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2017 DIGILAW 3575 (MAD)

Veeraiah v. Subbiah

2017-11-03

RMT.TEEKAA RAMAN

body2017
JUDGMENT : The unsuccessful plaintiff is the appellant herein. 2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court. 3. The plaintiff filed the suit, in O.S.No.80 of 1984, before the learned Subordinate Judge, Pattukottai, for the relief of declaration and permanent injunction. 4. After contest, the learned Subordinate Judge, Pattukottai, by Judgment and Decree, dated 23.07.1990, dismissed the suit. 5. Aggrieved by the Judgment and Decree passed by the learned Subordinate Judge, Pattukottai, the plaintiff preferred an appeal, in A.S.No.60 of 1992, before the learned District Judge, Thanjavur. 6. After contest, the learned District Judge, Thanjavur, by Judgment and Decree, dated 02.09.1994, dismissed the appeal, and confirmed the Judgment and Decree passed by the learned Subordinate Judge, Pattukottai. 7. Aggrieved by the dismissal of the appeal, the plaintiff has preferred the present second appeal. 8. The brief averments of the plaint that are necessary to decide this appeal are as follows : Palani, who is the father of the plaintiff, defendants 6 and 7 and husband of the 8th defendant and the first defendant, namely, Vellaichamy are bothers. They do not have any ancestral properties. Palani died during 1972. Item No.I of the suit schedule property and the property situated on the western side of Item No.I purchased on 01.07.1930 and owned by Palani. Item No.II and the property situated on the eastern side of Item No.II purchased on 25.10.1956 and owned by Palani and the first defendant, namely, Vellaichamy, jointly. After two years, there was an oral partition, whereby and whereunder, Item No.II of the suit schedule property was allotted to the share of Palani and ever since the date of partition, he was in possession and enjoyment of Item No.II of the suit schedule property. Item No.III of the suit schedule property is concerned, it has been purchased by Palani, during 1958 under oral sale for a sum of Rs.80/- and thereafter, he had planted coconut trees and he had been in possession of the same for more than 12 years without any objection of anybody. Therefore, he got adverse possession. After the demise of Palani, the plaintiff and the defendants 6 to 8 became the absolute owners of the said property. In order to avoid objection from the first defendant, through the defendants 6 to 8, he was also impleaded as a party to the proceedings. Therefore, he got adverse possession. After the demise of Palani, the plaintiff and the defendants 6 to 8 became the absolute owners of the said property. In order to avoid objection from the first defendant, through the defendants 6 to 8, he was also impleaded as a party to the proceedings. He do not have any right, title or interest over the suit property. The defendants 1 to 5 seem to have created a forgery settlement deed in respect of the suit schedule property and some other properties. Since the defendants 1 to 5 claimed right over the suit schedule properties, the plaintiff filed the suit seeking the relief as stated above. 9. The brief averments of the written statement filed by the first defendant that are necessary to decide this appeal are as follows : The suit schedule properties were belonged to the father of the plaintiff and the first defendant. Till the demise of the plaintiff's father, he only managed the suit schedule properties and thereafter, the first defendant managed the same in the capacity of Family Administrator. While the plaintiff's was alive, he purchased some properties in his name and some properties in the name of the first defendant. At that time, no partition was effected. However, the first defendant cultivated Item Nos.I and II of the suit schedule properties by residing in Item No.III of the suit schedule property. The first defendant is in absolute possession and enjoyment of Item No.II of the suit schedule property, measuring an extent of 01 Acre. However, in the plaint, it is wrongly mentioned 50 Cents. The third defendant obtained Item Nos.I and II suit schedule properties from first defendant under a forgery settlement deed. The said forgery came to the knowledge of the first defendant only when the fourth defendant tried to interrupt his possession of the suit schedule properties. Therefore, the first defendant filed a suit in O.S.No.8 of 1975 in the name of the defendants 3 and 4 and obtained injunction. The plaintiff with the collusion of the defendants 3 and 4 has filed the present suit. Palani and the first defendant had not partitioned the suit schedule properties. Palani and the first defendant were residing in Item No.III of the suit