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2008 DIGILAW 4107 (MAD)

Karuppiah & Another v. Chandran

2008-11-10

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- No appearance for the appellants. This appeal has been directed against the decree and Judgment in A.S.No.193 of 1996 on the file fo the Subordinate Judge, Virudhunagar, which had arisen out of the decree and Judgment in O.S.No.92 of 1993 on the file of the District Munsif, Arupukottai. The unsuccessful plaintiffs before the Courts below are the appellants herein. 2. The short facts on the plaint sans irrelevant particulars are as follows;- The plaint schedule property was purchased by the plaintiffs under a sale deed dated 07.04.1992. The predecessors in title in respect of the plaint schedule property had purchased the same under a sale deed dated 07.01.1926. Patta No.188 was granted in favour of the plaintiffs and before them it stood in the name of Swamitha Pillai, the vendor of the plaintiffs. After the sale deed dated 07.04.1992, the plaintiffs are in possession and enjoyment of the plaint schedule property paying land tax to the Government. The plaintiffs have also prescribed title to the suit property by their long uninterrupted continuous possession. The defendant approached the vendor of the plaintiffs with an aim to purchase the plaint schedule property. But before that, the plaintiffs have purchased the same from Swaminatha Pillai, the vendor under the sale deed dated 07.04.1992 and obtained possession. With the help of man power and money power the defendant is now trying to interfere with the possession of the plaint schedule property, which is in possession and enjoyment of the plaintiffs. Hence, the suit for declaration of title and for consequential injunction. 3. The defendant in his written statement would contend that the alleged sale deed in favour of the plaintiffs has been created for the purpose of this case. Under the said sale deed the plaintiffs have no right or title in respect of the plaint schedule property. The defendant has purchased the suit property on 06.03.1991 from the real owner. Under sale deed dated 07.04.1992 no title was passed from the vendor Swaminatha Pillai S/o.Saravana Perumal Pillai in favour of the plaintiffs. Under the said sale deed dated 4. 1992, the plaintiff cannot claim any right or title in respect of the plaint schedule property. Under the sale deed dated 07.01.1926 in favour of Swaminatha Pillai, he has not derived any right or title in respect of the plaint schedule property. Under the said sale deed dated 4. 1992, the plaintiff cannot claim any right or title in respect of the plaint schedule property. Under the sale deed dated 07.01.1926 in favour of Swaminatha Pillai, he has not derived any right or title in respect of the plaint schedule property. The said Swaminatha Pillai had never in possession and enjoyment of the plaint schedule property and under the sale deed dated 07.01.1926 the plaint schedule property was not purchased by Swaminatha Pillai. Under the oral partition Swaminatha Pillai and his six sons have partitioned their family properties and under the said partition, the plaint schedule property was allotted to Shanmugam and Nagalingam, the two sons of Swaminatha Pillai. From the said Shanmugam and Nagalaingam, the defendant had purchased the suit property on 06.04.1992 for the valuable sale consideration and from the said date of sale the defendant is in possession and enjoyment of the plaint schedule property. The plaint schedule property was comprised in Patta No.32. The plaintiffs have illegally included the plaint schedule property in Patta No.188 at the time of UDR proceedings. Swaminatha Pillai never paid any land tax to the plaint schedule property. The defendant is in possession and enjoyment of the plaint schedule property and he is paying land tax to the same. This defendant is in possession and enjoyment of the plaint schedule property in continuous uninterrupted possession for the past 25 years and thus has prescribed title to the suit property by way of adverse possession. On 10.05.1989 the said Swaminatha Pillai had also executed a mortgage deed in respect of the plaint schedule property for a sum of Rs.5,000/-and handed over the possession to the defendant on the same date. Thereafter, on 10.07.1990, he had also received another sum of Rs.5,000/-from the defendant and executed a promissory note for the interest due under the said mortgage deed and in lieu of the interest the defendant was permitted to be in possession and enjoyment of the plaint schedule property. There is also an endorsement in the promissory note to that effect. The plaintiffs are not entitled to any relief under the plaint. Hence, the suit is liable to be dismissed with costs. 4. Before the trial Court, the first plaintiff has examined himself as P.W.1 besides examining P.W.2 & P.W.3. Ex.A.1 to Ex.A.18 were marked on the side of the plaintiffs. The plaintiffs are not entitled to any relief under the plaint. Hence, the suit is liable to be dismissed with costs. 