Allowed

Palanivel Pillai (Died) v. Ashok Kumar

Madras HC30 Oct 2019SA(MD)/282/2009

Case brief

AI extract

What is this about?

The Madras High Court, Madurai Bench allowed the second appeal. It held that a prayer for injunction does not preclude the plaintiff from proving title through documents. The court set aside the first appellate decree and restored the trial court decree in favor of plaintiffs regarding property title and possession.

What did the court decide?

The judgment and decree of A.S.No.85 of 2001 were set aside, and the judgment and decree of O.S.No.330 of 1995 were confirmed.

Palanivel Pillai (Died) Vs Ashok Kumar — Partition | Madras HC (2019)

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S.A.(MD)No.282 of 2009

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Reserved On : 29.08.2019

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Delivered On : 30.10.2019

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CORAM

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THE HONOURABLE MRS. JUSTICE R. THARANI

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S.A.(MD)No.282 of 2009 and

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M.P.(MD)No.1 of 2009

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Palanivel Pillai (Died) Indirani (Died) 1.Sadashivam Pillai

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2.Mohanambal

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.. Appellants/Respondents/Plaintiffs

Vs.

1.Ashokkumar

2.Nehru

3.Shanmugam (Died) .. Respondents/Appellants/Defendants 1 to 3

4.Amirtham

5.Gomathi

6.Senthil Kumar

7.Bharathi ... Respondents 4 to 7/Legal Heris of R3 (Respondents 4 to 7 are brought on record as legal heirs of deceased

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third respondent, vide Court order dated 05.06.2017, made in C.M.P.(MD)No.4555 of 2017 in S.A.(MD)No.282 of 2009)

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Prayer : Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the Judgment and Decree passed in A.S.No.85 of 2001 dated 06.11.2008 on the file of the Principal Subordinate Judge, Trichirappalli reversing the judgment and decree passed in O.S.No.330 of 1995 dated 24.11.2000 on the file of the District Munsif, Musiri.

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For Appellants : Mr.M.Subash Babu For Respondents : Mr.K.Govindarajan

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JUDGMENT

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Heard the learned counsel on both the side.

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https://hcservices.ecourts.gov.in/hcservices/

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S.A.(MD)No.282 of 2009

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2.This appeal is filed against the judgment and decree passed in A.S.No.85 of 2001 dated 06.11.2008 on the file of the Principal Subordinate Judge, Trichirappalli reversing the judgment and decree passed in O.S.No.330 of 1995 dated 24.11.2000 on the file of the learned District Munsif, Musiri.

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3.The appellants herein are the plaintiffs and the respondents 1 to 3 herein are the defendants in the suit. The third respondent died and the respondents 4 to 6 are legal heirs of the third respondent. The appellants herein have filed a suit in O.S.No.330 of 1995 before the learned District Munsif, Musiri for a prayer of permanent injunction against the defendants. The suit was decreed by the trial Court. Against which, the respondents herein have filed an appeal in A.S.No.85 of 2001 before the learned Principal Sub Judge, Trichy. The learned Principal Sub Judge allowed the appeal by reversing the Judgment and Decree passed by the trial Court. Against that judgment and decree, the appellants herein have filed this second appeal.

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4.The case of the plaintiffs is that the suit property belongs to the plaintiffs absolutely and the plaintiffs has got the property from Jagathambal on 16.03.1973. who obtained the property on 24.04.1972 through a settlement deed. The suit property was vacant except for a delapilated wall. The plaintiffs were enjoying the property for tieing their cattle and by storing hay stacks. The defendants wanted to purchase the property. Since the plaintiffs refused to sell the property, the defendants were disturbing the possession of the plaintiff. Hence, the plaintiff filed a suit for bare injunction.

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5.The averments of the written statement filed by the second defendant which was adopted by other respondents is as follows:

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The property that was west to the suit property with an extent of 30 x 61 feet belongs to the sons of Karupapillai, namely Mukaiya Pillai, Arumugam, Ramasamy and Narayanasamy. They divided the property, as per the partition deed dated 24.01.1969. The northern portion 30 x 15¼ feet was allotted to Mukaiya Pillai and his legal heirs. The adjoining southern portion was allotted to Ramasamy and his legal heirs. The southern portion 30 x 30½ feet was allotted to Maruthanayakam Pillai and his legal heirs. Narayanasamy had no issues and no property was allotted to him. Hence, the western 30 x 30½ feet was allotted to legal heirs of Mukaiya Pillai and Ramasamy. The southern 30 x 30 ½ feet was allotted to legal heirs of Maruthanayagam Pillai. The legal heirs of Ramsamy and Maruthanayakam Pillai entered into exchange deed on 15.08.1972. The legal heirs of Mukaiya Pillai sold their share to https://hcservices.ecourts.gov.in/hcservices/ Ranjitham Ammal on 19.04.1976 and in turn Ranjitham Ammal sold her

