{"id":56658,"date":"2010-12-15T00:00:00","date_gmt":"2010-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-karunanithi-vs-r-mahalingam-on-15-december-2010"},"modified":"2019-03-02T02:48:00","modified_gmt":"2019-03-01T21:18:00","slug":"m-karunanithi-vs-r-mahalingam-on-15-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-karunanithi-vs-r-mahalingam-on-15-december-2010","title":{"rendered":"M.Karunanithi vs R.Mahalingam on 15 December, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Karunanithi vs R.Mahalingam on 15 December, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 15\/12\/2010\n\nCORAM\nTHE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR\n\nS.A.(MD) NO.645 of 2010\n\nM.Karunanithi\t\t\t\t.. Appellant\/Plaintiff\n\nVs.\n\nR.Mahalingam\t\t\t\t.. Respondent\/Defendant\n\nPrayer\n\nSecond appeal filed under Section 100 of Civil Procedure Code\nagainst the judgment and decree dated 09.10.2009, passed by the learned\nAdditional Subordinate Judge, Thanjavur in A.S.No.40 of 2008, confirming the\njudgment and decree dated 10.10.2006 passed by the learned District Munsif,\nThanjavur in O.S.No.184 of 2002.\n\n!For Appellants \t... Mr.M.P.Senthil\n^\n\n:JUDGMENT\n<\/pre>\n
\tThe plaintiff, who lost his case in entirety before the trial Court, but
\nwas partly successful in the lower appellate Court, has come forward with the
\npresent Second Appeal in respect of the disallowed portion of his claim.\n<\/p>\n
\t2. An extent of 1.18 acres comprised in R.S.No.148\/1 in Pudukkudi,
\nVadapathi Vattam, Thanjavur District within defined boundaries is shown to be
\nthe suit property. The appellant\/ plaintiff claiming to have become the owner of
\nthe entire suit property and that the entire suit property was in his possession
\nand enjoyment in which the respondent\/defendant was trying to interfere, filed
\nthe Original Suit O.S.No.184 of 2002 on the file of the District Munsif,
\nThanjavur for a bare injunction against the respondent.\n<\/p>\n
\t3. According to the case of the appellant\/ plaintiff, the suit property
\noriginally belonged to one Rathinasamy and after him it devolved upon his legal
\nheirs Ramadoss and Selvaraj and thereafter in an oral partition the entire suit
\nproperty was allotted to Selvaraj. It is the further case of the appellant
\n\/plaintiff that after the death of Selvaraj, his wife Jeyalakshmi, for herself
\nand on behalf of her minor son Selvamani, executed an unregistered sale deed
\nconveying the entire suit property in favour of one Palanisamy @ Palani on
\n07.02.2001, and the said Palanisamy @ Palani, in turn, executed a sale deed
\ndated 19.07.2001 in favour of the appellant\/ plaintiff conveying the entire suit
\nproperty to him and that from the said date, the plaintiff was in possession and
\nenjoyment of the suit property and the respondent\/defendant tried to interfere
\nwith the same at the instigation of one Ramakrishnan.\n<\/p>\n
\t4. The suit was resisted by the respondent\/ defendant contending that it
\nwas false to state that the entire suit property was allotted to Selvaraj in a
\npartition; that on the other hand the suit property was divided into two halves,
\neach one having an extent of 59 cents and the Northern half was allotted to
\nRamadoss, whereas the Southern half was allotted to Jeyalakshmi W\/o. Selvaraj;
\nthat the respondent\/defendant purchased the Northern half from the said Ramadoss
\nunder a registered sale deed dated 20.03.2002, marked as Ex.B9 and that
\ntherefore, the claim of perpetual injunction in respect of the suit property as
\nif the appellant\/ plaintiff was in possession and enjoyment of the entire suit
\nproperty was unsustainable.\n<\/p>\n
\t5. “(i) Whether the plaintiff is entitled for the permanent injunction as
\nprayed for? and\n<\/p>\n
\t   (ii) To what other reliefs, the plaintiff is entitled?”\n<\/p>\n
were the two issues framed by the trial Court, based on which, the parties went
\nto trial.  As many as six witnesses were examined and 15 documents were marked
\non the side of the appellant\/plaintiff, whereas 3 witnesses were examined and 13
\ndocuments were marked on the side of the respondent\/defendant. The documents
\nproduced by the revenue officials were marked as Exs.X1 to X4. The Report and
\nPlan submitted by the Advocate commissioner were marked as Exs.C1 and C2.\n<\/p>\n
\t6. Upon considering the evidence in the light of the points urged in the
\narguments advanced on either side, the learned District Munsif, Thanjavur held
\nthat the appellant herein\/plaintiff could not establish his title to the suit
\nproperty as the sale deeds relied on by him purporting to convey a property,
\nwhose value was more than Rs.100\/- were unregistered documents, whereas the
\nrespondent\/ defendant was able to prove his title to the Northern half of the
\nsuit property by oral and documentary evidence including registered sale deeds.
