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2013 DIGILAW 4212 (MAD)

Unnamalai Ammal v. Chinnathami

2013-12-16

R.KARUPPIAH

body2013
Judgment : 1. The appellant, who is the plaintiff in the suit filed this second appeal against the decree and judgment passed by the Subordinate Judge, Kallakurichi, dated 14.08.2003 in A.S.No.325 of 1996 confirming the judgment and decree passed by the Principal District Munsif, Kallakurichi dated 08.02.1996 in O.S.No.604 of 1993. 2. For the sake of convenience, the appellant herein referred as plaintiff and the respondents herein referred as defendants. 3. The appellant/plaintiff filed the suit for declaration and injunction. Briefly, the case of the plaintiff is that in a partition effected between Poovayee Ammal and Ammasi Ammal, the suit properties were allotted to the plaintiff's mother Poovayee Ammal and she died 30 years ago. As the plaintiff is the only daughter, who is the legal heir of Poovayee Ammal, the plaintiff is in possession and enjoyment of the suit properties and patta No.621 was also issued on 16.03.1978 in the name of the plaintiff. In the UDR scheme, patta was granted in the name of the plaintiff as patta No.79. In the second item, there is an electric motor from 1988 onwards and the plaintiff is enjoying the suit properties for the past 30 years and she has perfected title by adverse possession also. The defendants have no right or title over the suit properties. The first defendant is the son of one Veerasamy and his first wife namely, Ammasiammal. Defendants 2 and 3 are sons of the first defendant. The fourth defendant is the son of Sennan. Due to enmity, the respondents attempted to interfere with the possession of the properties. Hence, this suit. 4. The fourth respondent/fourth defendant has filed written statement which was adopted by the other defendants in which they denied the contentions of the plaintiff that the suit properties were allotted to the plaintiff's mother namely, Poovayee Ammal in the partition. According to the defendants, the plaintiff and the first defendant's father namely, one Veerasami, purchased the suit properties in the name of his first wife namely, Ammasi Ammal and the second wife, namely Poovaye Ammal as Benami. But the properties were enjoyed by their father namely, Veerasami and he died in the year 1950 as intestate. The first defendant's father, namely Veerasami and second and third defendants' father namely, Chinnathambi and the plaintiff's brother, namely Karuppan are three male issues. But the properties were enjoyed by their father namely, Veerasami and he died in the year 1950 as intestate. The first defendant's father, namely Veerasami and second and third defendants' father namely, Chinnathambi and the plaintiff's brother, namely Karuppan are three male issues. When Veerasami was alive, the plaintiff was given sridana at the time of her marriage and from the date of the marriage, the plaintiff has been living at her husband house at Athiyur. Further, the plaintiff has also accepted the custom and she had not claimed any right or title over the suit properties. The plaintiff has not enjoyed the suit properties at any point of time. Further, after the death of Veerasami, the entire family properties including the suit properties were divided among the male members and they have been allotted 1/3rd share each, excluding the plaintiff. Since the plaintiff's husband was working as Village Assistant, he got patta in the name of his wife for first item and also patta in the name of her brother Karuppan for second item. Therefore, the plaintiff is not entitled any share of the suit properties. Further, the plaintiff's brother Karuppan is necessary party to the suit. Therefore, he prayed for dismissal of the suit. 5. The trial Court has framed six issues and on the side of the plaintiff, one witness was examined as PW1 and eight documents were marked as Exs.A1 to A8 and on the side of the defendants, two witnesses were examined as DW1 and DW2, but no documents were marked. Considering the above said oral and documentary evidence adduced on both sides, the trial Court has dismissed the suit. Aggrieved over the same, the plaintiff preferred the first appeal and the first appellate Court also dismissed the appeal and confirmed the decree and judgment passed by the trial Court. 6. Being aggrieved by the concurrent findings of both the Courts below, the plaintiff is preferred this second appeal. Aggrieved over the same, the plaintiff preferred the first appeal and the first appellate Court also dismissed the appeal and confirmed the decree and judgment passed by the trial Court. 