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S.A.(MD)No.282 of 2009

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property to Natarajan. The properties southern to Natarajan's property was sold by Marathanayakam Pillai to the third defendant. The defendants 1 and 2 entered into a sale agreement with Natarajan on 07.04.1994 and they took possession of the property. The plaintiffs have no right over the western portion of the suit property.

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6.On the above said pleadings, the following issues were framed in the trial Court :-

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“(i)jhth nrhj;J KotJk; jhth Njjp md;W thjpapd; mDNghfj;jpYk; RthjPdj;jpYk; cs;sjh ?

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(ii)jhth nrhj;jpd; Nkw;F Gwk; fpoNky; 30' x tlf;F njw;F 30½ ' msTs;s gFjp vjpu;thjpfspd; mDgtj;jpy; ,Ug;gjhf vjpu;thjpfs; $WtJ rupah ?

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(iii)jhth nrhj;jpy; 30' x 30½ ' msTs;s Nkw;F gFjpapy; thjpf;F ghj;jpak; ,y;iy vd;W vjpu;thjp $WtJ rupah

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(iv) thjpf;F jhthtpy; NfhUk; epiyahd cWj;Jf; fl;lis gupfhuk; fpilf;fj;jf;fjh ?

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(v)thjpf;F fpilf;ff; $ba gupfhuq;fs; vd;d ?”

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7.The plaintiff was examined as P.W.1 and five documents were marked as Exs.A1 to A5 on the side of the plaintiffs and three witnesses were examined as D.W.1 to D.W.3 and seventeen documents were marked as Exs.B1 to B17 on the side of the defendants. Two Court documents were marked as Exs.C1 and C2 and four witness documents were marked as Exs.X1 to X4. After considering the evidences and arguments, the trial Court decreed the suit. Against which, the respondents herein have preferred an appeal in A.S.No.85 of 2001. On the aforesaid pleadings, the following issues were framed:

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“(i),t;tof;fpy; thjp Nfhup cs;s epue;ju cWj;Jf; fl;lis gupfhuk; fpilf;fj;jf;fnjd;W tprhuiz ePjpkd;wk; jPu ;khdpj;J cs;sJ rl;lg; G+u;tkhf rupahdjh ?

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(ii) tprhuiz ePjpkd;wj;jpd; jPu ;g ;G kw;Wk; jPu ;g ;ghiz uj;Jnra;aj;jf;fjh ? ”

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https://hcservices.ecourts.gov.in/hcservices/

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S.A.(MD)No.282 of 2009

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8.The first appellate Court allowed the appeal filed by the respondents. Aggrieved by the judgment and decree, the appellants herein have preferred this second appeal.

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9.In the grounds of second appeal, it is stated that the respondents admitted the possession of the appellant on the eastern portion of the suit property. The disputed portion is not mentioned in the partition deed. The trial Court failed to consider that there is a dispute regarding the title. The trial Court failed to consider that the portion of the suit property belongs to Natarjan. No document was filed on the side of the defendants to prove that Natarjan and the respondents 1 and 2 executed an sale agreement and that the respondents were given the possession of the property. The Courts below erred in accepting the plea of the respondents that they were in possession of alleged thatched sheet in the suit property when they have not stated anything regarding the same in the written statement. The lower appellate Court failed to consider that when the defendants raised a plea for adverse possession, it is their duty to prove the same. The first appellate Court failed to note that the plaintiffs have clearly stated that there was a house in the property, which was destroyed by rain and that only a small portion of the delapilated wall was there and at the time of dispute, the place was vacant.

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10.This Court by its order dated 21.06.2016, has admitted the second appeal and has framed the following substantial questions of law:

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“(i)Whether the first Appellate Court is right in dismissing the suit stating that the suit is not maintainable without the prayer for declaration of title ?

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(ii)Whether the judgment and decree of the First Appellate Court is perverse ?”

