Allowed

Muniammal v. Madhaiyan

Madras HC28 Sept 2022SA/296/2013

Case brief

AI extract

What is this about?

The High Court allowed this second appeal involving a dispute over ownership of a suit Well. Setting aside concurrent findings of courts below, the Court held the plaintiffs' vendor only owned half the share. A subsequent sale deed transferring the remaining half was invalid, resulting in the suit being dismissed.

What did the court decide?

Appeal allowed; findings of lower courts quashed; suit dismissed as devoid of merits.

Muniammal Vs Madhaiyan — Partition | Madras HC (2022)

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S.A No.296 of 2013

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 28.09.2022

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CORAM:

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THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

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S.A No.296 of 2013

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1.Muniammal 2.Kasinathan

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3.Chinnasamy

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4.Govindasamy

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... Appellants

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Vs.

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Madhaiyan

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Palaniammal

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Muthammal

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Poomani

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Salammal

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...Respondents

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PRAYER : This Second appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree of the learned subordinate Judge, Dharmapuri dated 31.07.2012 made in A.S No.10 of 2012 in cofirming the Judgment and decree of the learned District Munsif,

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https://www.mhc.tn.gov.in/judis

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S.A No.296 of 2013

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Pennagaram dated 29.11.2011 made in O.S No.19 of 2007.

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For Appellants : Mr.Arun Anbumani For Respondents : Mr.P.Valliappan

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JUDGMENT

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This second appeal has been filed against the Judgment

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and Decree of the learned Subordinate Judge, Dharmapuri dated 31.07.2012 made in A.S No.10 of 2012, in confirming the Judgment and decree of the learned District Munsif, Pennagaram dated 29.11.2011 made in O.S No.19 of 2007.

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The appellants herein are the defendants in suit O.S No.19

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of 2007 filed by the respondents herein/plaintiffs for the relief of declaration and other consequential relief with regard to suit Well in S No.694/6 Aanikallanur Village in Pennagaram Taluk, and the same was contested by the defendants by denying the plaintiffs' absolute right over the suit Well and also prayed they are having equal shares in the suit Well and considering the evidence of both sides, the trial Court concluded that suit Well is absolutely belongs to the plaintiff and decreed the suit as prayed for.

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Aggrieved by the same, the defendants preferred an appeal in A.S No.10 of 2012 on the file of the Subordinate Court, Dharmapuri, wherein, the learned lower appellate Judge independently analysed the evidence and documents concluded that the suit Well absolutely belongs to the plaintiff and dismissed the appeal, by confirming the Trial Court's findings.

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Challenging the same, the defendants in original suit,

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preferred this Second Appeal, contending that both the Court below failed to appreciate that the plaintiffs and their predecessors are having only half share in the suit Well, but without considering this, both the Courts below erroneously appreciated the sale deed/Ex.A2 filed by the plaintiffs and granted the relief in favour of the plaintiffs, which is unjust and misconception of law and facts. Hence, he prayed to set aside the judgment and decree of both the Court below and this Court admitted the appeal with the following substantial questions of law:

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i. Whether the Courts below were right in decreeing the suit by presumption and assumption of facts without appreciating the concrete documentary evidence establishes the enjoyment of the suit well by the

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herein?

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S.A No.296 of 2013

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appellants jointly with the respondents namely Ex.B3 patta for S.No.694/6 stand in the join name of the 1^st appellant and the father of the respondents herein?

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ii. Whether the Courts below were right in presuming that the respondents predecessor in title have right to sell the entire suit well to the father of the respondents herein under Ex.A1 and A2 based on Ex.A3, when the respondents being the plaintiffs have not established that their vendor had right to sell the other half share in the suit well under Ex.A2, more so, the vendors have only 1/4^th share in S.No.694, which they had already sold under Ex.A1 along with their half share in the suit well?

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5.The brief facts of the case are as follows:

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Originally, the suit was filed by one Jadaiyan @ Munusamy Gounder against Jadagan @ Mathaiyan, and during the pendency of the suit, both died, leaving behind their legal heirs. The suit property herein is the Well in S. No.694/6. According to the first plaintiff, he purchased the half share in the suit Well along with lands through Ex.A1/Sale deed dated 05.07.1975 and he purchased the remaining half share in the Well through Ex.A2/sale deed dated 16.11.1984, thereby he claimed absolute right over the entire suit Well, and by installing oil engine, he took water from the suit Well to cultivate his land. The Defendants who are having land on the Eastern side of the suit Well attempted to take water from the suit well, which, they are not entitled to. Hence, the suit is filed by the respondents herein/plaintiffs.

