S.M. Sidickk, J.@mdashThis Second Appeal coming on for bearing on Thursday, sixteenth day and tuesday, the twenty first day of July, 98 upon perusing the Grounds of Appeal, the judgment and Decrees of the Lower Appellate Court and the Court of First Instance and the material papers in the suit and upon hearing the arguments of Mr. Sarvabhauman Senior Counsel for M/s. Sarvabhauman Associates for the Appellant and the respondents not appearing in person or by Advocate, and having stood over for consideration till this day, the Court delivered the following judgment:
The appellant is the 1st defendant and the respondents are the plaintiffs and the 2nd defendant before the lower Court.
2. The respondents 1 to 7, who are the plaintiffs before the lower Court, filed the suit in O.S. No. 815/80 on the file of Principal District Munsif''s Court at Karur for declaration of their exclusive title to the suit property and for a consequential permanent injunction or in the alternative for the relief of possession in case if it is found that the defendants trespassed into the suit property.
3. It is the case of the respondents 1 to 7, who are the plaintiffs before the lower Court, that the suit property is the northern half share measuring 1.89 1/2 cents in the total extent of 3.79 acres in S.F. No. 1430/C of Sanapatti Village in Karur Taluk and one Nachiyammal purchased the suit property from one Sowriammal as early as on 16-2-1927 and the said Nachiyarammal conveyed the suit property to one Krishnaswamy Naidu under a registered sale deed dated 12-3-1928, and the said Krishnaswamy Naidu died in the year 1941 survey by his wife by name Andalammal, and Andalammal is the grandmother of the plaintiffs and the Andalammal executed a registered settlement deed dated 11-7-1961 in favour of the plaintiffs and ever since then the plaintiffs are in possession of the suit property, and the defendants attempted to trespass into the suit property, and so the present suit was filed.
4. The appellant/1st defendant filed a written statement, which was adopted by the 2nd defendant, stating that it is not correct to state that the suit property originally belonged to Adalammal, and she was in exclusive possession of the same, and the plaintiffs are put to strict proof of the execution and attestation of the settlement deed dated 11-7-1961 in their favour, and the plaint is silent as to how Sowriammal got title in the suit property, and neither the plaintiffs nor their predecessor-in-title had any title or possession to the suit property at any time, and the 1st defendant purchased the suit property from one Perianna Gounder under a registered sale deed dated 21 -8-1975 and the 1st defendant was in possession of the suit property, and the 1st defendant sold a portion of the suit property to the 2nd defendant on 26-10-1977, and the defendants are in possession of the suit property on the date of suit, and the allegation that they attempted to trespass into the suit property is denied, and so the suit deserves dismissed with costs.
5. On the above pleading and considering the oral and documentary evidence placed, the learned Principal District Munsif at Karur came to the conclusion that the plaintiffs have failed to prove their title to the suit property and they were in possession of the suit property on the date of suit as claimed by them, and the defendants are in possession of the suit property, and so the plaintiffs are not entitled to the reliefs of declaration of their title to the suit property and for the consequential relief of permanent injunction or in the alternative for the relief of possession and so the learned Principal District Munsif at Karur dismissed the suit with costs.
6. Aggrieved against the said findings of the trial Court, the plaintiffs preferred an appeal in A.S. No. 74/83 before the Sub-Court at Karur and the learned Subordinate Judge at Karur came to the conclusion that the plaintiffs have proved their title beyond reasonable doubt (language (Tamil version) Omitted--Ed.) and the defendants attempted to interfere with the possession of the plaintiffs, and so the plaintiffs are entitled to the reliefs of declaration of their title and for the consequential permanent injunction and so the learned Subordinate Judge at Karur set aside the judgment and decree of the trial Court and allowed the appeal, and decreed the suit as prayed for with costs.
7. Not satisfied with the findings of the learned Subordinate Judge at Karur, the 1st defendant has preferred this second appeal. On the above pleadings and after hearing the learned counsel for the appellant, the substantial questions of law that arise for consideration in this second appeal are as follows :--
(1) Whether the plaintiffs, who are the respondents 1 to 7 in this second appeal, have title to the suit property and whether they were in possession of the suit property on the date of suit?
(2) Whether the recitals as to the boundaries in the documents marked as Exs. A9 to A11 not inter partes are admissible in evidence without examining the executants?
(3) Whether the plaintiffs, who are the respondents 1 to 7 in this second appeal, are estopped from denying the correctness of the description of the suit property even in their own document marked as Ex. 81 in this case?
