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2015 DIGILAW 1927 (MAD)

Padmavathi v. R. Shyam Sai Sundar

2015-04-17

P.R.SHIVAKUMAR

body2015
JUDGMENT : - 1. The arguments advanced by Mr.D.Rajkumar, learned counsel for the appellant and Mr. S.Sivathilakar, learned counsel for the respondents 1 to 3/Caveators are heard. 2. Padmavathi, who figured as the third defendant in the Original Suit in O.S.No.368 of 2006, on the file of the District Munsif Court, Theni is the appellant herein. The said suit was filed by the respondents 1 to 3/Plaintiffs against one Ponniah(since deceased), Palaniyandi (the fourth respondent herein) and Padmavathi, the appellant herein arraying them as Defendants 1 to 3 respectively, for declaration that the respondents 1 to 3 herein /Plaintiffs in the suit were the absolute owners of the suit property and for perpetual injunction against the appellant and other respondents not to disturb their peaceful possession and enjoyment of the suit property. The learned District Munsif, Theni decreed the suit as prayed for, by his judgment and decree dated 21.09.2007. On appeal, the learned Sub-ordinate Judge, Theni (Lower Appellate Judge) confirmed the said decree of the trial Court and dismissed the appeal filed before the Lower Appellate Court, namely A.S.No.160 of 2008, by judgment and decree dated 25.08.2010. 3. The said Appeal Suit A.S.No.160 of 2008 was filed by Ponniah, who was the first defendant in the Original Suit and Padmavathi (D3), the present appellant, who claimed to have purchased a portion of the suit property from the said Ponniah. Before the Lower Appellate Court Palaniyandi was shown as the fourth respondent in the said appeal. 4. After the disposal of the First Appeal and before filing of the Second Appeal, the above said Palaniyandi died and hence the respondents 5 to 9 were added as parties in the Second Appeal and the change in the Cause-title due to the death of Palaniyandi came to be recognized and accepted by this Court by order dated 30.01.2015. 5. An extent of 39 cents comprised in R.S.No.1376/2C2, another extent of 39 cents comprised in R.S.No.1376/2C3, an extent of 85 cents in R.S.No.1377/2B2, another extent of 85 cents in R.S.No.1377/2B3 and an extent of 1.06 acres comprised in R.S.No.1377/4 (total measurement of 3.54 acres) in Unjampatti Village, Theni Sub-Registration District, Periyakulam Registration District, Theni District has been shown to be the suit property. Though the total extent of 3.54 acres is said to be comprised in two sub-divisions of S.Nos. Though the total extent of 3.54 acres is said to be comprised in two sub-divisions of S.Nos. 1376/2, two sub-divisions of S.Nos.1377/2 and one sub-division of S.No.1377, the respondents 1 to 3/Plaintiffs have made a categorical assertions in their plaint that all the said extents form part of a single plot and the same has been described with boundaries. According to the respondents 1 to 3/Plaintiffs, 170 cents comprised in S.No.1377/2 and 78 cents comprised in S.No.1376/2 originally belonged to one P.R.K.Pandian, having purchased the same from two persons by names R.Panchavarnam and P.Ramasamy under two sale deeds bearing Document Nos.2267 of 1982 and 1511 of 1982; that the said P.R.K.Pandian sold half of the said property in both survey numbers to T.Ramani and the other half in both survey number to Ponmani, under two sale deeds, dated 7.3.1983 bearing Document Nos.719 of 1983 and 718 of 1983, both registered in the office of the Sub-Registrar, Theni; that the said T.Ramani purchased another extent of 1.06 acres comprised in R.S.No.1377/4 from one K.Pandian under Document No.940 of 1993, dated 26.3.1993; that all the above said purchase made by Ponmani and Ramani form a single plot as the area purchased under the sale deeds are continuous; that both Ramani and Ponmani appointed one Ramanathan as their Power Agent by virtue of a registered deed of Power of Attorney dated 5.2.1997 for the purpose of selling the said properties; that the plaintiffs(respondents 1 to 3 in the Second Appeal) purchased the said properties through the said Ramanathan acting as Power Agent of Ramani and Ponmani, under a sale deed, dated 27.10.2014 registered as Document No.5336 of 2004 and that thus the respondents 1 to 3 herein/Plaintiffs became entitled to the suit property. According to the Plaint averments, since the defendants attempted to disturb their peaceful possession and enjoyment, they were forced to file a suit for declaration and consequential injunction. 6. According to the Plaint averments, since the defendants attempted to disturb their peaceful possession and enjoyment, they were forced to file a suit for declaration and consequential injunction. 6. As against such a clear pleading made by the respondents 1 to 3 herein/Plaintiffs in their plaint and that the properties originally belonged to P.R.K.Pandian from whom the predecessors-in-title of the plaintiffs namely Ramani and Ponmani purchased them and though the purchases were made under three sale deeds, properties purchased by Ramani and Ponmani form a single plot and that the plaintiffs were in possession and enjoyment of the same from the date of their purchase, the contesting defendants did not take any specific plea that the purchase made by Ramani and Ponmani under three sale deeds referred in the plaint did not form a single plot or that the portions purchased by them were separate and disjunct. In fact, the contesting defendants did not dispute the claim of title and possession made by the respondents 1 to 3 herein/Plaintiffs in respect of the suit property, excepting a portion of the same, namely R.S.No.1376/2C2. The portions comprised in the other S.Nos. namely R.S.No.1376/2C3, 1377/2B2, 1377/2B3 and 1377/4 extending 3.15 acres are admittely belonging to the respondents 1 to 3/plaintiffs and it is also not disputed that they form a single plot. On the other hand, the pleading made by the contesting defendants in their written statement is some what sketchy, lacking in details as to how they claim title to S.No.1376/2C2. According to the pleadings made in the written statement,S.No.1376/2 before further sub-division comprised a total extent of 4.46 acres that originally belonged to one Gurusamy and others. Out of the said extent of 4.46 acres, Palaniyandi and Ponniah(first defendant) purchased 2.30 acres under registered sale deed, dated 11.03.1996 and from Ponniah, the first defendant, who was also the Power Agent of Palaniyandi, the appellant herein/third defendant purchased 1.36 acres and 96 cents (total 2.32 acres) under a sale deed dated 18.07.2005. However, while getting such a sale deed, a recital came to be incorporated in the sale deed to the effect that the property purchased therein was comprised in the following survey numbers after further sub-division, namely S.Nos.1376/2C2 and 1376/2C1 measuring 1.36 acres and 0.96 acres respectively. 