High Court set aside concurrent findings by trial and first appellate courts in a suit for declaration and delivery of possession. The second appeal was allowed, dismissing the suit as no merit was found without proper evidence of the deed being acted upon.
Suit dismissed as on merits; concurrent findings of courts below set aside.
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. No.1633 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.1633 of 2008 and
M.P.No. 1 of 2008
Vs.
PRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, to set aside the judgment and decree passed in A.S.No.12 of 2003 on the file of Sub-Court, Maduranthakam dated 07.07.2008
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confirming the judgment and decree passed in O.S.No.131 of 1997 on the
file of District Munsif Court, Madhuranthakam, dated 15.09.2003.
For Appellants : Mr.J.R.K.Bhavanantham For Respondents : Mr.M.S.Subramanian for R1
R2 to R11 – given up JUDGMENT
The appellants herein are the defendants 1 and 5 in the suit in O.S. No. 131 of 1997 on the file of District Munsif, Madhuranthakam, which was
filed by the 1st respondent/plaintiff herein for the relief of declaration and delivery of possession against defendants 1 to 6.
the trial judge held that the plaintiff is entitled for the relief as prayed for. Accordingly, the suit was decreed. Against which, defendants 1 and 5 preferred the first appeal before the learned Subordinate Judge, 2/11
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Madhuranthakam in A.S.No. 12 of 2003, wherein the first appellate court independently analysed the facts and evidence on record and finally held that the plaintiff is entitled for the relief as prayed for by confirming the findings of trial judge. Aggrieved over the concurrent findings of both courts below, the defendants 1 and 5 preferred this Second Appeal.
The plaintiff Pavunambal claimed herself as an absolute owner of the
suit property stating that she got the same by way of registered settlement deed dated 19.05.1972 executed in her favour by Muniammal, wife of Solai
Chettiar, in which plaintiff's husband as well as husband of Muniammal also signed in the document. Thereafter, she was in possession of property as absolute owner and she enjoyed the same. Due to a family dispute between herself and her husband Krishtappa Chettiar, she left the matrimonial home before seven years of the suit. But, as a head of the family, her husband was
permitted to pay kist receipt and taking advantage of the kist receipt, he executed a sale deed as if he is owner of the property and created illegal and void documents in favour of defendants. Since the vendor has no title over
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the property, in the year of 1993 the plaintiff demanded the defendants to deliver possession of property, but they refused. However, during the year of 1995, her husband died and thereafter, she had insisted for delivery of possession, but the defendants refused to hand over possession. Hence, she filed a suit for declaration and delivery of possession.
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uninterrupted possession and enjoyment of property for more than a statutory period. Therefore, the alleged settlement deed claimed by the plaintiff executed on19.05.1972 would not bind him nor the plaintiff took possession of the property. Even assuming that there was a settlement, it was not acted upon. Moreover, on the date of execution of settlement deed, the vendor already sold the portion of the property to this defendant. Subsequently, the remaining extent was also purchased in Survey No.90/4, thereby denied the plaintiff's claim.
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finding that the Settlement deed Ex.A1 was not acted upon?
of entire extent of 73 cents in Survey No.70/4 shown as second item in the
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suit property. But, as rightly pointed out by the learned counsel for defendants, the plaintiff has not established that the said Muniammal is entitled to execute the settlement deed in her favour nor produced any title deed in respect of suit property. Even after the alleged settlement deed, her husband also executed a sale deed in favour of 1st defendant in respect of the remaining extent of 40 cents in Survey No.90/4. Therefore, she herself admitted that her husband also signed in the settlement deed, thereby contended that she is also owner of the property. But, there is no proof on the side of plaintiff to show that she possessed and enjoyed the property from the date of settlement of the year of 1972. There is no iota of revenue record produced on her side to prove that the Gift deed was acted upon and she was in possession of the property. Without any such material evidence, the trial judge erroneously held that Gift deed was acted upon, since one of the signatory is plaintiff's husband in the alleged gift deed, it must be acted upon, more precisely there must be some revenue records viz., Chitta and adangal to show that she is cultivating crops in the said lands. But, the plaintiff was not questioned for non-production of documents nor any independent witness to show that she is in possession and enjoyment of the property.
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Therefore, the findings given by the trial judge that mere execution of Gift deed is sufficient, as such is totally erroneous one and the same is liable to be set aside.
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erroneously granted the relief as such is liable to be set aside. Accordingly, the question of law 1 to 3 is answered and the Second Appeal is allowed. The concurrent findings of both courts below is set aside, thereby the suit is dismissed as no merit. No costs. Consequently, connected Miscellaneous Petition is closed.
10.01.2024
Index : Yes / No Internet : Yes / No Speaking/Non-speaking order rpp To
The Sub-Judge, Maduranthakam
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T.V.THAMILSELVI, J.
rpp
Pre-delivery judgment in S.A. No.1633 of 2008
10.01.2024
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3 issues framed by the court
Whether the courts below erred in holding the settlement deed was acted upon without revenue evidence of possession.
Whether undivided properties can be conveyed or settled through a transfer of common share.
Whether the lower courts erred in not appreciating defendants' evidence of purchase and possession prior to the settlement deed.
1 provisions across 1 enactments
Sappai
Sekar
Pavunambal
Jayachandra Reddiar
Vasu Chettiar
Kottapuli
T.V. Thamilselvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
