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2018 DIGILAW 3225 (MAD)

Kelkiah (Died) v. Selvi

2018-09-25

S.RAMATHILAGAM

body2018
JUDGMENT S. Ramathilagam, J. This Second Appeal has been preferred against the Judgment and Decree in A.S.No.95 of 1996 dated 17.07.2001 on the file of the Additional Subordinate Court, Padmanabhapuram confirming the Decree and Judgment in O.S.No.554 of 1982 dated 19.02.1996. 2. The plaintiff before the trial Court is the first appellant herein. The plaintiff/appellant has filed a suit in O.S.No.553 of 1982 before the Additional District Munsif Court, Padanabhapuram, against defendants 1 to 6 therein for declaration to declare that the plaintiff is entitled for 'A' scheduled property and for permanent injunction. 3. The brief facts of case of the plaintiff is as follows : Originally, entire 52 cents of property belonged to one Tharward family consisting two branches, viz., Perumankuzhi Pidagai Naduveedu Tharward and Mela Naduveedu @ Kunju Vilagathu Veedu. One Neelamma Pillai and Others of 1st branch, sold an extent of 21 3/4 cents out of 52 cents to the father of the plaintiff, Chellaih Nadar under Ex.A2 sale deed dated 20.8.1927 (4-1-1103 ME). Further, under Ex.A3 sale deed dated 15.6.1928 (2-11-1103 ME), one Velayudham Pillai of Mela Naduveedu (2nd branch) sold 26 cents out to his father, Chellaiah Nadar. After purchase, the father of the plaintiff, Chellaiah Nadar became the absolute owner of the total extent of 47 3/4 cents out of 52 cents in S.No.1768 of Madhyakodu Koder Desam, Middalam, Vilvankode taluk, Kanyakumari District and he was in possession and enjoyment of the suit property by paying kist under Exs.A4 to A8. Thereafter, the said Chelliah Nadar mortgaged the entire 47 3/4 cents to one Arumuga Nadar under Ex.A9 dated 7.7.1111 M.E. and also one Rajayan Nadar under Ex.A11. However, later, the said Chelliah Nadar discharged the mortgages and executed a sale deed in favour of his son Kelkiah, the plaintiff under Ex.A12 dated 23.04.1959. While the plaintiff was in possession and enjoyment of the suit property, the defendants tried to interfere with the peaceful possession and enjoyment of the plaintiff. Hence the suit. 4. The suit has been defended by the defendants by filing a written statement, inter alia, stating that entire suit schedule property was originally belong to Perumankuzhi Ulakkur Konathu Kizhakey Puthan Veedu Nair Tharward and the members of the said Tarward entered into a registered partition deed Ex.B6 dated 6.6.1104 ME among the family members. Hence the suit. 4. The suit has been defended by the defendants by filing a written statement, inter alia, stating that entire suit schedule property was originally belong to Perumankuzhi Ulakkur Konathu Kizhakey Puthan Veedu Nair Tharward and the members of the said Tarward entered into a registered partition deed Ex.B6 dated 6.6.1104 ME among the family members. As per said partition, 10th and 12th items comprised the suit property, which was allotted to one Velayutham Pillai which had been earlier mortgaged to Sembanponnu Perumal Nadar by Perumankuzhi Ulakkur Konathu Kizhakey Puthan Veedu by document No.2064/1058 M.E. Thereafter, the said mortgage was made over in favour of various persons and ultimately it was made over in favour of plaintiff's father Chelliah on 28.8.1108 M.E. (Ex.B1), who in turn made over his right in favour of one Semban Nadar on 19.9.1115 ME (Ex.B2) and as such, the plaintiff's father Chelliah did not have any right over the suit property so as to sell the same to his son, the plaintiff under Ex.A1 dated 17.1.1966. Later, the said Velayutham Pillai redeemed the mortgage under document No. 1081 dated 22.04.1116 ME (Ex.B7) and again he mortgaged in favour of one Appavoo Nadar vide document No.3595 dated 27.8.1120 M.E. (1945) Ex.B8. Later the said Velayutham Pillai executed a registered sale deed Ex.B9 dated 13.9.1954 in favour of mortgagee Appavoo Nadar to an extent of 14 4/7 cents in the suit property and in respect of remaining properties, since Appavoo Nadar could not redeem the mortgage over a period of limitation, the mortgagee Appavoo Nadar became absolute owner of the entire suit properties till his life time and thereafter, the defendants 1 to 4 were in absolute possession and enjoyment of the suit properties. 