Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 261 (MAD)

P. Shanmugham v. Subramani & Another

2005-02-14

A.R.RAMALINGAM

body2005
Judgment :- The second appeal has been filed by one Shanmugham being the first plaintiff in O.S.No.940 of 1985 on the file of the District Munsif, Thiruchengode against the judgment and decree of the Sub Court, Sankagiri in A.S.No.78 of 1992 in and by which the said Sub Court has allowed the appeal and consequently dismissed the suit. 2. The said suit was filed by two plaintiffs viz., Shanmugham and Maharajan against their own elder brother Subramani for the reliefs of declaration and recovery of possession of the suit property with the specific description (vacant site with thatched house) with the following allegations. The plaintiff and defendants are brothers and sons of Kongayammal and Palani Naicker. The said Kongayammal got the suit property by virtue of a settlement deed dated 17.8.1970 executed by her father and she was in enjoyment of the suit property. Subsequently, on 10.2.1973, the said Kongayammal sold the suit properties in favour of her two sons viz., the plaintiffs and thereupon the plaintiffs alone are in possession and enjoyment of the suit property. On the date of the said sale deed, there was a thatched house and after the purchase, the plaintiff removed the thatched house and constructed a terraced house with the measurements of 28x18 feet at the cost of Rs.6000/= and at the same time, the plaintiffs put up a thatched shed in the adjacent vacant site of the terraced house for the purpose of Kongayammal's residence. The said Kongayammal was residing in the thatched shed till her death. The defendant being eldest son of Kongayammal never looked after the mother and he was residing at a different place. After the death of Kongayammal, the defendant demanded partition for which the plaintiffs refused. Subsequently, the defendant attempted to trespass upon the suit property and it was obstructed and then the plaintiff issued notice through advocate to the defendant for which the defendant also gave reply notice with false allegations as if the thatched shed belongs to the defendant and he alone is residing in the thatched shed and previously the thatched shed was owned by his father Palani Naicker and that inspite of the advise of the panchayatdars, the defendant did not hand over possession of the thatched shed and the surrounding vacant site. Therefore, the plaintiffs happened to file the suit for the relief of declaration in respect of the said thatched shed and surrounding vacant site and consequential recovery of possession. 3. The said suit was resisted by the defendant with the following allegations. It is not correct to state that the said Kongayamal was owning the entire suit property as per the settlement deed dated 17.8.1970 in her favour and it is also not correct to state that as per the sale deed dated 10.12.1973, the said Kongayammal sold the entire suit property in favour of the plaintiffs. In fact, the father of the defendant and plaintiffs viz., Palani Naicker was residing in a thatched house lying adjacent to the property of his wife Kongayammal and the said thatched house and adjacent vacant site was considered to be the joint family property and in that property the plaintiffs are having 2/3 share and the defendant is having 1/3 share and that the plaintiffs have put up terraced construction upon the 2/3 share. The alleged sale deed in favour of the plaintiff by Kongayammal dated 10.12.1973 is a document for name sake and nothing else and consequently, the suit is liable to be dismissed. 4. On trial and after examining the first plaintiff Shanmugham as PW1 and marking six documents as Exs.A1 to A6, the District Munsif, Thiruchengode has found and come to the conclusion that the plaintiffs are entitled for the reliefs of declaration and recovery of possession as claimed in the plaint and consequently, decreed the suit. 5. On appeal by the defendant Subramani in A.S.No.78 of 1992 on the file of the Sub Court, Sankagiri, the said Sub Court, after considering the Trial Court's judgment and decree as well as the oral and documentary evidence available, has found and come to the conclusion that the plaintiffs are not entitled to have the reliefs of declaration and recovery of possession and consequently allowed the appeal and dismissed the suit. 6. I have gone through the entire evidence available for the plaintiff in the light of the judgments of both the courts below and the arguments of the counsels appearing for either side. I am able to see the following salient features for apreciation and conclusion. There is no dispute between the parties that the plaintiff as well as defendants are sons of Kongayammal and Palani Naicker. I am able to see the following salient features for apreciation and conclusion. There is no dispute between the parties that the plaintiff as well as defendants are sons of Kongayammal and Palani Naicker. The claim of the plaintiffs is to the effect that the entire property covered by settlement deed Ex.A1 and sale deed viz., Ex.A2 belong to them. As per these two documents, the description of the property is shown as Therefore, the southern boundary of this property is shown as Palani Naicker's house. According to the defendant, the said Palani Naicker is father of himself and the plaintiffs and in that house only, the defendant is residing and in possession and enjoyment of the same and in that house and the adjacent vacant site, the defendant is having 1/3 share and the plaintiffs are having 2/3 shares. 