7. However, while getting such a sale deed, a recital came to be incorporated in the sale deed to the effect that the property purchased therein was comprised in the following survey numbers after further sub-division, namely S.Nos.1376/2C2 and 1376/2C1 measuring 1.36 acres and 0.96 acres respectively. 7. So far as the property sub-divided in R.S.No.1376/2C1 is concerned, there is no dispute as the plaintiffs have not included the said sub-division as part of the suit property in the description of property found in the plaint schedule. So far as the purchase allegedly made in S.No.1376/2C is concerned, it is the contention of the appellant that due to the mistakes committed by the Survey Authority during the updated resurvey, patta came to be issued wrongly in the name of the predecessors-in-title of the plaintiffs in respect of the said sub-division and that it was the predecessor of the appellant, who was the real owner of the property shown in sub-division 2C2 of S.No.1376. 8. The respondents 1 to 3 herein, who filed the suit as plaintiffs, clearly traced their title to the property described in the plaint schedule including 39 cents comprised in R.S.No.1376/2C2 by examining P.Ws. 1 and 2 and producing their title deeds Exs.A1 to A5, besides the Patta Pass-book and the computer generated patta as Exs.A6 and A7. Both the Courts below, on appreciation of the evidence both oral and documentary, adduced on the side of the plaintiffs in just opposition to the evidence adduced on the side of the contesting defendants in the form of testimony of D.W.1 and Exs.D1 to D4, came to the conclusion that the predecessors of the Plaintiffs purchased southern half of S.No.1376/2 before its further sub-division and the northern half alone had been purchased by the predecessors of the contesting defendants. On a clear understanding of the case on the basis of appreciation of evidence adduced on both sides, the learned Trial Judge accepted the contention of the plaintiffs that the disputed area, namely 39 cents comprised in sub-division 2C2 in S.No.1376 forms part of the southern half of S.No.1376/2 and that it forms the continuous portion and linking piece of land with the portion comprised in the other survey numbers and other sub-divisions found mentioned in the description of property made in the plaint. The learned Trial Judge, on proper appreciation of evidence, also came to the conclusion that the contesting defendants failed to correlate the old and new sub-divisions and they failed in their attempt to show that, in the up-dated resurvey, any portion forming the northern part of the concerned survey number, which alone was purchased by the predecessors-in-title of the contesting defendants, was tagged with the southern part and included in sub-division 2C2 of S.No.1376. 9. In fact, when the contesting defendants filed an appeal before the Lower Appellate Court, the appellant produced additional evidence in the form of Ex.B5 to B9.Though there is a scope for the contesting respondents in the Second Appeal to contend that the procedure contemplated under Order 41 Rule 27 of Code of Civil Procedure for grating permission to adduce additional evidence and the procedure contemplated under Rule 28 of the said Order as to how the additional evidence should be recorded, have not been followed, the same need not deter this Court from proceeding further, because the learned Lower Appellate Judge, even after taking into consideration the above said additional documents, came to the conclusion that the case of the plaintiffs stood substantiated, whereas the defense plea of the contesting defendants remained un-substantiated, with result that the appeal was dismissed by the Lower Appellate Court. A clear and concurrent finding of fact that the entire 3.54 acres described within the specified boundaries, even though comprised in two different survey numbers and five sub-divisions, formed a single plot and that the survey numbers with the sub-divisions noted in the description of property in the plaint schedule were properly assigned to the property purchased by the plaintiffs by the Survey Authorities during the Up-Dated Survey The Courts below have also concurrently held that the entire suit property, including 39 cents comprised in S.No.1376/2C2 which alone is disputed by the contesting defendants, is in the possession and enjoyment of the plaintiffs and that the plaintiffs having established their title as well as possession are entitled to declaration and perpetual injunction as prayed for. 10. Upon perusing the judgments of the Courts below and the records produced in the form of typed-set of papers, this Court is not in a position to hold that such a finding is either erroneous or infirm, much less perverse. 10. Upon perusing the judgments of the Courts below and the records produced in the form of typed-set of papers, this Court is not in a position to hold that such a finding is either erroneous or infirm, much less perverse. No substantial question of law is proved to have been arisen for decision of this Court in the Second Appeal. Hence this Court comes to the conclusion that there is no merit in the Second Appeal; Nay, the Second Appeal does not even merit admission and on the other hand, it deserves to be dismissed at the threshold. 11. In the result, the Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is dismissed.