5. The suit was also defended by 6th defendant, by filing a written statement, inter alia, stating that he was the owner of the adjacent property of the suit property, i.e. 31 cents in B schedule suit property and the said property was purchased by his father Nathan Kutty Nadar to the extent of 31 cents and the remaining extent belongs to the defendants 1 to 5. He denies the right of the plaintiff in the 'A' schedule property and the sale in favour of Chellaiah Nadar. Hence, the defendants 1 to 5 and 6th defendant are in joint possession and enjoyment of the suit property. He denies the right of the plaintiff in the 'A' schedule property and the sale in favour of Chellaiah Nadar. Hence, the defendants 1 to 5 and 6th defendant are in joint possession and enjoyment of the suit property. The 6th defendant also denies the bifurcation of the old wall separating the scheduled property. Hence, the plaintiff is not entitled for the relief of declaration and injunction and also the alternate prayer for partition in the suit property. 6. The plaintiff, in his reply statement also has stated that during the possession and enjoyment of the property by Chellaiah Nadar, he mortgaged the property to one Arumuga Nadar and after ten years, Chellaiah Nadar redeemed the mortgage and he was in possession and enjoyment of the property and a partition of 'A' schedule property was mortgaged to Chellaiah Nadar's son Rajaiyan Nadar in the year 18.6.1123 ME and the said Rajayan Nadar was enjoying the property for nearly twenty years and Chelliah Nadar was enjoying the remaining area of the property. Then, after some time, Rajaiah Nadar gave up the mortgage to Chelliah Nadar and the said Chelliah Nadar was enjoying the property by getting the patta in his name. Hence, from the date of sale by Chelliah Nadar, the plaintiff was in enjoyment and possession of the suit property. 7. Defendants 1 to 4 in their reply statement, have stated that the property belonged to the Nair family by way of Partition Deed No. 1543/1104 and the said property was mortgaged to number of persons and finally the right was transferred to plaintiff's father on 28.08.1108 and the plaintiff's father was given the sale to Velayutham Pillai on 19.09.1115. The said Velayutham Pillai mortgaged the said property to the defendants father Appavu Nadar and the property is in enjoyment and possession of the defendants. Appavu Nadar also purchased the property in Survey No. 18 4/7 cents from Velayutham Pillai. 8. In order to prove their respective cases, the plaintiff was examined as PW.1 apart from examining PW.2 and marked Exs.A1 to A7, while, the 3rd defendant was examined as DW.1 apart from examining DW.2 and marked Exs.B1 to B12. 9. Appavu Nadar also purchased the property in Survey No. 18 4/7 cents from Velayutham Pillai. 8. In order to prove their respective cases, the plaintiff was examined as PW.1 apart from examining PW.2 and marked Exs.A1 to A7, while, the 3rd defendant was examined as DW.1 apart from examining DW.2 and marked Exs.B1 to B12. 9. The trial Court, after framing necessary issues, has categorically held that the plaintiff has not established his case and that the plaintiff's father had no title to the suit property and that the plaintiff's father was aware of execution of Exs.B1 and B2 and thereby, by its judgment and decree dated 19.2.1996, dismissed the suit. Feeling aggrieved, the plaintiff has preferred first appeal in A.S.No.95 of 1996 before the Additional Sub Court, Paadmanabhapuram. By judgment and decree dated 17.07.2001, the first Appellate Court dismissed the appeal, confirming the judgment and decree passed by the trial Court. Challenging the concurrent findings of the Courts below, the present appeal has been preferred. 