Two second appeals over title to land claimed by plaintiffs as joint family property allotted to them and perfected by possession, against defendants claiming under a 1934 settlement deed. The court found no perversity in the concurrent findings below and dismissed both appeals.
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2024:MHC:2050
SA.Nos.1091 & 1092 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.04.2024
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.Nos.1091 & 1092 of 2003
SA.No.1091/2003
... Appellants - Vs -
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code praying to set aside the judgment and decree of the Additional Subordinate Judge, Salem made in A.S.No.57/97 dated 21.10.1998 confirming the judgment and decree of the Additional District Munsif Court, Salem, made in O.S.No.221/1988 dated 27.09.1994
For Appellants : Mr.P.Jagadeesan For Respondents : Mr.T.T.Ravichandran
SA.Nos.1091 & 1092 of 2003
SA.No.1092/2003
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code praying to set aside the judgment and decree of the Additional Subordinate Judge, Salem made in A.S.No.82/97 dated 21.10.1998 confirming the judgment and decree of the Additional District Munsif Court, Salem, made in O.S.No.1142/1987 dated 27.09.1994
For Appellants : Mr.P.Jagadeesan For Respondents : Mr.T.T.Ravichandran *****
C O M M O N J U D G M E N T
SA.Nos.1091 & 1092 of 2003
SA.No.1091 of 2003 arising out of a suit in O.S.No.221 of 1988 and S.A.No.1092 of 2003 arising out of a suit in O.S.No.1142 of 1987. Both the suits have been tried together and a common order has been passed on 27.09.1994. In both the suits, the plaintiffs are one and the same. In respect of the defendants, in O.S.No.1142 of 1992, the 1st defendant is the brother of the plaintiff and the 2nd defendant is the subsequent purchaser of the suit property from the 1st defendant. In respect of O.S.No.221 of 1988, the defendants 1 and 2 are the brothers of the plaintiff.
respondents herein are the plaintiffs before the Trial Court.
to their litigative status in O.S.No.1142 of 1987 before the Trial Court.
as follows:-
The suit property is absolutely and exclusively belongs to the plaintiffs
SA.Nos.1091 & 1092 of 2003
by way of patta standing in their individual name. According to the plaintiffs, the suit property originally belongs to their father Vaiyapuri Nadar and even during his life time, the plaintiffs got divided and was allotted with the suit properties and have been in possession and enjoyment of the same. It is the submission of the plaintiffs that after the demise of their father, they have been jointly enjoying their father's share. It is the submission of the plaintiffs that, they have been in possession and enjoyment of the suit property for more than 30 years and have been paying Kists to the Government. It is also contended that all the Revenue records are stand in the name of the plaintiffs. They further submit that the plaintiff instituted a suit for declaration and for permanent injunction restraining the defendants not to alienate or encumber the property, when the first defendant proclaimed that he would sell the property. After filing of the above suit, in the year 1988, since the defendants attempted to interfere with the possession and enjoyment of the plaintiffs possession, another suit in O.S.No.221 of 1988 was filed seeking the relief of permanent injunction restraining the defendants not to interfere with the peaceful possession and enjoyment of the plaintiffs.
SA.Nos.1091 & 1092 of 2003
suit property was originally belongs to one Kumarasami Moopan and that he had executed a settlement deed dated 24.12.1934 in favour of Seerayee Ammal and Kandayee Ammal. Seerayee Ammal and Kandayee Ammal were given only life estate and after their demise, the properties devolved upon the defendants 1 and 2 as they were the descendants of Vaiyapuri through his first wife Kandayee Ammal. The plaintiffs are the step brothers to the defendants. It is the contention of the defendants that the suit properties belong to the first defendant Palanisami and his brother Ramasami, who is the 2nd defendant in O.S.No.221 of 1988. The first defendant Palanisami filed a suit for partition and in pursuance of the preliminary decree, he also obtained possession of the property, through a final decree proceedings. Therefore, it is the contention of the defendants that the plaintiffs have no right over the schedule mentioned property.