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6.The contention of the defendants before the lower Court is that the plaintiffs and their predecessor having only half share in the suit Well and the remaining half share belongs to the defendants' vendor and from him, he purchased the property through the sale deed Ex.B1 in the year 1985. Since the said well was jointly dug by both the vendors of plaintiffs and defendants, they also have equal half share in the Well. So, the defendants are also having half share in the Well and also contended that joint patta stands in the name of both the plaintiffs and the defendants vendor, but by suppressing these facts the plaintiffs approached the trial Court, and thereby, denied the plaintiffs entire right over the suit well prayed to dismiss the suit.

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7.For the sake of convenience, parties are, denoted as per the rank in the suit.

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The learned counsel for the appellants/defendants submitted that the plaintiffs' vendor had only half share in the suit Well and same was conveyed to the plaintiff through Ex.A1 sale deed in the year 1975. Thereafter, they have no right over the suit Well, but the plaintiffs' vendor proposed another document/Ex.B2 in the year 1984 and sold remaining half

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S.A No.296 of 2013

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share in the Well for which the plaintiffs' vendor is not entitled to. Further, Ex.A4/loan agreement of plaintiffs' predecessor-in-title had also not been properly appreciated, thereby, both the Courts below committed error in holding that the plaintiffs are having absolute right over the entire suit Well and the same is liable to be set aside and to support his contentions he relied on the recitals of the documents Ex. A1, A2 and A4 as well as evidence of P.W.1. Hence, for those reasons the defendants counsel prayed to allow the appeal.

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The learned counsel for the respondents/plaintiffs submitted

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that entire suit Well belongs to the predecessors-in-title of the first plaintiff and the first plaintiff purchased half share in the suit well along with land through Ex.A1 dated 05.07.1975 and purchased remaining half share in the Well through Ex.A2 dated 16.11.1984. Earlier, the suit Well property was situated in S.No.694, thereafter, it was sub-divided and situated in S.No. 694/6 though the said well was dug up in the year 1970. Furthermore, the defendants have not produced any document to show that they are having half share in the suit Well and hence both the Court below rightly appreciated these aspects, which needs no interference accordingly he prays to dismiss the appeal.

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S.A No.296 of 2013

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The point to be decided is whether in the suit well in S.No 694/6, the plaintiffs are having absolute right over the suit Well or both the plaintiffs and the defendants having equal half share in the well?

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The plaintiffs relied the earliest document of 1959 marked as Ex.A4/loan agreement to prove the factum of the predecessors-in-title of the first plaintiff. On a perusal of which, it is seen that it was executed by the plaintiffs' vendor in favour of the third party. From the recitals of Ex.A4, it is clear that, in the year 1959, there was no well in S.A No.694. The contention of the plaintiffs is that, thereafter, in the year 1970, plaintiffs' vendor dug up Well in the said property. Subsequently, in the year 1975, his vendor sold the suit property along with half share in the Well to the first plaintiff through Ex.A1. On a perusal of Ex.A1, it shows that the plaintiffs' vendor sold half share in the common suit Well to the plaintiff in the year 1975, but the contention of the defendants is that the defendants' vendor along with plaintiffs' vendor dug up the Well in S. No.694/6 in which, both of them are having equal half share and the plaintiffs' vendor cultivated his lands situated on the West of the suit Well and the defendants'

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vendor cultivated land on the Eastern side of the suit well. There is no

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dispute about the both parties land. But, denying the defendants' contention, the plaintiff's relied on the Ex.A2/sale deed and claimed that the remaining half share in the Well was also sold by their vendor in the year 1984 thereby they became absolute owners of the entire suit Well. On a perusal of Ex.A2/sale deed, the plaintiffs' vendor conveyed remaining half share in the Well to the plaintiffs in the suit Well. As rightly pointed out by the learned counsel for appellants/defendants if really the plaintiffs' vendor had right over the suit Well, he ought to have sold the entire share to the plaintiffd when Ex.A1 was executed. Considering that, if the plaintiffs' vendor had entire right in the well they ought to have transferred full right with regard to the Well to the plaintiffs. But they specifically mentioned as “ bghJtpy; ghjp” i.e one half share in Ex.A1 and there are no recitals in the Ex.A1 sale deed that they are retaining remaining half share in the suit Well. Therefore, it is clear that the plaintiffs' vendor had half share owned in the well and remaining half share belongs to some other party. Furthermore, there is no evidence on the side of the plaintiffs that their vendor owned and retained remaining lands in S.No.694/6. But, on cursory reading of Ex.A4 and Ex.A1 documents it reveals they had not retained any land in that S.No.