schedule property till the demise of Palani. After the demise of Palani, the first defendant had gone out and living separately for five years. Palani and the first defendant had not partitioned the suit schedule properties. Palani and the first defendant were residing in Item No.III of the suit schedule property till the demise of Palani. After the demise of Palani, the first defendant had gone out and living separately for five years. It is false to state that the plaintiff got the possession of Item No.III of the suit schedule properties. It is also false to state that the suit properties are under the possession of the plaintiff. The defendants 2 to 4 have no right over the suit schedule properties. The first defendant had never given any settlement in favour of the third defendant. Therefore, the defendants 2 to 4 have no right over the suit schedule properties. 10. The brief averments of the written statement filed by the fourth defendant which was adopted by the defendants 2, 3 and 5 that are necessary to decide this appeal are as follows : The averment stated by the plaintiff in the plaint that there was an oral partition is not true. The first defendant had purchased the entire suit schedule properties out of his own income in the name of his elder brother, namely, Palani. The first defendant alone was in possession and enjoyment of the properties. It is not true to state that Item No.III of the suit schedule property was purchased by the plaintiff's father. The father of the plaintiff enjoyed the property with the permission of the first defendant. The suit properties are entitled to the first defendant and he had paid the necessary taxes. The plaintiff's father had no right, title or interest over the suit schedule properties. If that is so, the first defendant is entitled to the same under adverse possession. Since the plaintiff's father was in Ceylon, he could not have planted coconut trees in the suit schedule properties. The first defendant had gifted his properties to the fourth defendant under a Settlement Deed, dated 27.04.1974. In order to cancel the said Settlement Deed, the first defendant filed O.S.No.54 of 1975, before the Subordinate Judge, Thanjavur and in respect of the said suit, the defendants 2, 3 and 5 are unnecessary parties. 11. The first defendant had gifted his properties to the fourth defendant under a Settlement Deed, dated 27.04.1974. In order to cancel the said Settlement Deed, the first defendant filed O.S.No.54 of 1975, before the Subordinate Judge, Thanjavur and in respect of the said suit, the defendants 2, 3 and 5 are unnecessary parties. 11. The brief averments of the addition written statement filed by the fourth defendant that are necessary to decide this appeal are as follows : Since the suit filed by the first defendant for cancelling the Gift Deed, dated 27.04.1974 was dismissed, the plaintiff with the collusion of the first defendant has filed the present suit. The plaintiff and the first defendant partitioned the properties even prior to 27.04.1974. It is not correct to say that the family is a joint family after admitting the partition. No property was enjoyed by jointly. 50 Cents of land in Item No.I, 01 Acre of land in Item No.II and 19 Cents of land in Item No.III of the suit schedule properties were allotted to the share of first defendant and thereafter those properties alone were gifted to the third defendant. The father of the plaintiff has got entitlement only in respect of 35 Cents of land in Item No.I of the suit schedule property and therefore, a joint Patta was issued. During partition, the plaintiff was allotted 01 Acre and 48 Cents of lands. Since the cost of coconut grove was very high, excess land was allotted to the first defendant. Though the Item No.I of the suit schedule property was purchased in the name of the plaintiff's father, either the plaintiff or the first defendant has not claimed possession. The plaintiff cannot claim any right over Item No.I of the suit schedule property. Item Nos.II and III suit schedule properties were allotted only in respect of the first defendant and he only paid taxes for the same. Therefore, the suit is liable to be dismissed. 12. Based upon the above pleadings, the Trial Court had framed as many as seven issues for consideration. 13. On the side of the plaintiff, P.Ws.1 to 32 were examined and Exs.A1 to A61 were marked and on the defendants side D.Ws.1 to 3 were examined and Exs.B1 to B19 were marked. 14. 12. Based upon the above pleadings, the Trial Court had framed as many as seven issues for consideration. 13. On the side of the plaintiff, P.Ws.1 to 32 were examined and Exs.A1 to A61 were marked and on the defendants side D.Ws.1 to 3 were examined and Exs.B1 to B19 were marked. 14. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiff has not proved his case properly and therefore, he is not entitled to the relief sought for and dismissed the suit accordingly. 15. As stated supra, the unsuccessful plaintiff preferred first appeal in A.S.No.69 of 1992, before the learned District Judge, Thanjavur and the learned First Appellate Judge, after contest, dismissed the appeal and confirmed the Judgment and Decree passed by the learned Trial Judge. Hence, the second appeal. 16. At the time of admission, the following substantial questions of law were framed for consideration : (i) Whether the Courts below are right in recording a finding on the earlier partition in spite of an admission by the first defendant about the joint family character of the properties? (ii) Whether Exs.A19 and B13 and B17 have been properly construed or misconstrued by the courts below in recording its finding on the earlier partition? And (iii) Whether the courts below are right in denying the relief of partition to the plaintiff? 17. The unsuccessful plaintiff is the appellant herein. 18. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court. 19. The chequered history of the case is that originally, the suit in O.S.No.85 of 1975 was filed before the District Munsif Court, Pudukottai and subsequently, transferred and re-numbered as O.S.No.80 of 1984 and judgment was delivered on 30.04.1987 as against which A.S.No.107 of 1987 has been filed and the same was allowed and the mater was remanded back to the District Munsif Court by an order dated 2.5.1989. Thereafter, after remand the matter was taken on file by the District Munsif, additional evidence has been adduced and subsequently, judgment was delivered in O.S.No.80 of 1984 on 23.07.1990 and aggrieved against the party has filed A.S.No.60 of 1992 and by Judgment dated 2.9.1994, the appeal was dismissed and hence, Second Appeal. 20. Thereafter, after remand the matter was taken on file by the District Munsif, additional evidence has been adduced and subsequently, judgment was delivered in O.S.No.80 of 1984 on 23.07.1990 and aggrieved against the party has filed A.S.No.60 of 1992 and by Judgment dated 2.9.1994, the appeal was dismissed and hence, Second Appeal. 20. The plaintiff and defendants 6 to 7 are the sons and daughters and the defendant 8th is the wife of one deceased Palani, the first plaintiff is the brother of the said deceased Palani, while, 2nd defendant is the husband of sister of D1 and defendants 3,4,5 are sons of 2nd defendant. 21. The plaint proceeds on the basis that Item No.I of the suit property was purchased by his father by virtue of a registered sale deed dated 01.07.1930 from one Muthu Thevar. The 2nd item of suit property and other properties were purchased jointly in the name of father of the plaintiff and 1st defendant herein. The 3rd item of suit property was orally purchased by the father of the plaintiff and continued to enjoy the same for more than 12 years, thereby perfected title by Adverse possession and hence, the plaintiff filed a suit for declaration of title and for permanent injunction, after the remand as stated supra, the Interlocutory Application have been filed and alternative prayer of partition and for separate possession has been sought for wherein the plaintiff has further developed his case that in the oral partition effected between the father of the plaintiff and 1st defendant herein during 1958 the suit properties were devolved to the share of father of the plaintiff. The father of the plaintiff during his life time has possessed and enjoyed the suit properties and died in the year 1972 and thereafter the plaintiff and defendants 6 to 8 are continued to be in possession and enjoyment over the suit property. So the plaintiff and defendants 6 to 8 would derive title to the suit property. 22. Based upon the above pleadings sought the relief of declaration of title and permanent injunction, or in the alternate for recovery of possession or in the alternate for partition of the suit property to an extent of 1/2 share. 23. In the written statement, the 1st defendant has pleaded that the suit properties are joint family properties. 22. Based upon the above pleadings sought the relief of declaration of title and permanent injunction, or in the alternate for recovery of possession or in the alternate for partition of the suit property to an extent of 1/2 share. 