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2021 DIGILAW 3552 (MAD)

Kathiresan v. M. Malairaj

2021-12-17

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : This second appeal has been filed to set aside Judgment and Decree dated 12.03.2020 made in A.S.No.13 of 2016 on the file of Sub Court, Paramakudi confirming the Judgment and Decree dated 19.03.2014 made in O.S.No.124 of 2012 on the file of District Munsif Court, Paramakudi. 2. The appellants/plaintiffs had instituted a suit in O.S.No.124 of 2012 on the file of the District Munsif Court, Paramakudi to declare the suit property is belonged to the plaintiffs and consequently declaring the sale deed dated 31.07.2006 executed by the first defendant in favour of the second defendant is null and void and to grant permanent injunction against the defendants restraining them from interfering possession and enjoyment of the plaintiffs in the suit property. 3. It is the case of the appellants/plaintiffs that the suit property was originally belonged to plaintiffs' father namely T.P.Muthu enjoying it as his ancestral properties and he died on 14.08.1996. After the demise of the plaintiffs' father, the plaintiffs are enjoying the property jointly. The suit property comes under the survey No.269-3 for an extent of 0.48.5 acres which comprised in patta No.614. Now the plaintiffs are having possession and enjoyment over the suit property. In the said circumstances, the first defendant alleged to have executed inam settlement deed to his son namely Karthickraja on 31.07.2006 regarding the suit property. The first defendant's father name is Mangaikarasu, but, fraudulently the first defendant had stated as Muthu @ Mangaikarasu in the deed. The plaintiffs had paid property tax till 2012 in the name of plaintiffs' father and the plaintiffs' sisters are married and living separately and they are not necessary parties in the suit. The defendants have no right over the suit property. Hence, the plaintiffs filed the present suit. 4. The respondents/defendants filed written statement denying the claim of the plaintiffs and stating that the suit property originally belonged to one Muthu and his brother Shanmugam. The said Muthu had mortgaged the suit property in favour of Raman on 17.06.1951. The said Muthu and his brother Shanmugam redeemed the said mortgage and sold the suit property to the first defendant's father namely Mangaikarasu on 11.06.1955 itself. The plaintiffs, who are the legal heirs of the said Muthu, have no right over the suit property after the sale. The said Muthu and his brother Shanmugam redeemed the said mortgage and sold the suit property to the first defendant's father namely Mangaikarasu on 11.06.1955 itself. The plaintiffs, who are the legal heirs of the said Muthu, have no right over the suit property after the sale. The suit is bad for non jointer of necessary parties because the sisters of the plaintiffs are not added as a party in the suit proceedings. The defendants father died 30 years back and his mother also died 5 years back. Hence, the first defendant is enjoying the suit property. At the time when the plaintiffs' father was alive, he had only minor son, namely Sithiravelu as his legal heir. The plaintiffs were not even born at the time of execution of the sale deed by his father in favour of the defendants. The first defendant's father also mortgaged the property to one Gopal Chettiyar on 10.01.1961 and the same was redeemed by the first defendant. Therefore, before birth of plaintiffs itself, their father had executed a sale deed in favour of the first defendant's father. Hence, the plaintiffs have no right at all over the suit property. The first defendant's father also known as Muthu @ Mangaikarasu. Therefore, it is stated in the sale deed as Muthu @ Mangaikarasu. Due to the error occurred and wrong patta issued in favour of the plaintiffs, they are claiming right over the suit properties who have no right at all. Hence, they prayed for dismissal of the suit. 5. Before the Trial Court, on the side of the plaintiffs, PW.1 was examined and Ex.A1 to Ex.A5 were marked. On behalf of the defendants, DW1 to DW3 were examined and Ex.B1 to Ex.B9 were marked. On the basis of the rival pleadings on either side, the trial Court has framed the necessary issues and after evaluating both the oral and documentary evidence, had dismissed the suit. 6. Aggrieved by the Judgment and decree rendered by the trial Court, the plaintiffs, had filed an Appeal Suit in A.S.No.13 of 2016. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal by confirming the Judgment and decree passed by the trial Court. 6. Aggrieved by the Judgment and decree rendered by the trial Court, the plaintiffs, had filed an Appeal Suit in A.S.No.13 of 2016. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal by confirming the Judgment and decree passed by the trial Court. Challenging the said concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiffs as appellants. 7. Heard the learned counsel for the appellants and perused the materials available on record. 8. The learned counsel appearing for the appellants submitted that the suit property was originally belonged to the plaintiffs' father namely T.K. Muthu and title deed are also available to prove it. Further, the first defendant executed a inam settlement deed in favour of the second defendant on 31.07.2006 with respect to the suit property. The first defendant has no right over the suit property. Further, he pointed out that as per the claim of the first defendant in the settlement deed his father's name is shown as Muthu @ Mangaikarasu. In order to defraud the plaintiffs, the defendants have cited as if his father's name as Muthu @ Mangairkarasu in the settlement deed. The patta for the suit property stands in the name of the plaintiffs' father only. The defendants and his father has not mutated the revenue records after alleged purchase of the suit properties. It proves that the defendants have no possession and right over the suit properties. He further submitted that the plaintiff's father T.P. Muthu never sold the property to the first defendant's father Mangaikarasu and sale deed dated 11.06.1955 does not disclose the present suit property. Moreover, mortgage deed/Ex.B3 dated 10.10.1961 reveals that the schedule mentioned in the mortgage deed in respect of survey No. 252/6, which is not covered in the suit schedule. Therefore, from the records of settlement and survey show that the property stands in the name of the plaintiffs' father T.P. Muthu only. While that being so, the defendants have no such rights over the suit property. However, both the Courts below without going into the merits of the case, had dismissed the plea of the appellants. Hence, he prayed for allowing of this second appeal. 