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2019 DIGILAW 2401 (MAD)

Lalitha v. Amutha

2019-09-13

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 04.02.2016 made in A.S.No.23 of 2012 on the file of the Subordinate Judge, Ranipet, Vellore District, reversing the judgment and decree dated 23.12.2011 made in O.S.No.18 of 2008 on the file of the District Munsif (Conferment of Criminal Jurisdiction) Ranipet, Vellore.) 1. Challenge in this Second Appeal is made to the judgment and decree dated 04.02.2016 passed in A.S.No.23 of 2012 on the file of the Subordinate Court, Ranipet, Vellore District, reversing the judgment and decree dated 23.12.2011 passed in O.S.No.18 of 2008 on the file of the District Munsif Court, (Conferment of Criminal Jurisdiction) Ranipet, Vellore. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial court. 3. Suit for declaration, mandatory injunction and permanent injunction. 4. The case of the plaintiff, in brief, is that the plaintiff is one among the legal heirs of the deceased Salukkan @ Irusan and Salukkan died on 07.03.1970, leaving behind his three sons, namely, Ethiraj, Parthasarathy and Chinnapaiyyan to succeed to his properties and his three sons are also no more and they had died leaving behind their legal heirs as detailed in the plaint. The plaintiff is the one of the daughters of the deceased Parthasarathy and all the legal-heirs of the abovesaid three sons of Salukkan @ Irusan had given the general power of attorney deed to the plaintiff to conduct the case on their behalf also and the plaint schedule property was purchased by Salukkan @ Irusan by way of the sale deed dated 30.10.1928 and enjoying the same and after his death, enjoyed by his three sons and thereafter, by the legal heirs of the abovesaid three sons and the defendant is not at all related to the plaintiff in any manner and she has encroached into the suit property and attempted to construct some building in the same without any authority and in this connection, the plaintiff had given police complaint, but, the police had failed to take any action and hence the need for the suit for appropriate reliefs. 5. The defendant resisted the plaintiff's suit contending that the plaintiff is not the owner of the suit property and not the legal heir of Arunagiri's family. 5. The defendant resisted the plaintiff's suit contending that the plaintiff is not the owner of the suit property and not the legal heir of Arunagiri's family. Arunagiri had two sons, namely, Salukkan @ Irusan and Periakulandai and both had executed a possessory mortgage deed to one Annammal, wife of Kuppan on 11.12.1944 in respect of the property comprised in survey No.292/2A 5 cents and 292/4A 8 cents and Salukkan @ Irusan died intestate and he has no issues and his brother Periakulandai is the only legal heir and became entitled to the property. The children of Periakulandai and his wife Muniammal are Venugopal, Perumal, Samikannu and daughters by name Visalakshi and Annammal, Perumal's wife is also Annammal and her three daughters are Soundari, Amudha (the defendant ) and Padavettal. Samikannu's wife is Chandra and they had five children and the legalheirship certificate and the death certificate projected by the plaintiff had been manipulated for the purpose of the case. The defendant, as the legal heir of Perumal, inherited the property through her father and the property is surrounded by a compound wall put up by the defendant. Previously there was a hut in the suit property, which was later converted into cement sheet building for residential purpose and the defendant has been in the possession and enjoyment of the property for more than 15 years without any interruption. The plaintiff is living in the North Street in Jayaram Nagar and the defendant is living in the suit property and no enquiry had taken place in the village before recording the legal-heirship certificates and the death certificates projected by the plaintiff and that the said certificates are not binding upon the defendant and the same have to be established by the plaintiff beyond any doubt and the plaintiff has never been in the possession and enjoyment of the suit property and it is only the defendant who has been in the possession and enjoyment of the suit property by paying taxes, etc. The plaintiff has approached TNEB to not give service connection to the defendant without any authority and the power of attorney deed relied upon by the plaintiff is not true and fraudulently obtained and the plaintiff is not the legal heir of Salukkan @ Irusan through Parthasarathy as claimed by her and hence, the suit is liable to be dismissed. 6. 6. In support of the plaintiff's case P.Ws.1 and 2 were examined and Exs.A1 to A15 were marked. On the side of the defendant D.Ws.1 and 2 were examined, Exs.B1 to B6 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to grant the reliefs of declaration and mandatory injunction as prayed for by the plaintiff and declined the relief of permanent injunction prayed for by the plaintiff and accordingly disposed of the plaintiff's suit. The first appellate reversed the judgment and decree of the trial court and by way of allowing the appeal preferred by the defendant, dismissed the suit laid by the plaintiff. Challenging the same, the present second appeal has been preferred. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration. “(1) Whether the plaintiff has proved each and every link in the genealogy claimed by her for entitlement to the decree? (2) Whether the defendant has proved every link in the genealogy as claimed by her in the written statement as reported in AIR 1983 SC p.684?" 9. The plaintiff claims title to the suit property on the footing that she is one of the legal heirs of Salukkan @ Irusan. From the materials placed on record, it is found that there is no dispute that the suit property was acquired by Salukkan @ Irusan by way of the sale deed dated 30.10.1928, the copy of which is marked as Ex.A1. According to the plaintiff, Salukkan @ Irusan had three sons, namely, Ethiraj, Parthasarathy and Chinnapaiyyan. However, the legal-heirship certificate of Salukkan @ Irusan has not been produced by the plaintiff evidencing that he had three sons as abovestated and put forth by the plaintiff. The plaintiff has produced the death certificate of Salukkan, the legalheirship certificates of Ethiraj, Parthasarathy and Chinnapaiyan and the death certificates of Ethiraj, Parthasarathy and Chinnapaiyan. Based on the abovesaid certificates, the plaintiff claims to be one of the legal heirs of Salukkan @ Irusan. According to the plaintiff, she is one of the daughters of Parthasarathy, who is one of the