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Even assuming that the plaintiffs vendor are having remaining half share in the well, when they have no land in S. No.694/6 itself there is no necessity to keep half share in the Well. As the defendants' vendor had half share in the suit Well, he along with plaintiffs' vendor would have jointly dug up well in the year 1970 and they enjoyed equal half share by cultivating their lands situated adjoint to the suit Well. Hence, the same was sold by the defendants vendor through Ex.B1 in the year 1985 and from that onwards, he cultivated the land and drew water from the suit Well. In the meantime, the plaintiffs dug up another Well and they are not use the suit Well as they claim in the plaint that enmity with regard to cutting of the trees, he filed the vexatious suit. As per Ex.B1 Sale deed, the defendant vendor sold half share in the suit Well to the defendants with specific S.No.694/6.

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Admittedly, the survey number for the suit well is 694/6

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and the plaintiff purchased half share in the Well and for that evidence was adduced given by P.W.1 during the trial P.W.1 deposed as follows:

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“vdJ je;ij fpiuak; bgw;w epyk; jw;nghJ 694-2 vd;why; mjpy; epyg;gFjpkl;Lk;jhd; cs;sJ/ fpzW gFjpahdJ 694-6 rh;nt vz;zpy; cs;sJ/ 694-2 kw;Wk; 694-6 rh;nt vz; gFjpf;F

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fpHgwj;jpy; ahUila epyk; cs;sJ. Vdf;F bjhpahJ/ 694-2 brhj;jhdJ behd;o fHdpf;F fpHf;F nfhy;fhut; tPl;ow;F bjw;F gs;spTl;k kw;Wk; khhpKj;J epyj;jpw;F nkw;F. Vhpf;F tlf;F/ rh;nt vz; 694-2 kw;Wk; 694-6 gFjpf;F fpHgFjpapy; gpujpthjpf;s epyk; cs;sJ vd;why; rhpjhd;/ khupKj;J vd;gthpd; epyk;jhd; gpujpthjpfs; mDgtk; bra;J tUpfwhh;fs;/ gpujpthjpfs; mDgtk; bra;J tUk; epyj;jp;d r/vz;/ 694-7 vd;why; vdf;F bjhpahJ/// 5 brd;l; epyk; vdJ je;ij th/rh/M/1y; fpuak; bgw;whh;/ kPjp epyk; khhpag;gd; tifahhplk; 1978 y; vd; je;ij fpiuak; bgw;whh;/ //////////////// ;

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th/rh/M/1y; fpzw;wpy; bghJtpy; ghjp ghj;jpa;k vd;W fz;Ls;sJ vd;why; rhpjhd/; miw fpzW ghj;jpak; th/rh/M1/y; epWj;jp itj;J cs;shuh vd;why; mt;thW ,y;iy/////

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jh/th fpzw;wp;y fHf;F gf;fk; xUJisa[k;. nkw;Fgf;fk; xU Jisa[k; cs;sJ vd;W brhd;dhy;y rhpjhd;/ nkw;F gf ; fk; cs;s Jisapd; thhpahdJ v';fs; epyj;jpy; bjd;nkw;fhf bry;fpwJ/ fpHf;F gFjpapy; css Jid thhp fpHg[wkhf bry;fpwJ/ ehd; nkw;F gf;fk; thhp ; tHpahfjhd; jz;zPh; ,iwj;njhk; vd;why; fpHf;F vd;why; fpHf;F gf;fk; thhpapYk; jz;zPh; ,iwj;njhk;/ fpHg[wKs;s thhpapy; khhpKj;Jk; mjk; gpd;dl;L gpujpthjpfSk; mDgtk; bra;J te;jhh;f;s vd;W brhd;dhy; rhpay;y/ fpHg[wk; thhpapy; ehd; jz;zPh; ,iwg;gJ bgha; vd;W brhd;dhy; rhpay;y/ jhth fpzw;Wf;F bjd;gFjpapYk; v';fs; epyj;jpy; fpzW xd;W btl;o cs;nsd; vd;why; rhpjhd;///////

