, Angappa Udaiyar was entitled for only 21⁄2 cents and it is this extent of property that was inherited by his legal heirs. Therefore, according to the defendant, the legal heirs could not have alienated 8 cents of land as claimed under Ex.A-1 and therefore, the very entitlement of the plaintiff in the suit property beyond 21⁄2 cents was questioned by the defendant. Accordingly, the defendant sought for the dismissal of the suit.

6.Both the Courts below on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, concurrently held and decreed the suit in favour of the plaintiff. Aggrieved by the same, the defendant has filed the second appeal before this Court. 7.When the Second Appeal was admitted, the following substantial questions of law were framed:

1. Whether the first appellate Court is correct in law by decreeing the suit when the plaintiff fails to prove that the disputed portion of the property

falls within the suit property?

2. Is not the first appellate Court wrong in law, by not considering the failure of the plaintiff to trace the title which is fatal in the facts and circumstances of the case?

3. Is not the appellate Court wrong in law by directing the suit without framing the issue whether the boundary recitals in Ex.A.1 is correct or incorrect and which goes to the root of the case?

4. Whether the appellate Court is correct in law by dismissing the appeal without considering the objection against the commissioner report and without any finding thereon?

8.Heard Mr.R.Rajarajan, learned counsel for the appellant and Mr.K.V.Sajeev Kumar, learned counsel for the respondent. This Court carefully perused the materials available on record and the findings of both the Courts below.

9.A careful look at the description of the property in the plaint shows that the boundaries to the suit property has not been stated and the property has been described by showing the total extent as 1637.6 sq.ft (roughly 3.756 cents). 10.The dispute in the present case confines itself to the alleged encroached portion which according to the plaintiff is in possession and enjoyment of the defendant. In order to determine as to whether the defendant has encroached upon the portion of the property belonging to the plaintiff, it becomes necessary to first ascertain the total extent of property to which the plaintiff was entitled.

11.The trial Court while dealing with this issue has taken into consideration, the document marked as Ex.A-1 wherein, the total extent of the property is mentioned as 8 cents. The trial Court also took into consideration Exhibits A-5 and A-6 which was issued by the Revenue Department. While analysing the same, the trial Court found that there was no evidence to show that there was a partition between three brothers and pursuant to the same, each became entitled to 2 1⁄2 cents. The trial Court also took into consideration the rectification deed which was marked as Ex.B-4 and gave a finding to the effect that such rectification had taken place after nearly 21 years and hence, the same cannot be taken into consideration to substantiate the claim made by the defendant.

The trial Court mainly focussed on the documents that were produced on the side of the defendant and came to a conclusion that the defence taken by the defendant has not been established.

she is entitled for the relief of declaration of title and consequently, directed the defendant to hand over the encroached portion of the property to the plaintiff.

12.The Appellate Court on re-appreciation of evidence and after considering the findings of the trial Court found that there are no grounds to interfere with the findings of the trial Court and while rendering such a finding, the Appellate Court also took into consideration, the report of the learned Advocate Commissioner. The Appellate Court granted three months time to the defendant to hand over possession of the encroached portion of the plaintiff.

13.The learned counsel for the appellant placed reliance upon the report filed by the learned Advocate Commissioner which was heavily relied upon by both the Courts below and submitted that the entire report is unsustainable since the survey was not conducted by the learned Advocate Commissioner based on the title documents to the property. The learned counsel submitted that the survey was conducted only based on the revenue documents and such a survey cannot establish the actual extent of the property in possession of the respective parties. 14.

The learned counsel for the appellant also questioned the very basis on which both the Courts below traced the title since the defendant took a very specific stand that the plaintiff cannot claim for title over an extent of 8 cents since it belonged to three brothers and admittedly, the sale deed was executed in favour of the plaintiff by the branch falling under one of the brother viz., Angappa Udaiyar. The learned counsel further submitted that both the Courts below were trying to pick holes on the case of the defendant without really focussing on the plaintiff, who was supposed to prove her right and title over the property.

