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2021 DIGILAW 3550 (MAD)

Mannangatti v. L. Sanmargamoorthy

2021-12-17

S.KANNAMMAL

body2021
JUDGMENT : The sole defendant in O.S.No.137 of 2007, who had suffered a decree of declaration of title and permanent injunction from disturbing the plaintiff's peaceful possession and enjoyment of the suit property at the hands of the court below has come up with this second appeal. 2. For the sake of convenience the parties in the second appeal will hereinafter be referred to as per their array before the trial court. 3. The plaintiff filed the original suit for a decree of declaration declaring that he is the absolute title holder and possession of the suit property and for permanent injunction restraining the defendant, his men, agents or any one claiming under him from disturbing the plaintiff's peaceful possession and enjoyment of the suit property in any manner. Pending suit, the 1st defendant died and therefore, his legal heirs, the defendants 2 to 8 who were already on record were recognized as legal heirs of the deceased 1st defendant. Thereafter, the 3rd defendant died and therefore, his legal heirs were brought on record and arrayed as defendants 9 to 12. 4. The Suit was filed on the pleadings inter alia that the plaintiff has become the absolute owner of the suit property having purchased it from Irusammal, Purani, Govindammal, Anjalatchi, Subbarayan, Adimoolam, Venkatesan and Kuppammal represented by their power of attorney agent one Adimoolam, who is one among the vendors for a valid consideration through a registered sale deed dated 05.03.2007. Ever since the date of purchase he has been in peaceful possession and enjoyment of the suit property. The suit property, which is a part of a larger extent, was originally belonged to one Mayakrishnan @ Krishnasamy Counder, who had four sons viz., Govindasamy, Parasuraman, Kathavarayan and Ramasamy, the 1st defendant herein. After the death of Mayakrishnan @ Krishnasamy Counder, all his four sons succeeded to the larger extent of property and amicably partitioned the same by four equal shares by metes and bounds and had started enjoying them independently. The suit property was allotted to the share of Govindasamy and after the death of Govindasamy, the plaintiff's vendors viz., the wife and children of Govindasamy succeeded the suit property as legal heirs of Govindasamy. The suit property was allotted to the share of Govindasamy and after the death of Govindasamy, the plaintiff's vendors viz., the wife and children of Govindasamy succeeded the suit property as legal heirs of Govindasamy. The legal heirs of Govindasamy had executed a Power of Attorney in favour of Adimoolam, son of Govindasamy on 25.02.2004 and the said Adimoolam in turn sold the property in favour of the plaintiff through a registered sale deed dated 05.03.2007. While so, in the 3rd week of June, 2007, the defendant attempted to commit criminal trespass into the plaintiff's property without any right or title over the same. Therefore, the plaintiff had lodged a complaint on 20.06.2007 before Mudaliarpet Police Station. The plaintiff with the help of panchayatars managed to restrict the illegal acts of the defendants. The plaintiff wanted to have a peaceful relationship with the defendants. He had, therefore , approached the revenue authorities for measurement of the land. But, the process of measurement was not concluded because of the untenable claims made by the defendants. 5. The defendants resisted the suit contending that a thatched house with vacant site measuring 2 Ares and 20 Cents situated at Murugapakkam Revenue Village was originally owned by one Mayakrishnan @ Krishnasamy Counder which was the ancestral property of the said Mayakrishnan @ Krishnasamy Counder and his four sons. One of the sons of Mayakrishnan @ Krishnasamy Counder viz., Govindasamy left the suit property and was residing at Subbaia Nagar, Ariyankuppam. Thereafter, Mayakrishnan @ Krishnasamy, the 1st defendant along with his two brothers Parasuraman and Kathavarayan were living in the above said property. Thereafter, brother of the 1st defendant viz., Parasuraman had executed a registered release deed on 28.12.1989 releasing his 1/4th share in favour of the 1st defendant for valid consideration and in the same way, the another brother of the 1st defendant viz.,Kathavarayan's wife Pattammal sold the 1/4th share of Kathavarayan for valid sale consideration on 05.08.1991 in favour of the 1st defendant. Therefore, the 1st defendant is entitled to 3/4th undivided share in the suit property. Since the legal heirs of Govindasamy were residing out side the said property, they never cared for the alleged 1/4th share in the said property and that was the reason, the property is left undivided till date. Therefore, the 1st defendant is entitled to 3/4th undivided share in the suit property. Since the legal heirs of Govindasamy were residing out side the said property, they never cared for the alleged 1/4th share in the said property and that was the reason, the property is left undivided till date. While so, in June, 2004, the 1st defendant