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2008 DIGILAW 3277 (MAD)

Subramani v. Unnamalai Ammal

2008-09-06

V.PERIYA KARUPPIAH

body2008
Judgment : 1. This second appeal is filed against the judgment and decree dated 31.03.2006 made in A.S.No.16 of 2004 on the file of the learned District Judge (Training), Thiruvannamalai (Additional Subordinate Judge-II) modifying the judgment and decree dated 211. 2003 made in O.S.No.239 of 1997 on the file of the District Munsif, Chengam. The plaintiff who succeeded partly in the first appeal is the Appellant. 2. Heard Mr. R. Gowthama Narayanan, learned counsel for the Appellant and Mr. R. Rajaram, learned counsel for the respondents. 3. The case of the appellant/plaintiff is that the suit property in S.No.25/2B was purchased by him from one Vediappan and also from one Kasi and his sons and daughters respectively through sale deeds dated 08.05.1981 and 23.04.1983 and he was in possession and enjoyment of the entire property as true owner; that patta has also been changed in the year 1987 and patta No.186 for the S.No.25/2B measuring an extent of 2.00 Acres stands in his name; that the defendants out of jealousy had interfered and are threatening to interfere with the possession of the suit property; and that therefore, he had to file the suit seeking declaration of title and permanent injunction. 4. The defendants filed their written statement contending that the suit properties are subject mater in a partition suit filed by the first defendant and her minor son namely Damodaran in O.S.No.73 of 1979 on the file of the Sub Court, Thiruvannamalai and that originally the suit was filed by them "in forma pauperis" in O.P.No.68 of 1978 on 11.07.1978 and the same was subsequently numbered as original suit; that the suit was filed by the first respondent seeking partition of 3/8th share and also for maintenance against her husband, Annamalai Gounder and the father-in-law, Singara Gounder. It is further contended that preliminary decree was passed for partition and final decree was also passed and she took the delivery of possession of the property on 16.04.1988; and therefore the claim of the plaintiff that he has purchased the property through sale deeds in the year 1981 and 1983 are affected by "lis pendens". 5. It is further contended that preliminary decree was passed for partition and final decree was also passed and she took the delivery of possession of the property on 16.04.1988; and therefore the claim of the plaintiff that he has purchased the property through sale deeds in the year 1981 and 1983 are affected by "lis pendens". 5. The trial Court after conducting full fledged trial had appraised the oral and documentary evidence and had come to the conclusion that the suit properties in S.No.25/2B measuring an extent of 2.00 Acre said to have been purchased by the plaintiff through sale deeds dated 08.05.1981 from Vediappan, who had earlier purchased the entire property from Singara Gounder on 01.07.1980 and under the sale deed dated 23.04.1983 from Kasi and his minor children, which also sold by the said Singara Gounder through sale deed dated 01.07.1980 to Vediappan and that thereafter the said Vediappan sold the same to the said Kasi on 08.05.1981. Thus, the sales are affected by doctrine of "lis pendens" since all those sales have been effected after institution of the suit for partition in the year 1979 which was originally instituted in the form of Indigent Original Petition seeking leave to sue "in forma pauperis" in the year 1978. Consequently, the trial Court had dismissed the suit. 6. On appeal by the plaintiff before the first appellate Court, the first appellate Court had come to the conclusion that the doctrine of lis pendens is taking role in invaliding the sales had by the plaintiffs as mentioned in the trial Courts judgment, but at the same time, had exempted 35 cents from the suit schedule property, as the suit property was not allotted to the defendants in the final decree proceedings. The first appellate Court had also confirmed the judgment of the trial Court in respect of the remaining Ac.1.65 cents and dismissed the suit, except to the extent of 35 cents. 7. The present second appeal has been preferred by the plaintiff against the judgment of the first appellate Court in and which he was partly favoured. 8. The first appellate Court had also confirmed the judgment of the trial Court in respect of the remaining Ac.1.65 cents and dismissed the suit, except to the extent of 35 cents. 7. The present second appeal has been preferred by the plaintiff against the judgment of the first appellate Court in and which he was partly favoured. 8. The learned counsel for the Appellate would submit that the plaintiff had purchased southern portion of 1.00 Acre in the suit property from one Vediappan who had originally purchased the same from one Singara Gounder on 01.07.1980 and the remaining northern portion was purchased by the plaintiff from one Kasi and his minor Children on 23.04.1983, which was the property purchased by the said Kasi from the above said Vediappan, when he had purchased the southern portion of 1 Acre. The plaintiff and his vendor Kasi and also their vendor Vediappan were not aware of the pendency of a partition suit against Singara Gounder and his son Annamalai Gounder and they ought to have been considered to be the bonafide purchaser for value without notice. Therefore, he would submit that the trial Court as well as the first appellate Court had not passed by the judgment in accordance with law and therefore the second appeal has to be admitted and justice may be rendered. 