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2014 DIGILAW 3055 (MAD)

Kalianna Gounder (Died) v. Kolandaivel

2014-09-03

T.MATHIVANAN

body2014
Judgment 1. This Memorandum of Second Appeal has been directed against the judgment and decree dated 29.1.2004 and made in A.S.No.21 of 2003 on the file of the learned Subordinate Judge, Sankagiri, confirming the judgment and decree dated 31.12.2002 and made in O.S.No.87 of 1994 on the file of the learned District Munsif, Sankagiri. 2. The appellant herein is the plaintiff in the suit. The appellant Kalianna Gounder, during the pendency of the appeal, had passed away and therefore his legal representatives have been brought on record as the appellants 2 to 4 in pursuant to the order of this Court dated 22.8.2011 and made in CMP Nos.712 to 714 of 2011. The respondents herein are the defendants 1,3 and 4 in the suit. It is manifested from the records that the deceased appellant Kalianna Gounder had filed the suit in O.S.No.87 of 1994 on the file of the learned District Munsif, Sankagiri as against the respondents herein and other two defendants viz., Ramasamy Gounder and Pavayee, who were defendants 2 and 5, now passed away, seeking the relief of bare injunction as against them. The suit is centered around to an extent of 17 cents comprised in Survey No.180/1F described under the boundaries specified in the suit schedule. The suit was originally dismissed by the learned Trial Judge and subsequently the deceased plaintiff had preferred an appeal in A.S.No.21 of 2003 on the file of the learned Subordinate Judge, Sankagiri. 3. After hearing both sides, the learned First Appellate Judge had proceeded to dismiss the appeal on 29.1.2004 on the ground that the deceased plaintiff is not entitled to the discretionary relief of injunction. Having been aggrieved by the judgment and decree dated 29.1.2004, the Second Appeal has been filed by the deceased plaintiff. The Second Appeal came to be admitted on the following substantial questions of law:- “(a) When the first respondent examined as DW-1 has admitted the possession of the appellant, whether the Courts below are justified in non-suiting the appellant especially when it is settled in law that the admission of the opposite party is the best evidence ? The Second Appeal came to be admitted on the following substantial questions of law:- “(a) When the first respondent examined as DW-1 has admitted the possession of the appellant, whether the Courts below are justified in non-suiting the appellant especially when it is settled in law that the admission of the opposite party is the best evidence ? (b) When the appellant has established his possession on the date of the suit as required under Sections 101 to 103 of the Evidence Act by producing Exs.A-1 to A-5 coupled with the evidence of PWs.1 to 3, whether the Courts below are justified in dismissing the suit, on the ground that the appellant had not established his case ?” 4. Heard Mrs. Mythili Suresh, learned counsel appearing for the M/s. Sarvabhauman Associates, who are on record on behalf of the appellant and Mr. N. Manokaran, learned counsel appearing for the first respondent. 5. The third respondent, despite service of notice, has not chosen to appear when the appeal was taken up for hearing. In so far as the third respondent is concerned, Mr. N. Manokaran, learned counsel for the first respondent has made an endorsement saying that the third respondent remained ex parte and therefore, notice in respect of the third respondent is dispensed with. 6. The brevity of facts, which are very much essential for the disposal of the appeal, are as under:- The deceased plaintiff Kalianna Gounder and the second defendant (sixth defendant) are brothers. The deceased plaintiff Kalianna Gounder is the younger brother, where as the second defendant in the suit, Ramasamy Gounder, is the elder brother. Their father is one Sellappa Gounder. Sellappa Gounder got 1/4th share in Survey No.180/1. The total extent as per old patta No.195 relating to Survey No.180/1 is 7 acres 36 cents. In the abovesaid extent, Sellappa Gounder was having 1/4th share i.e., 1.84 acres and that being so, the deceased plaintiff as well as the second defendant, Ramasamy Gounder, are each entitled to 1/8th share, i.e., each entitled to get 92 cents. 7. According to the plaintiff, the suit properties were partly ancestral and partly self-acquired properties. In the abovesaid extent, Sellappa Gounder was having 1/4th share i.e., 1.84 acres and that being so, the deceased plaintiff as well as the second defendant, Ramasamy Gounder, are each entitled to 1/8th share, i.e., each entitled to get 92 cents. 