BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 10/11/2008 Coram THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.758 of 2000 1.Karuppiah 2.Chidambaram ... Appellants / plaintiffs vs. Chandran ... Respondent / Defendant Prayer This second appeal has been filed under Section 100 of CPC against the decree and Judgment dated 07.02.2000 in A.S.No.193 of 1996 passed by the Subordinate Judge, Virudhunagar, confirming the decree and Judgment dated 11.06.1996 in O.S.No.92 of 1993 on the file of the District Munsif, Arupukottai. !For Appellants ... Mr.S.Parthasarathy, Advocate (No appearance) ^For respondent ... Mr.M.Dhanukkodi Pandian, Advocate ----- :JUDGMENT
No appearance for the appellants. This appeal has been directed against
the decree and Judgment in A.S.No.193 of 1996 on the file fo the Subordinate
Judge, Virudhunagar, which had arisen out of the decree and Judgment in
O.S.No.92 of 1993 on the file of the District Munsif, Arupukottai. The
unsuccessful plaintiffs before the Courts below are the appellants herein.
2.The short facts on the plaint sans irrelevant particulars are as
follows;-
The plaint schedule property was purchased by the plaintiffs under a
sale deed dated 07.04.1992. The predecessors in title in respect of the plaint
schedule property had purchased the same under a sale deed dated 07.01.1926.
Patta No.188 was granted in favour of the plaintiffs and before them it stood in
the name of Swamitha Pillai, the vendor of the plaintiffs. After the sale deed
dated 07.04.1992, the plaintiffs are in possession and enjoyment of the plaint
schedule property paying land tax to the Government. The plaintiffs have also
prescribed title to the suit property by their long uninterrupted continuous
possession. The defendant approached the vendor of the plaintiffs with an aim
to purchase the plaint schedule property. But before that, the plaintiffs have
purchased the same from Swaminatha Pillai, the vendor under the sale deed dated
07.04.1992 and obtained possession. With the help of man power and money power
the defendant is now trying to interfere with the possession of the plaint
schedule property, which is in possession and enjoyment of the plaintiffs.
Hence, the suit for declaration of title and for consequential injunction.
3.The defendant in his written statement would contend that the alleged
sale deed in favour of the plaintiffs has been created for the purpose of this
case. Under the said sale deed the plaintiffs have no right or title in respect
of the plaint schedule property. The defendant has purchased the suit property
on 06.03.1991 from the real owner. Under sale deed dated 07.04.1992 no title
was passed from the vendor Swaminatha Pillai S/o.Saravana Perumal Pillai in
favour of the plaintiffs. Under the said sale deed dated 7.4.1992, the
plaintiff cannot claim any right or title in respect of the plaint schedule
property. Under the sale deed dated 07.01.1926 in favour of Swaminatha Pillai,
he has not derived any right or title in respect of the plaint schedule
property. The said Swaminatha Pillai had never in possession and enjoyment of
the plaint schedule property and under the sale deed dated 07.01.1926 the plaint
schedule property was not purchased by Swaminatha Pillai. Under the oral
partition Swaminatha Pillai and his six sons have partitioned their family
properties and under the said partition, the plaint schedule property was
allotted to Shanmugam and Nagalingam, the two sons of Swaminatha Pillai. From
the said Shanmugam and Nagalaingam, the defendant had purchased the suit
property on 06.04.1992 for the valuable sale consideration and from the said
date of sale the defendant is in possession and enjoyment of the plaint schedule
property. The plaint schedule property was comprised in Patta No.32. The
plaintiffs have illegally included the plaint schedule property in Patta No.188
at the time of UDR proceedings. Swaminatha Pillai never paid any land tax to
the plaint schedule property. The defendant is in possession and enjoyment of
the plaint schedule property and he is paying land tax to the same. This
defendant is in possession and enjoyment of the plaint schedule property in
continuous uninterrupted possession for the past 25 years and thus has
prescribed title to the suit property by way of adverse possession. On
10.05.1989 the said Swaminatha Pillai had also executed a mortgage deed in
respect of the plaint schedule property for a sum of Rs.5,000/- and handed over
the possession to the defendant on the same date. Thereafter, on 10.07.1990, he
had also received another sum of Rs.5,000/- from the defendant and executed a
promissory note for the interest due under the said mortgage deed and in lieu of
the interest the defendant was permitted to be in possession and enjoyment of
the plaint schedule property. There is also an endorsement in the promissory
note to that effect. The plaintiffs are not entitled to any relief under the
plaint. Hence, the suit is liable to be dismissed with costs.