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Issue No.(i):

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11.On the side of the appellants, it is stated that in the plaint itself, the appellants claimed that there are Seethai Mullu trees in the property and the plaintiffs are enjoying the same by cutting the trees. The second defendant who was examined as D.W.1, has admitted that there were Seethai Mullu trees in the suit property and the plaintiffs were enjoying them by cutting the trees. When the possession and enjoyment was admitted by D.W.1, it is not for the First Appellate Court to allow the appeal.

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S.A.(MD)No.282 of 2009

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12.On the side of the appellants, it is stated that there is no necessity for a prayer of declaration of title, as the plaintiffs proved the title through documents. Whereas the defendants did not file any document to prove possession or title and that all the documents filed by the defendants are not related to the suit property. The allegation of the defendants is that they entered into a sale agreement with Natarajan and the sale agreement was not filed by the defendants. Though the alleged sale agreement was said to have been entered into on 07.04.1994, the defendants did not take any steps to execute the sale deed. The first appellate Court failed to consider all these aspects.

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13.The learned counsel appearing for the appellants relied on the judgment passed by this Court in the case of Selvarathinathammal v. R.Rajeswari reported in 2015 (2) MWN (Civil) 689 , which reads as follows:

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“Considering the above decisions along with the facts of the present case, I am of the view, the plaintiff/respondent herein has filed the suit only on the basis of Ex.A1 – Sale deed and to prove her legal possession, she need not file a suit for declaration of title and injunction. Both the Courts below rightly held that the respondent/plaintiff prima facie filed the documents and proved her title and legal possession. Since the appellant/defendant who is not in possession of the suit property, has interfered the plaintiff's possession, the respondent/plaintiff has filed the suit for permanent injunction and she is entitled to the relief as prayed for in the plaint. So the decree and judgment passed by both the Courts below are unsustainable. Thus, substantial questions of law 1 and 2 are answered agaisnt the appellant/defendant”

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14.The ownership of the plaintiffs over the portion of the suit property to an extent of 30 x 30½ feet was seriously disputed by the respondents. It is stated that the respondents have successfully proved that the northern portion of the property belonged to Mukaiya Pillai, Ramasamy, Narayanasamy and Murthanaykaam Pillai under oral partition deed share for each. The sons of Mukaiya Pillai executed a sale deed in favour of Ranjitham Ammal who in turn sold the property to Natarajan and thesale deed was marked as Ex.B1. The legal heirs of Maruthanayakam Pillai sold their share of the property, which they got in oral exchange, to the third defendant. Thereby, Natarajan had the title for the northern portion 30 x 30½ feet. When the title is questioned by the plaintiffs they have to seek a prayer for declaration of title and that the burden is upon the https://hcservices.ecourts.gov.in/hcservices/ defendants to discharge the question of title.

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S.A.(MD)No.282 of 2009

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15.On the side of the respondents, it is stated that the claim of the appellants is that the house in the property was destroyed by flood and the property remained vacant, but this statement was falsified by the report of Commissioner and that in the report of Commissioner, it is stated that there is a thatched shed in the suit property and that the appellants are one of the attestor in Ex.B2 and that they are well aware that Ex.B2 covers a portion of the suit property and that the first appellate Court is correct in modifying decree of the lower Court.

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16.On the side of the appellants, it is stated that the first appellate Court did not discuss anything regarding the evidence or the documents filed by both the parties. The one and only point taken into consideration was that the plaintiffs did not seek for a relief of declaration of title.

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17.A perusal of the records reveals that in Paragraph No. 4 of the written statement, it it stated that the property belong to Karupaiya Pillai was measuring east west 30 feet, north south 61 feet and four brothers who are the sons of Karupaiya Pillai, partitioned the property. In 5^th paragraph, it is stated that the four brothers and their successors in interest namely, Mukaiya Pillai, Arumugam, Ramasamy, Narayanasamy and Maruthaya Pillai have divided the entire extent into four equal parts and registered a partition deed on 24.01.1969 . The Northern most portion measuring 30 x 15 ½ feet was alloted to the heirs of Mukaiya Pillai and the portion adjoining measuring 30 x 15 ¼ feet was allotted to the heirs of Ramasamy. The southern most portion 30 x 30½ feet was allotted to the legal heirs of Maruthanayakam Pillai, who got right over the property through Arumugam. It is stated that since Narayanan has no issues, no property was allotted to him. The document dated 24.01.1969 was marked as Ex.X3.

