BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/06/2008 CORAM THE HONOURABLE MR. JUSTICE P.MURGESEN S.A.No.518 of 2001 1.Minor Thangaraj 2.Minor Sivakumar (minors rep. by Father and next friend Nallusami) .. Appellants Vs. Natarajan .. Respondent Prayer Second Appeal is filed under Section 100 C.P.C., against the Judgment and Decree dated 25.08.2000 passed in A.S.No.41 of 1999 on the file of the learned Additional district Judge, Dindigul confirming the Judgment and Decree dated 04.01.1999 made in O.S.No.255 of 1997 on the file of the Second Additional District Munsif, Dindigul. !For Appellant ... Mr.T.M.Hariharan ^For Respondent ... Mr.Selvaraj :JUDGMENT
This second appeal is directed against the Judgment and Decree dated
25.08.2000 passed in A.S.No.41 of 1999 on the file of the learned Additional
District Judge, Dindigul confirming the Judgment and Decree dated 04.01.1999
made in O.S.No.255 of 1997 on the file of the Second Additional District Munsif,
Dindigul.
2. The case of the Plaintiffs, in brief, is as follows:
Originally the Suit properties and other properties belonged to one
Arunachalam pillai who purchased under a sale deed dated 13.09.1929.
Arunachalam Pillai is the son of Muthapillai. One Ramasamy and Kandasamy are
the brothers of the said Arunachalam Pillai. Kandasamy’s sons are one Perumal
and Shanmugam. The said Arunachalam Pillai sold to the extent of 1 acre 40
cents out of 3 acres, which was purchased by him to one Nallathambi Pillai and
five others under a sale deed dated 27.04.1940. On 19.08.1952, Ramasamy Pillai
and Arunachalam Pillai had given their properties to Krishnan and Arumugam
under a settlement deed dated 19.08.1952. The minor plaintiffs had purchased
the suit property from the said Krishnan, Arumugam and their legal heirs by a
registered sale dated 27.02.1997 and they were enjoying the suit properties.
3. While so, on 10.05.1997, when the plaintiffs were repairing their house
situated in the suit property, the defendant, being a stranger came there and
tried to prevent them to repair the house. The said attempt was prevented by the
plaintiff’s with the help of their neighbours. The defendant is restraining the
peaceful possession and enjoyment of the plaintiffs in the suit schedule
properties. Hence, the Suit filed by the plaintiffs praying a decree for
declaration and injunction against the respondent/defendant.
4. The case of the defendant, in brief, is as follows:
The suit is not maintainable. The suit property does not belong to
the plaintiffs. Suit properties belonged to the defendant since purchased the
same under a registered sale deed dated 21.03.1996 and he is enjoying the same.
The suit is filed with false allegations to grab the properties from the
defendant. The said property was purchased by Nallathambi Pillai and others
from Arunachalam Pillai on 27.04.1940 for a sum of Rs.100/-. On 18.04.1944,
Muthupillai and others sold the same to Ramasamipillai under a sale deed for a
sum of Rs.500/-. On 18.08.1948, Ramasami Pillai sold the same to Arunachalam
Pillai for a sum of Rs.500/-. Suit properties and other properties belonged to
Ramasami, Kandasami and Arunachalam, who are the sons of Muthupillai. The suit
properties and some other properties were partitioned under a partition deed
dated 26.02.1966, in which the suit properties were allotted to one Perumal.
Then, the defendant purchased the suit properties from Perumal under a
registered sale deed dated 21.03.1996 and he is enjoying the same. The
plaintiffs have no right or title over the suit properties. Without having any
right or title over the suit properties, the plaintiffs cannot seek for
permanent injunction. There is no cause of action for the Suit. The Court fees
was not paid properly. Hence the Suit is liable to be dismissed.
5. Before the trial Court, P.Ws.1 to 3 were examined and Exs.A-1 to
A-6 were marked on the side of the plaintiffs. D.Ws.1 to 3 were examined and
Exs.B-1 to B-7 were marked on the side of the defendant.
