Sarojini Vs the Executive Engineer

Prayer : Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated made in A.S.No.40 of 2011 on the file of the I Additional Sub Court, Salem confirming the judgement and decree dated 20.12.2010 made in O.S.No.213 of 2008 on the file of the Principal District Munsif Court, Salem.

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For Appellant : M s.Zeenath Begam

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For Respondents : Mrs.J.Hemalatha Gajapathy for R1 and R2 Mr.P.Mathivanan for R3

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JUDGMENT

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This Second Appeal has been filed to set aside the judgment and

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decree dated made in A.S.No.40 of 2011 on the file of the I Additional Sub Court, Salem, confirming the judgement and decree dated 20.12.2010 made in O.S.No.213 of 2008 on the file of the Principal District Munsif Court, Salem

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Heard Ms.Zeenath Begam, learned counsel for appellant, Mrs.J.Hemalatha Gajapathy, learned counsel for respondents 1 and 2 and Mr.P.Mathivanan, learned counsel for 3 rd respondent and perused the materials available on record.

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The Appellant is the plaintiff, who filed a suit for declaration of

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title and permanent injunction in respect of the suit property. The Trial Court partly decreed the suit in respect of the relief of permanent injunction but dismissed the suit with regard to the relief of declaration. The appeal preferred by the plaintiff was also dismissed confirming the judgement of

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the Trial Court. Hence, the appellant / plaintiff has filed the second appeal

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before this Court.

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4. The short facts pleaded in the plaint are as follows:

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The 1 st defendant is the brother of the plaintiff in the suit. The suit

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property was originally owned by the grandmother of the plaintiff and the 1 st defendant viz., Muniammal by virtue of a sale deed dated 29.04.1929. Even while Muniammal was alive, the suit property was given to the plaintiff and the 1 st defendant in equal halves and they were in possession and enjoyment of their respective shares and the portion in which the plaintiff is in enjoyment is Door No.115 and the defendant's portion is Door No.114. As the 1 st defendant sent a legal notice alleging that the plaintiff is only a tenant and asked him to vacate the suit property, the first defendant has sent a reply notice. Thereafter also, the 1 st defendant started to disturb the possession of the plaintiff with the help of henchmen and hence, she filed a suit for declaration and permanent injunction.

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The suit was resisted by the 1 st defendant by filing the written

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- statement which is given in brief as under.

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It is true that the suit property originally belonged to the grandmother of the 1^st defendant and the plaintiff Muniammal through a registered sale deed dated 29.04.1929. On 30.09.1941, Muniammal and her son Arumuga Pandaram had mortgaged the property in favour of one Rukmaniammal and thereafter, executed another mortgage in favour of one Veeranachettiyar. On 21.01.1967, the 1^st defendant, his father and plaintiff had sold the entire suit property in favour of one Ramasamy Chettiyar and the said Ramasamy Chettiyar, in turn, sold the property on 02.05.1967 in favour of Krishnaraj Chettiyar. Later, the 1^st defendant's father had purchased half of the suit property from Krishnaraja Chettiyar on 09.09.1971. Thereafter, he mortgaged the said property in favour of one Maragathamani on 06.09.1973. As regards the condition of sale deed in favour of Maragathamani, dispute arose between himself and Maragathamani in getting back the suit property and he had filed a suit in O.S No.725 of 1976 claiming for the relief of declaration. After trial, the suit filed by Maragathamani was decreed and the suit filed by the 1^st

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defendant was dismissed. The 1^st defendant filed a first appeal against the above judgement and that was also dismissed. Once again, the plaintiff filed a suit against Maragathamani in O.S No.1084 of 1983 and the same was decreed on 25.10.1990. Maragathamani filed an appeal challenging the above decree and the same was allowed. The 1^st defendant filed a second appeal in S.A.No.1504 of 1991 and a compromise was arrived at between the 1^st defendant and Maragathamani, for which, the 1^st defendant paid a sum of Rs.1,75,000/- and thereafter, the suit was decreed in favour of the 1^st defendant. The plaintiff has got no connection with the suit property. The 1^st defendant permitted the plaintiff to reside in the suit property for a nominal rent and she defaulted in paying the rent regularly. Hence, the 1^st defendant filed a Rent Control petition to evict her from the suit property. Just to defeat the said process and delay the proceedings, the plaintiff has filed the suit.