The learned counsel also submitted that the suit was filed even without mentioning boundaries in the suit schedule and there was no proper description of the immovable property as required under Order VII Rule 3 of CPC. 15.The learned counsel for the respondent submitted that both the Courts below have assigned proper reasons based on the oral and documentary evidence and the same does not warrant the interference of this Court in the second appeal. 16.In the considered view of this Court, both the Courts below had attempted to pick holes in the case of the defendant without focussing on the plaintiff, who is supposed to discharge the burden in proving the right and title over the property. The defendant had taken a very specific stand to the effect that the plaintiff could not have purchased an extent of 8 cents under Ex.

Udaiyar, who himself was entitled for only 21⁄2 cents. The boundary recitals of the document that was relied upon by the plaintiff had shown the eastern boundaries as Shekar's land instead of the road that was acquired from the original owners measuring an extent of 1⁄2 cent. The defendant had made a very specific pleading in this regard in the written statement. Therefore, the burden of proof was heavily on the plaintiff to have properly traced her title to the property and established that she was entitled for 8 cents of land. For this purpose, the evidence on the side of the defendant can only be taken for corroboration and the plaintiff should have primarily proved that she is entitled for 8 cents of land. This burden of proof on the part of the plaintiff has not been discharged.

If this burden has not been discharged, it will become very difficult to come to a conclusion as to how much of the property belonging to the plaintiff has been encroached by the defendant. The burden of proof is heavy on the plaintiff to establish title over 8 cents of land since the defendant and his brother had purchased an extent of 450 sq.ft., from the son of Appadurai Udaiyar through registered sale deed dated 20.08.1982, marked as Ex.B-2. Nobody had disputed this sale deed. If this sale deed is taken into consideration, obviously the plaintiff could not have traced title for 8 cents of land from the Angappa Udaiyar's branch.

In view of the same, this Court holds that the plaintiff has failed to trace her title and establish that she was entitled for 8 cents of land and that the disputed portion of the property fell within the suit property. The first and second substantial questions of law are accordingly answered in favour of the appellant.

17.There is yet another issue which was not taken note of by the Courts below. The Commissioner's report was filed without any reference to the title deeds. The same is evident on reading the learned Advocate Commissioner's report. It is also evident from the report of the learned Advocate Commissioner that while describing the boundaries, the eastern boundary has been shown as the road which is quite contrary to the boundary that was shown in Ex.A-1 sale deed relied upon by the plaintiff. In any event, the report of the learned Advocate Commissioner becomes irrelevant since the plaintiff failed to establish her title over an extent of 8 cents of land.

18.In the considered view of this Court, the findings of both the Courts below suffers from perversity and the same warrants the interference of this Court in the present second appeal. The third and fourth substantial questions of law are answered accordingly.

19.The above discussion leads to the conclusion that the judgment and decree of both the Courts below deserves the

interference of the Court. This is a classical case where both the Courts below lost sight of the fundamental law that the plaintiff has to prove his case and the plaintiff cannot be permitted to discharge the burden by picking holes in the case of the defendant. Both the Courts below were swayed by the case put forth by the defendant, even without seeing if the plaintiff had proved her title over 8 cents of land in which she had alleged that the defendant had encroached upon. Accordingly, all the substantial questions of law are answered in favour of the appellant and the Judgement and Decree passed by both the Courts below are set aside. As a consequence, the suit stands dismissed.

20.In the result, this Second Appeal is allowed. Considering the facts and circumstances of the case, there shall be no order as to cost.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar KP To

1. The Principal Subordinate Judge, Thiruvannamalai.

2. The Principal District Munsif, Thiruvannamalai.

Copy To The Section Officer V.R.Section, High Court, Madras.

+1cc to Mr.R.Rajarajan, Advocate, S.R.No.22093 S.A.No.181 of 2012 EV(CO) PM/10/06/2022