23. In the written statement, the 1st defendant has pleaded that the suit properties are joint family properties. The 1st item of suit property was purchased in the name of the father of the plaintiff as he was the KARTA and manager of the joint family. Whereas, the 2nd item of the suit property was purchased jointly in the name of the 1st defendant and father of the plaintiff. The father of the plaintiff was never in possession and enjoyment over the 3rd item of suit property as it is his exclusive property. In fact the 1st defendant herein and his brother were jointly resided in the 3rd item of suit property and few years ago the father of the plaintiff left the 3rd item of suit property and now the 1st defendant herein is residing therein. There was no partition effected between the 1st defendant and his brother. Subsequent to the demise of the father of the plaintiff the 1st defendant continued to manage the joint family. So the claim of the plaintiff that the suit properties are absolutely belongs to his father is not correct. The suit properties are absolutely belongs to the 1st defendant. The 1st defendant out of his personnel earnings had purchased the 1st item of the suit property in the name of his brother who is the father of the plaintiff since he was the manager and KARTA of the family. However, the 1st defendant had purchased a 2nd item of suit property jointly in his name and his brother. The 3rd item of suit property was absolutely possessed and enjoyed by the 1st defendant. Therefore the suit properties are the absolute properties of 1st defendant. The 1st defendant being an absolute owner of the suit properties had executed a registered settlement deed dated 27.04.1974 (EX.B15) in favour of the 3rd defendant herein. In view of the settlement deed stated supra 3rd defendant would derive the title to the suit properties. 24. Therefore the suit properties are the absolute properties of 1st defendant. The 1st defendant being an absolute owner of the suit properties had executed a registered settlement deed dated 27.04.1974 (EX.B15) in favour of the 3rd defendant herein. In view of the settlement deed stated supra 3rd defendant would derive the title to the suit properties. 24. Further, it is specifically pleaded by the defendants 3 to 5 that the 1st defendant instituted a suit in O.S.No.63 of 1981 on the file of District Munsif Court, Pattukottai (Originally filed before the Sub Court, Thanjavur in O.S.No.54 of 1975) as against the defendants 3 and 4 herein to declare that the settlement deed dated 27.04.1974 (Ex.B15) is invalid as it was obtained by fraud. The said suit was ultimately dismissed by the said Court by a judgment and decree dated 30.11.1982 (Ex.B17 and B19). The 1st defendant herein did not prefer any appeal as against the said judgment and decree and hence it became final. 25. After the remand by the lower Appellate Court, the trial Court has formulated as many as 7 issues and on the side of the plaintiff, P.Ws.1 to 32 were examined and Exs.A1 to A61 were marked and on the defendants side D.Ws.1 to 3 were examined and Exs.B1 to B19 were marked. 26. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiff has not proved his case as per pleading and therefore, he is not entitled to the relief sought for and dismissed the suit accordingly. 27. The trial Court has held that in view of the recital in the Ex.B1 which was executed jointly by the father of the plaintiff and the first defendant to the extent that Item No.I was jointly purchased by the both of them and they are mortgaging the property to raise the sale consideration for purchase of the Item No.II of the property has been believed and accepted by the Courts below and held that Item No.I of the suit property belongs to the first defendant which is stand corroborated by the Ex.B5 patta issued in their favour and based upon the document Ex.B4 in patta No.500, the property covered under Item No.2 and 3 suit properties patta were issued and he is in possession as could be seen from the exhibits. Further, the first defendant has exercised the act of ownership by mortgaging the property under Ex.B13 to one Aadmanadha Chettiar as early as on 21.2.1963 and it remains to be stated that the suit properties have seems to have been settled by the first plaintiff in favour of his sister's son under Ex.B15 settlement deed dated 27.04.1974 in favour of Subbiah (3rd defendant) and on consideration of the entire documentary evidence that the trial Court has come to the conclusion that though, the first defendant has taken a stand that there was a no partition between the family members of the father of the plaintiff and the first defendant by virtue of the stand taken by the other defendants that after the oral partition between that the first defendant has executed a settlement deed in favour of the sister's son and subsequently, the 1st defendant has filed O.S.No.54 of 1975 before the Sub-Court, Thanjavur for cancellation of the said settlement which was dismissed by the said Sub-Court