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fpH[g[wk; thhpapy; ehd; jz;zPh; ,iwg;gJ bgha; vd;W brhd;dhy; rhpay ; y/ jhth fpzw;Wf;F bjd;gFjpapy; v'fs; epyj;jpy; fpzW xd;W btl;o cs;nsd; vd;why; rhpjhd;/ jhth fpzw;wpy; cs;s nkw;Fgpwk; Jis rpjyk; mile;Js;sJ vd;why; rhpjhd;/ g[jpjhf btl;lg;gl;l fpzWf;F Mapy; vd;rpd; itj;Js;nsd; jz;zPh; gw;whFiw ,Ue;jjhy; g[jpjhf fpzW btl;ondd;////////////////////////////////////// jhth brhj;J gl;lh vz; 717. jhth brhj;jpw;fhd gl;lh vdJ je;ij bgahpYk;. 2 k; gpujpthjp Kdpak;khs; bgahpYk; cs;ssJ vd;why; jw;nghJ cs;ssJ/ ,jw;F Kd;g[ khhpKj;J bgahpy; Tl;lhf ,Ue;jJ/

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13.So, the plaintiffs admit that defendants owned land on the

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Eastern side of the Well and also admitted that in the suit Well on the west

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separate well was situated through which water drawn for cultivation.

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S.A No.296 of 2013

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P.W.1 also admitted that his vendor, had not retained any land in the said Survey Number and also not retained half share in the suit Well, when they conveyed the property to him in the year 1975. He also admitted that the land belongs to one Marimuthu. Admittedly, from Marimuthu the defendant purchased a portion of the property with half share in the Well.

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Hence from the above oral and documentary evidence it is clearly shown that the vendor of the plaintiffs as well as the vendor of the defendants dug up the Well, in which both of them have half share in the suit Well and they cultivated their lands adjoint to the suit Well. The plaintiffs also accept that the vendor of the plaintiffs had not retained half share in the suit Well But subsequently plaintiffs vendor created Ex.A2 sale deed, as if they have owned remaining half share as such, it is not valid one because, they had only half share in the suit common Well. Further more, suit Well is sub-divided as S.No. 694/6 and joint patta stands in the name of the both the plaintiffs and defendants and the same was proved by the defendants by producing patta, marked as Ex.B2. But the plaintiffs contend that it was obtained in the year 2007 and previously the patta was stood in the name of one Marimuthu the vendor of the defendant which is admitted by the plaintiffs. So as per Ex.B2/ patta for the suit well in S.No.694/6 stood

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in the name of both the plaintiffs and the defendants. But the plaintiffs' counsel submitted that, within four boundaries, purchased by the plaintiffs suit Well is in existence, in which, defendants have no right to claim any share.

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But, as discussed above, as per Ex.A1, plaintiffs purchased land in S.No. 694 along with half share in the Well and remaining half Well was classified as S.No. 694/6 which stands in the name of the plaintiffs and the defendants. The defendants also established that their vendor/ “Marimuthu vakaiara” had half share in the suit Well and cultivated land situated on east of the suit Well. More particularly, plaintiffs' side evidence clearly stated that plaintiffs' vendor have half share and owned the same through Ex.A1, moreover Ex.A2 is invalid for the reason that the vendor had not retained any half share in the suit Well. Hence, the conveyance of the remaining half share to the plaintiffs through Ex.A2 is invalid and un sustainable. Though both the Court below have given concurrent findings in favour of the plaintiffs, considering the evidence as well as documents adduced on the side of the defendants/appellants herein, it is seen that both

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the Courts below failed to appreciate the Ex.A1, A2 and A4 documents properly and erroneously concluded that plaintiffs are having absolute

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right in the suit Well. Hence the findings of the both Courts below are perverse in nature. Accordingly, questions of law are answered, thus second

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appeal is allowed and the suit is dismissed as devoid of merits. No costs.

.09.2022

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T.V.THAMILSELVI,J.

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Pbl

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The subordinate Judge, Dharmapuri.

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The District Munsif, Pennagaram.

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3.The Section Officer, VR Section. High Court, Madras.

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SA.No.296 of 2013

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28.09.2022

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Muniammal v. Madhaiyan

Case brief

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Muniammal v. Madhaiyan

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