8. Point No. 1:--The description of the suit property as set out in the plaint schedule by the plaintiffs is as follows :--
(Language (Tamil version) Omitted--Ed.)
Therefore the plaintiffs are claiming title to the northern half share with an east west ridge measuring an extent of 1.89 1/2 cents out of the total extent of 3-79 acres of land in S.F. No. 1430/C of Sanapatti Village.
9. The relevant documents of title in support of the plaintiffs case are marked as Exs. B.18, B.19, A1, A2 and A5. Let us consider the title of the plaintiffs from these documents of title.
10. It is the specific case of the plaintiffs in para 9 of the plaint that originally the suit property belonged to one Nachiyammal, who purchased it from one Sowriammal on 16-9-1927, and the aforesaid Nachiyar Animal conveyed the same under the registered sale deed dated 12-3-1978 in favour of Krishnaswamy Naidu the husband of Andalammal, who in turn executed a registered settlement deed dated 11-7-1961 in favour of the plaintiffs. So according to the allegations in the plaint the original owner of the suit property is Sowriammal. The plaint is silent as to how Sowriammal acquired title to the suit property. However the defendants have produced the registration copy of the sale deed dated 14-2-1923 executed by Rangaswamy Gounder and others in favour of Sowriammal and the same is marked as Ex. B. 18 in this case. The description of property as set out in this sale deed of the year 1923 marked as Ex. B.18 runs in Tamil as follows :--
(Language (Tamil version) Omitted--Ed.)
Thus the earliest document to prove the title of the plaintiffs to the suit property mentions an undivided 1-89 1/2 acres out of the total extent of 3.79 acres in S.F. No. 1430/C, and not the northern half share with an east west ridge as mentioned in the description of property in the plaint schedule.
11. The next document in the chronological order in the sale deed dated 16-9-1927 executed by Sowriammal in favour of Nachiyarammal and it is marked as Ex. B. 19 in this case. The description of property in this document of the year 1927 marked as Ex. B.19 leads a follows :--
(Language (Tamil version) Omitted--Ed.)
Thus the tide deed of the year 1927 in favour of the plaintiffs also states an undivided 1.89 1/2 acres in total extent of 3.79 acres of land in S.E. No. 1430/C.
12. Within one year i.e. on 12-3-1928 the very same Nachiyarammal executed the sale deed dated 12-3-1928 under Ex. A.1 in favour of Krishnaswamy Naidu, wherein, we find the description of the suit property in the following words in Tamil :--
(Language (Tamil version) Omitted--Ed.)
So in the document of the year 1928 marked as Ex. Al also we find that the common undivided 1.89 1/2 cents of land in the total extent of 3.79 acres of land in S.F. No. 1430/C was sold by Nachiyarammal in favour of Krishnaswamy Naidu.
13. In para 5 of the plaint it is stated by the plaintiffs that Krishnasv/amy, Naidu, who is the purchaser under Ex. A1 died in the year 1941 leaving behind him his widow Andalammal as his only heir and after the death of Krishnaswamy Naidu his wife Andalammal executed the settlement deed dated 11-7-1961 marked as Ex. A2 in favour of the plaintiffs. The description of property as set out in the document of title of the plaintiffs in the year 1961 marked as Ex. A2 states in Tamil as follows :--
(Language (Tamil version) Omitted--Ed.)
So far the first time we get the reference to the northern half share measuring 1.89 1/2 cents out of the total extent of 3.79 acres of land in suit S. F. No. 1430/C in this document of the year 1961 marked as Ex. A.2 in favour of the plaintiffs. It is not known at what point of time this northern half share was allotted to Andalammal in a partition by metes and bounds in respect of the total extent of 3.79 acres of land in suit S.F. No. 1430/C.
14. Then the next document on the side of the plaintiffs is the surrender of lease deed dated 12-2-1978 marked as Ex. A5 and it is executed by one Venkatachalam in favour of the 1st plaintiff by name Sriramulu Naidu examined as P. W. 1 in this case. The same description that was found in Ex. A2 is repeated in this surrender deed of the lease in the year 1978 marked as Ex. A5.