and without preferring the appeal, the first defendant has instigated his brother's son to file the suit and accordingly, the trial Court has held that the Item No.1 to 3 are properties of the first defendant and subsequently settled in favour of the third defendant which was also conveyed under Ex.B15 settlement as confirmed under Ex.B17 in the judgment of the Sub-Court upholding the validity of the deed and accordingly, dismissed the suit. 28. On appeal aggrieved against the judgment, the plaintiff preferred in A.S.No.60 of 1992, the lower Appellate Court on re-appreciation of evidence have formulated point for determination in the appeal has concurred with the finding of the trial Court and specifically held that Item No.3 of the property was purchased in the name of the first defendant and in view of the recital in the Ex.B1 mortgage deed dated 25.10.1956. The Item No.1 of the suit property has been jointly purchased by the first defendant and father of the plaintiff/appellant jointly which was subsequently mortgaged under Ex.B1 to raise the source of income for the purchase of Item No.2 of the property and subsequently in the oral partition, the same was allotted to the defendant and hence, concurred with the finding of the trial court and dismissed the appeal and hence, the Second Appeal. 29. 29. The above Second Appeal has been admitted on the following Substantial Question of law :- (i) Whether the Courts below are right in recording a finding on the earlier partition in spite of an admission by the first defendant about the joint family character of the properties? (ii) Whether Exs.A19 and B13 and B17 have been properly construed or misconstrued by the courts below in recording its finding on the earlier partition? And (iii) Whether the courts below are right in denying the relief of partition to the plaintiff? 30. As stated supra, the plaintiff/appellant has initially filed a suit for declaration of title for injunction and subsequently, amended the prayer one for partition and the relationship between the parties are admitted. The first defendant initially filed a written statement stating that there was no partition. But, the both the Courts below have concurrently held that based upon Ex.B1 mortgage deed dated 25.10.1956 executed by the first defendant along with the father of the plaintiff in which there is a specific recital that the Item No.I of the suit property is the joint family property and the same has been mortgaged to raise a fund to purchase the Item No.II of the suit property in respect of item No.III of the suit property. It is an admitted case of the plaintiff that the property has been purchased by the defendant in his own name. However, the father of the plaintiff has prescribed the title by adverse possession with the above said pleading, he entered the witness box. However, in the witness box, he has initially stated that the plaintiff's father has purchased the property orally from the first defendant and subsequently, changed his stand that he himself viz., D.W.1 himself has orally purchased the property from the first defendant, both the Courts below have concurrently held that the oral evidence of the P.W.1 regarding his alleged title over the Item No.3 of the suit property runs contrary to his own stand in the plaint and accordingly, rejected his plea in respect of Item No.III of the property. 31. 31. In respect of, Item No.II of the property though, it was initially purchased in the joint name of the first defendant and the father of the plaintiff subsequently, there was a oral partition in which Item No.II of the property has been allotted to the share of the first defendant and both the Courts below have concurrently held that in view of Ex.A19 and Ex.A13 and Ex.B17 in respect of Item No.1, 2, 3 of the property, the first defendant have exercised his act of his sole ownership by mortgaging the property and also executed a settlement deed in favour of the third defendant and accordingly, accepted the plea of oral partition advanced by the third defendant (not by the first defendant) since there is a enmity between the first defendant and the third defendant in respect of all the properties being settled in favour of the third defendant under Ex.B15. However, the genuineness and validity of execution of Ex.B15, settlement deed in favour of the third defendant has been confirmed by the judicial decision in the judgment and decree in O.S.No.54 of 1975, Sub-Court, Thanjavur which was marked as Ex.B17. 