6. Being aggrieved by the concurrent findings of both the Courts below, the plaintiff is preferred this second appeal. This Court had admitted the second appeal on the following Substantial Questions of Law: a. When it is axiomatic in law that only a suit for partition is bad for non-joinder, when some of the sharers are not made parties, whether the Courts below are correct in law in holding that the suit for declaration and injunction filed on a specific cause of action against the respondents is bad for non-joinder of necessary parties, especially when they are neither necessary nor proper parties? b. Whether the Courts below are correct in law in eschewing Exs.A1 to A8, material documents, which would clearly establish the case of the appellant beyond reasonable doubt? 7. The learned counsel appearing for the appellant/plaintiff submitted that the plaintiff has produced Exs.A1 to A8 documents, namely, pattas, kist receipts, electricity bills and order of Tahsildar for transfer of patta in the name of plaintiff and established that the plaintiff has title over the suit properties, but, both the Courts below have not correctly considered the above said facts. Further, the learned counsel appearing for the plaintiff has submitted that this is not a suit for partition and only the suit for declaration and injunction and hence, the plaintiff's brother is not a necessary party. 8. Admittedly, the plaintiff filed the suit for declaration and injunction. The main crux of the plaintiff's case is that the suit properties originally belonged to one Poovayee Ammal and Ammasi Ammal and both of them divided the suit properties and other properties in which, the suit properties were allotted to the share of the plaintiff's mother Poovayee Ammal. After the death of Poovayee Ammal, the plaintiff is entitled to the entire suit properties, as she is the sole legal heir of Poovayee Ammal and the patta was also granted in the name of the plaintiff and therefore, the plaintiff is entitled to the suit properties. 9. After the death of Poovayee Ammal, the plaintiff is entitled to the entire suit properties, as she is the sole legal heir of Poovayee Ammal and the patta was also granted in the name of the plaintiff and therefore, the plaintiff is entitled to the suit properties. 9. Per contra, the learned counsel appearing for the defendants would submit that the suit properties were purchased by the husband of Poovayee Ammal and Ammasi Ammal, namely Veerasami as Benami and after his death, the properties were divided between the first wife's two sons namely, the first defendant, Sennan and son of the Poovayee Ammal, namely Karuppan and the suit properties were allotted 1/3 share each. Since the plaintiff was given in marriage with sridana, the plaintiff was not allotted any share in the suit properties and therefore, the plaintiff is not entitled to the relief sought for in the plaint. 10. Both sides admitted that Ammasi Ammal is the first wife and Poovayee Ammal is the second wife of Veerasamy. It is also not disputed that the plaintiff and one Karupan are children of Veerasamy through second wife Poovayee ammal. The first defendant, Sennan and one Mariyammal are children of Veerasamy through first wife Ammasi Ammal. The fourth defendant is the son of the deceased Sennan and the second and third defendants are children of the first defendant Chinnathambi. On the side of the plaintiff, absolutely there is no oral and documentary evidence to prove that Poovayee Ammal and Ammasi Ammal divided the properties in a partition. In the plaint, the date, month and year of the partition are not stated. it is not disputed that the plaintiff and Karuppan are children of Poovayee Ammal. On the side of the plaintiff, it is not stated as to how the plaintiff is alone is entitled to the entire suit properties, while his own brother is available. As rightly discussed by both the Courts below, the plaintiff has claimed right over the suit properties on the basis of patta issued by the UDR scheme. The settled principle of law is that the patta is not a document of title. Further, from the admission of the plaint itself revealed that the plaintiff is not entitled to declaration in respect of entire suit properties. The settled principle of law is that the patta is not a document of title. Further, from the admission of the plaint itself revealed that the plaintiff is not entitled to declaration in respect of entire suit properties. Therefore, both the Courts below have correctly held and dismissed the suit, as the plaintiff has not proved the title except producing the patta and also on the ground that the plaintiff's brother is not impleaded as a party to the suit. The above said findings of both the Courts below are correct and not perversed finding and hence, no substantial question of law arises on the above said concurrent findings of both the courts below. Therefore, there is no need to interfere with the findings of the Courts below and this second appeal is to be dismissed. 11. In the result, the Second Appeal is dismissed and confirmed the decrees and judgments passed by both the Courts below. There is no order as to costs.