\nBased on the above said finding, the learned trial Judge came to the conclusion
\nthat the equitable relief of permanent injunction could not be granted in favour
\nof the appellant herein\/plaintiff and hence, dismissed the suit in its entirety
\nby judgment and decree dated 10.10.2006.\n<\/p>\n
\t7. The said decree of the trial Court, dismissing the suit, was challenged
\nbefore the lower appellate Court, namely the Court of Additional Subordinate
\nJudge, Thanjavur in A.S.No.40 of 2008.  The learned Additional Subordinate
\nJudge, Thanjavur, after hearing both sides, came to the conclusion that the
\ncontentions of the appellant\/plaintiff that he derived title to the entire suit
\nproperty under the document marked as Ex.A.2 could not be countenanced since not
\nonly the said document but also the parent deed, namely the sale deed allegedly
\nexecuted by Jeyalakshmi in favour of Palanisamy @ Palani marked as Ex.A.1 were
\nnot admissible for want of registration.  However, based on other documents and
\noral evidence adduced on both sides, the lower appellate Court came to the
\nconclusion that the appellant\/plaintiff was in possession of the Southern half
\nof the suit property and so far as the Northern half of the suit property was
\nconcerned, the appellant\/plaintiff did prove neither title nor possession. Based
\non the said finding, the lower appellate Court has chosen to modify the decree
\npassed by the trial Court by allowing the suit in part and granting a decree in
\nfavour of the  appellant herein\/plaintiff for permanent injunction in respect of
\nthe Southern half of the suit property having an extent of 59 cents alone and
\ndismissed the suit in respect of the other half, namely Northern half of the
\nsuit property.\n<\/p>\n
\t8. Questioning the correctness and legality of the said judgment in so far
\nas the dismissal of the suit regarding the Northern half of the property is
\nconcerned, the present second appeal has been filed by the appellant\/plaintiff.\n<\/p>\n
\t9. The submissions made by Mr.M.P.Senthil, learned counsel for the
\nappellant\/plaintiff were heard. The Memorandum of grounds of Second Appeal and
\nthe documents produced along with the same including copies of the judgments of
\nthe Courts below were also perused.\n<\/p>\n
\t10. After such hearing and upon such perusal, this Court is of the
\nconsidered view that the appellant \/plaintiff has not shown that any question of
\nlaw has arisen to be resolved in the second Appeal or that any question of law
\nhas been erroneously decided by the lower appellate Court.\n<\/p>\n
\t11. The appellant\/plaintiff claims title and possession based on two
\nunregistered documents nomenclatured as sale deeds. They are Exs.A1 and A2.
\nThey came into existence within a period of 5. months gap between them. It is
\nalso pertinent to note that within a period of 9 months from the date of alleged
\npurchase made by the appellant\/plaintiff, he had chosen to approach the Court
\nfor the relief of permanent injunction against the respondent\/ defendant. Both
\nthe Courts below have arrived at a correct conclusion that Exs.A1 and A2 could
\nnot be admitted as evidence to establish any right claimed to have been derived
\nor conveyed under the said documents. Though the appellant\/plaintiff has chosen
\nto produce patta relating to the suit survey number as Ex.A.4, that is not a
\nseparate patta and it is a joint patta issued in the name of as many as 66
\npersons. The same shall not be enough to show that the appellant\/plaintiff is in
\nexclusive possession of the entire suit property extending to 1 acre 18 cents.\n<\/p>\n
\t12. Admittedly, the suit property originally belonged to Rathinasamy and
\nafter him it came to be devolved on his sons Ramadoss and Selvaraj.  According
\nto the plaintiff, the entire suit property was allotted in a partition between
\nthe two to the said Selvaraj and from the legal heirs of Selvaraj, Palanisamy @
\nPalani purchased the suit property and the plaintiff, in turn, purchased it from
\nthe said Palanisamy @ Palani.  No document has been produced to show that the
\nentire extent of the suit property was exclusively enjoyed either by Selvaraj or
\nhis legal heirs or Palanisamy @ Palani, the vendor of the plaintiff. There is
\nalso no clear evidence to show when did such partition take place.\n<\/p>\n
\t13. The entire case of the plaintiff rests on the oral evidence of the
\nwitnesses examined on the side of the plaintiff. The first witness is the
\nplaintiff himself. The second witness is his alleged vendor under Ex.A.1 and the
\nother four witnesses are attestators of those two documents. Not even a scrap of
\npaper could be produced by the appellant\/ plaintiff to show that either himself
\nor his vendor Palanisamy @ Palani or Jeyalakshmi or her husband Selvaraj was in
\npossession and enjoyment of the entire extent of the suit property.  Since the
\nsale deeds are inadmissible as evidence in proof of any derivation of title in
\nrespect of the immovable property, there is no chance of applying the principle
\n‘possession follows title’ in favour of the appellant\/plaintiff in this case.\n<\/p>\n
\t14. On the other hand, the respondent\/ defendant, besides deposing as
\nD.W.1, has also examined his vendor Ramadoss as D.W.2. He has also produced
\nEx.B.9 registered sale deed, a copy of patta pass book and other documents. One
\nanother witness was also examined as D.W.3 in order to prove the case of the
\ndefendant that the suit property was divided equally between Ramadoss on the one
\nhand and his predeceased brother’s wife and her minor son on the other hand and
\nthat the Northern half of the suit property was allotted to the said Ramadoss.\n<\/p>\n
\t15. The said Ramadoss himself has deposed as D.W.2. It is true that D.W.2
\ncould not give the correct name of the purchaser under Ex.B.9. He would refer to
\nthe purchaser under Ex.B.9 as Chelliah.  It seems the appellant\/plaintiff made
\nan attempt to gain advantage by pointing out the above said testimony of D.W.2.
