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2022 DIGILAW 489 (MAD)

S. Anusuya v. Thiruneelakandan

2022-02-25

N.ANAND VENKATESH

body2022
JUDGMENT : N. ANAND VENKATESH, J. Prayer in S.A. No. 179 of 2012: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 22.12.2011 and made in A.S. No. 8 of 2010 on the file of Sub-Court, Poonamallee reversing and setting aside the judgment and decree dt.13.11.2009 and made in O.S. No. 110/2007 on the file of Additional District Munsif, Poonamallee. S.A. No. 279 of 2014: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed by the Hon’ble Subordinate Judge, Poonamallee in A.S. No. 16/2010 dated 22.12.2011 by confirming the judgment and decree passed by the Hon’ble Additional District Munsif, at Poonamallee, in O.S. No. 594 of 1998 dated 13.11.2009. 1. The issue involved in both the Second Appeals are common and they arise out of a Common Judgment passed in A.S. No. 8 of 2010 and A.S. No. 16 of 2010, on the file of the Sub-Court, Poonamalee and hence both the Second Appeals are taken up together, heard and this Common Judgment is passed. 2. The appellant in S.A. No. 279 of 2014 filed a suit in O.S. No. 594 of 1998 against S. Anusuya and 2 others seeking for the relief of permanent injunction restraining them from in anyway trespassing or interfering with the peaceful possession and enjoyment of the plaintiff with respect to the property situated in grama natham New S. No. 135/17 (Old S. No. 82/1 Part) Measuring 4434 sq. feet. The case of the appellant is that the suit property belonged to Pachaiyappa Pandithar by virtue of a Koorchit dated 25.4.1940 and he died intestate leaving behind his wife and son. The appellant is the son and his mother who is the wife of Pachaiyappa Pandithar was originally the plaintiff in the suit. Their grievance was that the said S. Anusuya and others were attempting to interfere with the possession and enjoyment of the property and hence the suit came to be filed seeking for the relief of permanent injunction. 3. During the pendency of the suit, the wife of Pachaiyappa Pandithar died and the appellant as the son was impleaded and he prosecuted the suit. The suit was not defended and hence an ex-parte decree came to be passed on 9.10.2003. 3. During the pendency of the suit, the wife of Pachaiyappa Pandithar died and the appellant as the son was impleaded and he prosecuted the suit. The suit was not defended and hence an ex-parte decree came to be passed on 9.10.2003. Thereafter a petition was filed in I.A. No. 1138 of 2005 by the said S. Anusuya and 2 others to condone the delay in filing the petition to set aside the ex-parte decree and this petition was allowed by an Order dated 22.8.2006. Thereafter the ex-parte decree was set aside and the suit was tried on merits. 4. In the meantime the appellant along with his son, represented through their Power of Attorney agent, executed a registered sale deed dated 14.7.2006 to an extent of 4110 sq. ft. in the suit property in favour of the respondent in S.A. No. 179 of 2012. 5. The above said S. Anusuya and 2 others who are the appellants in S.A. No. 179 of 2012 filed a suit in O.S. No. 110 of 2007 seeking for the relief of permanent injunction against the respondent therein and one T. Subramani on the ground that they are in possession and enjoyment of the suit property in New S. No. 135/17 (Old S. No. 82/1 Part) to an extent of 7700 sq. ft. they came up with a case to the effect that they have constructed a house in the suit property and there is a joint patta in their favour and that they are in possession and enjoyment of the property and that the defendants are utter strangers to the property who were attempting to interfere with their peaceful possession and enjoyment of the suit property. Hence the suit was laid seeking for the relief of permanent injunction. 