10. At the time of admission, this Court has formulated the following substantial questions of law : "(1) On the finding of the Courts below on the extent to which the plaintiff is entitled to, cannot the Court mould the relief and grant a declaratory relief in respect of 47 5/8 cents or in the alternative, a decree for partition for that extent? (2) Whether Exs.B3-B5 would operate against the plaintiff on the principle of res judicata?" 11. Issue No. 1 : On the finding of the Courts below on the extent to which the plaintiff is entitled to, cannot the Court mould the relief and grant a declaratory relief in respect of 47 5/8 cents or in the alternative, a decree for partition for that extent. Assailing the concurrent findings of the Courts below, learned counsel appearing for the appellants would contend that originally, the property was in possession and enjoyment of Nair family as joint family property and only by partition among them and in turn, the property was purchased by the plaintiff's father from one person of the Nair family. The learned counsel relied on Ex.A.1 document by which plaintiff's father purchased the property from Chellaiah Nadar and Ex.A.2 document by which the plaintiff's father purchased the property from one of the Nair family belonging to Nadu Veedu. The learned counsel relied on Ex.A.1 document by which plaintiff's father purchased the property from Chellaiah Nadar and Ex.A.2 document by which the plaintiff's father purchased the property from one of the Nair family belonging to Nadu Veedu. He pointed out that as per Ex.A.2, the plaintiff's father purchased 21s cents and another 23 cents, thereby totally 47s cents purchased by plaintiff's father. Hence, according to the learned counsel as per Exs.A2 and A3, plaintiff's father was entitled for an extent of 47s cents. Therefore, though the relief sought for in regard to entire 52 cents, however, considering the fact that the plaintiff established that he is entitled to 47 3/4 cents, though his father Chelliah Nadar executed the sale deed his favour entire 52 cents, the learned counsel would urge that this Court could mould the relief and grant declaration to the extent of 47 3/4 cents. 12. On the other hand, the learned counsel appearing for the respondents/defendants would contend that originally, the properties including the suit properties were belonging to Perumankuzhi Ulakkur Konathu Kizhakey Puthan Veedu Nair Tarward and the members of which, entered into a partition which was registered on 6.6.1104 ME under Ex.B6 in which, the suit property was allotted to one Velayutham Pillai, who in turn mortgaged the same in favour of Appavoo Nadar vide Ex.B8 27.8.1120 ME and also executed a registered sale deed Ex.B9 dated 13.9.1954 in respect of the suit property measuring 18 4/7 cents and also failed to redeem the mortgage over a period of limitation and thereby, Appvoo Nadar became absolute owner of the entire suit properties from them the respondents/defendants claim the ownership. He would also contend that the original owner Velayutham Pillai also mortgaged the suit properties in favour of various persons including the plaintiff's father Challiah Nadar on 28.8.1108 ME under Ex.B1, who in turn made over his right in favour of one Semban Nadar on 19.9.1115 ME under Ex.B2 and as such, the plaintiff's father did not have any right or title in respect of suit property and thereby, his execution of sale deed in favour of his son under Ex.A1 dated 17.01.1966 is not valid. 13. 13. On evaluation of entire oral and documentary evidence, the trial Court has categorically held that as per documents, Exs.B1 and B2, the original owner Velayutham Pillai redeemed the mortgage which was lastly in favour of Semban Nadar who got the same from plaintiff's father under Ex.B1 and as such, the plaintiff's father cannot have any right or title over the suit schedule properties. The trial Court also held that earlier mortgage in the year 1058 ME had been established by Exs.B3 to B5 and the partition among the members of Perumankuzhi Ulakkur Konathu Kizhakey Puthan Veedu Nair Tarward had also been established under Ex.B6. Accordingly, the trial Court came to the conclusion that the defendants are in absolute possession and enjoyment of entire 52 cents and dismissed the suit, which findings were confirmed by the first Appellate Court. 