was given to understand that the heirs of the deceased Govindasamy were trying to alienate and encumber their alleged undivided 1/4th share in the said property and therefore, he contacted the heirs of late Govindasamy for selling their alleged undivided 1/4th share in the above said property. After knowing the defendant's right of pre-emption for purchasing the undivided ¼ share of Govindasamy, the plaintiff in collusion with the alleged heirs of Govindasamy created a sham and nominal sale deed dated 05.03.2007. As admitted earlier, the said Govindasamy and his family left the above said property about 35 years before and hence the plaintiff's contention that there was an alleged partition among the brothers of the defendant is false and invented for the purpose of filing of the suit. The alleged sale deed date d05.03.2007 never came into force and acted upon. Even as per the Survey and Revenue Records, the property is undivided. The plaintiff never took possession of the property as alleged and on the basis of the alleged sale deed dated 05.03.2007 the plaintiff never took possession of his alleged property mentioned in the suit. The description of the property mentioned in the schedule never existed and it was invented by the plaintiff for filing of the suit. The 1st defendant is in exclusive possession and enjoyment of the entire 2 Ares and 20 Centiares till date. Since the suit property is an ancestral property, the 1st defendant as a co-owner is having a right of pre-emption to purchase the 1/4th share of Govindasamy and in any event the plaintiff cannot enforce his alleged sale deed dated 05.03.2007 by suppressing the the 1st defendant's right of pre-emption. In fact, the 1st defendant had already filed a suit in O.S.No.970 of 2004 before the III Additional District Munsif, Puducherry against the heirs of Govindasamy for purchase his 1/4th undivided share in the above property on the basis of right of pre-emption. Further the alleged sale is hit by doctrine of lis pendens. In fact, the 1st defendant had already filed a suit in O.S.No.970 of 2004 before the III Additional District Munsif, Puducherry against the heirs of Govindasamy for purchase his 1/4th undivided share in the above property on the basis of right of pre-emption. Further the alleged sale is hit by doctrine of lis pendens. Further, the alleged vendors, who are necessary and proper parties to the suit, have not been added as parties in the suit and therefore, the suit is liable to be dismissed for non-joinder of parties. 6. Based on the above pleadings of either parties, the court below had framed the following issues for trial:- 1. Whether the sale deed dated 05.03.2007 in favour of the plaintiff is true and valid in law? 2. Whether the plaintiff is in peaceful possession and enjoyment of the suit property? 3. Whether the defendant has any right of preemption as claimed? 4. Whether the plaintiff is entitled to the relief of declaration and permanent injunction? 5. To what relief the plaintiff is entitled for? Additional Issue: (1) Whether the suit is bad for misjoinder of parties? During trial, on the side of the plaintiff, the plaintiff examined himself as P.W.1 besides examining one Subramanian as P.W.2 and Gnanasekaran as P.W.3 and proved as many as documents 13 documents as Ex.A1 to A.13 and on the side of the defendants, the 4th defendant examined himself as D.W.1 besides examining one Seenu @ Sadasivam as D.W.2 and proved as many as 9 documents as Ex.B.1 to Ex.B.9. 7. The learned Principal Subordinate Judge after having considered the oral and documentary evidence adduced by either parties had found that as the legal heirs of the deceased Govindasamy had sold the property in favour of the plaintiff through a registered sale deed on 05.03.2007 itself, they did not have any remaining right in respect of the suit property and therefore, the vendors of the plaintiff were not necessary parties to the suit and the suit was not hit by non-joinder of parties. The learned Judge had further found the defendants never took any steps to exercise their right of preemption prior to the sale made in favour of the plaintiff on 05.03.2007 and therefore, the sale was true and valid in law and therefore, decreed the suit as prayed for with costs. The learned Judge had further found the defendants never took any steps to exercise their right of preemption prior to the sale made in favour of the plaintiff on 05.03.2007 and therefore, the sale was true and valid in law and therefore, decreed the suit as prayed for with costs. Challenging the same, the defendants preferred an appeal which was also dismissed by the first appellate court. Feeling aggrieved by the same, the defendants before this court with this second appeal. 