15. P.W. 1 Sriramulu Naidu, who is the 1st plaintiff in the suit, did not say anything about the alleged partition of the entire extent of the suit S.F. No. 1430/C into two-half shares, one as the northern half share and another as the southern half share measuring 1.89 1/2 cents. He speaks to the execution of the settlement deed executed by his grandmother Andalammal under Ex. A2. He speaks to the possession of northern half share of 1.89 1/2 cents by the plaintiffs and the lease of the same. He did not say as to how the northern half share of 1.89 1/2 cents was allotted to Andalammal before the execution of the settlement deed dated 11-7-1961 under Ex. A.2. Therefore the testimony of P.W. 1 Sriramulu Naidu will not be of any help to establish that the northern half share of 1.89 1/2 cents with an east west ridge out of the total extent of 3.79 cents in S.F. No. 1430/C was allotted to the share of Andalammal after the execution of the sale deed by Nachiyarammal in favour of Krishnaswamy Naidu on 12-3-1928 under Ex.A.1.
16. P W. 2 Ramakrishnan is one of the attestors to the settlement deed dated 14-7-1961 marked as Ex A3 executed by Andalammal in favour of the plaintiffs. He speaks to the attestation of the settlement deed marked as Ex. A.2 and nothing else. Therefore, the testimony of P.W. 2 Ramakrishnan, who is one of the attestors of the settlement deed marked as Ex. A.2 is also not useful to prove the case of the plaintiffs that Andalammal was allotted the northern half share of 1.891/2 cents with an east west ridge out of the total extent of 3.79 acres of land in S.F. No. 1430/C.
17. P.W. 3 is one Natarayan. He attested the sale deed dated 14-12-1971 executed by Rangaswamy and Perumal in favour of one Ramaiah marked as Ex. A.9 in this case. He also purchased 5 cents of land from Rangaswamy Gounder and Perumal on 13-12-1971 under the registered sale deed marked as Ex. A. 11 in this case. He did not whisper a word as to how Andalammal got the northern half share of 1.891/2 cents of land out of the total extent of 3.79 acres of land in suit S.F. No. 1430/C. He went to the extent of staling in Tamil in the chief examination as follows :
(Language (Tamil version) Omitted--Ed.)
Therefore it is the testimony of P.W. 3 Natarayan that the southern half share belongs to the plaintiffs whereas the case of die plaintiffs is that they are entitled to the northern half share of 1.89 1/2 cents. So the testimony of P.W. 3 Natarayan instead of proving the case of the plaintiffs, will only destroy the contention of the plaintiffs.
18. A careful scrutiny of the oral and documentary evidence placed in this case I am of the view that the plaintiffs, who are respondents 1 to 7 in this second appeal, have not satisfactorily proved their title to the northern half share of 1.891/2 cents of land with an east west ridge out of the total extent of 3.79 acres of land in S.F. No. 1430/C as described in the plaint schedule.
19. The plaintiffs have come forward with a specific case in their plaint that the northern half share of 1.89 1/2 cents of land with an east-west ridge out of the total extent of 3.79 acres of land in S.F. No. 1430/C belongs to them exclusively, and on that basis they prayed for declaration of their title. Having come forward with the suit for declaration of title, it is the bounden duty of the plaintiffs to prove their title, and it is not necessary to consider the title of the defendants. If the title of the defendants is not acceptable for one reason of the other even, then the plaintiffs must fail because they have not proved their exclusive title to the northern half share in the suit S.F. No. 1430/C. In other words the plaintiffs must succeed on the strength of their own title and that could be done by adducing satisfactory evidence to discharge the onus which is on them, irrespective of the question whether the defendants have proved their case or not. I am fortified with this view by two decisions of our High Court.
20. In the decision reported in
''The plaintiff is asserting that he is the. . . owner and it is for him to establish his title."
21. In the other decision reported in Thangavel v. Dhanalakshmiammal (1982) 95 MLW 708 a Division Bench of our Madras High Court laid down as follows :---
"It is the duty of the plaintiff to establish his claim on the basis of the averments made in the plaint. The plaintiff cannot pick holes in the title of the defendants and try to succeed on the weakness in the defence presented."
22. In the light of the above decisions even assuming and without admitting that the defendants have not proved their case or their title to the suit property, even then the plaintiffs cannot succeed because their title deeds did not prove that they are the exclusive owners of the northern half share of 1.89 1/2 cents of land with an east west ridge out of the extent of 3.79 acres of land in suit S.F. No. 1430/C. Even then let us consider the title of the defendants in this case.
