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2013 DIGILAW 1679 (MAD)

Natesan (alias) Ganesan v. Pushpavalli

2013-04-17

G.RAJASURIA

body2013
Judgment :- 1. This second appeal is focussed by D3 and D4 animadverting upon the judgment and decree dated 12.10.2012 passed by the learned Principal District Judge, Namakkal, in A.S.No.7 of 2012 reversing the judgment and decree dated 19.12.2011 passed by the learned Subordinate Judge, Rasipuram, in O.S.No.851 of 2004, which was one for partition. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. The epitome, and the long and the short of the germane facts absolutely necessary for the disposal of this second appeal would run thus: (i) The first respondent herein-Pushpavalli, as plaintiff, filed the suit for partition as against 1.Venkatammal, 2.Lakshmi and 3.Natesan @ Ganesan, so to say, her sisters and brother. (ii) Pithily and precisely the contention of the plaintiff as found evidenced in the plaint, was to the effect that the property described in the schedule of the plaint, originally belonged to her father. When the plaintiff demanded for partition of her 1/4th share in her favour, the defendants did not agree. Hence, the suit. (iii) Subsequently, D4-the purchaser of the suit property from D3 was also added. (iv) D3 filed the written statement challenging and refuting the claim of the plaintiff by contending that Ramasamy Vannan-the father of the plaintiff and the defendants 1 to 3 died as early as on 16.11.1986 and their mother also died on 22.2.1991. The daughters of Ramasamy Vannan got married and started living in their respective husbands' houses and they have not been in possession and enjoyment of the suit property. Pattta was issued in the name of D3, who validly sold the suit property in favour of D4, vide sale deeds dated 4.5.2006 and 20.10.2008. Accordingly, D3 would pray for the dismissal of the suit. (v) The gist and kernel of the averments in the written statement of D4 would be to the effect that the suit property absolutely belonged to D3, as the patta stood in his name and D3 validly sold the suit property in his favour and in such a case, the plaintiff is having no right to lay claim over it. (v) The gist and kernel of the averments in the written statement of D4 would be to the effect that the suit property absolutely belonged to D3, as the patta stood in his name and D3 validly sold the suit property in his favour and in such a case, the plaintiff is having no right to lay claim over it. According to D4, the plaintiff and also her sisters got married during the life time of their father and settled in their respective husbands' houses, while so, they cannot lay claim over the suit property even based on enjoyment. After the purchase of the suit property, D4 got the patta, chitta, and adangal in his name and wherefore the plaintiff cannot seek for partition. (vi) D1 and D2 virtually agreed to the claim of the plaintiff for partition. (vii) Whereupon issues were framed. Up went the trial, during which, the plaintiff examined herself as P.W.1 along with P.W.2 and marked Exs.A1 to A22. The first defendant examined herself as D.W.1 along with D.W.2 and marked Exs.B1 to B.8. (viii) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed by the plaintiff; whereupon, the first appellate Court reversed the judgment and decree of the trial Court and granted partition as prayed for and also declared that the sale deeds executed by D3 in favour of D4 was void in respect of 3/4th share of the plaintiff and D1 and D2. 4. Challenging and impugning the judgment and decree of the first appellate Court, this second appeal has been focussed by D3 and D4 on various grounds and also suggesting various substantial questions of law. 5. The learned counsel for the appellants/D3 and D4 would pyramid his arguements, which could succinctly and precisely be set out thus: (i) The trial Court in its reasoned judgment based on the oral and documentary evidence on the side of the plaintiff, appropriately and appositely decided the lis by dismissing the suit; however, the first appellate Court reversed such a finding for no good reason. (ii) With reference to Ex.A1-the sale deed dated 16.11.1968, the learned counsel for the appellants/D3 and D4 would argue that the description of property as found set out in Ex.A1 does not tally with the suit property. According to him, the suit property is a gramanatham land and the occupier would be the owner. (ii) With reference to Ex.A1-the sale deed dated 16.11.1968, the learned counsel for the appellants/D3 and D4 would argue that the description of property as found set out in Ex.A1 does not tally with the suit property. According to him, the suit property is a gramanatham land and the occupier would be the owner. The Government recognising his right as occupier, conferred patta on him, which cannot be challenged by the plaintiff. (iii) The evidence on record would denote and display that the plaintiff and D1 and D2, after their respective marriages, started living in their respective husbands' houses and in such a case, they cannot be treated as occupiers, capable of claiming patta in their favour. As such, no interference, according to him, by the first appellate Court with the judgment of the trial Court was warranted, nonetheless, unjustifiably and wrongly, the first appellate interfered with the judgment of the trial Court, warranting interference in second appeal. 