6. The respondent in S.A. No. 179 of 2012 and who was the 1st defendant in that suit came up with a defence to the effect that originally a larger extent of property was owned by one Munuswamy Pandithar and he had three sons viz. Basha Pandithar, Pachaiyappa Pandithar and Ganesa Pandithar. They entered into a Koorchit (Ex.B2) dated 25.4.1940 and thereby the A Schedule was allotted to Basha Pandithar the B Schedule was allotted to Pachaiyappa Pandithar and the C Schedule was allotted to Ganesa Pandithar. Basha Pandithar, Pachaiyappa Pandithar and Ganesa Pandithar. They entered into a Koorchit (Ex.B2) dated 25.4.1940 and thereby the A Schedule was allotted to Basha Pandithar the B Schedule was allotted to Pachaiyappa Pandithar and the C Schedule was allotted to Ganesa Pandithar. It was further stated that Pachaiyappa Pandithar who was allotted the B Schedule property mortgaged the property that came to his share through a registered mortgage deed dated 7.12.1951 (Ex.B3) in favour of one Malligeswari Ammal. The mortgage deed was subsequently made over in favour of the 1st appellant S. Anusuya on 25.4.1960(Endorsement marked as Ex.B4). Thereafter Pachaiyappa Pandithar died and his son Nataraj who is the appellant in S.A. No. 279 of 2014 repaid the mortgage amount to the 1st appellant S. Anusuya and redeemed the mortgaged property on 26.9.1986 (Endorsement marked as Ex.B5). It was further stated that the appellants in S.A. No. 179 of 2012 fall under the branch of Basha Pandithar who was allotted the A Schedule property through Ex.B2 and they have absolutely no right in the property that fell into the share of Pachaiyappa Pandithar. The respondent in S.A. No. 179 of 2012 claimed that he is a bonafide purchaser for value to an extent 4100 sq. ft. that was purchased from Nataraj and his son and the appellants do not have any right, title or claim over this property. It was alleged that the appellants are attempting to grab the entire property which was divided into three parts through the Koorchit. 7. Incidentally, one Kanniappan also filed a suit in O.S. No. 236 of 2007 claiming for the relief of permanent injunction against the 2nd appellant and the respondent in S.A. No. 179 of 2012 on the ground that he is a lessee in the property measuring an extent of 4434 sq. ft. and that an attempt is made to illegally evict him from the property. There is no requirement to go into the details in this suit since it was dismissed and no appeal was filed and this case will have no bearing while deciding these Second Appeals. 8. The trial Court took up all the three suits and tried them together and the suit in O.S. No. 110 of 2007, filed by S. Anusuya and others was decreed and the other two suits in O.S. No. 236 of 2007 and O.S. No. 594 of 1998 were dismissed. 8. The trial Court took up all the three suits and tried them together and the suit in O.S. No. 110 of 2007, filed by S. Anusuya and others was decreed and the other two suits in O.S. No. 236 of 2007 and O.S. No. 594 of 1998 were dismissed. Aggrieved by the same, the respondents in both the Second Appeals filed A.S. No. 8 of 2010 and A.S. No. 16 of 2010 as against the dismissal of O.S. No. 110 of 2007 and O.S. No. 594 of 1998. The Lower Appellate Court by a Common Judgment and Decree dated 22.12.2011, allowed A.S. No. 8 of 2010 and dismissed A.S. No. 16 of 2010. Aggrieved by the same, S. Anusuya and others have filed S.A. No. 179 of 2012 and Nataraj has filed S.A. No. 279 of 2014. 9. This Court framed the following substantial questions of law in S.A. No. 179 of 2012: (a) Whether the Lower Appellate Court erred in holding that there had been a partition under Ex.B2 when it had held that it cannot be admitted in evidence as it is unregistered and particularly when his genuineness was disputed and denied? (b) Whether the Lower Appellate Court went wrong in not properly appreciating that Ex.A10 which is a joint patta in respect of a gramanatham property? 10. This Court framed the following substantial questions of law in S.A. No. 279 of 2014: (1) Whether the judgment passed in the Appellate Court is valid when the Appellate Court has given finding that the appellant has title and possession over the suit property, which clearly shows that the appellant is entitled for permanent injunction? (2) Whether the Appellate Court can dismiss the first appeal knowing that the appellant is the absolute owner of the suit property? (3) The First Appellate Court failed to consider that the suit was ex-parte decreed on 09.10.2003. Subsequently, the appellant executed and registered Sale Deed as a document No. 7775 of 2006 dated 14.07.2006 (Ex.B8) in favour of Thirunelakandan. Subsequently, the respondent/defendant filed I.A. No. 1138 of 2005 to set aside the ex-parte decree and the same is allowed on 22.08.2006. Whether the Appellate Court can neglect that there is no bar and duty of the appellant to protect the title and possession of the suit property on behalf of their purchaser under the law? 11. Subsequently, the respondent/defendant filed I.A. No. 1138 of 2005 to set aside the ex-parte decree and the same is allowed on 22.08.2006. Whether the Appellate Court can neglect that there is no bar and duty of the appellant to protect the title and possession of the suit property on behalf of their purchaser under the law? 11. Heard the learned counsel for the appellants and the learned counsel for the respondents. 12. This Court has carefully perused the oral and documentary evidence and the findings of both the courts below. 13. The Learned Counsel for the appellants in S.A. No. 179 of 2012 submitted that the Lower Appellate Court ought not to have placed reliance upon the Koorchit since it was an unregistered document through which the properties are set to have been divided among the three brothers. The Learned Counsel further submitted that the very genuineness of the Koorchit was in question and hence it should not have been relied upon while appreciating Ex.B3 to B5. The Learned Counsel submitted that the Lower Appellate Court failed to appreciate the fact that Ex.A10 which is the patta was standing in the joint name of the owners and that by itself establishes that there was no partition as claimed by the defendant. It was further contended that the Lower Appelate Court went wrong in interfering with the well considered judgment of the Trial Court. The Learned Counsel in order to substantiate his submissions relied upon the following judgments: 1. A.C. Lakshmipathy vs. A.M. Chakrapani Reddiar, 2001 (1) CTC 112 2. Vincent Lourdhenathan Dominique vs. Josephine Syla Doninique, 2008 (1) CTC 308 3. S. Raghunatha Gounder vs. Pattappa Gounder, 2008 (2) CTC 345 4. Nazir Ahamed vs. A. Abdul Kaleel and Others, 2019 (3) Mad. WN (Civil) 504 5. N. Manickam vs. R. Saraswathi and Others, AIR 2017 Madras 35 6. Kulandai Therasammal vs. Maria Rathinam and Others, 2013 (2) MLJ 345 7. Padmanabha Hegde vs. Suneetha J. Rao, 2007 (2) KLT 209 8. S.K. Ramaswami Goundan vs. S.N.P. Subbaraya Goundan, 1948 (1) MLJ 215 14. WN (Civil) 504 5. N. Manickam vs. R. Saraswathi and Others, AIR 2017 Madras 35 6. Kulandai Therasammal vs. Maria Rathinam and Others, 2013 (2) MLJ 345 7. Padmanabha Hegde vs. Suneetha J. Rao, 2007 (2) KLT 209 8. S.K. Ramaswami Goundan vs. S.N.P. Subbaraya Goundan, 1948 (1) MLJ 215 14. Per contra, the learned counsel for the respondent in S.A. No. 179 of 2012 submitted that the lower Appellate Court took into consideration each and every finding rendered by the trial Court and re-appreciated the entire evidence and had rightly come to a conclusion that the relief sought for in O.S. No. 110 of 2007 is not sustainable. The learned counsel submitted that Ex.B-2 even though was not registered, can always be taken note of, for collateral purposes and it cannot be completely discarded as claimed by the appellants. The learned counsel also pointed out to the deposition of PW-1 and submitted that the answers given by PW-1 during the course of cross- examination clearly establishes that the parties were enjoying their respective shares after the partition. The relevant portions relied upon by the learned counsel from the evidence of PW-1 are extracted hereunder: 15. The learned counsel in order to substantiate his submission on the scope of reliance that can be placed upon Ex.B2 Koor Chit, relied upon the judgment of the Supreme Court in Korukonda Chalapathi Rao and Another vs. Korukonda Annapurna Sampath Kumar, 2021 SCC Online SC 847. 