IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.4.2010
CORAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
S.A.Nos.440 and 441 of 2010
S.A.Nos.440 of 2010
1.Poongodi
2.Minor Hari Prasad
3.Minor Enba Bavatharini .. Appellants
( Minors 2 and 3 by their
Natural guardian and mother
Poongodi)
-Vs-
1.Tirupurasundari
2.Ramesh Kumar .. Respondents
S.A.Nos.441 of 2010
1.Poongodi
2.Minor Hari Prasad
3.Minor Enba Bavatharini .. Appellants
Minors 2 and 3 by their
Natural guardian and mother
Poongodi
Vs.
1.Tirupurasundari
2.Saravanan
3.Ramesh Kumar .. Respondents
Prayer in S.A.No.440 of 2010: This Second Appeal is filed under section 100 of C.P.C against the decree and judgment dated 11.12.2009 made in A.S.No.33 of 2009 on the file of Principal Sub Court, Erode confirming the Judgment and decree dated 27.4.2009 made in O.S.No.82 of 2006 on the file of District Munsif-cum-Judicial Magistrate, Kodumudi.
Prayer in S.A.No.441 of 2010: This Second Appeal is filed under section 100 of C.P.C against the decree and judgment dated 11.12.2009 made in A.S.No.35 of 2009 on the file of Principal Sub Court, Erode con104 of 2006 on the file of District Munsif-cum-Judicial Magistrate, Kodumudi.
For Appellants : Mr.K.S.Jeyaganeshan
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JUDGMENT
Since the Second Appeal Nos.440 of 2010 and 441 of 2010 have been filed against the decrees passed in two suits by a common judgment of the trial Court, which was confirmed by the lower appellate Judge by separate judgments and since the issues involved in both the cases are interlinked, both the second appeals are taken up for joint hearing regarding admission.
2.The submissions made by Mr.K.S.Jeyaganeshan, learned counsel for the appellants were heard. The material papers placed before the Court in the form of typed-set of papers including the copies of the judgments of the Courts below and the memoranda of appeal were perused.
3.The property described as suit property in O.S.No.82 of 2006 is a larger one and the property described in O.S.No.104 of 2006 is a part of the said property. Therefore, for the sake of convenience it is claried that the term “suit property” shall refer to the property described in the schedule of the plaint in O.S.No.82 of 2006.
4.The appellants in both the second appeals are the daughter-in-law and grand children of Tirupurasundari, the first respondent in both the appeals through a predeceased son of Tirupurasundari by name Suresh Kumar. The 2nd respondent in S.A.No.440 of 2010 is another son of Tirupurasundari. The 2nd respondent in S.A.No.441 of 2010 viz., Saravanan is the husband of Tirupurasundari. Tirupurasundari as plaintiff filed the suit in O.S.No.82 of 2006 against the appellants herein and her second son Ramesh Kumar for recovery of possession of the suit property more fully described in the plaint schedule. The claim of Tirupurasundari was based on her contention that the suit property in O.S.No.82 of 2006 originally belonged to her father K.N.Magudapathi and he executed a registered settlement deed on 22.1.1973 giving a life estate to Tirupurasundari and vested remainder to her sons; that ever since the date of settlement, Tirupurasundari was in possession and enjoyment of the properties till the death of her first son viz., Suresh Kumar, the husband of the first appellant on 04.8.2004 leaving the appellants as his legal heirs; that after the death of Suresh Kumar, out of love and affection for her daughter-in-law and grand children, Tirupurasundari allowed the appellants to reside in a portion of the suit property and the 4th defendant viz., her second son to reside in another portion of the suit property; that subsequently there arose frequent quarrels between Tirupurasundari and appellants and the 4th respondent, which prompted Tirupurasundari to make oral demands to the appellants and the 4th respondent to vacate and surrender vacant possession of the suit property to her and that since they did not do so, she had to give a lawyer’s notice, which was replied with false averments driving her to file the suit for recovery of possession.