14. It is pertinent to note that the documents marked under Exs.B1 to B6 are the ancient documents. A partition was effected between two branches, viz., Ayyappan Devan and Lakshmi Shenbagaktty of Uzhavoorkonathu Kizhhakkey Puthan Veedu on 6.6.1104 ME under Ex.B6, in which, Velayudham Pillai was allotted suit properties to the extent of 52 cents under Ex.B6 partition deed. A perusal of Ex.B1 Othi and Kuzhikanom dated 28.8.1108 ME, would reveal that the legal heirs of Chemban Ponnum Perumal executed Ex.B1 Othi and Kuzhikannom in favour of the plaintiff's father Chelliah Nadar and later, the plaintiff's father executed Ex.B2 assignment of Othi andKuzhikanom in favour of Ponnum Perumal Chemban on 19.9.115 ME, which would establish that the plaintiff's father did not have any right over the suit schedule property. Ex.B2 the assignment of Othi and Kuzhikanom right was released by the original owner Velayudham Pillai under Ex.B7 on 22.4.1116 ME and as such, he obtained entire possession of the suit schedule properties. Thereafter, Velayudham Pillai executed Ex.B8 Othi and Kuzhikanam deed on 27.8.1120 ME in favoiur of one Boothathan Appavu, who was none other than the husband of the first defendant and father of defendants 2 to 4 in the suit, in respect of entire suit schedule property, i.e. 52 cents and after that, he also executed Ex.B9 sale deed in favour of Appavu for an extent of 18 4/7 cents. Thus, the father of the defendants was in possession of 18 4/7 cents and the mortgaged property under Ex.B8 and since Othi and Kuzhikanam under Ex.B8 has not been redeemed in time by Velayudham Pillai and as the redemption has been barred by limitation, the father of the defendants became the absolute owner of the entire 52 cents of property. Therefore, by virtue of Ex.B1 to B8, the defendants established their case. 15. It is pertinent to note that though the plaintiff/appellant claimed suit property by virtue of Ex.A1 sale deed executed by his father in his favour for entire 52 cents of the suit property, even according to the plaintiff/appellant, his father under Ex.A2, Neelamma Pillai and Others of Nadu Naduveedu sold an extent of 21 5/8 cents in favour of his father Chelliah Nadar and under Ex.A3 one Velayudham Pillai of Mela Naduveedu sold 26 cents to him and in total, the father of the plaintiff would get only to an extent of 47 5/8 cents. While so, the father of the plaintiff executed Ex.A1 sale deed in favour of his son to the extent of 52 cents, which is more and above 47 5/8 and as rightly contended by the learned counsel for the respondents, the father of the plaintiff did not have right over the suit property in respect of 52 cents so as to convey the same in his favour. Now the learned counsel for the plaintiff/appellant restricted his claim and urge this Court to grant declaration in respect of 47 5/8 alone though the father of the plaintiff did not have the right, but by virtue of Exs.A1 and A3, the plaintiff established the right over 47 5/8 and this Court, under extraordinary jurisdiction in order to render substantial justice, can mould the relief and grant the relief to meet the ends of justice. This contention, in my opinion, does not merit acceptance. Even in respect of 47 5/8 cents, the plaintiff/appellant has not established his case. In fact, in respect of the claim that the father of the plaintiff got Othi and Kuzhikanam over suit schedule property from Nadu Veedu and Mela Nadu Veedu or Kunchuvilagam, the plaintiff has not produced any document to establish the same. Even in respect of 47 5/8 cents, the plaintiff/appellant