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2016 DIGILAW 4148 (MAD)

K. Lakshiammal v. P. Annapushpam

2016-12-15

S.S.SUNDAR

body2016
JUDGMENT : The defendants 1 to 17 in the suit in O.S.No.103 of 2002 on the file of the Additional District Munsif Court, Tenkasi, are the appellants in the above Second Appeal. 2. The respondent in this appeal filed a suit in O.S.No.103 of 2002 for declaration that the plaintiff is entitled to the suit second schedule property and for consequential injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property. The first schedule property has been described as a punja land measuring an extent of 3.85 acres in Survey No.315 in Alangulam Village, Tenkasi Taluk. The second schedule is an extent of 96 cents which is part of the first schedule property and lying on the western side of the total extent of 3.85 acres in Survey No.315. The suit second schedule is also described with reference to boundaries on all four sides. 3. The case of the respondent in the plaint are as follows: 3.1. The suit property originally belonged to the five sons of one Sorimuthu Nadar and first schedule property was the ancestral property of the five brothers. The sons of Sorimuthu Nadar were jointly enjoying the suit first schedule. One of the sons of Sorimuthu Nadar by name Samuel Devadas died as a bachelor long back. Hence, the other sons of Sorimuthu Nadar by name Subramanya Nadar, Packiyamuthu Nadar, Ramasubbu Nadar and Chidambara Nadar were in enjoyment as joint owners. About thirty five years back, the four brothers, sons of Sorimuthu Nadar, entered into a partition in respect of the suit first schedule and various other properties belonged to them and the second schedule property was allotted to the share of Packiyamuthu Nadar, the grand father of the plaintiff. Hence, the second schedule property became the absolute property of Packiyamuthu Nadar. 3.2. Packiyamuthu Nadar had only four daughters including the mother of the plaintiff one Meenakshi Ammal. The second schedule property was allotted to the share of the plaintiff's mother Meenakshi Ammal in a oral partition in the year 1968. After the life time of plaintiff's mother, the plaintiff was in enjoyment of the property by leasing out the same to one Velayutham. After the second schedule property could not be used for agriculture, the cultivating tenant surrendered his possession to the plaintiff even in the year 2000 and from then, the plaintiff is in exclusive possession and enjoyment. After the life time of plaintiff's mother, the plaintiff was in enjoyment of the property by leasing out the same to one Velayutham. After the second schedule property could not be used for agriculture, the cultivating tenant surrendered his possession to the plaintiff even in the year 2000 and from then, the plaintiff is in exclusive possession and enjoyment. Ramasubbu Nadar, yet another son of Sorimuthu Nadar died leaving behind three sons. One Sorimuthu, Thiraviam and Ganapathy are the three sons of Ramasubbu Nadar. Thiraviam died and defendants 1 to 14 are the legal representatives of the two sons of Ramasubbu Nadar. The first defendant is the wife of Sorimuthu one of the sons of Ramasubbu and defendants 2 to 6 are the children of the first defendant. Defendants 7 and 8 are the daughters of one Chellammal who is the predeceased daughter of first defendant. Ganapathy second son of Ramasubbu Nadar died leaving behind his wife the 9th defendant and defendants 10 to 14 are his children. 3.3. Defendants 1,9,12 and 14 filed a suit in O.S.No.98 of 1994 for a declaration and consequential permanent injunction as against the plaintiff. The case of the defendants 1,9,12 and 14 in the said suit was negatived in the said suit. Though appeal was filed in A.S.No.159 of 1998 in the previous suit, the judgment and decree was confirmed upholding the right of the plaintiff herein in respect of the suit second schedule property. Since no further appeal is filed before this Court, the defendants are estopped from claiming any right in respect of the suit second schedule by applying the principle of res judicata. 3.4. Despite the findings in the previous suit, the defendants who are the legal heirs of Ramasubbu Nadar made an attempt to grab the property from the plaintiff by creating revenue records in their name. Even when the earlier suit was pending, some of the defendants have created a partition deed dated 23.02.2000 which is a sham and nominal document and an exchange deed dated 05.02.2001. These documents were all created only to defeat the rights of the plaintiff. 3.5. The defendants filed written statement inter alia disputing the rights of the plaintiff. They relied upon an arrangement under a document dated 23.02.2000 and an exchange deed dated 05.02.2001. These documents were all created only to defeat the rights of the plaintiff. 3.5. The defendants filed written statement inter alia disputing the rights of the plaintiff. They relied upon an arrangement under a document dated 23.02.2000 and an exchange deed dated 05.02.2001. It was further contended by the defendants that the plaintiff's title had not been upheld in the previous suit and hence, the dismissal of the suit filed by the defendants herein will not operate as res judicata. Defendants 15 to 17 also filed separate written statement and claimed right on the basis of the proceedings of revenue department. 4. The trial Court decreed the suit as prayed for after framing necessary issues and considering the pleadings as well as the evidence adduced by both parties. The appellants herein, aggrieved by the judgment and decree of the trial Court preferred an appeal in A.S.No.3 of 2007 before the Principal Sub Court, Tenkasi. The appellate Court also after considering the issues dismissed the appeal. Aggrieved by the concurrent judgments and decree of the Courts below, the present Second Appeal has been filed by the defendants 1 to 17. 