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The written statement filed by the 1^st defendant was also adopted by the defendants 2 and 3 and they have stated that electricity connection for the suit property has been given in the name of the 1^st defendant after verifying the documents.

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On the basis of the pleadings, the Trial Court has framed the

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following issues :-

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1/ thjp jhthtpy; Fwpg;gplg;gl;Ls;sJnghy; thjpf;Fk;/ Kjy; gpujpthjpf;Fk;

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,ilna tha;bkhHp ghfk; Vw;gl;lJ vd;gJ cz;ikah>

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2/ jhth brhj;ij Kjy; gpujpthjp fpUc};duh$; brl;oahhplk; ,Ue;J 09/09/1971y; fpuak; bgw;w tifapy; mtUf;F ghj;jpag;gl;lJ vd;gJ cz;ikah>

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3/ thjp jhthtpy; nfhhpa[s;sgo tpsk;g[if ghpfhuj;ij milaj;jf;ftuh>

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4/ thjp jhthtpy; nfhhpa[s;sgo epue;ju cWj;Jf;fl;lis ghpfhuj;ij milaj;jf;ftuh>

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5/ thjp milaj;jf;f ,ju ghpfhu';fs; vd;d>

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8 . During the course of the trial, on the side of the plaintiff, two

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witnesses were examined as PW1 and PW2 and Ex.A1 to Ex.A18 were

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marked. On the side of the defendants, two witnesses were examined as DW1 and DW2 and Ex.D1 to D20 were marked.

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9. After completion of the trial and appreciating the evidence

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available on record, the Trial Court has partly decreed the suit in respect of

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the relief of injunction to safeguard the possession of plaintiff over the suit

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property until she was evicted under due process of law. The appeal preferred by the plaintiff was also dismissed by confirming the judgement of the Trial Court. Aggrieved by the same, the plaintiff has filed this Second Appeal.

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10. The Second Appeal was admitted on the following Substantial Questions of law :-

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1.Whether the Courts below have misinterpreted Ex.A18 Sale

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Deed?

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2.Whether the judgements of the Courts below are vitiated in that they are under a misconception that the suit property has been purchased by the first defendant?

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11. Ex.A18 dated 22.01.1967, was the sale deed executed by the plaintiff, 1 st defendant and their father in favour of one Ramasamy Chettiyar.

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12. The fact that the said Muniyammal is the grandmother of the

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plaintiff and the 1 st defendant is not in dispute. The grandmother of the plaintiff has purchased the suit property through a registered sale deed on 29.04.1929 and the extent purchased by her was 2240 Sq.ft. After the demise of Muniyammal, the plaintiff, the 1 st defendant and their father had sold the suit property in favour of one Ramasamy Chettiyar through a sale deed dated 22.05.1967. Ramasamy Chettiyar, in turn, sold the property to one Krishnaraja Chettiyar and from Krishnaraja Chettiyar, the 1 st defendant has purchased half of the suit property measuring 1120 sq.ft. on 01.09.1971. He executed a conditional sale deed in favour of one Maragathamani on 01.09.1973 by availing a loan from her. The said Maragathamani did not hand over the property back to the 1 st defendant by executing a reconveyance. Both the parties have filed suit against each other and the suit filed by Maragathamani was decreed. Thereafter also, the 1 st defendant filed another suit in O.S. No.1084 of 1983 on the file of Principal District Munsif Court, Salem, against Maragathamani for redemption of mortgage and the same was decreed. On the First Appeal preferred by Maragathamani, the decree was setaside. However, the 1 st defendant preferred a Second Appeal before the High Court of Madras in S.A. No.1504 of 1991 and the same

