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2018 DIGILAW 2031 (MAD)

Govindasamy v. Kandasamy

2018-07-04

T.RAVINDRAN

body2018
JUDGMENT : 1. Challenge in this second appeal is made to the Judgment and Decree dated 28.01.2003 passed in A.S.No.52 of 2002 on the file of the Principal Subordinate Court, Virudhachalam, reversing the Judgment and Decree dated 03.04.2002 passed in O.S.No.129 of 1997 on the file of the District Munsif Court, Thittakudi. 2. The second appeal has been admitted on the following substantial questions of law: “(i). Whether the portion under Ex.A4 was given effect and the parties concerned possessed their respective properties? (ii) Whether Ex.A4 to be registered? (iii) Whether in law the appellant is not entitled to permanent injunction when his ownership and possession of the property is established by evidence and the defendant has not proved that he is in possession?” 3. The suit has been laid by the appellant /plaintiff for declaration and permanent injunction. 4. The plaintiff has laid the suit seeking the above said reliefs in respect of the property located in Punja survey No.104/4, 0.02cents of site out of 0.60cents in T-Elamangalam Village, Thittakudi. On a reading of the plaint, it is found that the plaintiff has traced his vendor's title to the suit property only based on the partition list marked as Ex.A4 and according to the plaintiff's case, based on the above said partition list and the arrangement entered into between Lakshmana Naiker and his three sons, the suit property was allotted to Natarasa Naiker, one of the sons of Lakshmana Naiker and accordingly, it is stated by the plaintiff that he having purchased the suit property from Natarasa Naiker and his minor son by way of the sale deed dated 05.09.1984 marked as Ex.A5, it is contended by the plaintiff that he has been using the suit property by storing firewood and enjoying the same and accordingly, inasmuch as the defendant interfered with his possession and enjoyment, he has been necessitated to lay the suit for necessary reliefs. 5. 5. The defendant, inter alia, has disputed the claim of title of the suit property as described in the plaint as belonging to Natarasa Naiker on the basis of the partition list projected by the plaintiff marked as Ex.A4 and accordingly, contended that the plaintiff's claim of title to the suit property based on the sale deed dated 05.09.1984 is unacceptable and hence, it is contended that the plaintiff has neither title nor possession of the suit property at any point of time and on the other hand, it is only the defendant, who has been in possession and enjoyment of the suit property as detailed in the written statement and accordingly, sought for the dismissal of the plaintiff's suit. 6. On the basis of the materials placed on record by the respective parties and the submissions made, the trial Court was pleased to decree the suit as prayed for. On appeal, the first appellate Court set aside the judgment and decree of the trial Court and thereby, entertaining the appeal preferred by the defendant, dismissed the plaintiff's suit. 7. Therefore, the short point that arises for consideration in this matter is whether the plaintiff's vendor had a valid title to the suit property as projected in the plaint. For the said purpose, the plaintiff relies mainly upon the partition list Ex.A4 and as rightly determined by the first appellate Court, on a perusal of the same, it is found that only by way of the said document, the parties thereto had agreed to divide the properties involved there under and accordingly, proceeded to effect partition in respect of the properties described therein and when the position being above, the parties thereto having effected partition only under the said document i.e. Ex.A4, as held by the first appellate Court, the document partakes the character of the partition deed and should have been lawfully registered and however, it is seen that the document marked as Ex.A4 is not stamped and registered as per the requirements of law and in such view of the matter, it is found that the first appellate Court has rightly come to the conclusion that the plaintiff's vendor could not derive any valid title to the suit property, in particular, based on Ex.A4 partition list and in such view of the matter, held that the plaintiff has failed to establish his vendor's title to the suit property. Following the same, as rightly determined by the first appellate Court, the claim of the plaintiff that he has acquired title to the suit property on the strength of his sale deed dated 05.09.1994 falls to the ground. When the plaintiff's vendor himself has no valid title to the suit property, on the strength of Ex.A4 partition list, it is found that he may not be competent to alienate the suit property in favour of the plaintiff under Ex.A5 sale deed and accordingly, it is found that the plaintiff has miserably failed to establish his title to the plaintiff as such. Further, no proof has been placed to hold the parties to Ex.A4 partition list had divided the properties, particularly, the suit property as detailed therein and if the same is true, the same would have been reflected in the subsequent sale deeds pertaining thereto as pointed out by the first appellate Court. 8. Not only that, on the basis of the materials placed on record, considering the failure of the plaintiff to hold that his vendor had been in possession and enjoyment of the suit property as described in the plaint, it is found that the first appellate Court has accordingly determined that the plaintiff has failed to establish that his vendor had been allotted the suit property and that, the same had been in his possession and enjoyment and on that reasonings, further held that the plaintiff has also failed to establish his claim of title, possession and enjoyment of the suit property and accordingly, determined that no relief could be granted to the plaintiff on the basis of the materials put forth by him. 9. 9. Considering the materials placed on record in toto, when the plaintiff has failed to establish his vendor's title to the suit property as above noted and accordingly, when it is found that the plaintiff cannot lay any valid claim of title to the suit property based on Ex.A5 sale deed and also when the plaintiff has also miserably failed to establish his vendor's title, possession and enjoyment of the suit property plus his title, possession and enjoyment of the suit property and when the entire case of the plaintiff rests on Ex.A4, which is a document not stamped and registered as per law, the first appellate Court is justified in all aspects to decline the reliefs sought for by the plaintiff by setting aside the judgment and decree of the trial Court and in such view of the matter, no interference is called for in the judgment and decree of the first appellate Court. 10. For the reasons afore stated, the document marked as Ex.A4, being a partition list, as determined by the first appellate Court, requires compulsory registration as per law and the said document not having been registered, no right would flow under the said document in favour of the plaintiff's vendor as put forth in the plaint and accordingly, it is found that the plaintiff having failed to establish his vendor's title, possession and enjoyment plus his title, possession and enjoyment of the suit property as projected by him, the substantial questions of law formulated in the second appeal are answered against the plaintiff. In conclusion, the second appeal fails and is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.