7. On the other hand, it is not the stand of the plaintiffs that the said Palani Naicker shown as owner of the southern boundary under Exs.A1 and A2 is some other person and not their father and likewise, it is also not their stand that the measurement of 40-1/2 x 40-1/2 feet includes the said house of Palani Naicker. It is not the attempt of the plaintiffs also to have appointment of commissioner with the help of surveyor to identify and locate the suit property as if it forms part of the property covered by Exs.A1 and A2. In this context, it is to be noted that the father of Kongayammal viz., Palaniappan could not have executed a settlement deed in a way to include the house shown as southern boundary belonging to one Palani Naicker inasmuch as the document recites that the suit property belongs to the said Palaniappan ancestrally. It is also to be noted that the father of the plaintiffs and defendant viz., Palani Naicker was not owning any house and thereby the southern boundary shown as the house of Palani Naicker is one not concerned with the father of the plaintiffs and defendant. As rightly observed by the Sub Court in its judgment, according to the stand of the plaintiffs that there is panchayat board road lying south of the said Palani Naicker's house for number of years i.e., even before the execution of Exs.A1 and A2. As rightly observed by the Sub Court in its judgment, according to the stand of the plaintiffs that there is panchayat board road lying south of the said Palani Naicker's house for number of years i.e., even before the execution of Exs.A1 and A2. When that being so, there is no reason as to why the southern boundary in Exs.A1 and A2 has been shown as the house of Palani Naicker instead of panchayat board road. Therefore, it seems that the father of the plaintiffs and defendant viz., Palani Naicker was owning and residing in the house shown as southern boundary and the father in law of the said Palani Naicker and father of Kongayammal viz., Palaniappan seems to have settled a house site with the extent of 40-1/2 x 40-1/2 feet with thatched house that could be lying on the north of the said Palani Naicker's house in favour of Kongayammal and in turn the said Kongayammal has sold the same property to her younger sons viz., the plaintiffs after excluding her eldest son Subramani for the reasons best known to her. Now, an attempt seems to be made that the house of Palani Naicker shown as southern boundary itself forms part of the property conveyed under Exs.A1 and A2. 8. In this context, this claim of the plaintiffs cannot be logically and factually accepted as a true and probable one and instead, the property conveyed under Exs.A1 and A2 and the house of Palani Naicker shown as southern boundary are different from each other, but, at the same time, they are lying adjacent to one another. It is also the admitted stand of the defendant that the house shown as southern boundary belongs to the father of himself and plaintiffs and he is having only 1/3 share of the same and 2/3 share of the same belongs to the plaintiffs. This stand in the practical approach appears to be an acceptable and reasonable one. Therefore, the total dismissal of the suit without referring to 2/3 share of the plaintiffs, in my view, cannot be justified and correct and if at all, the Sub Judge should have decreed the suit to the extent of 2/3 share which is a lesser relief since the prayer is for entire property and of course dismissal of the suit in respect of recovery of possession in respect of entire property is justified. In this context, it is to be pointed out that it is not the claim and stand of the defendant that the plaintiffs are not entitled to any share or he alone is entitled to have the entire property. This aspect has not been taken note of by the Sub Court while disposing of the appeal. 9. Therefore, the judgment of the Sub Court, Sankagiri is liable to be set aside and decree has to be granted. In other words, the plaintiffs are entitled to get the declaration of their 2/3 share upon the suit property and they cannot get the relief of recovery of possession without actual partition between the plaintiffs and defendant. 10. Accordingly, the second appeal is allowed in part and the judgment of the Sub Court, Sankagiri is set aside so far it relates to the relief of declaration only and decree is granted so far it relates to the 2/3 share of the plaintiffs upon the suit property and the suit is dismissed so far it relates to the recovery of possession. No costs.