Last Updated on
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 10.01.2011 Coram: The Honourable Mr. Justice R.S.RAMANATHAN S.A. No. 1096 of 1998 1. Doraisamy Pillai 2. Dhanabagiyam 3. Kandasami ... Appellants/ Defendants ..vs.. 1. Rengsami Pillai 2. Nagammal 3. Chezhiyan 4. Rajendran (Died) 5. Viji 6. Vimala (Respondents 5 and 6 are brought on record as LRs of the deceased R4 and name of R2 Nainiammal amended as Nagammal vide order of Court dated 14.12.2010 in CMP.Nos. 1823 to 1826 of 2010) ... Respondents/ Plaintiffs Second Appeal filed under Section 100 of Civil Procedure Code against the Judgement and Decree dated 13.8.1997 made in A.S.No.388 of 1996 on the file of the Subordinate Court, Kallakurichi, by reversing the Judgement and Decree made in O.S.No.482 of 1987 dated 21.12.1994 on the file of the District Munsif Court, Kallakurichi. For Appellants ... Mr. S.Parthasarathy, Senior Counsel for Mr. J.Ramakrishnan For Respondents ... Mr. R. Subramanian J U D G E M E N T
The defendants in O.S.No.487 of 1987 on the file of the Additional District Munsif Court, Kallakurichi are the appellants in the Second Appeal.
2. The respondents/plaintiffs filed the suit for declaration of their title and for injunction. There are three items of suit properties and it is admitted by the learned Senior Counsel for the appellants that there is no dispute regarding the Item Nos 1 and 2 of the suit properties and the dispute is only in respect of 3rd item of property namely Survey No.38/18 of an extent of 13 cents.
3. The case of the respondents/plaintiffs was that the 1st plaintiff and 1st defendant namely the 1st respondent and 1st appellant herein are brothers and they are the sons of one Rama Pillai and the 2nd respondent was the wife of 1st respondent. The respondents 3 and 4 are the sons of the 1st respondent and the 2nd appellant is the wife of the 1st appellant and the 3rd appellant is their son. It is the further case of the appellants that the family of the plaintiffs and defendants owned several properties and there was a oral partition between the 1st plaintiff and the 1st defendant 40 years ago and they were in enjoyment of the properties and the oral partition was also reduced into writing and Muchalika was prepared and signed by both parties wherein the properties enjoyed by the respective parties were mentioned and as per the oral partition and Muchalika, the plaintiffs and respondents are entitled to the suit properties and the defendants/ appellants are disputing their title, the suit is filed for declaration and injunction. 2nd respondent died during the pendency of the second appeal and the legal heirs are already on record and the 4th respondent died and the respondents 5 and 6 are his Legal Representatives.
4. The appellants contested the suit stating that as per the Muchalika, the plaintiffs were allotted 6 = cents in Survey No.38/18 namely 3rd item in the suit schedule and therefore they are not entitled to more than 6 = cents in Survey No.38/18. It is further admitted that in respect of Item Nos.1 and 2 there is no dispute and the respondents/ plaintiffs are entitled to declaration of Item Nos. 1 and 2.
5. The trial Court on the basis of the oral document and relying upon Ex.B7 Muchalika, decreed the suit in respect of Item Nos.1 and 2 and 6 = cents in respect of Item No.3 namely Survey No.38/18. Aggrieved by the same, the respondents/ plaintiffs filed the first appeal in A.S.No.388 of 1996 on the file of the Subordinate Court, Kallakurichi and the learned Subordinate Judge, Kallakurichi allowed the appeal and as against the same this Second Appeal is filed by the appellants.
6. During the pendency of the Second Appeal the first and 2nd appellants also died leaving behind them the 3rd appellant as their legal representative and a memo was filed to that effect by the appellants. The memo was taken on record.
7. At the time of admission of the Second Appeal the following substantial questions of law were framed by this Court:
(1) Whether the lower appellate Court is correct in law in reversing the Judgement and Decree of the trial Court in respect of suit Item 3, particularly when the respondents have accepted and confirmed the title of the appellants by way of Ex.B7 Panchayat Agreement dated 4.3.1987 ?
(2) Whether the lower appellate Court is correct in law in ignoring Exs.B1 to B6 and B8 which confirm the title and possession of the appellants to the suit item 3, which is in dispute ?
8. Mr. S.Parthasarathy, the learned Senior Counsel appearing for the appellants submitted that the respondents/ plaintiffs relied upon Ex.B7 Muchalika in the plaint and as per Ex.B7 Muchalika only 6 = cents in Survey No.38/18 was given to the plaintiffs/ respondents and that was rightly considered by the trial Court and granted the decree, but the lower appellate Court without rendering any finding regarding Ex.B7, allowed the appeal on the basis of Ex.A1 holding that the respondents are entitled to the entire 13 cents in Survey No.38/18 and therefore the findings of the lower appellate Court has to be set aside and the Judgement and Decree of the trial Court have to be confirmed.
