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2019 DIGILAW 1991 (MAD)

T. Selvam v. V. Thamizharasi

2019-08-01

T.RAVINDRAN

body2019
JUDGMENT : T. RAVINDRAN, J. Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 08.10.2012 passed in A.S. No. 17 of 2012 on the file of the Subordinate Judge, Mannargudi, confirming the judgment and decree dated 23.04.2004 passed in O.S. No. 85 of 2004 on the file of the District Munsif, Mannargudi. 1. Challenge in this Second Appeal is made to the judgment and decree dated 08.10.2012 passed in A.S. No. 17 of 2012 on the file of the Subordinate Court, Mannargudi, confirming the judgment and decree dated 23.04.2004 passed in O.S. No. 85 of 2004 on the file of the District Munsif Court, Mannargudi. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial court. 3. Suit for declaration, possession and mesne profits. 4. The plaintiff is the sister of the defendant and Thirugnanam Pillai is the father of the plaintiff and the defendant. It is not in dispute that Thirugnanam Pillai had acquired the suit property by way of the sale-deed dated 22.02.1948 marked as Ex.B2. The suit property is described as comprised in T.S. No. 2413/1 out of 3300 sq. ft. punja vacant manaicut, an extent of 950 sq. ft. within the specific boundaries in the suit village. According to the plaintiff, her father Thirugnanam Pillar had settled the suit property in her favour by way of the settlement deed dated 27.05.1986 marked as Ex.A3. Per contra, according to the defendant, Thirugnanam Pillai had released his right in respect of the suit property in his favour by way of the release deed dated 20.12.1971 marked as Ex.B1. Therefore, as rightly found by the courts below, the only point that is in issue between the parties concerned is whether Thirugnanam Pillai had settled the suit property in favour of the plaintiff by way of Ex.A3 settlement deed or released his right in respect of the suit property by way of the release deed Ex.B1 in favour of the defendant. As abovenoted, the suit property is comprised in TS No. 2413/1. On a perusal of Ex.A3 settlement deed, it is seen that the same has been executed in respect of 950 sq. ft. on the northern side out of the total extent of 3300 sq. ft. in TS No. 2413/1. As abovenoted, the suit property is comprised in TS No. 2413/1. On a perusal of Ex.A3 settlement deed, it is seen that the same has been executed in respect of 950 sq. ft. on the northern side out of the total extent of 3300 sq. ft. in TS No. 2413/1. However, the release deed relied upon by the defendant marked as Ex.B1 does not reflect the abovesaid TS No. 2413/1. If really the suit property had also been released in favour of the defendant by way of Ex.B1 deed, the survey number of the suit property would have been reflected in the said document. Therefore, as rightly found by the courts below, EX.B1 is not related to the suit property comprised in TS No. 2413/1. 5. As could be seen from the materials available on record, the suit property is found to be the separate property of Thirgnanam Pillai and if really the suit property is the ancestral property or joint family property as sought to be made out by the defendant, as determined by the courts below, the defendant would have endeavoured to seek his share in the suit property in the manner known to law. Therefore, the courts below are found to be justified in holding that the suit property is the separate property of Thirgnanam Pillai acquired by way of Ex.B2 sale-deed. 6. The only contention raised by the defendant is that considering the recitals contained in Ex.B1 release deed, particularly the boundary recitals, as the property comprised therein has been described as lying to the north of the house and backyard of Srinivasa Iyer and on that footing, the defendant would endeavour to contend that the suit property also forms part of Ex.B1 release deed. However, when it is seen that the property comprised in Ex.B1 release deed is related to only TS. No. 2412 and TS. No. 2411 and there is no reference at all about the suit property lying in T.S. No. 2413/1 and when the extent of the property released by way of Ex.B1 and the property settled by way of Ex.A3 has been clearly described by giving the total extent without any ambiguity and accordingly the total extent of 3393 sq. No. 2411 and there is no reference at all about the suit property lying in T.S. No. 2413/1 and when the extent of the property released by way of Ex.B1 and the property settled by way of Ex.A3 has been clearly described by giving the total extent without any ambiguity and accordingly the total extent of 3393 sq. ft mentioned in Ex.B1 release deed is found to be comprised only in TS No. 2411 and 2412, the defendant cannot be allowed to take advantage of the boundary recitals to sustain the case of derivation of title to the suit property. In addition to that, the defendant examined as DW-1 has clearly admitted that the suit property has not been described in Ex.B1 release deed and also further admitted that the suit property has been mentioned only in the settlement deed executed in favour of the plaintiff marked as Ex.A3. Therefore, when the materials available on record go to show that the suit property is the separate property of Thirugnanam Pillai and Thirugnanam Pillai had not released the same in favour of the defendant and 15 years thereafter had settled the same in favour of his daughter, the plaintiff, in such view of the matter, it is clear that as determined by the courts below, the defendant would not be entitled to seek any claim of title to the suit property on the strength of Ex.B1 release deed. 7. Knowing fully well that the defendant would not be entitled to claim title to the suit property on the strength of Ex.B1 release deed, it is found that the defendant would also endeavour to put forth the claim of adverse title to the suit property. However, in respect of the abovesaid claim of adverse title, similar plea taken by the defendant in O.S. No. 113 of 1990 has been found to be held against him and challenging the said finding, it is admitted that the defendant had not preferred any appeal. However, according to the defendant, the abovesaid suit ended in his favour and in such view of the matter, there had been no necessity on his part to prefer the appeal against the said finding. However, according to the defendant, the abovesaid suit ended in his favour and in such view of the matter, there had been no necessity on his part to prefer the appeal against the said finding. Be that as it may, as regards the plea of adverse title now sought to be projected by the defendant, when there is no material at all on his part to establish that he has been in the possession and enjoyment of the suit property adversely to the knowledge of the plaintiff or his father openly, continuously and uninterruptedly beyond the statutory period with animus possidendi and enjoying the same in his own right and when with reference to the plea of adverse possession, the defendant has also not come forward as to when from he has been asserting his adverse title against the plaintiff and Thirugnanam Pillai in particular and also not placed any evidence of possession and enjoyment of the suit property beyond the statutory period, in such view of the matter, the plea of adverse title projected by the defendant, cannot at all be countenanced and rightly turned down by the courts below. 8. In the light of the abovesaid discussions, the courts below are found to have assessed and analysed the materials on record in the proper perspective and determined that it is only the plaintiff who has title to the suit property and accordingly further held that the plaintiff is entitled to seek and obtain the reliefs prayed for in the suit and the abovesaid determination of the courts below do not warrant any interference in any manner. 9. For the reasons aforestated, no substantial question of law is found to be involved in this second appeal and resultantly, the same is dismissed. Consequently, connected miscellaneous petition, if any, is closed.