16. This Court has carefully considered the submissions made on either side. 17. The property measuring a total extent of 7700 sq. ft. originally belonged to one Munuwamy Pandithar. For proper appreciation, the genealogical table of Munuswamy Pandithar is extracted hereunder: 18. Mr. Nataraj who is the son of Pachaiyappa Pandithar is claiming right with respect to the B schedule property measuring an extent of 4434 sq. ft. that was allotted in favour of his father under Ex.B2. The said Nataraj along with his son sold 4110 sq. ft. in favour of Thiruneelakandan who is the respondent in S.A. No. 179 of 2012. The main ground of attack by the Learned Counsel for the appellants in S.A. No. 179 of 2012 is with regard to the very admissibility of Ex.B2. The Trial Court while considering Ex.B2 refused to place reliance upon this document for the following reasons: (a) There was allotment of unequal shares among the three brothers. The main ground of attack by the Learned Counsel for the appellants in S.A. No. 179 of 2012 is with regard to the very admissibility of Ex.B2. The Trial Court while considering Ex.B2 refused to place reliance upon this document for the following reasons: (a) There was allotment of unequal shares among the three brothers. (b) It was not registered and hence inadmissible. (c) When Ex.B1 and B3 are registered, if really Ex.B2 was executed among the parties, there was no reason not to register Ex.B2 and (d) If really Ex.B2 was executed and acted upon, there was no reason for Ex.A10 patta to continue to remain in the joint names of all the three brothers. 19. The lower Appellate Court dealt with each one of those findings and held as follows: (a) Ex.B1 is a registered mortgage deed that was executed by all the three brothers in favour of one Poongothai alias AmmakkannuAmmal. By virtue of this document, they borrowed a sum of Rs. 700/-.While executing Ex.B2 among brothers, a specific reference is made to the property being mortgaged for obtaining a loan of Rs. 700/- and the amount to be settled by each sharer towards the loan is also mentioned and on settlement of the loan, the property to which they will be entitled is also dealt with in this document. Ex.B3 which is a registered mortgage deed executed by Pachaiyappa Pandithar with respect to his share also specifically makes a mention to the Koorchit Ex.B2. Hence the Lower Appellate Court takes into consideration all these three documents and places reliance upon Ex.B2 only for collateral purposes since it is an unregistered document. (b) Since some doubt was raised with respect to Basha Pandithar not being a party in Ex.B2, the Lower Appellate Court found that both in Ex.B1 and Ex.B2, Basha Pandithar had only put a mark (“TAMIL”). Lower Appellate Court found that it is a very common practice of illiterate persons putting a mark while executing documents. This is more so since Ex.B1 was a registered document. In support of the above finding of the Lower Appellate Court, useful reference can be made to the judgment in Dasureddu, Minor by guardian Audilaskshmi Ammal vs. M. Venkatasubbammal, AIR 1934 Mad. 436 . This is more so since Ex.B1 was a registered document. In support of the above finding of the Lower Appellate Court, useful reference can be made to the judgment in Dasureddu, Minor by guardian Audilaskshmi Ammal vs. M. Venkatasubbammal, AIR 1934 Mad. 436 . In the said judgment “The third judge Krishnan Pandalai, Job-serves “On the question whether the writing at the foot of the will” This scratch-the mark of Rangammal” admittedly written by Kothandarama Pillai amounts to his signature of the testatrix’s name both the learned Judges have agreed that it is to be so regarded and I entirely agree. The habit of illiterate persons in the Tamil Country who can only make marks but who wish to authenticate their documents by the instrumentality of others is precisely what happened in this case. The pen is touched and handed over to the person who makes the mark and adds the memorandum that this is the mark of the executant. The meaning and object of that act is to authenticate the document as that of the person whose name is written. Such being the case there can be no doubt as the learned Judges have held that Kothandarama Pillai did sign Rangammal’s name to the will. As already stated, that he did so in her presence and under her direction is proved. The will was therefore validly executed and that is my answer to the point referred.” (c) Exhibits B1 and B3 are mortgage deeds and hence were registered. However Ex.B2 was a family arrangement between the brothers which was reduced to