9. The learned counsel for the respondent would submit that the plaintiff did not aver in the plaint that he was a bonafide purchaser for value without notice and if really he was the bonafide purchaser, he ought to have enquired the defendants and other relatives at the time of purchase of the suit property, but actually he colluded with the seller and Singara Gounder, so as to create encumbrance over the suit property and defeat the legitimate right of the defendants. He would further submit that the trial Court as well as the first appellate court had rightly come to the conclusion that the suit filed by the plaintiff is affected by doctrine of "lis pendens" and on sound principles of law and the first appellate court had also exempted 35 cents in the suit property as they were not allotted to the defendants in the earlier final decree proceedings and there cannot be any grievance for the appellant thereafter. Since both the Courts below have concurrently found that the suit is affected by doctrine of "lis pendens", there is no question of law involving to be agitated before this Court. Therefore the second appeal is ought not to be admitted. In support of his contention, he would place reliance on the judgment reported in AIR 1973 Supreme Court 569 (Jayaram Mudaliar Vs. Ayyaswami And Others). 10. This Court anxiously considered the submissions made on either side and also perused the judgments of both the Courts below. From the careful perusal of the records, this court understands that the suit property was originally belonged to one Singaram Gounder and Annamalai Gounder and the said Singaram Gounder had sold 2.00 Acres of the property in S.No. 25/2 to one Vediappan on 01.07.1980 and the said Vediappan in turn sold southern portion of 1 Acre of land out of 2.00 Acre to one Kasi and the remaining southern portion of 1.00 Acre of land was sold to the plaintiff respectively on 08.05.1981 through two sales deeds and subsequently the said Kasi and his minor children again sold the northern portion of 1 Acre of land to the plaintiff himself on 23.05.1983 and thus the plaintiff is claiming 2.00 Acre in S.No.25/B as his absolute property. According to the respondents/defendants, the suit in O.S.73 of 1979 was filed in the year 1979 against Singaram Gounder and Annamalai Gounder by the wife of Annamalai Gounder for partition and maintenance and therefore the said Singaram had no right to execute sale deed in respect of the suit property in favour of Vediappan, who is the purchaser from Singaram Gounder and subsequently the vendor to the plaintiff and one Kasi. Both the Courts below had after appraising the documentary and oral evidence had come to the conclusion that the sale deeds infavour of the plaintiff are affected by doctrine of "lis pendens". 11. Both the Courts below had after appraising the documentary and oral evidence had come to the conclusion that the sale deeds infavour of the plaintiff are affected by doctrine of "lis pendens". 11. In AIR 1973 Supreme Court 569 (Jayaram Mudaliar V. Ayyaswami And Others) cited by the learned counsel for the respondent, the Supreme Court has held thus:- "A private sale of joint family properties executed by the Karta not on behalf of the whole family but in his individual capacity to discharge previous debts and liabilities, during the pendency of a suit for partition brought by a member of the family would not be binding on the family and would be hit by Section 52, T.P. Act. The fact that some of the properties under the sale deed were under attachment before judgment in the purchasers mortgage suit or that a part of the consideration for the sale was for the discharge of the mortgage decree could not remove it from the ambit of lis pendens so long as the sale was not in execution of the mortgage decree." 12. Similarly, in AIR 2003 SC 267 (Venkatrao Anantdeo Joshi And Others Vs. Sau. Malatibai And Others), the Supreme Court has held thus:- "8) ........ With regard to lis pendens, learned counsel for the appellants rightly referred to the judgment and decree passed in Regular Civil Suit No. 51 of 1973 and contended that presuming that the so-called batai patra was at all executed by Anantdeo, it was not open to him to execute the same pending disposal of the suit filed by appellant No.1 for partition of the property. ....... 9) Further, in a suit for partition, where preliminary decree is passed, at the time of passing of the final decree, it was not open to the respondent to raise the contention that he was a tenant of the suit premises. ..........." 13. On a careful understanding of the aforesaid decision of the Apex Court, it is needless to say that any transaction had by the parties to the suit during the pendency of the suit much less a suit for partition , as in this case , would be affected by doctrine of "lis pendens". ..........." 13. On a careful understanding of the aforesaid decision of the Apex Court, it is needless to say that any transaction had by the parties to the suit during the pendency of the suit much less a suit for partition , as in this case , would be affected by doctrine of "lis pendens". Both the Court below had analyzed the factual aspects and had rightly come to the conclusion that the sales in favour of the plaintiff by one Kasi and is minor son as well by one Vediappan and the tile of Vediappan as derived by him from the sale executed by Singaram Gounder were all after institution of the partition suit and were hit by "lis pendens" and the same decision as to the facts cannot be again gone into in the second appeal. There is no other question of law spoken to on the side of the appellant/plaintiff warranting admission of second appeal for consideration. 14. In the light of the discussions made above, the second appeal deserves no admission for want of question of law. Accordingly, the second appeal is dismissed and the decree and judgment of the first appellate Court stands confirmed. Consequently, connected Miscellaneous Petition is also dismissed. No cost.