Appellants appealed under CPC Section 100 challenging a decree for title and possession. The Madras High Court held re-agitating the validity of a sale deed after a final judgment in a prior partition suit was impermissible, dismissing the appeal.
Appeal dismissed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.(MD) No.779 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.07.2022
CORAM : JUSTICE N.SESHASAYEE
S.A.(MD) No.779 of 2013
1.Subbaiah (Died) ... 1st Appellant/Appellant/ 1st Defendant 2.Sellammal 3.M.Raja 4.P.Santha 5.Amutha 6.Moorthy 7.S.Bhavani 8.S.Dhanalakshmi 9.S.Parameshwari 10.Velmurugan ... Appellants 2 to 10/ LRs of the 1st Appellant [Appellants 2 to 10 are brought on record as the LRs of the deceased sole appellant vide Court order dated 29.06.2022 made in C.M.P.(MD) No.1280 of 2022 in S.A.(MD) No.779 of 2013]
Vs.
1.Mookaiah ... 1st Respondent/1st Respondent/ Plaintiff 2.Selvam 3.Chellammal @ Selvi ... Respondents 2 & 3/ Respondents 2 & 3/ Defendants 2 & 3 ___________Page 1 of 10
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
S.A.(MD) No.779 of 2013
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside the concurrent judgment and decree passed in A.S.No.198 of 2010, dated 20.12.2012 on the file of the First Additional Subordinate Court, Madurai filed against the judgment and decree passed in O.S.No.895 of 2004, dated 28.07.2010 on the file of the District Munsif Court, Madurai Taluk at Madurai.
For Appellants : Mr.V.Chandrasekar For R1 : Mr.K.Govindarajan for Mr.S.Alagusundar For R2 & R3 : No appearance
J U D G M E N T
The first defendant, who was successively unsuccessful both before the trial
Court as well as before the first appellate Court in defending the suit for declaration of title and for recovery of possession, has come forward with this second appeal. For narrative convenience, the parties are referred to by their rank before the trial Court.
2.1 The broad facts that provide the frame work for the dispute are either admitted, or at least remained indisputed, and they may be collated and stated:
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the plaintiff is stated to have opted not to prosecute his suit in O.S.No.1093 of 1993
3. The first defendant alone contested the suit and he in his written statement had pleaded that Ext.A4-sale deed is sham and nominal, an
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identical plea that he had already taken and lost in O.S.No.279 of 1992. There was also a plea of adverse possession.
4.1. The matter went to trial and before the trial Court, and during trial the plaintiff examined himself as P.W.1 and also examined two other witnesses as P.W.2 and P.W.3. Besides, he had produced Ext.A1 to Ext.A10 of them, the relevant documents have already been introduced. For the defendants, the first defendant examined himself as D.W.1 and he had also examined a certain Muthu as D.W.2. He has produced Ext.B1 to Ext.B38.
4.2. On appreciating the evidence, the trial Court rested its reasoning on Ext.A10-judgment in O.S.No.279 of 1992 wherein, the trial Court has held that Ext.A4-sale deed in favour of the plaintiff was valid. This decree of the trial Court was unsuccessfully challenged by the first defendant in A.S.No. 198 of 2010, which concurred with the findings of the trial Court. Challenging the same, the first defendant has preferred this second appeal.
5. The appeal was admitted for considering the following substantial
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questions of law:
“i. Whether the courts below are right in passing a decree in favour of the first respondent, when the sale deed executed by the father of the appellant was only a sham and a nominal document in view of the partition entered into between the father of the appellant and the appellant, the second respondent which clearly establishes the fact that the appreciation of evidence is not only perverse but also depicts the non-application of mind? and
ii. Whether the courts below are right in passing a decree in favour of the first respondent that too for a relief of declaration and the recovery of possession, when the sale deed relied upon by the first respondent is not a valid one in the eyes of law?”
6. Heard both sides. The learned counsel for the appellants made a valiant endeavour to convince this Court with his plea that Ext.A4-sale deed is sham and nominal is still available to him, notwithstanding the judgment in O.S.No.279 of 1992. That suit was laid for partition and as already
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outlined, the validity of Ext.A4-sale deed was pointedly in question in that suit. Indeed, the present Ext.A4-sale deed was marked as Ext.A10 = Ext.B5 in O.S.No.279 of 1992 and the trial Court had raised a pointed additional issue for discussion on this. After evaluating the evidence, the trial Court had held that Ext.A4 is valid. This judgment having become final, it literally forecloses every option for the first defendant to re-agitate a settled issue.
7. What is to be decided now? Nothing. In the final analysis, this Court finds that both the substantial questions of law as raised fail and consequently, the appeal is liable to be dismissed. In conclusion, the second appeal is dismissed. No costs.
05.07.2022
Internet:Yes Index:Yes/No abr
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S.A.(MD) No.779 of 2013
To
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N.SESHASAYEE, J.
abr
S.A.(MD) No.779 of 2013
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2 issues framed by the court
Whether courts below were right in passing a decree favoring the respondent as the sale deed was sham/nominal considering the prior partition?
Whether courts below were right in passing a decree for declaration and recovery of possession when the relied-upon sale deed was invalid?
1 provisions across 1 enactments
Subbaiah (Died) LRs
Mookaiah
Selvam
Chellammal
N.Seshasayee
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