sons of Salukkan @ Irusan. The defendant, in toto, had questioned the truth and validity of the abovesaid death certificates and the legalheirship certificates produced by the plaintiff. According to the plaintiff, she is one of the daughters of Parthasarathy, who is one of the sons of Salukkan @ Irusan. The defendant, in toto, had questioned the truth and validity of the abovesaid death certificates and the legalheirship certificates produced by the plaintiff. As above pointed out, the plaintiff has not established clearly that Salukkan had left behind three sons i.e., Ethiraj, Parthasarathy and Chinnapaiyan as projected by her. To sustain the said case, the plaintiff should have endeavoured to produce the legalheirship certificate of Salukkan @ Irusan. The abovesaid document is not forth coming. The plaintiff has miserably failed to establish that the death certificates and the legalheirship certificates projected by her had been duly issued after making proper verification and enquiry in the village by the authorities concerned. Particularly, when the defendant is questioning the truth and validity of the same, the plaintiff should have endeavoured to establish the authenticity of the abovesaid certificates for holding that they had been lawfully issued after making proper verification of the links of relationship, which the plaintiff claims through the common ancestor Salukkan @ Irusan. When, as abovenoted, the plaintiff having miserably failed to establish that Ethiraj, Parthasarathy and Chinnapaiyan are the sons of Salukkan @ Irusan and the legal-heirship certificate of Salukkan @ Irusan having not been produced and in such view of the matter, on the basis of the abovesaid legal-heirship certificates and the death certificates projected by the plaintiff, we cannot safely conclude that the plaintiff is one of the legal heirs of Salukkan @ Irusan as claimed by her. 10. 10. According to the defendant, Salukkan @ Irusan had one brother, by name, Periakulandai and Salukkan @ Irusan died issueless and Perilakulandai alone succeeded to his properties and further it is stated that Salukkan @ Irusan had created a mortgage in favour of one Annammal in respect of the suit property and the abovesaid mortgage deed has been marked as Ex.B5 and the same is also found to be reflected in the Encumbrance Certificate projected in the matter and considering the abovesaid mortgage, when it is seen that the suit property had already been usufructuarily mortgaged in favour of Annammal and not established to have been redeemed in the manner known to law, the claim of the plaintiff that Salukkan @ Irusan's legal heirs had succeeded to the suit property and enjoying the same, as such, cannot be believed and rightly dis-believed and rejected by the first appellate court. 11. As rightly held by the first appellate court, other than Ex.A1 sale deed, there is no other reliable material placed on the part of the plaintiff to hold that she had lawfully succeeded to the suit property along with the other legal heirs and that the other legal heirs had lawfully executed the power of attorney in her favour, marked as Ex.A2. When, as abovenoted, the genealogy of Salukkan @ Irusan having not been established by the plaintiff by correlating the various links through his legal heirs as put forth by her and with reference to the same, the legal-heirship certificates and the death certificates projected by the plaintiff do not support her case and particularly when the abovesaid certificates are not shown to be lawfully obtained by the plaintiff and lawfully issued to her after making proper verification from one and all, in such view of the matter, the trial court is found to have erred in upholding the plaintiff's case based on the abovesaid legal-heirship certificates and the death certificates put forth by the plaintiff. 12. 12. When, as abovenoted, by way of Ex.B5 mortgage deed, Salukkan @ Irusan along with his brother, during his lifetime, had mortgaged the suit property and the same is found to be not redeemed and the defendant claimed to be one of the legal heirs of Perumal as detailed in the written statement and admittedly when the defendant is found to be in the possession and enjoyment of the suit property over a period of time and the claim of the plaintiff that the defendant had encroached into the suit property recently not borne out by any acceptable materials on the part of the plaintiff and though the plaintiff would claim that she had put forth objection to the same and lodged the police complaint, etc., however, with reference to the same, when there is no material worth acceptance on the part of the plaintiff, in such view of the matter, it is found that the claim of the plaintiff that the defendant had encroached into the suit property, as such, cannot be believed and accepted in any manner. The plaintiff has no answer for the mortgage deed Ex.B5 and when it is found that the suit property in survey No.292/3 had been sub divided during the year 1944 itself, the claim of the plaintiff for declaration of title in respect of the suit property in survey No.292/3, as such, cannot be countenanced and on the whole, as abovenoted, when the plaintiff has miserably failed to establish the genealogy of Salukkan @ Irusan by placing acceptable and reliable materials, in such view of the matter, the relief of declaration prayed for by the plaintiff qua the suit property cannot be granted and rightly rejected by the first appellate court. 13. The plaintiff's counsel contended that the defendant has failed to establish his claim of succession to the suit property through Perumal as put forth by her. 13. The plaintiff's counsel contended that the defendant has failed to establish his claim of succession to the suit property through Perumal as put forth by her. But, the plaintiff being the suitor and having laid the suit for claiming various reliefs and when the defendant has disputed the claim of the plaintiff to the suit property in all aspects, the weakness of the defence version cannot be the basis for upholding the plaintiff's case and as rightly held by the first appellate court, the plaintiff has to stand or fall on the strength of her own case and cannot be allowed to gain based on the loopholes or shortcomings of the defence version and in such view of the matter, I do not find any valid reason to interfere with the judgment and decree of the first appellate court. 14. For the reasons aforestated, the substantial questions of law formulated in this second appeal are accordingly answered in favour of the defendant and against the plaintiff. 15. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition is closed.