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ended in compromise and as per the terms of the compromise, the 1 st defendant paid a sum of Rs.1,75,000/- to Maragathamani and the appeal was decreed in his favour. The 1 st defendant has filed documents to show that second appeal was allowed in his favour and he got back the property from Maragathamani. The plaintiff's only contention is that even during the life time of her grandmother Muniyammal, the suit property was divided into two halves and was given to the plaintiff and the 1 st defendant equally. It is her contention that the portion in enjoyment of the 1 st defendant is Door No.115 and the portion of the plaintiff is Door No.114. Despite the fact that the suit property has been sold in favour of Ramasamy Chettiyar through Ex.A18 dated 22.01.1987, the plaintiff tries to make out a case by taking advantage of the door number given in the particulars of property of Ex.A18. In Ex.A18, though the extent has been rightly mentioned as 2240 sq.ft, the door number has been mentioned as 114. So, it is claimed by the plaintiff that what was sold in favour of Ramasamy Chettiyar was only that portion of Door No.114 and not Door No.115. The fact remains that the plaintiff was also a party to the above sale transaction and she has affixed her signature knowing pretty well that what was transacted in favour of Ramasamy Chettiyar was the whole of 2240 sq.ft house site along with the

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house therein. Having parted away the property by joining in the sale transaction as a vendor along with her father and the 1 st defendant, the plaintiff cannot be alleged to make out a different case as though a portion was retained by her. At no point of time, the plaintiff had filed a suit against Ramasamy Chettiyar by stating that her half share of the suit property has not been conveyed and that the extent of the property mentioned in Ex.A18 sale deed is not correct. Once the persons who held title over the suit property viz., the plaintiff, the 1 st defendant and their father had sold the property in favour of Ramasamy Chettiyar, the title passed on to the purchaser and thereafter, neither the plaintiff nor the other vendors can claim any right over the property subjected to sale.

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13. The 1 st defendant claims right over the suit property his half portion which he purchased subsequently from the purchaser of Ramasamy Chettiyar. Insofar as the 1 st defendant is concerned, the suit property measuring 1120 sq.ft. is his absolute property by way of purchase. He had also entered into some litigations with a person viz., Maragathamani in view of mortgage executed by him in her favour and the litigation went up to the stage of Second Appeal before the High Court and thereafter, got settled.

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As per the settlement, the 1 st defendant had paid Rs.1,75,000/- to Maragathamani and got the appeal allowed in his favour and thereafter, retained the title over the suit property. Hence, there is no interference by the Court in respect of Ex.A18 sale deed or with regard to portion purchased by the 1 st defendant.

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14. After having sold the whole of the property owned by their

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grandmother Muniyammal by the plaintiff, 1 st defendant and their father, the plaintiff could not have retained possession of the same. The 1 st defendant, considering the relationship between himself and the plaintiff had allowed the plaintiff to be a tenant for a nominal rent in the portion purchased by him. This was taken advantage of by the plaintiff as though she is residing there as the owner and tried to set up a false title. The Courts below have rightly appreciated the evidence available on record and have decreed the suit only in respect of the relief of permanent injunction, to safeguard the possession of the plaintiff until she is evicted under the due process of law. It appears that the 1 st defendant had initiated eviction proceedings by filing a petition on the file of the Rent Controller / II Additional District Munsif, Salem and got it allowed. Hence, the second appeal filed by the

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appellant/plaintiff lacks merits and both the substantial questions of Law are answered against the appellant.

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15. In the result, this Second Appeal is dismissed and the judgement and decree in A.S.No.40 of 2011 on the file of the I Additional Sub Court, Salem confirming the judgement in O.S.No.213 of 2008 dated 20.12.2010 on the file of the Principal District Munsif Court, Salem, are hereby confirmed. No costs.

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23.01.2025

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Speaking order Index : Yes Neutral Citation : Yes rka

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To

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1. I Additional Sub Court, Salem

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2. Principal District Munsif Court, Salem.

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