6. Considering the evidence available on record, the learned Second
Additional District Munsif, Dindigul dismissed the suit.
7. Aggrieved over the Judgment of the learned Second Additional District
Munsif, an appeal was preferred by the plaintiffs before the learned Additional
District Judge, Dindigul in A.S.No.41 of 1999. The learned Subordinate Judge,
Dindigul dismissed the appeal confirming the judgment and decree of the
learned Second Additional District Munsif. Challenging the Judgments of both the
learned Second Additional District Munsif and the learned Additional District
Judge, the present second appeal has been filed by the plaintiffs.
8.At the time of admission of the second appeal, the following
substantial questions of law were framed:
1.When the original title of the appellants’ predecessor is not
seriously disputed and when the respondent has not established the alleged
treating of the properties as joint property and the alleged oral partition in
which the suit property was allotted to his vendor’s father, the appellants are
not entitled to decree as prayed for?
2.Whether the ready assumption that Ex.B-7 cancellation deed is
operative, is legal and proper?
Point:
9. Originally the Suit property belongs to one Arunachalam Pillai.
Arunachalam Pillai is the son of Muthapillai. One Ramasamy and Kandasamy are
the brothers of the said Arunachalam Pillai. Kandasamy’s sons are one Perumal
and Shanmugam.
10. Arunachalam Pillai had purchased the suit property measuring 3 acres
out of 6.60 acres situated in S.No.265/3 in the year 1929 and has been enjoying
the same under the sale deed dated 13.09.1929. The above sale deed is marked as
Ex.A2. On 27.04.1940, he sold 1.40 acre out of 3 acres in favour of his brother
Ramasamy Pillai and five others under Ex.A4, sale deed dated 27.04.1940, by
which, Ramasamy Pillai has got 1/6th share of the suit schedule property.
Thereafter, Arunachalam Pillai and Ramasamy Pillai had settled their property to
their sons Krishnan and Arumugam under Ex.A3, the settlement deed dated
19.08.1952 respectively. Ramasamy Pillai and Kandasamy Pillai had given the
properties to their Sister Valliammai under Ex.A5, Sreedhana deed dated
16.02.1928. Plaintiff’s vendor sold the property to the plaintiffs on 27.02.1997
under Ex.A1.
11.The defendant/respondent claimed to have purchased the property from
one Perumal and Shanmugam, Sons of Kandasamy, the brother of Arunachalam under
Ex.B1, sale deed dated 21.03.1996. They claimed that there is a partition
between Perumal and Shanmugam under Ex.B2, partition deed dated 26.02.1996.
12. Nalluchamy is the father of the minor plaintiffs. He was examined as
P.W.1. He deposed that he had purchased the suit properties in the name of his
minor sons under Ex.A.1. It was supported by his vendor P.W.2 and his
possession was spoken by P.W.3. He deposed as follows:
“vdf;F tptuk; bjhpa MWKfk;, fpU&;zd; jhd; jhth brhj;ij mDgtpj;J
te;jhh;fs;. jw;BghJ ey;Yr;rhkp fpiuaj;jpw;F thA;fp mDgtpf;fpwhh;.
fhypaplj;jpy; g[HA;fpf; bfhz;L nUf;fpwhh;”
So, it is clear from his evidence that the plaintiffs are enjoying the
suit property.
13.On the other hand, the counsel for respondent submitted that the suit
property is a joint family property of the defendant’s vendors through a
partition deed. This was disputed by the learned counsel for the appellants.
First of all, it is not in dispute that the suit property belong to Arunachalam
Pillai and it is not a joint family property. Ex.A-5 also does not show that
the suit property is a joint family property. A perusal of the document Ex.A4
would show that it is a self-acquired property, which reads as follows:
“fpiuar; brhj;J kJiu o jpz;Lf;fy; rg;o jpz;Lf;fy; jhYfh Myf;Fthh;gl;o
fpuhk g[yj;jpy; ehd; Rahh;$pjkha; fpiuak; bgw;Wk; mDgtpj;J tUfpwJkhd mad; rh;Bt
265/3 eph; V 6 – br.60 y; bjd;g[uk; uhkrhkp gps;is ghfj;Jf;Fk; Bkw;F, vd;
ghfj;Jf;Fk; bjw;F, jA;fspy; 1tJ egh; tPl;Lf;Fk; fpHf;F, bgUkhs; Bfhtpy;
kiyf;Fk; tlf;F.”
