PERIASAMY Vs. MARIAMMAL

JUDGEMENT

(1.) THIS second appeal has been directed against the judgment and decree of the learned District Judge, Chengalpattu, dated 12.11.1987 in A.S.No.72 of 1986. The defendants are the appellants.

(2.) THE respondent/plaintiff filed O.S.No.111 of 1982 on the file of the learned District Munsif, Maduranthagam for a declaration of her title to the suit property and for a permanent injunction restraining the appellants/defendants from interfering with her peaceful possession, on the ground that the suit property constituted melvaram and kudivaram rights. THE kudivaram right originally belonged to one Pappammal who executed the settlement deed in respect of the kudivaram in favour of one Govinda Gounder as per Ex.A-1, dated 15.12.1919. Govinda Gounder had a brother Manickam and both the brothers were in possession of the Kudivaram. As Govinda Gounder died unmarried, Manickam alone was in exclusive possession till his death. THE respondent/plaintiff is the sole heir of Manickam Gounder and she succeeded to the property as Kudivaramadar. THE melvaram belonged to one Punniyakotti and he sold the said right in favour of the plaintiff as per Ex.A-2, dated 12.9.1968. THEreafter, the respondent/plaintiff became the absolute owner of both the varams. Patta stands in her name and she is residing in the house put up in the suit property. As the defendants/appellants attempted to interfere with her possession, it became necessary for her to file the suit.

(3.) THE learned counsel for the respondent/plaintiff argued the appellants/defendants have not claimed any kudivaram right in the suit property and in the written statement also, no specific allegation had been made by the appellants/defendants about the kudivaram right. THE appellants claimed only melvaram right in the suit property on the ground that Punniyakotti who was entitled to the melvaram had given the western half share of the melvaram right to his son Devarajan in a oral partition and Devarajan sold his right to the first defendant/first appellant, as per the document Ex.B-1, and therefore, the appellants are entitled to the western half share, namely, 92 cents in S.No.81/2, whose total extent is 1 acre, 84 cents. It was pointed out by the learned counsel for the respondent/plaintiff D.W.1, namely, the first defendant is the only witness examined on his side, In his cross-examination, he had admitted that he is not aware of the Panchayat in which oral partition took place between Punniyakotti and Devarajan in respect of the melvaram right. It is also admitted by the first defendant that Devarajan, his vendor is the son of the first wife of Punniyakotti and through the second wife, Punniyakotti had another son. If really a partition had taken place in the family of Punniyakotti, some property should have been allotted to the son through the second wife also in the suit survey number, which is not the case here. No panchayatdar who was present in the panchayat, in which the melvaram right had been divided into two shares, namely, the western half and eastern half, had been examined on the side of the defendants. Except the ipsi dixit of the first defendant, there is no other independent evidence or the evidence of the panchayat who participated in the panchayat has been made available to the court to accept the case of the defendants that an oral partition took place between Punniyakotti and Devarajan about 20 years prior to the examination of D.W.1 in which the western 92 cents had been allotted to Devarajan, It is noticed from the recitals in Ex.A-2 the sale deed, that Punniyakotti, who is admittedly the owner of the melvaram, had sold the entire melvaram right to the plaintiff and the recitals do not show that a partition took place between him and his son Devarajan. In the above circumstances, I am inclined to agree with the finding of the learned First Appellate Judge that the first defendant/first appellant had not proved that an oral partition took place between Punniyakotti and his son Devarajan and the western 92 cents had been given to the share of Devarajan and the eastern 92 cents was allotted to the share of Punniyakotti. In my opinion the mere change of patta in the name of the first appellant would not confer title on him to the western 92 cents, as it is well settled that patta is not a document of title and it is only a receipt to, enable the pattadar to pay the kist to the Government. THE learned counsel for the appellants invited the attention of this court to the decision in Mannarswami Nattar v. Arumugha Mudaliar , (1970)2 MLJ. 317 In that decision, it has been held by a learned Judge of this Court that after the vesting of the Estate in the State, on the abolition of the estate under the relevant Act, there is no such thing as melvaram or kudivaram and that if the plaintiff was a ryot under the Estates Land Act prior to the abolition of the estates and the lands in question have been properly included in his holding, he became a ryotwari pattadar of the lands on the abolition of the estate. In a loose sense only, it could be said that he was entitled to melvaram from the defendants, the defendants having kudivaram. Placing reliance on the above observation, it was submitted by the learned counsel for the appellants that after the abolition of the estate, there is no kudivaram or melvaram and since patta had been issued in favour of the first defendant/first appellant for the western 92 cents, he is entitled to the said extent and the plaintiff/respondent cannot claim melvaram or be in possession of the entire extent of 1 acre 84 cents and the learned First Appellate Judge has committed a grave error in reversing the judgment and decree of the trial court and the same had to be set aside in the Second Appeal.