23. It is not in dispute between the parties in the suit that the total extent of the suit S.F. No. 1430/C is S. 3.79 acres of land out of which the defendants are entitled to 94 1/2 cents and the family of one Santhana Gounder is entitled to another 94 1/2 cents and the balance of 1.89 1/2 cents of land belong to the plaintiffs. But the dispute is whether the plaintiffs are entitled to the northern half share of 1.89 1/2 cents in the total extent of 3.79 acres of land in S.F. No. 1430/C. The defendants have produced Bxs. B.15 to B.17 in support of their contention. Ex. B.15 is the printed copy of the judgment in O.S. No. 569 of 1949 on the file of District Munsiff''s Court at Karur wherein one Muthu Gounder is the plaintiff and one Chandana Gounder, Soliammal, Arumugha Goundan, Sellammal and Chockalinga Asari are the defendants. The said suit in O.S. No. 369 of 1949 on the file of District Munsif''s Court at Karur was filed for recovery of possession of the plaint A Schedule properties or in the alternative for partition and separate possession of half share in the plaint B schedule properties, and the learned District Munsif at Karur decreed the suit in U.S. No. 369 of 1949 by stating that the plaintiff Muthu Gounder will be entitled to a decree for partition and separate possession of half share in the plaint B schedule properties. Ex. B.16 as the certified copy of the decree in A. S. No. 492 of 1950 on the file of District Court at Tiruchirapalli, which is the appeal filed by the defendants 2 and 3 in O.S. No. 369 of 1949 by name Soli Ammal and Arumugha Gounder and the decree of the lower Court was modified in so far as it related to the suit costs, and thereby the judgment and decree of the lower Court in O.S. No. 369 of 1949 in other respect was confirmed Ex. B.17 is the certified copy of the delivery receipt in E.P. No. 485 of 1951 in O.S. No. 369 of 1949 on the file of District Munsiff Court at Karur. The delivery receipt under Ex. B.17, which is dated 24-12-1951, states in as follows :--
(Language (Tamil version) Omitted--Ed.)
Thus an extent of 95 cents of land in the western half of 1.89 1/2 cents out of the total extent of 3.79 acres in S.F. No. 1430/C was allotted to the plaintiff/decree holder by name Matbu Goundan in the suit in O.S. No. 369 of 1949 on the file of District Munsif s Court at Karur. These documents marked as Exs. B.15 to B.17 came into existence at a time when there was no dispute among the parties to the suit. Therefore it is satisfactorily established by the defendants that their predecessors-in-title became entitled to 95 cents on the western side in S.F. No. 1430/C. The documents marked as Exs. B.5 to B.8 and Ex. B.12 are the subsequent sale deeds in respect of the property of Muthu Goundan allotted to him earlier in the partition suit in U.S. No. 369/49. Under Ex.B.8 which is dated 21-8-1975, the 1st defendant gets title in the western 94 1/2 cents of land in S.F. No. 1430/C. Thus Exs. B.15 to B.17 will satisfactorily establish the contention of the defendants that the extent of 941/2 cents on the western side in S.F. No. 1430/C was delivered by Court to his predecessor-in-title of by name Muthu Goundan, and the 1st defendant purchased an extent of 94 1/2 cents on the western side in the suit S.F. No. 1430/C under the registered sale deed dated 21-8-1975 marked as Ex. B.8 in this case.
24. There is one clinching circumstance in this case to destroy the case of the plaintiffs and to lend support to the contention of the defendants herein and it is the Commissioner''s report and plan marked as Exs. B. 13 and B. 1.4 in another earlier suit in O.S. No. 557 of 1980. That was a suit filed by P.W. 1 Sriramulu Naidu as the plaintiff as against the defendant Rajendran herein. The learned Commissioner in para 5 of his report marked as Ex. B. 13 categorically stated as follows :--
"Thiru P. N. Rachakrishnan, Advocate for the petitioner, asked me to note whether there is any east-west demarcating feature to divide the property on the north of the suit property, the Survey Number of which is 1430/C so as to show northern and southern portions in it. There is no east-west demarcating feature in S.F. No. 1430/C to divide it in the northern half and southern half. In S .F. No. 1430-C on the western side I found some stones planted showing as house sites."
Therefore the Commissioner''s report and plan marked an Exs. B.13 and B.14 will not disclose any east-west ridge as mentioned in the plaint schedule in the present suit in O.S. No. 815/80 and there is no east-west boundary to show that the entire extent of 3.79 acres of land was divided into southern half share and northern half share.
