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2008 DIGILAW 2671 (MAD)

Perumal & Others v. Ramasamy (Died) & Others

2008-07-28

R.BANUMATHI

body2008
Judgment :- 1. This Second Appeal is directed against the Judgment and decree in A.S. No.86/1989 reversing Judgment of the trial court and thereby decreeing Plaintiffs suit for declaration and permanent injunction in respect of S.No.349/1 to an extent of 2.40 acres. Unsuccessful Defendants are the Appellants. For convenience, parties are referred as per their array in the suit. 2. 1st Respondent/Plaintiff and the 2nd Appellant are the sons of the 1st Appellant. Case of the Plaintiff is that suit property was assigned to him under Ex.A1 "D" card Patta and Ex.A2 Patta was also issued in his favour. Plaintiff has been in continuous possession and enjoyment of the property. Alleging that the Defendants are trying to disturb his possession, Plaintiff has filed the suit for declaration and permanent injunction. 3. Denying exclusive possession of the Plaintiff in the suit property, Defendants have filed written statement contending that the suit property was in the possession of the 1st Defendant and "D" card was obtained in the name of Plaintiff for the benefit of family members. Suit property was orally partitioned by four sons and thereafter, all the four sons are in exclusive possession of their respective share and therefore, Plaintiff is not entitled to the relief of declaration and permanent injunction as sought for by him. 4. On the above pleadings, relevant Issues were framed. Upon consideration of evidence, trial court held that Plaintiff and family members enjoyed the suit property as joint family property. Pointing out the admission of P.W.1 that the suit property is divided into four parts, trial court accepted the plea of oral partition. Upon analysis of oral and documentary evidence, trial court also found that the 2nd Defendant and his son are residing in the house situated in the suit property. Trial court further held that the suit property cannot be held to be exclusive property of the Plaintiff and that conduct of parties would show, the property was thrown into common stock and enjoyed jointly. 5. Aggrieved, Plaintiff filed Appeal A.S.No.86/1989. Observing that Ex.A1-"D" card Patta was issued to the Plaintiff and that the revenue authorities had also issued Ex.A2 Patta, lower Appellate court reversed the findings of the trial court. Holding that the Defendants have not produced evidence showing that suit property was enjoyed as joint family property, lower Appellate court allowed the Appeal reversing the Judgment of the trial court. 6. Holding that the Defendants have not produced evidence showing that suit property was enjoyed as joint family property, lower Appellate court allowed the Appeal reversing the Judgment of the trial court. 6. Challenging the reversal finding of the lower Appellate court, unsuccessful Plaintiff has preferred Second Appeal. During pendency of Appeal, Plaintiff Ramasamy died and his legal representatives were brought on record as Appellants 2 to 6 in the Second Appeal. Second Appeal was admitted on the following substantial questions of law: 1) Whether the lower Appellate court is correct in holding that there was no partition among the brothers in the suit property? 2) Whether the lower Appellate court is correct in holding that the appellant is not entitled to the suit property on the face of the existence of the house and Ex.B2? 3) Is not the non-consideration of Ex.B2 is fatal to the issues in question particularly, when the Plaintiff and the 2nd Defendant have signed with reference to suit property? 7. Challenging the findings of the lower Appellate court, Mr.T.Sellapandian, learned counsel for the Appellants contended that lower Appellate court failed to consider innumerable documents filed by the Appellants evidencing partition and the lower Appellate court ignored the admission. Drawing attention of Court to the oral evidence, it was pointed out that oral evidence would clearly show that the 2nd Defendant and his sons are residing in the suit property and lower Appellate court was not right in brushing aside the oral evidence. It was submitted that findings of the lower Appellate court being perverse and is liable to be set aside. 8. Supporting the findings of the lower Appellate court, Mr.K.P.Jotheeswaran, learned counsel for the Respondents / deceased Plaintiff laid emphasis upon Exs.A1 "D" card assignment and Ex.A2 Patta in the name of Plaintiff. The learned counsel for the Appellants would further submit that S.No.349 – 2.40 acres was assigned in favour of Plaintiff and the lower Appellate court rightly held that other members of the family cannot claim any right or interest in the suit property. 9. There is no dispute that Ex.A1 – "D" card assignment dated 12.02.1959 was issued in the name of the Plaintiff. D.Ws.1 and 2 have stated that even prior to the assignment their father 1st Defendant was in enjoyment of the property for more than 50 years. 9. There is no dispute that Ex.A1 – "D" card assignment dated 12.02.1959 was issued in the name of the Plaintiff. D.Ws.1 and 2 have stated that even prior to the assignment their father 1st Defendant was in enjoyment of the property for more than 50 years. Whether Government grant enured to the grantee as separate property or as joint family property is to be determined with reference to the facts and surrounding circumstances. Assignment in favour of member of a joint family is prima facie his separate property. But it will become joint family property, if the same has been thrown into common stock and the property was enjoyed as joint family property by members of the family. 10. On the basis of Exs.A3 to A13 tax receipts, Exs.A15 to A18 adangals, lower Appellate court allowed the Appeal on the ground that there was no explanation by the Appellants as to why the land was assigned in the name of Plaintiff – a junior member of the family and how it could be taken as joint family property. Lower Appellate court over looked the spate of evidence adduced by the 2nd Defendant evidencing his enjoyment. 