4. Before the trial Court, the first plaintiff has examined himself as P.W.1 besides examining P.W.2 & P.W.3. Ex.A.1 to Ex.A.18 were marked on the side of the plaintiffs. On the side of the defendant, the defendant was examined as D.W.1 and Ex.B.1 to Ex.B.8 were marked. After scanning the evidence both oral and documentary the learned trial Judge, after coming to the conclusion that the relief asked for in the plaint cannot be granted, had dismissed the suit without costs. Aggrieved by the findings of the learned trial Judge, the plaintiffs have preferred an appeal in A.S.No.193 of 1996 before the Subordinate Judge, Virudhunagar. The learned first appellate Judge after giving due deliberations to the submissions made by the learned counsel on both sides, finding no material to interfere with the decree and Judgment of the learned trial Judge, has dismissed the appeal, thereby confirmed the decree and Judgment of the learned District Munsif, Aruppukottai in O.S.No.92 of 1993, which necessitated the plaintiffs to approach this Court by way of this second appeal. 5. The following Substantial Questions of Law are involved in this Second Appeal? 1) Whether the Courts below are right in concluding that the suit property is the joint family property and Swaminatha Pillai is the Kartha of the family? 2) Whether there is presumption under law that the property is a joint family property for the reason that stands in the name of the father? 3) Whether the Courts below are not right in considering that Item No.11 in the plaint schedule is the trust property in view of the recitals in Ex.B.8? The Substantial Question of Law No.3 has been recast today ie., 11. 2008 as follows:- 3) Whether the Courts below are not right in considering that the plaint schedule property as the trust property in view of the recitals in Ex.B.8 (item No.11)? 6. The Substantial Question of Law No.3 has been recast today ie., 11. 2008 as follows:- 3) Whether the Courts below are not right in considering that the plaint schedule property as the trust property in view of the recitals in Ex.B.8 (item No.11)? 6. Substantial Question of Law No.3:-The plaint schedule property is as follows:- “1 acre 75 cents – 0.70.0 hectares in S.No.9/1A situate West of S.No.9/1 measuring 3 acres 8 cents, Dhamodarapuram Village, Thiruchuli, Kamarajar District (Srivilliputhur District).” The four boundaries given in the plaint is West of the property the remaining property in the hands of the vendor of the plaint viz., Swaminatha Pillai, East of the punja land belonging to Pooranam, D/o.Pachayai Ammal, Punja land of Gettiyammal and Ponnu and others, North of Elanoorani boundary and South of punja land belonging to the vendor Swaminatha Pillai, Vellaichamy Devar and Muthaiya. The learned counsel appearing for the respondent/defendant would contend that the plaint schedule property was not purchased by the plaintiffs under Ex.A.2-sale deed from their vendor Swaminatha Pillai. Ex.A.2 is the sale deed dated 07.04.1992 in favour of the first plaintiff Karuppiah and his son Chidambaram, the plaintiffs in O.S.NO.156 of 1992. The said sale deed was executed by Swaminatha Pillai, S/o.Saravana Perumal Pillai. The property scheduled to Ex.A.2 is as follows:- “1 acres 75 cents – 0.70.0 hectares in S.No.9/1 new UDR S.No.9/1A (out of 3 acres 8 cents in Old S.No.9/1) of Dhamodarapuram Village, Thiruchuli, Sub-Registrar District, Kamarajar District (Srivilliputhur District) comprised in patta No.188.” The four boundaries given under Ex.A.2 is West of the punja land belonging to the trustees of Shanmuga Vinayagar Temple viz., Swaminatha Pillai, East of the punja land belonging to the Pooranam, D/o.Pachai Ammal, Ponnu, Pottiyammal and others, North of S.No.97 Elanoorani boundary and South of the punja land belonging to Muthaiya, S/o.Karuppanna Devar, and Vellaichamy S/o.Kannayeram Devar and punja land of Swaminatha Pillai, the life trustee of Shanmuga Vinayager Temple trust punja, measuring 1 acre 75 cents inclusive of 1/4th right in the well in S.No.9/1. The plaintiffs traced their predecessors title under Ex.A.1. According to the plaintiffs, their vendor under Ex.A.2 viz., Swaminatha Pillai, S/o.Saravana Perumal Pillai had purchased the property sold under Ex.A.2 in favour of the plaintiffs under Ex.A.1 dated 24.03.1926. The plaintiffs traced their predecessors title under Ex.A.1. According to the plaintiffs, their vendor under Ex.A.2 viz., Swaminatha Pillai, S/o.Saravana Perumal Pillai had purchased the property sold under Ex.A.2 in favour of the plaintiffs under Ex.A.1 dated 24.03.1926. As per the recitals in Ex.A.2, the vendor under Ex.A.1 had purchased the property scheduled to Ex.A.1 under a Court auction in O.S.No.239 of 1924, under which a sale certificate was issued on 22. 