6. A mere running of the eye over the decision of the first appellate Court would convey and portray that the first appellate Court-being the last Court of facts adverted to the oral and the documentary evidence. It referred to the depositions of P.W.1-the plaintiff, P.W.2 and also the depositions of D.W.1 and D.W.2. With reference to the deposition of P.W.1, the first appellate Court would observe legally and correctly that the plaintiff projected the case to the effect that the suit property originally belonged to her father-Ramasamy Vannan, who purchased that property as per Ex.A1-the sale deed dated 16.11.1968; ever since that time, he had been in possession and enjoyment of it; he died on 10.11.1986; and the said Ramasamy's wife died on 22.2.1991. After the death of the plaintiff's parents, so to say, Ramasamy Vannan and his wife, the plaintiff admittedly, being the daughter of them, sought for partition, but she could not succeed in getting her share carved out and allotted in her favour. 7. Inconcinnity with Ex.A1-the sale deed dated 16.11.1968, Exs.A5 to A21 emerged, so to say, the house tax receipts and also E.B. receipts. 7. Inconcinnity with Ex.A1-the sale deed dated 16.11.1968, Exs.A5 to A21 emerged, so to say, the house tax receipts and also E.B. receipts. The first appellate Court found correctly that all those exhibits were covering the period between 1985 and 2002 and from that, the first appellate Court drew the inference legally that the suit property was purchased by Ramasamy Vannan and he was in effective possession and enjoyment of the same and he died on 10.11.1986, leaving behind his legal heirs to inherit the property. 8. The suit itself was filed in the year 2008. The plaintiff's father died in 1986 and the mother died on 22.2.1991 and those are all undisputed facts. In such a case, the first appellate Court, based on clinching documentary and oral evidence arrived at the conclusion that the plaintiff's parents have been in possession and enjoyment of the suit property and that too, based on Ex.A1-the sale deed dated 16.11.1968 and the right exercised by the father of the plaintiff over the suit property by paying tax and also enjoying electricity facility. In such a case, the first appellate Court was justified in ignoring the defendants' documents for the reason that Ex.B5, the order relating to change of patta and, Ex.B6-the patta, emerged recently and Exs.B2 and D4 are the two sale deeds executed by D3 in favour of D4, transferring the suit properties in two moieties in favour of D4, on the strength of such recently emerged patta. These are all documents having no legal back up and importance. 9. The first appellate Court, being the last Court of facts, au fait with law and au courant with facts correctly appreciated the relevant facts and set aside the judgment and decree of the trial Court and upheld the claim of the plaintiff, warranting no interference in second appeal. 10. The learned counsel for the appellants/D3 and D4 would advance his arguments to the effect that in the absence of a prayer for setting aside the sale deeds, by the plaintiff, the first appellate Court was not justified in passing the order to the effect that the sale deeds executed by D3 in favour of D4 to the extent of 3/4th shares would be void. 11. I would like to disambiguate the ambiguity, if any, in this connection. The plaintiff was not a party to those deeds. 11. I would like to disambiguate the ambiguity, if any, in this connection. The plaintiff was not a party to those deeds. In such a case, she was not enjoined as per law to seek for either declaration of those deeds as void or for cancellation or setting aside those deeds and the law is well settled in this regard. 12. The first appellate Court in a wholesome manner, in order to dispel any misapprehension in the minds of the parties, went to the extent of observing that in view of the ratiocination adhered to by him in deciding the case for partition, the sale deeds executed by D3 in favour of D4 would be void only to the extent of the shares of the plaintiff, D1 and D2, so to say, 3/4th shares and in respect of 1/4th share, the first appellate Court appropriately and legally left it as such. 13. It is a common or garden principle of law that if one of the co-sharers sells away the entire undivided property in favour of a third party, then the third party purchaser, who is D4 herein, would step into the shoes of D3 and could only seek for allotment of his vendor's share in his favour. In this case, the share of D3/Natesan is only 1/4th share and to that extent it was preserved by the first appellate Court properly. 14. Whereupon, the learned counsel for the appellants/D3 and D4 would make an extempore submission also to the effect that since D4 purchased the property from D3 paying consideration, D4 also would be prepared to pay the value of the other shares to the other co-sharers and try to purchase their shares also and to that effect he might be given liberty. 15. I would like to point out that mediation and conciliation is possible at all stages. If at all D4's intention is to negotiate with the other co-sharers, it is always open for him to do so, subject to the wish and will of the other co-sharers, during final decree proceedings and because of that reason alone, the second appeal cannot be entertained. 16. In the result, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.