5. Though this second appeal was also dismissed for non- prosecution by an order dated 10.06.2015, subsequently, the same was restored. The appellants have raised the following substantial questions of law: (a) Whether the lower appellate Court is correct in holding that the plaintiff is entitled for declaration over the suit property when there is no evidence of any partition? (b) When admittedly the suit property belongs to the ancestors whether the suit for declaration is maintainable in the absence of any partition by metes and bounds? (c) Whether the lower Courts can decide the matter on surmises or conjectures and on logical inferences? (d) Whether the lower Courts are right in granting decree of declaration in favour of the plaintiff relying upon the judgment passed in O.S.No.98 of 1994 which was dismissed and when there is no executable decree? (e) Can the lower Courts pass declaratory decree in favour of the plaintiff when the plaintiff has not stood on her own leg by placing any independent evidence despite the weakness of the defendants? 6. The learned counsel for the appellants submitted that the plaintiff has not proved the partition by which the suit second schedule property was allotted to her grand father Packiyamuthu Nadar. 6. The learned counsel for the appellants submitted that the plaintiff has not proved the partition by which the suit second schedule property was allotted to her grand father Packiyamuthu Nadar. It was further submitted by the learned counsel for the appellants that the suit for declaration is not maintainable in the absence of any partition by metes and bounds among the legal heirs of Sorimuthu Nadar. The learned counsel for the appellants attacked the findings of the Courts below on the ground that the Courts below have decided the issues only on surmises and conjectures without there being positive evidence to prove the case pleaded by the plaintiff. Though the earlier suit in O.S.No.98 of 1994 filed by the contesting defendants in respect of the same properties was dismissed, the learned counsel for the appellants submitted that in the previous suit, the title of plaintiff was never declared and hence, the dismissal of the suit filed by the defendants could not confer any right in favour of the respondent herein in respect of the suit second schedule property. 7. It is not in dispute that the plaintiff is entitled to succeed to the interest of Packiyamuthu Nadar, one of the four sons of Sorimuthu Nadar. It is the case of the plaintiff that out of several properties, a portion of the suit first schedule alone namely the second schedule was allotted to the share of Packiyamuthu Nadar. In case, there is no partition, the plaintiff is entitled to claim ¼ share not only in respect of the first schedule but also in respect of the other properties that belonged to the family, as legal heirs of Sorimuthu Nadar. The case of the defendants that they are entitled to the entire first schedule was negatived in the previous suit in O.S.No.98 of 1994. No doubt it is true that there is no specific issue or finding in favour of plaintiff regarding the title of the plaintiff in respect of the suit second schedule. It is also not in dispute that the parties have admitted a partition in the family. In such circumstances, the plaintiff's claim has to be considered having regard to the documents and pleadings of both sides. It is also not in dispute that the parties have admitted a partition in the family. In such circumstances, the plaintiff's claim has to be considered having regard to the documents and pleadings of both sides. The trial Court as well as the lower appellate Court have elaborately discussed the evidence before holding that the plaintiff is entitled to the suit second schedule namely an extent of 96 cents out of the total extent in Survey No.315. It is also relevant to mention that the Commissioner's report and plan available as Ex.C1 and Ex.C2 have been referred to by the lower appellate Court and the lower appellate Court has specifically found that the suit property is identifiable on ground as a separate plot and there are distinct boundaries for the suit second schedule property. The revenue records produced by the plaintiff under Ex.A10 and A11 would clearly show that the plaintiff is entitled to a share of the suit first schedule property. The case of the defendants is the same as it was raised in the previous suit in O.S.No.98 of 1994. When the case of the appellants have been considered in the earlier suit and rejected by Courts it is not open to the appellants to succeed in the present case by setting up title contrary to the findings in the earlier suit. The lower appellate Court has also considered the revenue records and the oral evidence of parties to hold that the plaintiff has proved title and enjoyment of the suit property. Since the suit property is only a vacant land, the lower appellate Court has applied the principle that possession follows title and held in favour of the plaintiff. The trial Court as well as the appellate Court have applied their mind with regard to the documents and oral evidence apart from the findings in the previous suit. Absolutely, there is no reason to interfere with the findings of fact. The appellants have not demonstrated any perversity in the findings of the Courts below. In such circumstances, this Court in exercising jurisdiction under Section 100 C.P.C. is not in a position to interfere with the findings of the Courts below. 8. Absolutely, there is no reason to interfere with the findings of fact. The appellants have not demonstrated any perversity in the findings of the Courts below. In such circumstances, this Court in exercising jurisdiction under Section 100 C.P.C. is not in a position to interfere with the findings of the Courts below. 8. In view of the above, this Second Appeal is dismissed and the judgment and decree of the appellate Court dated 04.03.2007 in A.S.No.3 of 2007 confirming the judgment and decree of the trial Court dated 22.10.2012 in O.S.No.103 of 2002 are confirmed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.