7. According to the plaintiff, the suit properties were partly ancestral and partly self-acquired properties. When their father was alive, he and his elder brother viz., the second defendant Ramasamy Gounder had entered into a partition and in that partition, 75 cents was allotted to Ramasamy Gounder in Survey No.180/1 which was sold by him to Palaniappan and Palaniammal in the year 1975. The remaining portion i.e., 17 cents in Survey No.180/1 was allotted to him (the plaintiff) and as such he has got larger extent in Survey No.180/1 as the land allotted to the plaintiff is a hill-lock and inferior soil -in Survey No.180/1. The plaintiff has been enjoying the same for about 50 years as an absolute owner. He had also put up his house in the said property. The defendants have no manner of right whatsoever in the suit property. Patta also stands in the name of the deceased plaintiff and under this circumstance, that on 9.4.1994, the defendants had made an attempt to trespass into the suit property, which was prevented by the plaintiff with great effort. Therefore, the plaintiff was constrained to file a suit for permanent injunction. 8. On the other hand, the first defendant had filed his written statement which was adopted by the remaining defendants, wherein he has stated that the second defendant had not sold his share either to Palaniappan or to Palaniammal in respect of Survey No.180/1 in the year 1975, as alleged by the plaintiff and no partition was effected nor was any larger extent given to the plaintiff. What he would contend is that the second defendant had got title in respect of 17 cents of land in patta No.33 and no exclusive patta was issued in the name of the plaintiff. But it stands in the name of the plaintiff as well as the second defendant initially. What he would contend is that the second defendant had got title in respect of 17 cents of land in patta No.33 and no exclusive patta was issued in the name of the plaintiff. But it stands in the name of the plaintiff as well as the second defendant initially. He also contended that out of 92 cents, which he had got in the partition in Survey No.180/1, he had sold 75 cents under Ex.B-1 and the remaining extent of 17 cents was under his possession and thereafter, under a Release Deed (Ex.B-2) dated 18.3.1994, the second defendant as well as his family members, including the third defendant, had relinquished their rights in respect of 17 cents in favour of the first defendant and ever since from that date onwards, the first defendant had/has been in possession and enjoyment of 17 cents. 9. Now the Survey No.180/1 has been sub-divided as 180/1F in respect of the abovesaid 17 cents. It is also the contention of the defendants that as stated in their additional written statement that without the knowledge of the defendants, the plaintiff had fraudulently, with the connivance of the Revenue Officials, had entered the name into the revenue records and changed the patta in his name and subsequently on the specific representation and also on the petition filed by the defendants before the Zonal Tahsildar, an enquiry was conducted and subsequently the second defendant's name was ordered to be included in the patta and now in so far as the 17 cents is concerned, the first defendant is in possession and therefore, the discretionary relief of injunction, cannot be granted in favour of the plaintiff. 10. Mrs. Mythili Suresh, learned counsel, vehemently argued that the Trial Court has not appreciated the available evidences, both oral and documentary. It is pertinent to note here that the Trial Court has rightly found that the deceased plaintiff Kalianna Gounder had failed to prove his possession in respect of 17 cents and it was also found that the alleged allotment of larger extent in Survey No.180/1 in favour of the deceased plaintiff Kalianna Gounder at the time of partition, was also not proved. Even in Ex.B-5 Partition Deed, it appears that equal extent is given to the plaintiff as well as the second defendant. Even in Ex.B-5 Partition Deed, it appears that equal extent is given to the plaintiff as well as the second defendant. But, in fact, the sale of 75 cents, out of 92 cents by the second defendant under Ex.B-1 has been proved and the remaining extent of 17 cents in Survey No.180/1 was retained by the second defendant and subsequently, in view of the Release Deed (Ex.B-2) executed by the family members of the second defendant as well as the third defendant, the entire 17 cents is now in the possession of the first defendant. That is what the lower Appellate Court has also found in paragraphs 9, 10 and 11 of its judgment. But as seen in the substantial question of law No.1, this Court finds that the defendants had never admitted the possession of the plaintiff in respect of 17 cents and when the plaintiff has miserably failed to prove their possession with satisfactory evidence, the relief of permanent injunction, cannot be granted and since the Courts below have given concurrent judgment, this Court does not want to interfere. Keeping in view of the above, the Second Appeal is dismissed, confirming the judgment of the Courts below. No costs. Consequently, connected miscellaneous petition is also dismissed.