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2022 DIGILAW 349 (MAD)

R. Soundararajan v. R. Sivaprakasam

2022-02-07

S.S.SUNDAR

body2022
JUDGMENT : (Prayer: Second Appeal preferred under 100 of CPC against the judgment and decree of the learned IV Additional District and Sessions Judge at Ponneri dated 27.09.2021 and made in AS.No.49/2019 reversing the judgment and decree of the learned Subordinate Judge, Ponneri dated 11.10.2017 and made in OS.No.12/2006.) 1. Defendants 1 to 4 in the suit in OS.No.12/2006 on the file of the Sub Court, Ponneri, are the appellants in this Second Appeal. 2. The 1st respondent in this Second Appeal, as plaintiff, filed the suit in OS.No.12/2006 for a declaration, declaring the document of Settlement created by the 1st defendant/1st appellant in favour of defendants 2 and 3/appellants 2 and 3 herein, on 17.01.2005 as sham and nominal document and void and not binding on the plaintiff. 3. It is the case of the plaintiff that the suit property which is described as 16 feet passage comprised in S.No.93/1C2 in Ambattur Taluk, Naravaikuppam Panchayat, is the property in respect of which the plaintiff is having a right to use the same. It is admitted that the suit property originally belonged to the plaintiff's grandfather by name Ekambara Chettiyar. By virtue of a Will executed by the said Ekambara Chettiyar on 24.05.1988, it is stated that the plaintiff was allotted ''A'' Schedule property measuring an extent of 1.67 acres of agricultural lands including the 16 feet passage to reach Nataraja Rice Mill. It is the specific case of the plaintiff that the 1st defendant has no other right in the ''A'' Schedule property referred to in the Will except a right to have access in the 16 feet passage. 4. It is the further case of the plaintiff that the 1st defendant sold one of the properties allotted to him under a Will to one Eswaran and another property which was adjacent to the plaintiff's property, to one Mohan, the 5th defendant herein under a registered Sale Deed dated 04.02.2002. Even though the 1st defendant has sold the properties allotted to him under the Will in favour of third parties, it is contended by the plaintiff that he had executed a Settlement Deed in favour of the other appellants on the premises that he is the exclusive owner of the property. 5. Even though the 1st defendant has sold the properties allotted to him under the Will in favour of third parties, it is contended by the plaintiff that he had executed a Settlement Deed in favour of the other appellants on the premises that he is the exclusive owner of the property. 5. The 1st defendant filed a suit in OS.No.1115/1997 before the learned District Munsiff, Thiruvotriyur, for permanent injunction restraining the 1st respondent herein in any manner, interfering with the 1st defendant's user and enjoyment of the suit property and for cost. It is admitted that the said suit was dismissed for non- prosecution. It was thereafter, the plaintiff herein filed a suit in OS.No.22/2006 for permanent injunction restraining the 1st defendant herein from in any manner dealing with the property or encumbering the property. Since the 1st defendant has executed a Settlement Deed dated 17.01.2006 in favour of other appellants/defendants 2 to 4, the plaintiff/1st respondent herein was constrained to file the present suit in OS.No.12/2006 challenging the Settlement Deed, as the Settlement Deed executed by the 1st defendant in favour of defendants 2 to 4 claiming exclusive title to the 16 feet pathway. 6. The Trial Court dismissed the suit in OS.No.12/2006 holding that the plaintiff himself has admitted that the 1st defendant is also provided access with regard to the 16 feet pathway and that the suit property is with reference to the said 16 feet pathway which was mentioned in the Will, produced as Ex.A.1. The Trial Court failed to note that the plaintiff never disputed the 1st defendant's right to have access through 16 feet pathway. The reasoning given by the Trial Court for dismissing the suit is unacceptable having regard to the facts admitted and the documents which are not in dispute. Aggrieved by the judgment and decree of the Trial Court, the 1st respondent herein/plaintiff preferred an Appeal in AS.No.49/2019 before the learned IV Additional District and Sessions Judge, Ponneri. The Lower Appellate Court, however, reversed the findings of the Trial Court and held that the plaintiff is entitled to the decree as prayed for since the 1st defendant has no exclusive right to execute the Settlement Deed as recited in the document. Aggrieved by the same, the defendants 1 to 4 are before this Court in this Second Appeal. 7. Aggrieved by the same, the defendants 1 to 4 are before this Court in this Second Appeal. 7. The learned counsel for the appellants/defendants submitted that the plaintiff/1st respondent himself has admitted the right of the 1st defendant in the plaint as regards 16 feet passage. The learned counsel then submitted that the plaintiff has admitted the right of the 1st defendant and that the Trial Court has understood the issue properly and held that the plaintiff is not entitled to challenge the Settlement Deed. Learned counsel further submitted that the previous suit in OS.No.22/2006 was filed for permanent injunction restraining the 1st defendant from alienating the suit property and that the present suit is barred under Order II Rule 2 of CPC. 8. This Court is unable to agree with any of the submissions of the learned counsel for the appellants/defendants. 