\nBut the said witness himself, at a later part of his deposition, has given a
\nclarification by stating that he sold the property to the defendant who was
\nknown by him as Chelliah; that he was not aware as to whether the defendant also
\nhad the name “Mahalingam” and that it was the defendant at whose request he came
\nto the Court to depose. A snap answer alone is sought to be projected to show
\nthat the said Ramadoss would not have spoken the truth. When the testimony of
\nD.W.2 is considered in totality, it will show that his testimony was quite
\nnatural and there was no material contradiction in it.  His evidence will go to
\nshow that he executed the sale deed Ex.B.9 in favour of the
\nrespondent\/defendant, who is known by him (D.W.2) as Chelliah.\n<\/p>\n
\t16. It is not in dispute that D.W.2 is the Ramadoss referred to by the
\nplaintiff as one of the co-owners in the plaint itself. The admitted co-owner
\nhas chosen to appear on behalf of the respondent\/defendant to depose that there
\nwas a partition in which the Northern half of the suit property was allotted to
\nhim and the same was conveyed to the respondent\/defendant by him. On the other
\nhand, the appellant\/plaintiff, who claims that the entire property was allotted
\nto Selvaraj in a partition that took place between Ramadoss and Selvaraj, has
\nnot chosen to examine any one of the admitted co-owners or any one of the
\nparties to the alleged partition. Even the said Jeyalakshmi w\/o Selvaraj was not
\nexamined to show that in the partition the entire suit property was allotted to
\nher husband Selvaraj and he was in possession and enjoyment of the entire suit
\nproperty.\n<\/p>\n
\t17. On a proper re-appreciation of evidence, the lower appellate Court,
\nbeing the last appellate Court on facts, arrived at the correct conclusion that
\nthe plaintiff failed to prove his case of allotment of the entire suit property
\nto Selvaraj in an alleged partition that took place between Selvaraj and
\nRamadoss and on the other hand the respondent\/defendant was able to prove that
\nthe partition took place only after the death of Selvaraj, in which the Northern
\nhalf of the suit property was allotted to D.W.2 Ramadoss, whereas the Southern
\nhalf was allotted to Jeyalakshmi W\/o. Selvaraj and their minor son and that
\nneither Selvaraj nor his legal heirs nor the plaintiff was ever in possession of
\nthe Northern half of the suit property at any point of time.  The said finding
\nrendered by the lower appellate Court is a finding on fact on proper re-
\nappreciation of evidence, which cannot be termed either defective or infirm,
\nmuch less perverse.\n<\/p>\n
\t18. The success or failure of the claim of the appellant\/plaintiff for the
\nrelief of injunction in respect of Northern half of the suit property very much
\ndepends upon the finding rendered on the above said fact. As the finding went
\nagainst the plaintiff, there is nothing wrong in non-suiting the
\nappellant\/plaintiff for the relief sought for in so far as Northern half of the
\nsuit property is concerned. Even assuming for argument sake that the exclusive
\npossession of the Northern half by the respondent\/defendant is not proved, since
\nit has been held that the plaintiff has not proved valid title to the said
\nportion and on the other hand respondent\/defendant has derived valid title under
\nEx.B.9, the principle ‘possession follows title’ should be applied in favour of
\nthe respondent\/defendant and on that ground also the appellant\/plaintiff is
\nliable to be non-suited for the relief in respect of the Northern half of the
\nsuit property.\n<\/p>\n
\t19. For all the reasons stated above, this Court finds no scope for
\ninterference with the judgment of the lower appellate Court and that the Second
\nAppeal deserves dismissal at the stage of admission itself.\n<\/p>\n
\t20. In the result, the Second Appeal is dismissed. Consequently, connected
\nM.P.(MD) No.1 of 2010 is dismissed. However, there shall be no order as to costs
\nas the Second Appeal is dismissed at the admission stage itself.\n<\/p>\n
sj<\/p>\n
To<\/p>\n
1. The Additional Subordinate Judge,
\n   Thanjavur.\n<\/p>\n
2. The District Munsif,
\n   Thanjavur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Karunanithi vs R.Mahalingam on 15 December, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15\/12\/2010 CORAM THE HON’BLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD) NO.645 of 2010 M.Karunanithi .. Appellant\/Plaintiff Vs. R.Mahalingam .. Respondent\/Defendant Prayer Second appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 09.10.2009, passed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-56658","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Karunanithi vs R.Mahalingam on 15 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-karunanithi-vs-r-mahalingam-on-15-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Karunanithi vs R.Mahalingam on 15 December, 2010 - 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