11. Evidence on record and conduct of parties would show that the suit property was enjoyed in common and was partitioned amongst the brothers. In his evidence, 2nd Defendant has stated that even prior to assignment their father was in enjoyment of the same for more than 50 years. In his evidence, 2nd Defendant / D.W.1 has further stated that the suit property was partitioned amongst brothers viz., Plaintiff, 2nd Defendant and two other brothers Veeran and Rangan. As rightly pointed out by the trial court, in his evidence P.W.1 himself has admitted that the suit property was divided into four parts. To substantiate the plea of partition, 2nd Defendant has produced Ex.B2-Muchalika dated 01.04.1976 wherein Plaintiff and 2nd Defendant agreed as to certain mode of enjoyment of their shares. Ex.B2 Muchalika records the mode of enjoyment of the Well dug in the suit property S.No.349/1A. Ex.B2 relates to the enjoyment of the property around the Well and the brothers having access to the Well in S.No.349/1A. Recitals in Ex.B2 are clear manifestation of division in status and the brothers having access to the Well. While so, lower Appellate court ignored the weight of Ex.B2. .12. Ex.B2 relates to the enjoyment of the property around the Well and the brothers having access to the Well in S.No.349/1A. Recitals in Ex.B2 are clear manifestation of division in status and the brothers having access to the Well. While so, lower Appellate court ignored the weight of Ex.B2. .12. The fact that there was oral partition and the suit property was divided amongst brothers is amply proved by the conduct of parties. In his evidence, P.W.1 has categorically admitted that he has purchased the share of his brother Veeran in the Well under release deed. 1st Defendant has purchased the share of another brother Rangan. It is relevant to note that P.W.1 has admitted that in one part Cotton crop was raised and the same was not raised by the Plaintiff. P.W.2 has stated that Cotton crop was not raised by the Plaintiff. In his cross examination, P.W.2 has admitted partition of properties amongst the brothers. In his evidence D.W.1 has stated the mode in which the property was allotted to the brothers at the time of partition. As is seen from Exs.B8 to B39, 2nd Defendant has paid the Kist for the property allotted to his share. Oral evidence and documents would support the 2nd Defendants version of partition of the suit property. 13. Existence of house in the suit property and the fact that 2nd Defendant and his son are residing in a portion of the house is yet another strong piece of evidence strengthening the defence plea. Exs.B3 to B7 are the house tax receipts and Exs.B31 to B33 are also the house tax receipts in the name of 2nd Defendants son. Defendants have also produced electricity bills Exs.B10 to B30 and Exs.B34 to B53. Plaintiff himself has admitted that 2nd Defendant is residing in a portion of the house. Upon analysis of evidence, trial court held that the suit property was partitioned amongst Plaintiff, 2nd Defendant and other two brothers Veeran and Rangan. 14. When findings of the trial court is based upon oral evidence. Lower Appellate court ought not to have ignored the weight of evidence of 2nd Defendant and D.W.2. When findings of the trial court is based upon oral evidence, lower Appellate court should not likely interfere with the findings recorded by the trial court on oral evidence. 14. When findings of the trial court is based upon oral evidence. Lower Appellate court ought not to have ignored the weight of evidence of 2nd Defendant and D.W.2. When findings of the trial court is based upon oral evidence, lower Appellate court should not likely interfere with the findings recorded by the trial court on oral evidence. Lower Appellate court should keep in view that trial court had an advantage and opportunity of seeing demeanour of witnesses and hence, the trial court conclusions should not normally be disturbed. No doubt, the Appellate court possesses the same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trail court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trail court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable. .15. In 1983 (1) SCR 851 (Madhusudan Das v. Narayanibai), the Honble Supreme Court has held as follows:- ."At this stage, it would be right to refer to the general principle that, in an Appeal against a Trial Court decree, when the Appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the Trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the Trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the Trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies...... The principle is one of practice and governs the weight to be given to a finding of fact by the Trial Court. The principle is one of practice and governs the weight to be given to a finding of fact by the Trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the finding of fact." 16. Referring to the above decision, in 2008 (3) CTC 528 (Jagdish Singh v. Madhuri Devi), the Honble Supreme Court has enunciated the following three requisites:- .(i) it applies its mind to reasons given by the Trial Court; .(ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the Trial Court. Keeping the above principles in mind, the lower Appellate court does not appear to have kept in view the well-settled principles while reversing Judgment of the trial court. Lower Appellate court reached the conclusions without recording reasons as to why D.Ws.1 and 2 are not credible witnesses. Lower Appellate court has not recorded finding as to the conclusions arrived at by the trial court are erroneous. The conclusions arrived at by the lower Appellate court cannot be endorsed. 17. Findings of the lower Appellate court is vitiated by non-consideration of oral evidence. Lower Appellate court did not keep in view the findings recorded by the trial court and the conclusions of the lower Appellate court cannot be sustained and are liable to be set aside. 18. In the result, this Second Appeal is allowed setting aside the Judgment of the lower Appellate court in A.S. No.86/1989 dated 18.06.1991 on the file of District Judge, Salem. Judgment of the trial court in O.S. No.430/1982 dated 19.07.1988 on the file of District Munsif, Athur is confirmed. In the circumstances of the case, there is no order as to costs.