9. While that being so, the defendants have no such rights over the suit property. However, both the Courts below without going into the merits of the case, had dismissed the plea of the appellants. Hence, he prayed for allowing of this second appeal. 9. On going through the above facts of the case, it is seen that the suit properties are belonged to the plaintiffs as their ancestral properties. Hence, the title deeds for the suit properties are not available. It is claimed by the appellants that they are having possession and enjoyment over the properties and patta is still stands in the name of the plaintiff's father. On the other hand, it is seen that the first defendant's father Mangaikarasu had purchased the property from one Muthu, who is the father of the plaintiffs on 11.06.1955 and the sale deed was marked as Ex.B2 to prove it. After purchasing the suit property, the father of the first defendant had mortgaged the suit property to one Gopal Chettiyar on 10.10.1961, which was also proved by marking Ex.B3. The same has been redeemed by the first defendant on 02.01.2010 and the said endorsement redemption is marked as Ex.B4 in the suit. 10. It is also seen that at the time of execution of Ex.B2, the plaintiffs were not born. Therefore, claiming of the suit property by the plaintiffs that there is no sale is not sustainable. In this respect, PW.1 in his cross examination clearly admitted about the same. Further, on perusing of Ex.B2, it is stated that the plaintiffs' father had only one son, namely, Chithiravel, at the time of execution of Ex.B2. However, the plaintiffs does not aver in the plaint whether the said Chithiravel is the son of the plaintiff's father. Further, on perusing Ex.B3, which is a mortgage deed executed by the first defendant's father on 10.10.1961 to one Gopal Chetttiyar, which was subsequently, redeemed on 02.01.2010 by the first defendant. In this respect, the plaintiffs stated that after obtaining sale deed by the first defendant's father, there was no mutation of revenue records in their name. Hence the alleged sale is not proved and mere redemption after a long period does not amount to title to the defendants. 11. As it is seen that the plaintiffs did not produce UDR patta issued on the plaintiffs' father. Hence the alleged sale is not proved and mere redemption after a long period does not amount to title to the defendants. 11. As it is seen that the plaintiffs did not produce UDR patta issued on the plaintiffs' father. However, the plaintiffs have produced a patta which stands in the name of the plaintiff's father, marked as Ex.A1, which is obtained by the plaintiffs recently. Further, the plaintiffs have not produced patta which is issued to the property in Ex.A1. Therefore, the plaintiffs have failed to prove their case. Further, the plaintiffs have produced only tax receipt/Ex.A4, which is obtained recently. In this respect, the defendants have clearly established better title over the plaintiffs regarding the suit property. It is settled principle, merely mutation of revenue records does not prove the title. 12. It is further seen that the first defendant had executed settlement deed dated 31.07.2006 in favour of the second defendant. The plaintiffs stated that the execution of settlement deed is nothing but fraudulent document. However, they have not produced the said document of settlement deed. On the other hand, the defendants have produced the said document, which is marked as Ex.B5. Merely saying the father name of the first defendant is not Muthu @ Mangaikarasu does not amount to execution of settlement deed dated 31.07.2006 as fraudulent document. Further, the first defendant has redeemed the mortgage which was executed by the first defendant's father to one Gopal Chettiyar on 02.01.2010. The endorsement has been marked as Ex.B4. After redeeming the mortgage, the first defendant has filed an application to transfer the patta in his name. The said application is marked as Ex.B9 and acknowledgment marked as Ex.B8. In this respect, the defendant has summoned DW3, who is the Tahsildar, Paramakudi stated that the first defendant's application has been dismissed on the ground that joint patta alone can be issued and individual patta cannot be issued. Therefore, on perusing of Ex.X1 to X3 and Ex.B8 & Ex.B9, would show that the first defendant had already taken steps to transfer the patta in his name. Moreover, the revenue authorities has not declined the legal right of the first defendant and they had passed an order that joint patta alone can be issued. Therefore, the contention of the plaintiffs that neither the first defendant nor his father did not take steps to mutate the revenue records, is not acceptable. Moreover, the revenue authorities has not declined the legal right of the first defendant and they had passed an order that joint patta alone can be issued. Therefore, the contention of the plaintiffs that neither the first defendant nor his father did not take steps to mutate the revenue records, is not acceptable. 13. As rightly observed by the Courts below, before birth of the plaintiffs, the plaintiffs' father was executed sale deed/Ex.B2 in favour of the first defendant's father and thereafter, as a sole legal heir of Mangaikarasu, on 31.07.2006, the first defendant had executed settlement deed/Ex.B3 in favour of the second defendant. In view of the same, now the second defendant is having valid title over the suit property and the plaintiffs have failed to prove their title by letting oral and documentary evidence. Hence, both the Courts below dismissed the prayer of the appellants/plaintiffs. Moreover, the plaintiffs approached the Court after a lapse of 40 years and hence, the suit is also barred by limitation. 14. For the reasons aforesaid, this Court is of the considered view that no substantial questions of law has been made out by the appellants/plaintiffs to interfere with the well considered judgment and decree rendered by the Courts below and accordingly, the Second Appeal stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.