8. This second appeal was admitted on the following substantial question of law :- “Whether the courts below were right in granting a decree for declaration and injunction in the absence of any positive proof of partition having taken place with reference to the property subject matter of the suit? 9. Originally the main suit was filed by the respondent against one K.Ramasamy, S/o.Mayakrishnan @ Krishnasamy. During the pendency of the suit, the above said K.Ramasamy died and his legal heirs were impleaded as defendants 2 to 8. On the death of D3, during the pendency of the suit, her legal heirs are impleaded as D9 to D12. Admittedly, the suit property and the other property originally belonged to one Mayakrishnan @ Krishnasamy Gounder. He has four sons, viz., Govindasamy, Parasuraman, Kathavarayan and Ramasamy. It is the case of the respondent that after the death of Mayakrishnan, all his four sons succeeded to the larger extent of the property and they amicably partitioned the same by four equal shares by metes and bounds and had started enjoying them independently. According to the respondent/plaintiff herein, he has purchased the suit property from the legal heirs of Late Govindasamy, who is one of the brothers of the deceased Ramasamy. The sale deed was executed on 05.03.2007 and the respondent herein is in possession and enjoyment of the suit property. Since the appellant herein attempted criminal trespass alleging and claiming to have some extent belonging to him. Notice was issued to the appellant and the appellant herein sent a false and frivolous reply. The appellant also obstructed the measurement of the property of the respondent by the Surveyor. Hence, the respondent filed the main suit for declaration and permanent injunction. 10. Per contra, it is the case of the appellants that no partition was effected between the sons of Mayakrishnan. The appellant also obstructed the measurement of the property of the respondent by the Surveyor. Hence, the respondent filed the main suit for declaration and permanent injunction. 10. Per contra, it is the case of the appellants that no partition was effected between the sons of Mayakrishnan. One of the sons of Mayakrishnan by name Govindasamy left the suit property and he was not in possession of the suit property. It is the further contention on the side of the appellant that one of the sons of Mayakrishnan by name Parasuraman executed a registered release deed in favour of the deceased Ramasamy on 28.12.1989 releasing his 1/4th share for a valid consideration and another brother Kathavarayan’s wife Pattammal sold 1/4th share of Kathavarayan' for valid consideration on 05.08.1991 in favour of deceased Ramasamy. It is contended that Late Govindasamy never cared for the alleged 1/4th share and the property was left undivided till date. It is also the case of the appellant, that after knowing the deceased Ramasamy’s right of pre-emption for purchasing the undivided 1/4th share of Govindasamy, the plaintiff in collusion with the alleged heirs of Govindasamy created sham and nominal sale deed dated 05.03.2007 and sought for dismissal of the suit. 11. The trial Court, after considering the oral and documentary evidence decreed the suit in favour of the plaintiff and on appeal, the first appellate Court after reappraisal of the oral and documentary evidence dismissed the appeal by confirming the judgment and decree of the trial Court. 12. The learned counsel appearing on the side of the appellants contended that the Courts below have erroneously granted decree for declaration and injunction in the absence of any positive proof of partition among the sons of Mayakrishnan @ Krishnasamy and sought for setting aside the judgment and decree of the Courts below. 13. On a careful perusal of the entire records and on the clear admission made by the defendant, the Courts below have rightly decreed the suit. The 4th defendant, the son of deceased Ramasamy, who was examined as D.W.1 in his cross examination has categorically deposed as follows: OTHER LANGUAGE Therefore, DW1 himself admitted that already the properties were partitioned among the sons of deceased Mayakrishnan during the life time of his father Ramasamy. 14. The 4th defendant, the son of deceased Ramasamy, who was examined as D.W.1 in his cross examination has categorically deposed as follows: OTHER LANGUAGE Therefore, DW1 himself admitted that already the properties were partitioned among the sons of deceased Mayakrishnan during the life time of his father Ramasamy. 14. D.W.-1 in his cross examination has further deposed that, OTHER LANGUAGE From the above evidence of D.W.1, it is clear that apart from the suit property, the other properties of Mayakrishnan were also partitioned and some of the sharers sold their share to third parties. 15. Admission is the best evidence. When there is a clear and categorical admission made by the D.W.-1 that there was oral partition among the sons of late Mayakrishnan during the lifetime of his father deceased Ramasamy, the Courts below have rightly decreed the suit in favour of the plaintiff/respondent and the contention of the appellant that the Court below was wrong in granting a decree for declaration and injunction in the absence of any positive proof of partition pertaining to the suit property has to be rejected and the substantial question of law is answered accordingly. Hence, no interference is warranted to the judgment and decree passed by the Courts below. 16. In the result, the second appeal is dismissed. No costs.