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2010 DIGILAW 2727 (MAD)

Periyasamy v. Ramalingam

2010-07-06

M.JAICHANDREN

body2010
Judgment :- 1. This second appeal has been filed against the judgment and decree, dated 6.9.2005, made in A.S.No.89 of 2004, on the file of the Principal Subordinate Court, Virudhachalam, confirming the judgment and decree of the District Munsif Court cum Judicial Magistrate Court, Titagudi, dated 20.7.2004, made in O.S.No.147 of 1996. 2. The plaintiff in the suit, in O.S.No.147 of 1996, is the appellant herein and the defendants in the said suit are the respondents in the present second appeal. The suit had been filed by the plaintiff for the declaration of title and for permanent injunction restraining the defendants and their men from entering the suit property, and as an alternative relief the plaintiff had sought for the relief of recovery of possession of the suit property from the defendants and their men, in case they had entered the said property and for mesne profits and for costs. 3. The plaintiff had stated that the suit property and the adjacent lands, having an extent of 23 cents, had, originally, belonged to the joint family property of Manicka Padayatchi. Muthusamy and Rengasamy are the brothers of Manicka Padayatchi. Kaliyaperumal is the son of Manicka Padayatchi. Since, Muthusamy, Rengasamy, Manickam and Kaliyaperumal, had died, the plaintiff has made the claim in respect of the suit property, as a close legal heir of the joint family, and as no legal heir was alive at the time of the filing of the suit. 4. It had also been stated that the defendants 2 and 3 are entitled only to an extent of 5 cents on the southern side of the suit property, which had been sold to them by Muthusamy, Rengasamy, Manickam and Kaliyaperumal, during their life time. The plaintiff had filed the suit relying upon Ex.A-1, dated 4.12.1957, which is a certified copy of the settlement deed executed by Muthusamy and Rengasamy in favour of minor Kaliyaperumal and Manicka Padayatchi. 5. It is the case of the defendants that out of the 23 cents and 16 cents of land on the eastern side, together with some other property, had been sold by Muthusamy Padayatchi and his brothers to one Arimuthu Padayatchi, under a sale deed, dated 31.5.1932. Five cents, out of seven cents of land, had been sold by Muthusamy, Rengasamy, Manickam and his son Kaliyaperumal, to and in favour of Thangavel Padayatchi. Five cents, out of seven cents of land, had been sold by Muthusamy, Rengasamy, Manickam and his son Kaliyaperumal, to and in favour of Thangavel Padayatchi. The remaining two cents are under the possession and enjoyment of one of the brothers of Muthusamy, namely, Samikannu Padayatchi. After the life time of Samikannu Padayatchi, the two cents of land was inherited by his wife, Govindammal, and his daughter Chellammal. They had sold the said land to one Marimuthu Padayatchi, brother of the second defendant, under a sale deed, dated 29.4.1959. Thus, the entire extent of 23 cents of land had been sold by Muthusamy and his brothers. 6. It had also been stated that out of the seven cents of lands owned by Thangavel, he had settled three cents to his daughter, Sagunthammal, which included the suit property as well, under a registered settlement deed, dated 4.10.1979, marked as Ex.B-5. Possession had also been given to her. Two cents of the land had been sold by Sagunthammal to the first defendant, under a registered sale deed, dated 8.9.1986, marked as Ex.B-6. 7. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration. “1. Is it true that the plaintiff is the sole legal heir for the deceased Muthusamy, Rengasamy, Manickam and Kaliyaperumal? 2. Is it correct that Samikannupadayatchi is also the brother of Muthusamy, Rengasamy and Manickam? 3. Is it true that the settlement deed, dated 4.10.1979, was executed by Thangavelu Padayatchi to her daughter Sagunthalammal? 4. Is the sale deed, dated 8.9.1986, executed by Sagunthalammal in favour of the first defendant is true and valid? 5. Is the plaintiff entitled for a relief of declaration and permanent injunction or for any other reliefs?” 8. In view of the averments made on behalf of the plaintiff, as well as the defendants, and on considering the evidence available on record, the trial Court had found that there was no dispute with regard to 23 cents of land, situated in S.No.16/6 belonging to the legal heirs of Ponnusamy. Further, there was no dispute in respect of the sale of 16 cents of land, out of the 23 cents, to Arimuthu Padayatchi, by the four legal heirs of Ponnusamy. Further, there was no dispute in respect of the sale of 16 cents of land, out of the 23 cents, to Arimuthu Padayatchi, by the four legal heirs of Ponnusamy. However, the claim that Ponnusamy Padayatchi did not have a son by the name of Samikannu Padayatchi had not been accepted. 9. It had been further found by the trial Court that Ex.A-1 property had been settled by Muthusamy and Rengasamy in favour of Kaliyaperumal, even though Manicka Padayatchi and Samikannu had also certain rights in the said property. As such, the settlement deed marked as Ex.A-1, is not valid, as it is clear that, as per the Hindu law the coparcenary or joint family property cannot be sold or settled in favour of any person, unless all the co-owners had jointly carried out the transaction or had given the consent for it. 10. It had also been found that the plaintiff is not entitled to the suit property, by adverse possession, in the absence of proof that he is in continuous possession and enjoyment of the said property. Further, it had also been held that there was no proof to show that the plaintiff is the sole surviving heir of the joint family concerned. It had also been found that Samikannu Padayatchi is also one of the brothers of Manickam, Muthusamy and Rengasamy. Further, it had also been found that Thangavel Padayatchi had executed a settlement deed, dated 4.10.1979, marked as Ex.B-5, in favour of Sagunthammal. Thereafter, Sagunthammal had executed a sale deed, dated 8.9.1986, marked as Ex.B-6, to the first defendant. In such circumstances, the trial Court had held that the claims made by the plaintiff had not been proved and therefore, they cannot be sustained in the eye of law. 11. Aggrieved by the judgment and decree of the trial Court, dated 20.7.2004, made in O.S.No.147 of 1996, the plaintiff had filed an appeal on the file of the Principal Subordinate Court, Virudhachalam, in A.S.No.89 of 2004. 