9. In paragraph No.7 of the plaint, the plaintiff has stated as follows:- ''7. The plaintiff submits that the plaintiff had been allotted ''A'' Schedule properties in the above Will dated 24.05.1988 by the grandfather Ekambara Chettiar and in the item No.2 of the aforesaid Will it had been stated that ''Agricultural Land 1.67 acres including Sri Radhakrishna Avery Scale 30 Tonnes 16 feet passage should be provided to reach the Nataraja Rice Mill''. The plaintiff submits that it clearly reveals that the 1st defendant herein has no any other right in ''A'' Schedule property referred in the Will except to a right of access in a 16' passage and that too not as claimed by the 1st defendant herein as claimed in his suit in OS.No.1115/1997, District Munsif Court, Tiruvotriyur. The plaintiff submits that the 1st defendant also subsequently had sold the property allotted to him under the Will dated 24.05.1988 to one Eswaran and the property adjacent to the plaintiff's property to one Mohan the 5th defendant herein under a registered Deed of Sale dated 04.02.2002 and hence the 1st defendant herein absolutely has no interest and necessity in the 16 feet passage as referred in the above Will and further how he can not absolutely claim the same.'' 10. From the reading of the above paragraph of the plaint, the plaintiff has stated that under the Will dated 24.05.1988, the plaintiff's grandfather Ekambara Chettiyar allotted ''A'' Schedule property which is described as agricultural lands measuring an extent of 1.67 acres including a 16 feet passage to reach Nataraja Rice Mill. It is further stated that the 1st defendant has no other right in the ''A'' Schedule property referred to in the Will except a right of access in the 16 feet passage. It is also stated that the 1st defendant has sold the property allotted to him in the Will to one Eswaran and the property which is adjacent to the plaintiff's property to one Mohan, the 5th defendant in the suit under the registered Sale deed dated 04.02.2002. Since the 1st defendant has no interest as he has already sold the main property for the enjoyment of which the 16 feet passage is required. The plaintiff has contended that the 1st defendant has no exclusive right to deal with the suit property by way of a Settlement Deed. The pleadings of the plaintiff has been misconstrued by the Trial Court to dismiss the suit. 11. The Lower Appellate Court has however appreciated the pleadings. The plaintiff's right of access through 16 feet passage is not only established by the document, viz., the Will, but also by the subsequent events. The suit filed by the 1st defendant in OS.No.1115/1997 is for permanent injunction restraining the plaintiff herein from in any manner interfering with the 1st defendant's user and enjoyment of the suit property. Therefore, it can be presumed that the 1st defendant was only claiming a right of easement over the 16 feet pathway and it was not claimed as an exclusive property of the 1st defendant in the previous suit. The said suit was also dismissed for default and it is admitted that the suit was not heard thereafter on merits. The dismissal of the suit filed by the 1st defendant in OS.No.1115/1997 is not helpful to the appellants herein to establish their case. 12. Though it is admitted that the plaintiff / 1st respondent herein filed the earlier suit in OS.No.22/2006, the said suit is for an injunction restraining the 1st defendant/1st appellant herein from alienating the suit properties. The dismissal of the suit filed by the 1st defendant in OS.No.1115/1997 is not helpful to the appellants herein to establish their case. 12. Though it is admitted that the plaintiff / 1st respondent herein filed the earlier suit in OS.No.22/2006, the said suit is for an injunction restraining the 1st defendant/1st appellant herein from alienating the suit properties. Since the 1st defendant herein has alienated the suit property under the Settlement Deed, the subsequent suit filed by the plaintiff challenging the Settlement Deed as void, is not barred by the Order 2 Rule 2 of CPC, because the cause of action is different. 13. For all the aforesaid reasons, this Court is unable to sustain any of the arguments advanced by the learned counsel for the appellants. Though the appellants have raised a few substantial questions of law touching facts, in view of the arguments advanced by the learned counsel for the appellants, this Court is unable to find any substance in any of the substantial questions of law raised by the appellants. 14. This Court is also of the view that the Trial Court has dismissed the suit without appreciating and understanding the pleadings and the evidence in a proper perspective. The Lower Appellate Court has applied its mind and found that the plaintiff/1st respondent herein has established his claim after considering the oral and documentary evidence as well as the admitted facts. Since the findings of the Lower Appellate Court is supported by evidence and reasonings, this Court is unable to find any error or illegality in the judgment and decree passed by the Lower Appellate Court in reversing the judgment and decree of the Trial Court. 15. In the result, the Second Appeal stands dismissed confirming the judgment and decree dated 27.09.2021 made in AS.No.49/2019 passed by the learned IV Additional District and Sessions Judge at Ponneri in reversing the judgment and decree dated 11.10.2017 made in OS.No.12/2006 passed by the learned Subordinate Judge, Ponneri. No costs. Consequently, connected miscellaneous petition is closed.