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2022 DIGILAW 469 (MAD)

A. N. Abdul v. R. M. Muthu Rathinavel

2022-02-23

R.VIJAYAKUMAR

body2022
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree passed in A.S.No.42 of 2017 on the file of the Subordinate Judge, Madukulathur dated 29.11.2019 confirming the judgment and decree passed in O.S.No.30 of 2010 on the file of the District Munsif Court, Mudukulathur.) 1. The third defendant is the appellant herein. 2. The plaintiff filed O.S.No.30 of 2010 before the District Munsif Court, Mudukulathur for declaration of title and permanent injunction. The suit was decreed by the trial Court. The third defendant filed A.S.No.42 of 2017 before the Sub Court, Mudukulathur. The learned Subordinate Judge has dismissed the first appeal. As against the concurrent finding, the third defendant has filed the above second appeal. 3. The plaintiff had contended that the suit schedule properties were originally owned by one Velammal, wife of Kuppaiandi Velar. Since Velammal and Kuppaiandi Velar did not have any issue, the said Velammal has executed a Will in favour of her brother Vijayan Velar under a registered Will dated 24.09.1968 under Exhibit A1. After death of Velammal, the property devolved upon her brother Vijayan Velar and he was enjoying the same. According to the plaintiff, the second defendant is the son of the said Vijayan Velar. The said Vijayan Velar had executed a registered Will on 06.05.1996. Thereafter, the said Vijayan Velar and the second defendant entered into a family arrangement, in which, the second defendant was allotted 1/4th share on the western portion. In the said family arrangement, the said Vijayan Velar and his daughter were allotted the eastern portion. However, patta continued to be in the name of Vijayan Velar in Patta No.729. On 09.10.1998 under Exhibit A4, the plaintiff purchased the suit schedule property from the said Vijayan Velar and his daughter for valuable consideration. Thereafter, a subdivision was also created in the year 1999 and Patta No.99 was granted. According to the plaintiff, he is the bonafide purchaser for valuable consideration. 4. The plaintiff further contended that the second defendant has executed a sale deed with regard to the suit schedule property on 19.05.2009 under Exhibit A9. The said sale is without any title or right. The plaintiff has acquired title by prescription. Pending suit, defendants 1 and 2 have colluded along with Vijayan Velar and created another sale deed in favour of the third defendant under Exhibit A13 on 19.03.2013. The said sale is without any title or right. The plaintiff has acquired title by prescription. Pending suit, defendants 1 and 2 have colluded along with Vijayan Velar and created another sale deed in favour of the third defendant under Exhibit A13 on 19.03.2013. Hence, the plaintiff prayed for declaration of title and permanent injunction. 5. The third defendant filed a written statement contending that there was no such family arrangement, in which the eastern portion was allotted to Vijayan Velar and his daughter. He further contended that the plaintiff is not a bonafide purchaser. The third defendant further contended that the sale deed said to have been executed by Vijayan Velar and his daughter under Exhibit A4 on 09.10.1998 is a forged document and no such document has been executed by the said vendor. He further contended that the third defendant has acquired title by adverse possession and he is a bonafide purchaser for valuable consideration from the original owner of the suit schedule property. 6. The trial Court after considering the oral and documentary evidence on either side arrived at a finding that the contention of the second defendant that the entire extent of 3.75 acres was allotted to the share in the family arrangement is not supported by any oral or documentary evidence. The trial Court also arrived at a finding that the sale deed executed by the second defendant on 19.05.2009 under Exhibit A11 has been executed without any title or any right. The trial Court also arrived at a finding that as per Exhibit A1, Vijayan Velar and his daughters are each entitled to 1/4th share and in total they are entitled to 3/4th share in the suit schedule property. The son of Vijayan Velar namely the second defendant is only entitled to 1/4th share. The trial Court also found that Exhibit A9 has been executed during pendency of the suit in favour of the third defendant and hence, it is not a valid document. 7. The trial Court also found that pending suit, an order of interim injunction has been granted in favour of the plaintiff as against the defendants not to disturb his possession. In violation of the said injunction order, a sale has been executed by the second defendant in favour of the third defendant. The trial Court also found that the third defendant is not a bonafide purchaser for valuable consideration. In violation of the said injunction order, a sale has been executed by the second defendant in favour of the third defendant. The trial Court also found that the third defendant is not a bonafide purchaser for valuable consideration. No oral or documentary evidence has been produced on the side of the third defendant to establish that he is the bonafide purchaser for valuable consideration. Based upon the said findings, the trial Court decreed the suit as prayed for. 8. The First Appellate Court after independent consideration of the oral and documentary evidence, arrived at a finding that as per Exhibit A1 Will, the second defendant is only entitled to 1/4th share in the suit schedule property. On the other hand, he has executed a sale deed on 19.05.2009 for whole of the suit schedule properties in favour of the third defendant. The second defendant has not challenged the said sale deed executed by his father Vijayan Velar under Exhibit A4 standing in the name of the plaintiff. Ten years thereafter, the second defendant has chosen to execute a sale deed under Exhibits A11 and A12 which are binding upon the plaintiff. Based upon the said findings, the First Appellate Court dismissed the appeal. 