12. In view of the grounds of appeal raised by the plaintiff in the said appeal and in view of the evidence available on record the first Appellate Court had found that Samikannu Padayatchi is one of the four sons of Ponnusamy, as found from Ex.B-1. It had also been found that Manickam and Samikannu Padayatchi were not parties to the settlement deed, marked as Ex.A-1. It had also been found that Manickam and Samikannu Padayatchi were not parties to the settlement deed, marked as Ex.A-1. Therefore, Ex.A-1 was not a valid document. The claim of the appellant, that there were no other legal heirs entitled to claim their rights in the joint family property, had not been accepted, in view of the existence of Samikannu Padayatchi and Chellammal, as the legal heirs of the joint family. The kist receipts, marked as Exs.A-8 to A-10 were relating to the period prior to the filing of the suit in the year, 1987. Therefore, the claim of adverse possession of the suit property by the appellant had not been accepted by the First Appellate Court. In such circumstances, the First Appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 6.9.2005, made in A.S.No.89 of 2004. 13. Aggrieved by the judgment and decree of the First Appellate Court, dated 6.9.2005, the appellant in the first appeal had filed the present second appeal before this Court, raising the following questions as substantial questions of law: “1. Whether the Courts below erred in law in adjudicating on the validity of the settlement deed Exhibit A-1 dated 4.12.1957 in the absence of a specific issue? 2. Whether the findings and decisions of the Courts below that Exhibit A1 is invalid is contrary to law and on facts? 3. Whether the Courts below erred in law in giving a finding on the adverse possession pleaded by the appellant contrary to the settled position of law? 4. Whether the Trial Court erred in law in giving a finding of invalidity of Exhibit A1 without framing a specific issue? 5. Whether the Courts below erred in law in recording findings contrary to evidence on record?” 14. The learned counsel appearing on behalf of the appellant had submitted that the judgment and decree of the Courts below are contrary to law, the weight of evidence and the probabilities of the case. It had also been submitted that the Courts below had erred in not framing the issues based on the pleadings of the parties concerned, before giving their findings. Both the Courts below had failed to analyse the oral, as well as the documentary evidence available on record, in its proper perspective. It had also been submitted that the Courts below had erred in not framing the issues based on the pleadings of the parties concerned, before giving their findings. Both the Courts below had failed to analyse the oral, as well as the documentary evidence available on record, in its proper perspective. The Courts below ought to have accepted the settlement deed, dated 4.12.1957, marked as Ex.A-1, as true and valid. The finding of the Courts below that Ex.A-1 was invalid in the eye of law is an erroneous finding, especially, when it had not been challenged by the contesting first defendant, in his written statement. 15. In the absence of acceptable evidence that Samikannu Padayatchi was alive on the date of the execution of the settlement deed, marked as Ex.A-1, it was not open to the Courts below to come to the conclusion that the said deed was invalid, as Samikannu Padayatchi was not a party to the said deed. The Courts below had failed to note that the appellant had been in continuous possession and enjoyment of the suit property for a long time and as such, he had perfected his title in respect of the suit property, by adverse possession. 16. Per contra, the learned counsel appearing on behalf of the respondents had submitted that both the Courts below had given a clear finding that Ex.A-1 settlement deed, dated 4.12.1957, was not valid in view of the fact that all the legal heirs of the joint family concerned had not signed the said deed. Further, even if a specific issue had not been framed by the Courts before coming to their conclusions it would be sufficient if a substantial discussion is found in their judgments, in respect of a particular issue. 17. Further, based on the evidence available on record, the Courts below had rightly found that the plaintiff is not entitled to the suit property, exclusively, when Samikannu Padayatchi and his daughter, Chellammal, were found to be alive at the time of the execution of the settlement deed, dated 4.12.1957. Further, the appellant has not been in a position to prove his claim that he has been in continuous possession and enjoyment of the suit property, in order to claim the title to the suit property, by way of adverse possession. Further, the appellant has not been in a position to prove his claim that he has been in continuous possession and enjoyment of the suit property, in order to claim the title to the suit property, by way of adverse possession. The learned counsels appearing on behalf of the respondents had stated that no substantial questions of law had been raised by the appellant, in the present second appeal, for the consideration of this Court. 18. The learned counsel appearing on behalf of the respondents had relied on the following decisions in support of his contentions: 1) Kavuru Venkatappayya V. Raghavayya (AIR (38) 1951 Madras 318); 2) Srinivasa Padayachi V. Parvathiammal (1969 II MLJ 597) and 3) Dhanapal Pillai V. Palaniswamy Pillai and others (1994-2-L.W. 333) 19. In view of the averments made on behalf of the appellants, as well as the respondents and on a perusal of the records available, this Court does not find sufficient cause or reason to interfere with the judgment and decree of the Courts below. Both the Courts below have rightly held that the settlement deed, dated 4.12.1957, marked as Ex.A-1, had not been signed by all the legal heirs of the joint family concerned. Further, there was no evidence adduced on behalf of the appellant to show that he was in continuous possession and enjoyment of the suit property, to claim title by adverse possession. 20. Further, there is nothing shown on behalf of the appellant for this Court to hold that the findings of the Courts below are perverse or that the findings are based on no evidence. In such circumstances, it cannot be held that the trial Court, as well as the First Appellate Court, had committed an error in arriving at their conclusions. As such, the second appeal is devoid of merits. Hence, it is dismissed. No costs.