1995 and a delivery certificate was issued on 14.06.1925. The property scheduled to Ex.A.1 runs as follows:- East of Karrupanna Servais land North of the ancestral property of the vendee under Ex.A.1 West of punja land belonging to Subbha Naicker South of punja land belonging to Azhagiri Naicker comprised in pymash No.24 measuring 3 acres 65 cents. The learned counsel appearing for the respondent would state that the property comprised in pymash No.24 measuring 3 acres 65 cents was sold under Ex.A.1 in favour of Swaminatha Pillai, S/o.Saravana Perumal Pillai and that as per Ex.A.2, the plaintiffs have purchased 1 acre 75 cents in UDR S.No.9/1A, and would further contend that pymash No.24 relates to S.No.10/1 and S.No.5/1 and not to UDR S.No.9/1A. In support of this contention the learned counsel for the respondent would focus the attention of this Court to Ex.B.6-Correlation Deed, which shows that pymash No.24 correlates to S.No.5/1 and S.No.10/1 and not to UDR S.No.9/1A, under which 1 acre 75 cents was purchased under Ex.A.2 by the plaintiffs, do not come within pymash No.24. So, it goes without saying that property purchased under Ex.A.1 by Swaminatha Pillai, S/o.Saravana Perumal Pillai, vendor under Ex.A.2 was not conveyed to the plaintiffs under Ex.A.2. The learned counsel for the respondent would further contend that under Ex.B.5, he has proved before the trial Court that UDR S.No.9/1A correlates pymash Nos.47/1, 47/2, 47/3 and 47/4 and not to pymash No.24, under which Swaminatha Pillai, S/o.Saravana Perumal Pillai, had purchased the properties under Ex.A.1 measuring 3 acres 65 cents. Reliance has been made under Ex.A.8 by the learned counsel appearing for the respondent to show that Swaminatha Pillai, S/o.Saravana Perumal Pillai had already conveyed the property purchased by him under Ex.A.1 ie., the property comprised in pymash No.24 to a Trust and Item No.11 to Ex.B.8 is the property purchased by Swaminatha Pillai under Ex.A.1. Ex.B.8 is dated 16.03.1930, whereas Ex.A.2 is dated 07.04.1992. Ex.B.8 is dated 16.03.1930, whereas Ex.A.2 is dated 07.04.1992. So, on the date of execution of Ex.A.2, Swaminatha Pillai had nothing to be conveyed in respect of the property comprised in pymash No.24 since he had already executed Ex.B.8 in respect of the suit property in favour of the Trustees viz., minor Shanmugan, minor Natarajan @ Kandasamy, minor Selvaraj @ Shanmugam and minor Ramasamy through their guardian and father Saravana Perumal Pillai by Swaminatha Pillai, the vendor under Ex.A.2. Item No.11 to Ex.B.8 is the property comprised in pymash No.24. So after the execution of Ex.B.8 Swaminatha Pillai, the vendor under Ex.A.2, has no right in respect of pymash No.24 to convey the same in favour of the plaintiff under Ex.A.2 as correctly held by the Courts below. Substantial Question of Law No.3 is answered accordingly. 7. Substantial Question of Law Nos.1 & 2:-The question whether the plaint schedule property belongs to the joint family property of Swaminatha Pillai and whether under Ex.B.8 the said Swaminatha Pillai had exclusive right to convey the entire property in favour of the Trust need not be gone into because the point to be decided in the suit is whether the plaintiffs have got right and title in respect of the plaint schedule property under Ex.A.2-sale deed. The plaintiffs have failed to prove that under Ex.A.2-sale deed they had right and title in respect of the plaint schedule property. On the other hand the defendant has proved that the vendor under Ex.A.2 viz., Swaminatha Pillai had no right or title in respect of the property, he had purchased under Ex.A.1 to convey the same under Ex.A.2 after the execution of Ex.B.8 in respect of the property he had purchased under Ex.A.1 (pymash No.24), which had been conveyed in favour of the Trust under Ex.B.8. Further, under Ex.B.5 and Ex.B.6 also the defendant has proved that pymash No.24 does not relate to the plaint UDR S.No.9/1A, but it relates to S.No.10/1 and S.No.5/1 (Ex.B.6) and that UDR S.No.9/1 correlates to pymash Nos.47/1, 47/2, 47/3, 47/4 under Ex.B.5. Substantial Questions of Law Nos.1 and 2 are answered accordingly. Further, under Ex.B.5 and Ex.B.6 also the defendant has proved that pymash No.24 does not relate to the plaint UDR S.No.9/1A, but it relates to S.No.10/1 and S.No.5/1 (Ex.B.6) and that UDR S.No.9/1 correlates to pymash Nos.47/1, 47/2, 47/3, 47/4 under Ex.B.5. Substantial Questions of Law Nos.1 and 2 are answered accordingly. Further, this Court while exercising its power under Second Appeal normally shall not interfere with the concurrent findings of the Courts below unless it is shown before this Court that the findings of the Courts below is perverse in nature and the Courts below have failed to consider the documents produced before them in proper perspective. There is no material placed before this Court to show that the findings of the Courts below is perverse in nature and the Courts below have failed to consider the documents placed before them, to warrant any interference from this Court. 8. In fine, the appeal fails and the same is hereby dismissed confirming the decree and Judgment in A.S.No.193 of 1996 on the file of the Court of Subordinate Judge, Virudhunagar. In the circumstances of the case, there is no order as to costs.