5.Ramesh Kumar, who has been arrayed as the 4th defendant in the suit filed by Tirupurasundari is sailing with Tirupurasundari and he has not contested the suit. On the other hand, the appellants viz., the wife and children of Suresh Kumar, the first son of Tirupurasundari alone contested the suit contending that a Panchayat was held in September 1993 itself i.e., during the life time of Suresh Kumar, in which Tirupurasundari relinquished her life estate and the property was divided into two portions and given to Suresh Kumar and his brother Ramesh Kumar; that the portions allotted to Suresh Kumar was bearing Door No.8/44, whereas the portion allotted to Ramesh Kumar was Door No.8/45 and that hence the first respondent Tirupurasundari did not have any right or interest in the suit property after the above said alleged settlement in the Panchayat in the first week of September 1993. Based on the above said contentions, besides praying for the dismissal of the suit filed by Tirupurasundari, the appellants have also chosen to file a suit against Tirupurasundari, her husband Saravanan and Ramesh Kumar, the second son of Tirupurasundari in O.S.No.104 of 2006 showing the terraced house bearing Door No.8/44 which forms part of the suit property in the suit of Tirupurasundari and prayed for a perpetual injunction against Tirupurasundari, her husband Saravanan and her second son.
6.Both the suits were tried jointly and evidence was recorded in common for both the suits in O.S.No.82 of 2006. On the side of Tirupurasundari, she figured as the sole witness (PW1) and produced Exs.A1 to A4. On the side of the appellants, the first appellant besides examining herself as DW1, examined one Aachi Ammal as DW2 and produced 8 documents as Exs.B1 to B8. The trial Court on an appreciation of evidence came to the conclusion that the plea taken by the appellants that there was a Panchayat in the first week of September 1993, in which Tirupurasundari gave up her right in respect of the suit properties shown in O.S.No.82 of 2006 and the same was divided into two portions bearing Door Nos.8/44 and 8/45 and allotted to the husband of the first appellant and Ramesh Kumar, the second son of Tirupurasundari respectively, was not established and that the same could not sustained. Based on the above said concurrent finding, the Courts below have chosen to held Tirupurasundari entitled to recover possession from the appellants and Ramesh Kumar and accordingly decreed the suit filed by Tirupurasundari. So far as the suit filed by the appellants herein in O.S.No.104 of 2006 is concerned, the Courts below have taken a stand that since the appellants were in permissive possession of the suit property, they should not be thrown out without following due process of law and hence chose to grant a limited decree of injunction prohibiting the Tirupurasundari, her husband and her second son from causing disturbance to the possession and enjoyment of the Door No.8/44, which forms part of the suit property in O.S.No.82 of 2006 otherwise than by adopting due process of law. As against the said part of the decree passed in O.S.No.104 of 2006 neither Tirupurasundari nor her husband, nor her second son preferred any appeal. The appellants alone preferred appeals against the decree passed in O.S.No.82 of 2006 and O.S.No.104 of 2006 in A.S.No.33 of 2009 and A.S.No.35 of 2009 respectively. The learned lower appellate Judge, after a thorough re-appreciation of evidence, dismissed both the appeals, confirming the finding of the trial Court and also the decrees passed by the trial Court. Hence, the appellants are before this Court in these second appeals.
7.It is an admitted case of the parties to the litigation that the suit property originally belonged one K.N.Magudapathi, the father of Tirupurasundari and he settled the property by way of a registered settlement deed dated 22.1.1973 giving a life interest to Tirupurasundari and vested reminder to her sons Suresh Kumar and Ramesh Kumar. As such, the life interest that was conferred upon Tirupurasundari by her father is not disputed . Based on the same, Tirupurasundari has approached the Court for recovery of possession of the suit property to be enjoyed by her till her life time. The above said contention of Tirupurasundari is not discountenanced by her second son Ramesh Kumar, who figured as 4th defendant in the suit filed by Tirupurasundari and 3rd defendant in the suit filed by the appellants herein. The appellants alone contended that there was a Panchayat in the first week of September 1993, in which the property was divided into two portions, allotting one portion to the husband of the first appellant and the other portion to the 2nd son of Tirupurasundari and that in the very same Panchayat, Tirupurasundari relinquished her life interest.