25. The plaintiffs in this case relied on Exs. A8 to A12 which are subsequent sale deeds. But the earlier documents under Exs. B.18, B-15, A1 and B.1 will show that only an undivided half share was purchased by the plaintiffs predecessors-in-title. In particular Ex. B.1 which is dated 19-12-1929 and which is a lease deed executed by Somalinga Gounder and another in favour of Krishnaswamy Naidu, who is the predecessor-in-title, will show that Krishnaswamy Naidu leased out only the western half share in the suit S.F. No. 1430/C. Therefore the subsequent documents covered under EX. A.8 to Ext. A.12.will not help the plaintiffs to contend that they are entitled to the northern half share of 1.891/2 cents of land in the total extent of 3.79 acres of land in the suit S.F. No. 1430/C.
26. Considering the above facts and circumstances of the case I hold that the plaintiffs, who are the respondents 1 to 7 in this second appeal, have no title to the northern half share of 1.89 1/2 cents of land out of the total extent of 3.79 acres of land in S.F. 1430/C, which is stated to have been divided by east-west ridge, and they were not in possession of the suit property as described in the plaint schedule on the date of suit and consequently I answer this point in favour of the appellant/1st defendant and against the respondents 1 to 7/plaintiffs.
27. Point No. 2 : the documents marked as Exs. A.9 to A.11 are documents of 3rd parties, and they are not inter se between the parties to the present suit or their predecessors-in-title. P.W. 3 Natarayan is the attestor of the sale deeds marked as Ex. A.9 and A. 10 and he is the purchaser under Ex.A.11. But the executants of these sale deeds market as Exs. A.9 to A.11 were not examined in this case. In the absence of the evidence of the executants of these documents the boundary recitals found in these documents will not be admissible in evidence. This was the view expressed by our High Court in the decision reported in
28. In the decision reported in
"Recitals as to boundaries in documents not inter partes are inadmissible in evidence under Sections 11, 13(a), 32(3) and 32(7) of the Act. The only method by which recitals in a document not inter partes could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found."
In the present case the executants of Exs. A9 to A11 were not examined. Hence I hold that the recitals as to the boundaries in the documents marked as Exs. A9 to A11 not inter parties to the present suit are not admissible in evidence without examining the executants of the sale deeds marked as Exs. A9 to A11, and I answer this point also in favour of the appellant/1st defendant and as against the respondent 1 to 7/plaintiffs.
29. Point No. 3 :--Ex. B.1 is a registered sale deed executed by Somalinga Gounder and another in favour of Krishnaswamy Naidu, who is the husband of Andalammal and who is the grandfather of the plaintiffs in this suit. In Ex. B1 which is dated 19-12-1929, we find the following descriptions:
(Language (Tamil version) Omitted--Ed.)
Thus the eastern 1-89 1/2 cents out of the total extent of 3.79 acres of land in S.F. No. 1430/C was leased out by none other than the grand father of the plaintiffs by name Krishnaswamy. Naidu to Somalinga Gounder and another. The plaintiffs derived title through Andalammal, who is the wife of the said Krishnaswamy Naidu, and therefore they cannot resile back or deny the correctness of the description of property in this lease deed of the year 1929 marked as Ex. B.1. Hence I hold that the respondents 1 to 7, who are plaintiffs in the suit, are estopped from denying the correctness of the description of the suit property even in their own document marked as Ex.B 1 in this case, and I answer this point also in favour of the appellant/1st defendant and as against the respondents 1 to 7/plaintiffs.
30. Consistent with my findings on the earlier points I am to hold that this second appeal has to be allowed as prayed for with costs, and the judgment and decree of the Subordinate Judge''s Court at Karur in A. S. No. 74/83 dated 17-4-1985 are to be set aside, and the judgment and decree of the Principal District Munsiff''s Court at Karur in O.S. No. 815/80 dated 28-8-1982 are to be restored, and the suit in O.S. No. 815/80 on the file of Principal District Munsiff''s Court at Karur has to be dismissed with costs throughout, and I answer this point in favour of the appellant/1st defendant and as against the respondents 1 to 7/plaintiffs.
31. In the result the second appeal is allowed as prayed for with costs. The judgment and decree of the Subordinate Judge''s Court at Karur in A.S. No. 74/83 dated 17-4-1985 are set aside. The judgment and decree of the Principal District Munsiff Court at Karur in O. S. No. 815/80 dated 28-8-1982 are restored. The suit in O. S. No. 815/ 80 on the file of Principal District Munsif''s Court at Karur shall stand dismissed with costs throughout.