4.Before the trial Court, the first plaintiff has examined himself as
P.W.1 besides examining P.W.2 & P.W.3. Ex.A.1 to Ex.A.18 were marked on the side
of the plaintiffs. On the side of the defendant, the defendant was examined as
D.W.1 and Ex.B.1 to Ex.B.8 were marked. After scanning the evidence both oral
and documentary the learned trial Judge, after coming to the conclusion that the
relief asked for in the plaint cannot be granted, had dismissed the suit without
costs. Aggrieved by the findings of the learned trial Judge, the plaintiffs
have preferred an appeal in A.S.No.193 of 1996 before the Subordinate Judge,
Virudhunagar. The learned first appellate Judge after giving due deliberations
to the submissions made by the learned counsel on both sides, finding no
material to interfere with the decree and Judgment of the learned trial Judge,
has dismissed the appeal, thereby confirmed the decree and Judgment of the
learned District Munsif, Aruppukottai in O.S.No.92 of 1993, which necessitated
the plaintiffs to approach this Court by way of this second appeal.
5.The following Substantial Questions of Law are involved in this Second
Appeal?
1)Whether the Courts below are right in concluding that the suit
property is the joint family property and Swaminatha Pillai is the Kartha of the
family?
2)Whether there is presumption under law that the property is a
joint family property for the reason that stands in the name of the father?
3)Whether the Courts below are not right in considering that Item
No.11 in the plaint schedule is the trust property in view of the recitals in
Ex.B.8?
The Substantial Question of Law No.3 has been recast today ie., 10.11.2008 as
follows:-
3)Whether the Courts below are not right in considering that the plaint
schedule property as the trust property in view of the recitals in Ex.B.8 (item
No.11)?
6.Substantial Question of Law No.3:-The plaint schedule property is as
follows:-
“1 acre 75 cents – 0.70.0 hectares in S.No.9/1A situate West of S.No.9/1
measuring 3 acres 8 cents, Dhamodarapuram Village, Thiruchuli, Kamarajar
District (Srivilliputhur District).”
The four boundaries given in the plaint is West of the property the remaining
property in the hands of the vendor of the plaint viz., Swaminatha Pillai, East
of the punja land belonging to Pooranam, D/o.Pachayai Ammal, Punja land of
Gettiyammal and Ponnu and others, North of Elanoorani boundary and South of
punja land belonging to the vendor Swaminatha Pillai, Vellaichamy Devar and
Muthaiya. The learned counsel appearing for the respondent/defendant would
contend that the plaint schedule property was not purchased by the plaintiffs
under Ex.A.2-sale deed from their vendor Swaminatha Pillai. Ex.A.2 is the sale
deed dated 07.04.1992 in favour of the first plaintiff Karuppiah and his son
Chidambaram, the plaintiffs in O.S.NO.156 of 1992. The said sale deed was
executed by Swaminatha Pillai, S/o.Saravana Perumal Pillai. The property
scheduled to Ex.A.2 is as follows:-
“1 acres 75 cents – 0.70.0 hectares in S.No.9/1 new UDR S.No.9/1A (out of
3 acres 8 cents in Old S.No.9/1) of Dhamodarapuram Village, Thiruchuli, Sub-
Registrar District, Kamarajar District (Srivilliputhur District) comprised in
patta No.188.”
The four boundaries given under Ex.A.2 is West of the punja land belonging to
the trustees of Shanmuga Vinayagar Temple viz., Swaminatha Pillai, East of
the punja land belonging to the Pooranam, D/o.Pachai Ammal, Ponnu, Pottiyammal
and others, North of S.No.97 Elanoorani boundary and South of the punja land
belonging to Muthaiya, S/o.Karuppanna Devar, and Vellaichamy S/o.Kannayeram
Devar and punja land of Swaminatha Pillai, the life trustee of Shanmuga
Vinayager Temple trust punja, measuring 1 acre 75 cents inclusive of 1/4th right
in the well in S.No.9/1. The plaintiffs traced their predecessors’ title under
Ex.A.1. According to the plaintiffs, their vendor under Ex.A.2 viz., Swaminatha
Pillai, S/o.Saravana Perumal Pillai had purchased the property sold under Ex.A.2
in favour of the plaintiffs under Ex.A.1 dated 24.03.1926. As per the recitals
in Ex.A.2, the vendor under Ex.A.1 had purchased the property scheduled to
Ex.A.1 under a Court auction in O.S.No.239 of 1924, under which a sale
certificate was issued on 25.2.1995 and a delivery certificate was issued on
14.06.1925. The property scheduled to Ex.A.1 runs as follows:-
East of Karrupanna Servai’s land
North of the ancestral property of the vendee under Ex.A.1
West of punja land belonging to Subbha Naicker
South of punja land belonging to Azhagiri Naicker
comprised in pymash No.24 measuring 3 acres 65 cents.