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18.In the written statement, it is stated that in accordance with the oral partition, the legal heirs of Ramasamy and Maruthanayagam Pillai divided the southern 30 x 30 ½ feet equally between them under registered deed dated 15.06.1932 which was attested by the plaintiffs. The third defendant purchased the property from the legal heirs of Mukaiya Pillai sold their share that is northern portion of the property to one Ranjitham and Ranjitham sold the property to Natarajan on 27.09.1978. The legal heirs of Maruthanayagam sold 30 x 15 ¼ feet, which they got by exchange which is situated on the southern side of Natarajan's property .

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19.The claim of the defendants in paragraph 12 is that the plaintiffs have no right over the suit property with a measurement https://hcservices.ecourts.gov.in/hcservices/ of 30 x 30 ½ feet. In the partition deed, a property with a

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S.A.(MD)No.282 of 2009

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measurement of 30 x 61 feet was divided into four equal portions, among three set of legal heirs. One of them was allotted ½^th share. The other two were allotted ¼^th share each. In the description of the properties in all the shares, the western boundary is mentioned as pathway. There is no possibility for the defendants to claim the suit property which is beyond the pathway. The trial Court elaborately discussed the measurements stated in both side documents. All the documents clearly prove that there is a pathway on western side of the property of the defendants' predecessors, there cannot be a possibility for the suit property to be the property of the defendants' predecessors. Maruthanayam Pillai dated 23.05.1945 was marked Ex.A3. The mortgage deed executed in favour of Paramasivam Pillai dated 24.02.1951 was marked as Ex.A4. The sale deed in favour of Visalatchi dated 10.07.1959 was marked Ex.A5. Visalatchi executed a sale deed in favour of Jagatambal on 29.04.1972 which was marked Ex.A2. Jagatambal executed sale deed in favour of plaintiffs which was marked as Ex.A1. The trial Court clearly observed that boundary recitals in all the documents are same. The documents clearly reveals that the boundary is tally with the boundary recitals stated in the suit property.

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20.The averment of the defendants is that they entered into a sale agreement with Natarajan, hence, the house tax receipts on the side of the defendants cannot be relating to the suit property. The property purchased by the third defendant through Exs.B2 and B4 is of the year 1995, whereas Exs.B5 to B16 are dated prior to that period. There is no possibility of transfer of name in house tax assessment prior to the registration of the sale. Hence, the house tax receipts, Exs.B5 to B16 were not acceptable. Though the defendants have filed so many documents, there is no co-relation with the suit property. The documents filed on the side of plaintiffs are cogent and it is seen that the plaintiffs have proved their title. Since the defendants cannot claim title on the basis of a unmarked sale agreement, the defendants cannot queston the title of the plaintiff. Though the plaintiffs have not sought for a relief of declaration, the prayer of the plaintiffs are not affected. The question raised is decided in favour of the appellants.

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Issue No.(ii) :

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21.On the side of the appellants, it is stated that the judgment is perverse and it has to be set aside. In view of the decision taken in the previous issue, the judgment and decree of the appellate Court is to be set aside and the judgment and decree of the trial Court is to be confirmed.

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22.In the above circumstances, the second appeal is allowed and the judgment and decree of passed in A.S.No.85 of 2001 dated https://hcservices.ecourts.gov.in/hcservices/ 06.11.2008 on the file of the Principal Subordinate Judge,

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S.A.(MD)No.282 of 2009

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Trichirappalli is set aside and the judgment and decree passed in O.S.No.330 of 1995 dated 24.11.2000 on the file of the learned District Munsif, Musiri is confirmed. No Costs.

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Sd/-

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Assistant Registrar(CS-III)

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// True Copy //

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Mrn

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To 1.The Principal Subordinate Judge, Trichirappalli .

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2.The District Munsif, Musiri.

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Copy to The V.R.Section, Madurai Bench of Madras High Court, Madurai. (2 copies)

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+1 CC to M/s.M.SUBASH BABU, Advocate ( SR-95069[F] dated 31/10/2019 ) +1 CC to M/s.K.GOVINDARAJAN, Advocate ( SR-95297[F] dated 31/10/2019 )

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S.A.(MD)No.282 of 2009

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DKS(CO) TR(30.01.2020) 8P 7C

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https://hcservices.ecourts.gov.in/hcservices/

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Palanivel Pillai (Died) v. Ashok Kumar

Case brief

What is this about?

What did the court decide?

Palanivel Pillai (Died) v. Ashok Kumar

Case brief

What is this about?

What did the court decide?

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