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2017 DIGILAW 197 (MAD)

Fathima v. Noorjahan

2017-01-19

M.DURAISWAMY

body2017
JUDGMENT : The above Second Appeal arises against the Judgment and Decree passed in A.S.No.52 of 2007, on the file of the Additional Subordinate Court, Dindigul confirming the Judgment and Decree passed in O.S.No.1356 of 2004 on the file of I Additional District Munsif Court, Dindigul. 2. The plaintiffs are the appellants and the respondent is the defendant in the suit. The plaintiffs filed the suit in O.S.No.1356 of 2004 for declaration, injunction and recovery of possession. 3. The brief case of the plaintiffs is as follows: (i) According to the plaintiffs, the suit properties originally belonged to one Seshasala Naidu. Ramanuja Naidu, Seenivasan and Venugopal are the sons of the said Seshasala Naidu. On 21.01.1949, Seenivasan executed a release deed in respect of his share in favour of his father and brothers. The said Seshasala Naidu died on 22.05.1954. In the partition deed dated 30.08.1954, the suit property was allotted to the share of Ramanuja Naidu and the remaining properties of Seshasala Naidu were allotted to Venugopal. The said Ramanuja Naidu married one Rukmani Ammal and they had two sons and three daughters viz., Seetharam, Krishnaveni, Nacharammal, Vasantha and Dhandapani. Since the suit property is an ancestral property, Seetharam and Dhandapani are entitled to 1/3rd share each. (ii) On 12.11.1965, Seetharam released his share in the property in favour of his father Ramanuja Naidu. Therefore, Ramanuja Naidu is entitled to 2/3rd share. Seetharam married the first plaintiff and the plaintiffs 2 to 7 are his heirs. Seetharam died on 29.08.1999. Dhandapani is entitled to 4/9th share. Rukmani Ammal, Krishnaveni, Nacharammal and Vasantha are entitled to 1/9th share each. Seetharam's heirs viz., the plaintiffs are entitled to 1/9th share. Dhandapani died on 17.07.2003. His legal heirs succeeded to his 4/9th share. The third plaintiff purchased 4/9th share from the legal heirs of Dhandapani. The third plaintiff also purchased 4/9th share on 14.05.2004 from the legal heirs of Ramanujam Naidu by virtue of two sale deeds. (iii) The third plaintiff is entitled to 8/9th share. The legal heirs of Seetharam are entitled to 1/9th share. The plaintiffs are in possession and enjoyment of the properties in T.S.No.606 and also 1/9th share of Seetharam. The defendant claimed that he had purchased the first item of the suit property in T.S.No.607 and subsequently encroached into the suit property in July 2004. In these circumstances, the plaintiffs have filed the suit. 4. The plaintiffs are in possession and enjoyment of the properties in T.S.No.606 and also 1/9th share of Seetharam. The defendant claimed that he had purchased the first item of the suit property in T.S.No.607 and subsequently encroached into the suit property in July 2004. In these circumstances, the plaintiffs have filed the suit. 4. The brief case of the defendant is as follows: The defendant, while disputing the averments stated in the plaint specifically, stated that the suit has been filed by the plaintiffs suppressing the document dated 21.01.1949. The schedule of properties is not correct. The predecessor in title of the plaintiffs was in possession and enjoyment of the property on the north of 1½' compound wall. The plaintiffs are not entitled to the suit property and they have no right over the same. T.S.No.607 has been sub-divided as 607/1 and 607/2. The compound wall measuring 1½ 'and 2' belongs to the defendant. T.S.No.607 is not in existence. The measurement mentioned in the document dated 30.08.1954 does not tally with the measurement found in the document dated 21.01.1949. In these circumstances, the defendant prayed for dismissal of the suit. 5. Before the trail Court, on the side of the plaintiffs, P.W.1 was examined and seven documents viz., Exs.A.1 to A.7 were marked and on the side of the defendant, D.W.1 was examined and nine documents viz., Exs.B.1 to B.9 were marked. The Advocate Commissioner's report and plan were marked as Exs.C.1 and C.2. The trial Court, after taking into consideration the oral and documentary evidences let in by the parties dismissed the suit. Aggrieved over the Judgment and Decree of the trial Court, the plaintiff preferred an appeal in A.S.No.52 of 2007 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the plaintiffs have filed the above Second Appeal. 6. Heard Mr. A.R. Sethupathy, learned Counsel appearing for the appellants and Mr. R.J. Karthick, learned Counsel appearing for the respondent. 7. The appellants have raised the following Substantial Questions of Law in the Second Appeal. "1. Whether the defendant having accepted the relationship and title of the plaintiffs is entitled to dispute the measurement? 2. Whether the judgments of the Courts below without considering the documentary evidence is sustainable? 3. R.J. Karthick, learned Counsel appearing for the respondent. 7. The appellants have raised the following Substantial Questions of Law in the Second Appeal. "1. Whether the defendant having accepted the relationship and title of the plaintiffs is entitled to dispute the measurement? 2. Whether the judgments of the Courts below without considering the documentary evidence is sustainable? 3. Whether the Courts below are right in not relying upon the Commissioner's report?" 8. On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, it could be seen that the plaintiffs are contending that the defendant had encroached 1½ ' of their land. The plaintiffs relied upon Ex.A.2 partition deed dated 30.08.1954 in support of their contention. Ex.A.2 is the partition deed between Ramanuja Naidu and his brother. Ex.A.3 is the release deed executed by Seetharam in favour of Ramanuja Naidu. Under Ex.A.5 dated 10.03.2004, the third plaintiff purchased the property from one Amsaveni. Similarly under Ex.A.6 sale deed dated 14.05.2004, the third plaintiff purchased another extent of the property from one Rukmani Ammal and others. The plaintiffs contended that they are entitled to 21' North South. However in support of their contention, they were not in a position to produce any document. 9. The Advocate Commissioner inspected the property and filed his report, which is marked as EX.C.1 and has stated that the measurement is only 19 ½ '. In Ex.C.2 plan also, the Advocate Commissioner has pointed out the physical features along with the measurements. Though the plaintiffs relied upon Ex.A.2 partition deed dated 30.08.1954, the said document was not in consonance with the measurement found in the document dated 21.01.1949. When a lesser extent has been mentioned in the document dated 21.01.1949, how an increased measurement has been mentioned in Ex.A.2 partition deed, has not been explained by the plaintiffs. Admittedly, the parties are bound by the document dated 21.01.1949. That being the case, merely because in a subsequent document, higher extent has been mentioned, it will not give any better right to the plaintiffs. Even the Advocate Commissioner's report also does not support the case of the plaintiffs. The plaintiffs have completely suppressed the document dated 21.01.1949 and filed their suit based on the subsequent documents. That being the case, merely because in a subsequent document, higher extent has been mentioned, it will not give any better right to the plaintiffs. Even the Advocate Commissioner's report also does not support the case of the plaintiffs. The plaintiffs have completely suppressed the document dated 21.01.1949 and filed their suit based on the subsequent documents. Even the plaintiffs have miserably failed to establish that the second item of suit property lies on the south of the first item of the suit property. In Ex.A.2, it has not been mentioned that the second item of the suit property lies on the south in T.S.No.607. Even the measurement mentioned in the documents does not tally with the measurement stated by the plaintiffs. As already stated, the Advocate Commissioner's report also does not support the case of the plaintiffs. Taking into consideration all these aspects, the Courts below have concurrently dismissed the suit. 10. In these circumstances, I do not find any ground, much less any substantial question of law, to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. There shall be no order as to costs.