9. The second appeal has been filed by the third defendant challenging the concurrent findings of the Courts below. 10. The learned counsel for the appellant contended that when the sale deed in favour of the plaintiff is challenged by the defendants, the plaintiff has to prove the said document and without proving the said document, the plaintiff is not entitled to the relief of declaration of title or permanent injunction. He further contended that the plaintiff has not even examined the executant of the document or attestor of the document. He further contended that the plaintiff claims title on the basis of family arrangement within the family of his vendor. The said family arrangement has been disputed by the defendants. In such circumstances, the plaintiff ought to have proved the family arrangement in order to get a decree for declaration of title. He further contended that when the vendor under Exhibit A4 had title only for 3/4th share, the present suit for declaration of title is not maintainable. The plaintiff should have filed only a suit for partition. In such circumstances, the plaintiff ought to have proved the family arrangement in order to get a decree for declaration of title. He further contended that when the vendor under Exhibit A4 had title only for 3/4th share, the present suit for declaration of title is not maintainable. The plaintiff should have filed only a suit for partition. The revenue records standing in the name of the plaintiff cannot be taken a basis for granting a decree for declaration of title. 11. The learned counsel for the appellant further contended that the vendor of the plaintiff under Exhibit A4 had filed I.A.No.88 of 2013 for impleading himself in the said suit. In the said petition, he has specifically contended that he has not executed Exhibit A4 in favour of the plaintiff. When the vendor himself has disputed Exhibit A4 sale deed, the plaintiff is not entitled to a decree without proving the said document as per Section 68 of Indian Evidence Act. Hence, he prayed for admission of the second appeal. 12. I have considered the submissions made on the side of the appellant. 13. It is an admitted fact that the suit schedule property originally belonged to one Velammal. She had executed a registered Will in favour of his brother and his children under Exhibit A1 dated 24.09.1968. According to the plaintiff, after the death of the said Velammal, the Will had come into force. The son and daughter of Vijayan Velar had equal right over the suit schedule property. Accordingly, the said Vijayan Velar and his children entered into a family arrangement, in which, the western portion of 1/4th share was allotted to the second defendant and the eastern 3/4th share was allotted to the share of the Vijayan Velar and his daughter. The defendants have disputed the same on the ground that the daughter of the Vijayan Velar will not have any share in the property, since she got married prior to 1988. The property has been obtained by Vijayan Velar family under a Will dated 24.09.1968 under Exhibit A1. Hence, the property devolved under a Will can never be considered to be an ancestral property. The contention of the appellant/third defendant that the daughter of the Vijayan Velar is not entitled to a share is not legally sustainable. 14. The property has been obtained by Vijayan Velar family under a Will dated 24.09.1968 under Exhibit A1. Hence, the property devolved under a Will can never be considered to be an ancestral property. The contention of the appellant/third defendant that the daughter of the Vijayan Velar is not entitled to a share is not legally sustainable. 14. The said Vijayan Velar along with his daughter has executed a registered sale deed in favour of the plaintiff on 09.10.1998 under Exhibit A4. Though the defendants contended that they are only entitled to execute a sale deed for undivided share, none of the family members of the Vijayan Velar have questioned the said sale. The second defendant who is the son of Vijayan Velar has chosen to execute a sale deed in favour of the third defendant for whole of the suit schedule properties under Exhibit A11 on 19.05.2009. The third defendant can never be considered to be a bonafide purchaser. A perusal of the encumbrance certificate would reveal that the said Vijayan Velar and his daughter have already alienated the suit property in favour of the plaintiff in the year 1998 itself. The trial Court has granted a decree for declaration of title and consequential permanent injunction in favour of the plaintiff. The said decree has not challenged by any one of the family members of the Vijayan Velar. The third defendant is a subsequent purchaser in the year 2009. The trial Court as well as the First Appellate Court have concurrently found that the sale deed in favour of the third defendant has been created by the defendants 1 and 2 in collusion with the Vijayan Velar. The Courts below have also found that the third defendant is not a bonafide purchaser for valuable consideration, in view of the fact that Exhibit A12 sale deed has been created in a stamp paper which is said to have been purchased after the date of execution of the document. 15. I do not find any question of law much less a substantial question of law that arises for consideration in the present Second Appeal. The Second Appeal stands dismissed at the admission stage itself. No costs. Consequently, connected miscellaneous petition is closed.