9. On the other hand, the learned counsel for the respondents submitted that though the respondents/ plaintiffs admitted that there was a Muchalika by which the division of property was recognized, having regard to Ex.A1 the respondents are entitled to the entire 13 cents of properties and the appellants are relying upon Exs.B1 and B2 to claim 6 = cents in Survey No.38/18 and even in Ex.B2 the respondents vendor’s title namely Rengasamy Pillai was accepted by the vendors of the appellants and therefore the appellants could not have claimed any right in the 3rd item of property under Exs.B1 and B2. Regarding Ex.B7, PW1 has stated in his evidence that he has not signed any document and therefore the Muchalika ought not to have been believed and rightly the lower appellate Court disbelieved the Muchalika and allowed the appeal on the basis of Ex.A1.
10. Heard both sides.
11. It is clear from the admission made in the pleadings that there was a Muchalika executed by both parties whereby the division of property was recognized. In Para 5 of the plaint it has been stated as follows:
” In evidence of such family arrangement, a Muchalika was also written and signed by the parties, the plaintiffs and the defendants herein on or about 4.3.1987 and left with the Panchayatdars, who had also attested the same. Under the oral partition and under the subsequent oral family arrangement, the suit properties had been recognized as belonging to the plaintiffs.”
The Muchalika referred to in the plaint was marked as Ex.B7 and a reading of Muchalika would make it clear that the appellants were allotted 6 = cents in Survey No.38/18 and the respondents were allotted 6 = cents in Survey No.38/18. Therefore, from the Muchalika it is made clear that the appellants are entitled to 6 = cents in Survey No.38/18 and the respondents can claim title only in respect of 6 = cents in Survey No.38/18. Nevertheless, the lower appellate Court reversed the finding of the trial Court on the basis of Ex.A1 and also on the basis of Exs.B1 and B2.
12. Though under Ex.A1 the entire 13 cents in Survey No.38/18 was sold to the 2nd respondent/ 2nd plaintiff, it is seen from Ex.B1 that the 2nd appellant also purchased 6 = cents in Survey No.38/18. Ex.B2 is the document in favour of the vendor under Ex.B1 and in Ex.B1 it is admitted that the property belonged to Rengasamy Pillai from whom the 2nd plaintiff purchased the property under Ex.A1. Though in Ex.B2 the plaintiffs vendor’s title was accepted, it has been stated in Ex.B2 that the vendor of the defendant was in possession and enjoyment of the property of an extent of
6 = cents and that was conveyed to the vendor of the defendants who in turn conveyed 6 = cents to the 2nd defendant under Ex.B1. Further, Ex.B2 was of the year 1950 and Ex.B1 was of the year 1955. Therefore, even in the year 1950 the 2nd defendant’s vendor was in possession of
6 = cents and that was conveyed to the 2nd defendant’s vendor under Ex.B2 and in the year 1955 the same was conveyed to the 2nd defendant. The 2nd plaintiff admittedly purchased the property only in the year 1971. Therefore, even prior to the purchase by the 2nd plaintiff, the 2nd defendant must have perfected title by adverse possession. Further, having regard to the recitals in Muchalika which has been admitted by the plaintiffs and referred to in the plaint the plaintiffs cannot claim more than 6 = cents in respect of Item No.3 and even though the plaintiffs have given evidence against Muchalika that cannot be taken into consideration and the plaintiffs are bound by the pleadings and no amount of evidence can be allowed against the pleadings. Therefore, as the plaintiffs have accepted the Muchalika and as per the Muchalika the plaintiffs are entitled to only 6 = cents in Survey No.38/18. The trial Court has rightly decreed the title of the plaintiffs in respect of 3rd item of suit property only to an extent of 6 = cents and without considering the Muchalika and without any discussion about the Muchalika the lower appellate Court allowed the appeal.
13. Therefore, the lower appellate Court committed a serious error in granting the decree in respect of the entire extent of 3rd item of property and therefore the Judgement and Decree of the lower appellate Court is set aside. Further, the lower appellate Court ought to have relied upon Exs.B1 to B6 and B8 and also Ex.B7 and held that the appellants are entitled to 6 = cents in the suit property. Hence, the substantial questions of law 1 and 2 are in favour of the appellants and the appeal is allowed and the lower appellate Court Judgement and Decree are set side and the trial Court Judgement and Decree are confirmed.
Hence, the Second Appeal is allowed. No costs.
1. The District Munsif,
District Munsif Court,
2. The Subordinate Judge,