The learned counsel appearing for the respondent would state that the property
comprised in pymash No.24 measuring 3 acres 65 cents was sold under Ex.A.1 in
favour of Swaminatha Pillai, S/o.Saravana Perumal Pillai and that as per Ex.A.2,
the plaintiffs have purchased 1 acre 75 cents in UDR S.No.9/1A, and would
further contend that pymash No.24 relates to S.No.10/1 and S.No.5/1 and not to
UDR S.No.9/1A. In support of this contention the learned counsel for the
respondent would focus the attention of this Court to Ex.B.6-Correlation
Deed, which shows that pymash No.24 correlates to S.No.5/1 and S.No.10/1 and not
to UDR S.No.9/1A, under which 1 acre 75 cents was purchased
under Ex.A.2 by the plaintiffs, do not come within pymash No.24. So, it goes
without saying that property purchased under Ex.A.1 by Swaminatha Pillai,
S/o.Saravana Perumal Pillai, vendor under Ex.A.2 was not conveyed to the
plaintiffs under Ex.A.2. The learned counsel for the respondent would further
contend that under Ex.B.5, he has proved before the trial Court that UDR
S.No.9/1A correlates pymash Nos.47/1, 47/2, 47/3 and 47/4 and not to pymash
No.24, under which Swaminatha Pillai, S/o.Saravana Perumal Pillai, had purchased
the properties under Ex.A.1 measuring 3 acres 65 cents. Reliance has been made
under Ex.A.8 by the learned counsel appearing for the respondent to show that
Swaminatha Pillai, S/o.Saravana Perumal Pillai had already conveyed the property
purchased by him under Ex.A.1 ie., the property comprised in pymash No.24 to a
Trust and Item No.11 to Ex.B.8 is the property purchased by Swaminatha Pillai
under Ex.A.1. Ex.B.8 is dated 16.03.1930, whereas Ex.A.2 is dated 07.04.1992.
So, on the date of execution of Ex.A.2, Swaminatha Pillai had nothing to be
conveyed in respect of the property comprised in pymash No.24 since he had
already executed Ex.B.8 in respect of the suit property in favour of the
Trustees viz., minor Shanmugan, minor Natarajan @ Kandasamy, minor Selvaraj @
Shanmugam and minor Ramasamy through their guardian and father Saravana Perumal
Pillai by Swaminatha Pillai, the vendor under Ex.A.2. Item No.11 to Ex.B.8 is
the property comprised in pymash No.24. So after the execution of Ex.B.8
Swaminatha Pillai, the vendor under Ex.A.2, has no right in respect of pymash
No.24 to convey the same in favour of the plaintiff under Ex.A.2 as correctly
held by the Courts below. Substantial Question of Law No.3 is answered
accordingly.
7.Substantial Question of Law Nos.1 & 2:-The question whether the plaint
schedule property belongs to the joint family property of Swaminatha Pillai and
whether under Ex.B.8 the said Swaminatha Pillai had exclusive right to convey
the entire property in favour of the Trust need not be gone into because the
point to be decided in the suit is whether the plaintiffs have got right and
title in respect of the plaint schedule property under Ex.A.2-sale deed. The
plaintiffs have failed to prove that under Ex.A.2-sale deed they had right and
title in respect of the plaint schedule property. On the other hand the
defendant has proved that the vendor under Ex.A.2 viz., Swaminatha Pillai had no
right or title in respect of the property, he had purchased under Ex.A.1 to
convey the same under Ex.A.2 after the execution of Ex.B.8 in respect of the
property he had purchased under Ex.A.1 (pymash No.24), which had been conveyed
in favour of the Trust under Ex.B.8. Further, under Ex.B.5 and Ex.B.6 also the
defendant has proved that pymash No.24 does not relate to the plaint UDR
S.No.9/1A, but it relates to S.No.10/1 and S.No.5/1 (Ex.B.6) and that UDR
S.No.9/1 correlates to pymash Nos.47/1, 47/2, 47/3, 47/4 under Ex.B.5.
Substantial Questions of Law Nos.1 and 2 are answered accordingly. Further,
this Court while exercising its power under Second Appeal normally shall not
interfere with the concurrent findings of the Courts below unless it is shown
before this Court that the findings of the Courts below is perverse in nature
and the Courts below have failed to consider the documents produced before them
in proper perspective. There is no material placed before this Court to show
that the findings of the Courts below is perverse in nature and the Courts below
have failed to consider the documents placed before them, to warrant any
interference from this Court.
8.In fine, the appeal fails and the same is hereby dismissed confirming
the decree and Judgment in A.S.No.193 of 1996 on the file of the Court of
Subordinate Judge, Virudhunagar. In the circumstances of the case, there is no
order as to costs.
ssv
To,
1.The Subordinate Judge, Virudhunagar,
2.The District Munsif, Arupukottai.