32. At the risk of repetition however, for the sake of convenience, it is to be stated that it is a specific case of the plaintiff that the suit properties are absolute property of his father and there was no prior partition between his father and first defendant, both the Courts below have specifically dealt with a issue and on consideration of the recital found in Ex.B13, mortgage deed, dated 21.02.1963 came to the conclusion that a oral partition have been effected much prior to 1963 does not warrant any interference by this Court. 33. On a bare reading of recital of the mortgage deed Ex.B13 could revealed that the first defendant alone had executed a document as to the effect to that the properties was devolved upon him out of the partition with his brother (father of the plaintiff). Had it been a joint family property, the first defendant could not have executed a Ex.B13, mortgage deed. Therefore, both the Courts have categorically held that the recital in the mortgage deed, Ex.B13 which is effected as early as on 1963 is a clinching evidence to prove the prior partition between the parties viz., first defendant and his brother-father of the plaintiff. 34. Therefore, both the Courts have categorically held that the recital in the mortgage deed, Ex.B13 which is effected as early as on 1963 is a clinching evidence to prove the prior partition between the parties viz., first defendant and his brother-father of the plaintiff. 34. Furthermore, out of the total extent of 0.85 cents in Old S.No.163/3 and New S.No.160/5 an extent of eastern side 0.50 cents were described as 1st item of the suit property. So, it is clear that there is an another extent of 0.35 cents would exist in Old S.No.163/3 and New S.No.160/5. The fact remains a joint Patta No.513 stands in the name of the father of the plaintiff and 1st defendant herein, for which kist receipts under Ex.A8 to Ex.A12 have been produced by the plaintiff. 35. The 2nd item of suit property is an extent of 0.50 cents out of 1 acre in Old S.No.160/1 and New S.No.160/1. The 3rd item of suit property is an extent of 0.19 cents Old S.No.160/1 and New S.No.160/1. The 1st defendant was assigned with a Patta No.500 for an extent of 1.19 acre in S.No.160/1. According to the 1st defendant the Patta No.500 is pertaining to the entire extent of 2nd item of suit property as well as the 3rd item of suit property. 36. As stated supra, it was the pleading of the plaintiff that 3rd item of suit property was orally purchased by his father. But, during the oral evidence the plaintiff contradicted his own pleadings in plaintiff and stated that he purchased that 3rd item of suit property. Whereas the 1st defendant is in continuous possession and enjoyment over the 3rd item of the suit property. As already stated, both the Court below have concurrently found that the partition was effected between 1st defendant and his brother, thereby the 1st defendant had executed a register settlement deed in favour of the 3rd defendant. In such circumstances, this Court do not find infirmity with the concurrent findings recorded by both the Courts below. 37. As already stated, both the Court below have concurrently found that the partition was effected between 1st defendant and his brother, thereby the 1st defendant had executed a register settlement deed in favour of the 3rd defendant. In such circumstances, this Court do not find infirmity with the concurrent findings recorded by both the Courts below. 37. Thus, this Court finds that the plea taken by the first defendant that there was no partition in the written statement need not be gone into in view of the enmity shown by the first defendant with the third defendant after executing a settlement deed in Ex.A15 which was upheld in the Sub-Court under Ex.A17 and in view of the specific plea taken by the third defendant, the donee under the Ex.A17 settlement deed that there was a oral partition coupled which evidenced from Ex.A19 and A13 and B17, the Courts below have concurrently come to the conclusion that there was a previous partition between the parties as early as on 1963 and further interpretation of the recital under Ex.B1 and B2 and B17 are only in accordance with law established in respect of title and possession and the validity of the settlement deed which was upheld by the Sub-Court in Judicial decision which was also attained finality and in view of the earlier partition between the partition, both the Courts below have right in denying the relief of the plaintiff and hence, all the substantial question of law are answered in negation against the plaintiff and this appeal is devoid of merits accordingly. 38. In the result, (i) this Second Appeal is dismissed without costs. (ii) the Judgment and Decree in A.S.No.60 of 1992, dated 02.09.1994 on the file of District Judge, Thanjavur in confirming the Judgment and Decree in O.S.No.80 of 1984, dated 23.07.1990, on the file of Sub Judge, Pattukottai is hereby confirmed.