SA.Nos.1091 & 1092 of 2003
evidence, has arrived at a conclusion that the suit property was originally a joint family property and that the same was allotted to the plaintiffs. It was also found that, since the plaintiffs have been in possession and enjoyment over the suit property for more than a statutory period they have also perfected title by way of adverse possession and ultimately decreed both the suits. Aggrieved with the same, the defendants in both the suits preferred two separate Appeals in A.S.Nos.57 and 82 of 1997 and in both the Appeals, the First Appellate Court though has differed in respect of the finding regarding adverse possession, however concurred with the decree of the Trial Court and dismissed the appeal. Aggrieved with the same, the defendants in both the suits are before this Court by way of these two Second Appeals.
“1.Whether the lower court is right in holding that the settlement deeds Exs.B2 and B3 were not acted upon?
2. Whether the lower court is right in holding that the suit property is the ancestral property of the joint family of the plaintiffs without any evidence to prove the same?
3. Whether the plaintiffs entitled to claim title to the property when they have taken a conflicting plea that they have
SA.Nos.1091 & 1092 of 2003
prescribed title to the property by way of adverse possession?
4. In view of the specific admission by P.W.2 that the said Seerayee and Kandayee had taken possession of the suit property pursuant to the settlement deeds Exs.B2 and B3 whether the lower court is right in holding that the said settlement deeds were not acted upon?”
SA.Nos.1091 & 1092 of 2003
because the plaintiffs were joined in the Mortgage Deed, the same will not confer any benefit upon these plaintiffs to claim right over the suit property. It was also contended by the learned counsel for the appellants that the very decree obtained in O.S.No.592 of 1983 is binding upon these plaintiffs, however, both the Court below have not considered such a vital point and erroneously decreed the suit. Hence, prayed to interfere with the finding of both the Courts below.
SA.Nos.1091 & 1092 of 2003
Appeals.
SA.Nos.1091 & 1092 of 2003
“13. Though as rightly contended by learned counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, and reappreciation of evidence is not permissible (sic except) where the trial court and/or the first appellate court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law.
19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible . The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.”
(Emphasis supplied by this Court)
SA.Nos.1091 & 1092 of 2003
the Trial Court, which was confirmed by the last Court of finding qua the First Appellate Court on reappreciation of evidences, at the Second Appeal stage, while exercising jurisdiction under Section 100 of CPC, unless such finding is perverse and not supported by evidence, this Court cannot interfere with the same. It is equally pertinent to mention here that, since because there is a possibility of another different view cannot be a ground to upset the finding of the Trial Court, when it supported by evidence. With that background, let us consider the factual position.
This was the prime consideration of both the Courts below to arrive at a conclusion that the suit property has been dealt as a joint family property. https://www.mhc.tn.gov.in/judis 11/14
SA.Nos.1091 & 1092 of 2003
Further, found that, by virtue of the Revenue records, the alleged partition and allotment of the suit property in favour of the plaintiff was established. This Court does not find any perversity over the said finding as it supports through the documentary evidence-Ex.B1 and the Revenue records, which has been filed before this Court.
SA.Nos.1091 & 1092 of 2003
preponderance of probabilities, that too supported by the documentary evidences. Such possible and reasonable finding of the Court below cannot be interfered under Section 100 of CPC. Therefore, in view of the above discussion, this Court is of the view that the substantial question of law are liable to be answered in favour of the respondents.
order as to costs.
15.04.2024
kmi Index : yes Speaking Order
Neutral Citation Case: Yes
To
SA.Nos.1091 & 1092 of 2003
S.A.Nos.1091 & 1092 of 2003
C.KUMARAPPAN, J
kmi
15.04.2024
3 issues framed by the court
Whether the settlement deeds Exs.B2 and B3 were not acted upon.
Whether the suit property is the ancestral joint family property of the plaintiffs' family.
Whether concurrent findings that the property was joint family property allotted to plaintiffs can be disturbed under Section 100 CPC.
Colour shows how this judgement treated each authority
Hero Vinoth (Minor) Vs. SeshammalRelied on¶13
(2006) 5 SCC 545 · Who else cites this
1 provisions across 1 enactments
V.Palanisamy (Died)
P.Amirthalingam
Natesan
Vadivelu
Subramaniam
Sanmugham
C.Kumarappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
