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2018 DIGILAW 1708 (MAD)

K. Ponnusamy v. Pappayee

2018-06-04

T.RAVINDRAN

body2018
JUDGMENT : 1. Challenge in this second appeal is made to the judgment and decree dated 30.09.2003, passed in A.S.No.173 of 2003, on the file of the Principal District Court, Namakkal, confirming the judgment and decree dated 31.08.94, passed in O.S. No.45 of 1991, on the file of the Principal District Munsif Court, Namakkal. 2. The second appeal has been admitted on the following substantial question of law: “Whether Ex.A5 compromise decree dated 05.09.1942 made in O.S. No.8 of 1941 on the file of the District Munsif Court, Namakkal is binding on the first defendant therein, who is not a party to compromise and consequently the 1st defendant and his successors in interest have no title to the suit property”. 3. The suit has been laid by the plaintiff for the reliefs of declaration and permanent injunction. 4. Considering the scope of issues involved in the suit lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 5. Suffice to state that the suit property and the other properties originally belonged to Ponnaiya gounder and the plaintiff claims title to the suit property, as such, by way of the sale deeds marked as Exs.A2 to A4 and further lays strength on the compromise decree passed in O.S. No.8 of 1941, on the file of the District Munsif Court, Namakkal, dated 5.09.42. It is found that O.S. No.8 of 1941 has been laid by Komara gounder, the vendor of Ex.A4 against Chellappa gounder, Mariyayi ammal and Veerappa Asari for partition and separate possession of the properties as set out in the schedule of the said suit. It is found that the first defendant, namely, Chellappa gounder remained ex-parte in the said suit and accordingly, the plaintiff and the defendants 2 and 3 had entered into a compromise in respect of the subject matter of the said suit and following the same, a compromise decree has been passed in the said suit as abovestated. The compromise decree passed in the suit has been marked as Ex.A5. The compromise decree passed in the suit has been marked as Ex.A5. Based on the compromise decree, it is found that one of the plaintiff's vendor, namely, Komara gounder had alienated the property involved in the subject matter by way of Ex.A4 transaction in favour of the plaintiff's father and the plaintiff's father had also acquired other right in respect of the suit property and other properties by way of Ex.A3 sale transaction executed by one Chinna gounder and accordingly, the Courts below, on a proper appreciation of the properties conveyed under the above said sale transaction including the sale deeds marked as Exs.A2 and A1 coupled with the Commissioner's report and plan marked as Exs.C1 to C4, accordingly considering the description of the properties set out in Exs.A3 and A4 in particular and the physical features obtaining in respect of the suit property as well as the other properties in the possession of the plaintiff, accordingly determined, rightly, in the nature of preponderance of probabilities, that, it is only the plaintiff, who has title, possession and enjoyment of the suit property as described in the plaint. 6. The only contention raised by the defendants is that the defendants' vendor not being a party to the compromise decree entered in O.S. No.8 of 1941, the same is not binding upon him and therefore, according to the defendants, they have purchased the property from their vendor Chellappa gounder by way of Ex.B3 sale transaction dated 27.01.48. On that basis, putforth a claim in respect of the suit property, and as such, it is found that the defendants seeking title, possession and enjoyment of the suit property, based on Exs.B1 to B3, particularly, Ex.B3 executed by Chellappa gounder, the first defendant in O.S. No.8 of 1941 and others. On that basis, putforth a claim in respect of the suit property, and as such, it is found that the defendants seeking title, possession and enjoyment of the suit property, based on Exs.B1 to B3, particularly, Ex.B3 executed by Chellappa gounder, the first defendant in O.S. No.8 of 1941 and others. However, as rightly determined by the Courts below, when Chellappa gounder is one of the parties in O.S. No.8 of 1941 and the said suit having been contested by the parties thereto and however, at a later point of time, the subject matter of the said suit had been compromised between the plaintiff and the defendants in the said suit, accordingly, it is seen that the compromise decree passed in the said suit is binding upon one and all, including the first defendant, who remained ex-parte and unless the compromise decree passed in the said suit is set-aside in the manner known to law, it is found that the defendants' predecessors in title cannot lay any claim of title to the property conveyed by him by way of Ex.B3 transaction and accordingly, the Courts below are justified in not placing reliance upon Ex.B3 sale transaction for upholding the defendants' claim of right in respect of the suit property based on the said document. 7. Accordingly, it is found that, on the basis of the sale transactions relied upon by the plaintiff as well as the defendants and finding that the defendants' vendor has no better title to convey in favour of the defendants by way of Ex.B3 sale transaction, much against the decree passed in O.S.No.8 of 1941 and accordingly, noting that the plaintiff's vendor having the entitlement to convey the property under Ex.A4 as such in favour of the plaintiff's father pursuant to the compromise decree as above stated, the Courts below is found to be justified in upholding the plaintiff's claim of title, possession and enjoyment of the suit property and resultantly, I do not find any reasons to interfere with the judgment and decree of the Courts below for upholding the plaintiff's case. 8. 8. In the light of the abovesaid factors, it is found that no substantial question of law is found to be involved in the second appeal, as the determination of the lis by the Courts below are based on the factual matrix placed by the respective parties in support of their claim to the suit property and accordingly, in the light of the preponderance of probabilities, the Courts below have upheld the plaintiff's case based on the sale transactions projected by them coupled with the Commissioner's report and plan marked in the proceedings. 9. In the light of the above discussions, it is found that the compromise decree dated 5.09.42, passed in O.S.No.8 of 1941, on the file of the District Munsif Court, Namakkal is binding on Chellappa gounder, the first defendant in the said suit and unless the said compromise decree is set-aside in the manner known to law, it is seen that the first defendant cannot convey the property to which he has no legal entitlement by way of Ex.B3 and such being the position, the defendants cannot lay any claim of valid title to the suit property based on the sale transactions marked as Ex.B3 as well as Exs.B1 and B2 in respect of the suit property. The substantial question of law formulated in the second appeal is accordingly answered in favour of the plaintiff and against the defendants. Resultantly, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.