The above said document was executed in the year 1940, which is a very long
prior to the Suit. There cannot be any motive for Arunachalam Pillai to make
false statement in the document. It would show that it is a self acquired
property of Arunachalam Pillai. Valliammai is the Sister of Arunachalam Pillai
and Ramasamy. Under Exs.A5 and A6, Ramasamy and Kandasamy had settled some
properties to their sister valliammai as sreedhana in the very same survey
number. Valliammai in turn sold the same to Arunachalam Pillai under a
registered sale deed, which is marked as Ex.A6. If it was the joint family
properties, certainly Kandasamy and Ramasamy could not have settled the
properties in favour of their sister Valliammai.
14. Before executing the sale deed in favour of the plaintiffs, Ex.B3
legal notice was sent by the plaintiffs’ vendor to the defendant and his vendors
claiming right over the property. The reply notice, which was sent by the
defendant, is marked as Ex.B4. In Ex.B.4, it is not stated that the
defendent’s vendors have got right under partition and Perumal and Shanmugam
were allotted properties under the partition deed. Therefore, it can be
construed that the plea of partition between Perumal and Shanmugam is an after-
thought. For this, there is a strong reason. On behalf of the defendant,
D.Ws.1 to 3 were examined. D.W.1 is unable to speak about the partition between
Arunachalam Pillai and Ramasamy Pillai. He deposed in his cross examination
that he did not know about Kandasamy Pillai, Ramasamy Pillai and Arunachalam
Pillai and he also did not know whether there was a partition between them or
not. He perused only the patta and kist receipt in favour of the Perumal and
purchased the suit properties. He is not in a position to show that there was
partition between Ramasamy Pillai, Kandasamy Pillai and Arunachalam Pillai.
15. D.W.2, who claims to be the vendor of the defendant has admitted in
the course of his cross examination, that there was a partition effected on the
basis of kist and they did not divide the property on the basis of the extent or
value of the properties. Though he deposed that there is a patta in favour of
his father, he did not produce the same before the Court. So his claim for
title over the property and patta were not correct. Further he said that both
his father and uncle paid the kist jointly and patta and kist receipts are
available to that effect. But, he did not produce the same before the Courts
below. Any person, who is possession, document must produce to the same. In
case he failed to produce the document without any just cause adverse inference
can be drawn against him. Hence, the evidence of D.W.2 is rejected.
16.D.W.3 is the brother of D.W.2. He deposed in his evidence that the
suit properties were enjoyed by his father and grand father. He admitted that
there was no patta for them and he did not pay kist. He unable to say that his
father had got patta for the suit schedule properties. These all would go to
show that D.Ws.1 to 3 are not speaking truth. Hence, the defendant has no right
over the property and the alleged partition between perumal and Shanmugam is
not correct since the defendant has failed to prove that the properties are the
joint family properties of Ramasamy, Kandasamy and Arunachalam Pillai.
17. Considering the evidence available on record it is clear that
the plaintiff’s vendor has got right over the property as well as the plaintiffs
have title and possession over the property. Both the Courts below have not
considered the oral and documentary evidence in proper perspective and dismissed
the Suit. Accordingly, the Substantial questions of law are answered in favour
of the appellants. Hence, the judgments and decrees of the Courts below are
liable to be set aside and accordingly set aside.
18. In the result, the Second Appeal is allowed and the judgments and
decrees of the Courts below are set aside and the Suit is decreed as prayed for.
No costs.
arul
To
1.The Second Additional District Munsif,
Dindigul.
2.The Additional District Judge,
Dindigul..