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2014 DIGILAW 3241 (MAD)

Kaliyaperumal v. Velayutham

2014-09-11

T.MATHIVANAN

body2014
Judgment : 1. This Memorandum of Second Appeal has been directed against the judgment and decree dated 17.1.2002 and made in A.S.No.157 of 2001 on the file of the learned Principal District Judge, Villupuram, dismissing the suit in O.S.No.322 of 1998, after setting aside the judgment and decree of the learned Trial Judge dated 30.11.2000. 2. The plaintiff in the suit is the appellant herein whereas the defendant is the respondent. For the sake of convenience and easy reference, the character of the parties to the suit may hereinafter be referred to as such wherever the context does require so. 3. The aforestated Second Appeal came to be admitted on the following substantial questions of law:- (i) Whether the finding of the Courts below that the appellant is not having title in equal share of the suit property is legally sustainable ? (ii) Whether the Courts below were right in not applying the Settlement Deed and the decision of the Panchayat equally divided the suit property follows title and permanent injunction in the present case especially in the light of the clinching oral and documentary evidence produced by the appellant and in the absence of any acceptable evidence contra? 4. The brevity of facts of the case:-The suit properties and some other properties originally belonged to one Govinda Padayatchi, who is none other than the father of the plaintiff. The plaintiff's mother was one Chinthamani Ammal. Govinda Padayatchi had subsequently kept a concubine by name Dhanabakkiyam, through whom he had got two sons viz., the defendant Velayudham herein and one Rajamanickam. 5. That on 10.10.1962, Govinda Padayatchi had executed two Settlement Deeds. One in favour of Chinthamani Ammal, the plaintiff and the other one in favour of Dhanapakkiyam and her sons. Rajamanickam, who is one of the sons of Govinda Padayatchi, had died within one week from the date of execution of the Settlement and Dhanapakkiyam had also died three months after the Settlement. Govinda Padayatchi was living with Chinthamani Ammal and the defendant was maintained by his paternal uncle Ammasi. Govinda Padayatchi had also passed away in the year 1971. 6. Thereafter, the defendant along with Ammasi and some other persons had demanded partition in the suit property and therefore, a partition was effected in the presence of Village Mediators, in which the plaintiff and the defendant got ½ share each in the family properties. 7. Govinda Padayatchi had also passed away in the year 1971. 6. Thereafter, the defendant along with Ammasi and some other persons had demanded partition in the suit property and therefore, a partition was effected in the presence of Village Mediators, in which the plaintiff and the defendant got ½ share each in the family properties. 7. The plaintiff sold eight cents in Survey No.113/3 to one Natesa Padayachi. The plaintiff and the defendant had obtained separate pattas in their names. Joint patta was also issued for the property where a well is situated. Since the plaintiff has been in possession and enjoyment of the suit properties for over 26 years, he has prescribed title by adverse possession. While that being so, that on 17.8.1998, the defendant had made an attempt to trespass into the property which was thwarted by the plaintiff and hence the suit has been filed seeking the prayer of declaration and injunction in favour of the plaintiff. 8. The suit was vigorously resisted by the defendant through his written statement wherein, while admitting the execution of two Settlement Deeds on 10.10.1962 in favour of the two wives and sons of Govinda Padayatchi, he has strenuously denied the alleged partition held in the Village Panchayat. Equally he had also denied the alleged trespass made by him into the suit properties on 17.8.1998. Further he would contend that the plaintiff did not prescribe any title by adverse possession over the suit properties that too in respect of the claim of alleged ½ share in the suit property. In fact, Chinthamani Ammal did not live with Govinda Padayatchi, as she had voluntarily deserted her husband. She had filed a suit for maintenance as against her husband Govinda Padayatchi and in order to settle the dispute, two Settlement Deeds dated 10.10.1962 came into existence. By means of the abovesaid Settlement Deeds, Govinda Padayatchi had settled 2/3rd share of his property in favour of the defendant and his mother Dhanapakkiyam and since, the abovesaid Settlement Deeds were executed, there was no necessity to effect any partition in the Village Panchayat. In the absence of the defendant, the plaintiff had obtained patta in his name by false representation and the defendant also presented an objection for the sub-division of the properties and also for issuance of separate patta. In the absence of the defendant, the plaintiff had obtained patta in his name by false representation and the defendant also presented an objection for the sub-division of the properties and also for issuance of separate patta. Based on the material proposition of facts arising from the pleadings of the parties to the suit, the learned Trial Judge had formulated as nearly as six issues. In order to substantiate their respective cases, the parties to the suit were directed to face the trial. 9. On evaluating the evidences, both oral and documentary, the learned Trial Judge had proceeded to grant the reliefs of declaration and permanent injunction in respect of 1/3rd share in the suit property and accordingly, the suit was decreed. Having been aggrieved by the impugned judgment dated 30.11.2000, the plaintiff has preferred an appeal before the learned Principal District Judge, Villupuram. 10. After hearing both sides, the learned first Appellate Court Judge had proceeded to the appeal on 17.1.2002 with a finding that the judgment and decree rendered by the learned II Additional District Munsif, Ulundurpet in O.S.No.322 of 1998 on 30.11.2000 are found to be not workable and subsequently, the judgment and decree of the Trial Court were also set aside and the suit was dismissed. Questioning the correctness of the judgment and decree of the first Appellate Court dated 17.1.2002, the plaintiff has approached this Court with this Second Appeal after invoking the provisions of Section 100 of the Code of Civil Procedure. 11. Heard Mr.S.Sadasivan, learned counsel appearing for the appellant and Mr.V.Girish Kumar, learned counsel appearing for the respondent. 12. Mr.S.Sadasivan, learned counsel appearing for the appellant, has argued the case at length substantiating the claim of the plaintiff. While giving reply, Mr.V.Girish Kumar, learned counsel for the respondent, has submitted that as per the Settlement Deeds executed by the Govinda Padayatchi in favour of his wives and their sons, on 10.10.1962, the plaintiff being the son of Chinthamani, is entitled to 1/3rd share and not ½ share, as claimed by him. He has also submitted that the respondent has no objection in granting the decree of declaration in respect of 1/3rd share in the suit property. 13. He has also submitted that the respondent has no objection in granting the decree of declaration in respect of 1/3rd share in the suit property. 13. Though initially Mr.S.Sadasivan, learned counsel appearing for the appellant has objected, after pacifying him by this Court, he has agreed for the grant of a decree of declaration and perpetual injunction in respect of 1/3rd share in the suit property. Since Mr.V.Girish Kumar, learned counsel for the respondent has got no objection in granting the decree in respect of 1/3rd share and Mr.S.Sadasivan has also conceded, no detailed and elaborate discussion in so far as this case is concerned are required. 14. Keeping in view the above facts, the Second Appeal is allowed. The judgment and decree of the first Appellate Court are set aside and the judgment and decree of the Trial Court are restored. However there shall be no order as to costs.