8.First of all, an interest in an immovable property cannot be claimed to be orally relinquished, unless such relinquishment is said to have been made in an oral partition or oral family arrangement in lieu of partition. It is not the case of the appellants that such oral partition took place, in which a person entitled to a share relinquished it. On the other hand, the appellants contended that during the life time of the first son of Tirupurasundari, the suit property was divided between her sons as per the decision arrived at in the Panchayat. Therefore, the onus to prove such an alleged panchayat settlement and the division, heavily lies on the appellants. Besides the interested testimony of DW1, one Aachi Ammal has been examined as DW2 in an attempt to prove the above said contention of the appellants. The other party to the alleged Panchayat settlement viz., Ramesh Kumar was not examined as a witness on either side. In fact, he did not support the case of the appellants and he chose to refrain from contesting the suit filed by Tirupurasundari. The oral testimony of DW2 is also disbelieved by the Courts below on the ground that she was also an interested witness being the grand mother of the first appellant. Though the name of one more person was mentioned as one of the panchayatdars, even after DW2 was confronted on the ground that she was an interested witness, the other named panchayatdar was not examined on the side of the appellants. The Courts below have also held the plea of panchayat improbable, as the mother of the first appellant who was admittedly alive did not take part in the Panchayat. The Courts below have also considered the documents produced by the appellants to show their possession before the death of Suresh Kumar. Upon such consideration, the Court found certain discrepancies regarding the door number and hence disbelieved the contention of the appellants in this regard. The Courts below have also arrived at a factual finding that the appellants were in permissive possession of a portion of the suit property and hence, they cannot resist the claim of Tirupurasundari , the life interest holder for recovery of possession to be enjoyed by her till her life time. Even if it is assumed that the husband of the first appellant and the appellants were living in a portion of the suit property, that alone will not be enough to prove the alleged relinquishment of the life interest of Tirupurasundari. Under such circumstances, the Courts below have rightly come to the conclusion that Tirupurasundari is entitled to a decree for recovery of possession of the suit property. There is no defect or infirmity in the said finding warranting interference by this Court in these second appeals.
9.So far as Second Appeal No.441 of 2010 is concerned, it has been filed against the disallowed portion of the prayer made in O.S.No.104 of 2006 filed by the appellants herein. The said suit happened to be filed after the institution of the suit for recovery of possession by Tirupurasundari. Under such circumstances, there was possibility for the Courts below to non-suit the appellants for the relief of injunction sought for against the person entitled to be in lawful possession of the property. However, the trial Court seems to have taken a view that the appellants being in permissive possession should not be thrown out forcibly without resorting to due process of law and thus, granted a limited injunction to that effect. As against the said part of the decree, neither Tirupurasundari nor husband nor her second son filed any appeal. Therefore, that part of the decree has become final. Since the right of the Tirupurasundari to recover possession is upheld, there is no scope of enlarging the decree granted in favour of the appellants in O.S.No.104 of 2006 by allowing S.A.No.441 of 2010.
10.The well considered concurrent finding of the Courts below on factual issues cannot be disturbed by this Court in these second appeals, which are to be entertained only on substantial question of law. This Court is not satisfied with the involvement of any substantial question of law in these second appeals. No question of law is said to be proved to be decided erroneously by the Courts below and it has also not been proved that any finding of fact is perverse. It is also not proved that the findings are based on inadmissible evidence or non-consideration of material evidence. Therefore, this Court comes to the conclusion that there is no merit in these second appeals and the second appeals are liable to be dismissed in limini. Accordingly, both the second appeals are dismissed. No costs.
23.4.2010
gpa
Index: Yes/No
Internet: Yes/No
To
1.The Principal Sub Court
Erode
2.District Munsif-cum-Judicial Magistrate
Kodumudi.
P.R.SHIVAKUMAR.J.,
S.A.Nos.440 and 441 of 2010
23.4.2010