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2022 DIGILAW 2382 (MAD)

A. Michael Nadar v. E. Rajendra Prasad

2022-07-28

S.ANANTHI

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of Code of Civil Procedure, to set aside the Judgment and decree passed in A.S.No.100 of 2002 and Cross Appeal No.100 of 2002 dated, 04.10.2004 on the file of the Sub-Court, Padmanabhapuram confirming and modifying the Judgment and decree in O.S.No.259 of 1998 on the file of the Principal District Munsif Court, Padmanabhapuram dated 22.02.2002.) 1. The Second appeal has been filed against the Judgment and decree, dated 04.10.2004 in A.S.No.100 of 2002 and Cross Appeal No.100 of 2002 passed by the learned Sub-Judge, Padmanabhapuram confirming and modifying the Judgment and decree, dated 22.02.2002 in O.S.No.259 of 1998 passed by the learned Principal District Munsif, Padmanabhapuram. 2. At trial, two witnesses were examined as P.W.1 and P.W.2 and Exs.A.1 to A9 were marked on the side of the plaintiff and DW.1 and D.W.2 were examined and no documents were marked on the side of the defendant. 3. Upon consideration of the evidence on record, the learned trial Judge dismissed the suit in O.S.No.259 of 1998. Aggrieved, the same, the plaintiff has preferred an appeal in A.S.No.100 of 2002 and the defendant has filed Cross Appeal No.100 of 2002. The said appeal was also dismissed and partly allowed the Cross appeal. Hence, this Second Appeal. 4. Heard the learned counsel appearing for the appellant and perused the material documents available on record. 5. For the sake of convenience the contesting parties shall be referred to as Plaintiff and Defendant. The plaintiff is the appellant and the defendant is the respondent. 6. The second appeal had been admitted on the following substantial questions of law: 1. Whether the court below is right in allowing the Cross Appeal having regard to the fact that the respondent is entitled to 7.25 cents in the suit property out of 12.47 cents in the absence of any division before Ex.B.5 delivery? 2. Whether the Courts below are right in dismissing the suit for injunction since the suit property was sold to the appellant for the family necessity and the appellant is in continuous possession of the same? 3. Whether the respondent is estopped from challenging Ex.A.1 sale deed since the respondent had knowledge about same and the same was effected for family necessity to meet the marriage expenses of one of the sister of the respondent? 7. The following additional substantial questions of law have been framed: 1. 3. Whether the respondent is estopped from challenging Ex.A.1 sale deed since the respondent had knowledge about same and the same was effected for family necessity to meet the marriage expenses of one of the sister of the respondent? 7. The following additional substantial questions of law have been framed: 1. Whether the lower appellate Court is justified in law in allowing the Cross Appeal since the Cross Appellant is entitled to 7.2 cents out of 12.47 cents, suit property in the absence of demarcation before Ex.B.5 delivery? 2. Whether the lower appellate Court is justified in law, holding that the appellant is barred under Section 92 of the Evidence Act from adducing oral evidence to vary the terms of Ex.B.5 delivery? 3. Whether Ex.A.1 Sale deed is hit by estoppel since the same was made, for family necessity, to meet the marriage expenses of one o the sisters of the respondent? 8. The case of the plaintiff is that he had purchased the properties on 11.07.1983 and possessed the same from the date of purchase. Now the defendant has forcibly entered into the properties and disturbed the possession of the plaintiff as one of the co-owner. So, the plaintiff has filed the suit in O.S.No.259 of 1998. 9. The case of the defendant is that he has filed a suit in O.S.No.38 of 1972 for partition against the vendors of the plaintiff in which pre-decree was passed on 30.07.1994. Final decree was also passed on 17.06.1996 from which the defendant is entitled for 7 ¼ cents, i.e., suit 'A' schedule 13th item. 10. The trial Court has dismissed the suit against which an appeal in A.S.No.100 of 2002 was filed. Cross Appeal was also filed by the defendant. The said appeal was also dismissed and the cross appeal also modified. 11. Admittedly the whole properties are belonged to vendors of plaintiff and defendant. The plaintiff has purchased the property except from the defendant. The defendant has filed the suit for partition against the vendor of the plaintiff in O.S.No.38 of 1972. Final decree was also passed on 17.06.1996. As per final decree in I.A.No.487 of 1991, 7 ¼ Cents were allotted to the defendant. The plaintiff had not purchased the properties from the defendant. So, except this defendant's share, the plaintiff is entitled for remaining property. He cannot claim injunction for the entire property. 12. Final decree was also passed on 17.06.1996. As per final decree in I.A.No.487 of 1991, 7 ¼ Cents were allotted to the defendant. The plaintiff had not purchased the properties from the defendant. So, except this defendant's share, the plaintiff is entitled for remaining property. He cannot claim injunction for the entire property. 12. Now against the final decree petition an appeal in A.S.No.78 of 2006 was filed by the respondent/defendant in which this appellant/plaintiff is 11th respondent. The said appeal was also allowed and final decree was set aside. The final decree petition was remanded back to trial Court. The certified copy of the decree in A.S.No.78 of 2006 was marked as Ex.A.11 and the same is extracted hereunder: 13. So, the plaintiff has to work out his remedy in the Final decree petition. 14. Finally, this Second Appeal is disposed of with liberty to the appellant to work out his remedy in final decree petition in I.A.No.487 of 1991. No Costs.