has not established his case. In fact, in respect of the claim that the father of the plaintiff got Othi and Kuzhikanam over suit schedule property from Nadu Veedu and Mela Nadu Veedu or Kunchuvilagam, the plaintiff has not produced any document to establish the same. Even as per Ex.A14 partition deed dated 27.7.1102 ME, Nadu Veedu family got 10 1/2 cents in the suit survey number, whereas Ex.A2 equity of redemption dated 4.1.1103 ME dealt with an extent of 21 5/8 cents which is more than 10 1/2 cents and the plaintiff's father never released Othi as described in Ex.A2 document. Therefore, in all respects, the plaintiff/appellant has failed to establish his case. Accordingly, this Court answer the Issue No.1 against the plaintiff/appellant. 16. Issue No.2: Whether Exs.B3-B5 would operate against the plaintiff on the principle of res judicata? A suit in O.S.No.65 of 1921 (1094 ME) was filed by Kumara Pillai Velayudhm Pillai before the District Court, Nagercoil against the original plaintiff and the defendants 2 to 7 therein, who were members of Ayyappan Devan of Ozhuvookonathu Kishakey Puthan Veedu. The present suit property is one the properties shown as Item No.10 in the said suit in OS 65 of 1919 and it was dismissed on 21.3.1921 (8.8.1096 ME) and on appeal by Velayutham Pillai in A.S.No.71 of 1920 and it was decreed on 8.7.1100 ME, thereby, the relief as sought for in the suit was granted and accordingly, the plaintiff and the defendants 2 to 8 therein obtained the right of half share of Ayyappan Devan and the remaining half by Lakshmi Shenbagakutty. As against the judgment in A.S.No.71 of 1924, no appeal was preferred. Exs.B3 to B5 are the copies of the judgment and decrees in the earlier suit and appeal suit. A perusal of Ex.B6, it appears that Ayyappa Devan and Lakshmi Shenbagakutty of Uzhavoorkonathu Kishakkey Puthan Veedu had partitioned the suit survey properties on 6.6.1104 ME wherein, Kumara Pillai Velayudham Pillai was given 12th schedule properties, wherein, Item No.10 was the present suit schedule property and as such, Velayutham Pillai obtained the entire suit schedule property, i.e. an extent of 52 cents. The plaintiff/appellant did not dispute over the fact that Velayutham Pillai obtained the suit schedule property. The plaintiff/appellant did not dispute over the fact that Velayutham Pillai obtained the suit schedule property. But the plaintiff/appellant claimed that under Ex.A3 Velayudham Pillai of Mela Naduveedu Branch sold 26 cents out of 52 cents to his father Chelliah Nadar. A perusal of Ex.B1, it appears that the sons of original owner Chemban Ponnuperumal executed Ex.B1 Othi and Kuzhikanom dated 28.8.1108 ME in favour of the plaintiff's father Chelliah Nadar and later on 19.9.1115 ME, under Ex.B2, the plaintiff's father Chelliah Nadar made over his right in favour of Chemban Nadar. By virtue of this, originally the plaintiff's father did not have any right over the schedule property. It is to be noted that Exs.B3 to B5 are ancient documents pertaining to Court proceedings and not fabricated one. Having regard to these transactions, as rightly contended by the learned counsel for the respondents, Exs.B1 and B2 are binding on the plaintiff's father and thereby, the earlier judgments and decrees in O.S.No.65 of 1919 and A.S.No.71 of 1920 dated 8.8.1096 ME and 8.7.1100 ME, in my opinion, will certainly operate res judicata against the plaintiff/appellant and accordingly, he cannot claim right or title over the suit schedule property de horse the documents, Exs.B1 to B6. The plaintiff/appellant has not adduced any substantial contra evidence to disprove Exs.B1 to B6 in order to claim right over the suit property. Accordingly, this Court answer the Issue No.2 also against the plaintiff and in favour of the respondents. 17. In view of the foregoing discussion, the Second Appeal fails and it is dismissed, confirming the judgment of the first Appellate Court passed in A.S.No.95 of 1996. There shall be no order as to costs.