writing and it was a common practice to either do it orally or reduce it to writing and in many cases, it is not even registered. (d) The lower Appellate Court took into consideration the fact that Ex.B2 was a sixty year old document and hence it cannot be doubted just because it was not registered. The Lower Appellate Court consciously took note of the fact that it was not registered and placed reliance only for limited purposes viz. collateral purposes. In other words, to corroborate the other evidence available on record. The Lower Appellate Court consciously took note of the fact that it was not registered and placed reliance only for limited purposes viz. collateral purposes. In other words, to corroborate the other evidence available on record. (e) The Lower Appellate Court specifically dealt with the issue of unequal distribution of shares and found that the liability that was saddled on each sharer towards the loan amount exhibited under Ex.B1 and the share of property alloted, demonstrated equal distribution of share to each brother. (f) Since some doubt was created with regard to the signature of Ganesa Pandithar, the Lower Appellate Court in Para 19 of the judgment, exercised its jurisdiction under S.73 of the Evidence Act and compared the signature in Ex.B1 and Ex.B2 and found it to be the genuine signature of Ganesha Pandithar. (g) The lower Appellate Court also took into consideration the endorsement made in Ex.B3 and which was marked as Ex.B4 and Ex.B5 and found that DW-3 who was the scribe had spoken about the same and had also spoken about the persons who were present at the relevant point of time. (h) The lower Appellate Court assessed Exhibits A13 to A46 and found that it only pertained to the house property in which the appellants in S.A. No. 179 of 2012 were residing. The lower Appellate Court also examined the evidence of PW-1 and came to a categoric conclusion that there was a vacant land on the northern side of the suit property and it was this property which was the subject matter of O.S. No. 594 of 1998 filed by Nataraj. (i) The lower Appellate Court also found that since Nataraj who was the plaintiff in O.S. No. 594 of 1998 sold the entire property to Thiruneelakandan who was the 1st defendant in O.S. No. 110 of 2007 under Ex.B8, he will not be entitled for any relief since he is no more the owner of that property. 20. This Court captured the findings of the lower Appellate Court on each issue in order to demonstrate that the lower Appellate Court re-appreciated the entire evidence and dealt with every finding of the trial Court and thereafter came to a conclusion. There is absolutely no perversity in the findings of the lower Appellate Court which warrants any interference of this Court in these Second Appeals. 21. There is absolutely no perversity in the findings of the lower Appellate Court which warrants any interference of this Court in these Second Appeals. 21. Insofar as the first substantial question of law in S.A. No. 179 of 2012 is concerned, the Lower Appellate Court has taken into account Ex.B2 only for a limited purpose after realising that it has not been registered and it was considered only for collateral purposes within the ambit of Section 49 of the Registration Act, 1908. Hence, the lower Appellate Court did not exclusively rely upon Ex.B2 to arrive at a finding and the entire evidence along with attending circumstances was taken into consideration by the trial Court. Ex.B2 was used only to corroborate the other evidence available on record. The first substantial question of law is answered accordingly. 22. Insofar as the second substantial question of law is concerned, the Lower Appellate Court properly appreciated the scope of Ex.A10. While considering the same, the Lower Appellate Court took into consideration the fact that Pachiayappa Pandithar was not residing in the suit property and his portion alone was kept vacant and whereas there was a house property insofar as the other two sharers are concerned. The Lower Appellate Court therefore held that Ex.A10 by itself does not take away the fact that each of the sharer was enjoying the property that was allotted to them. Hence the Lower Appellate Court has properly appreciated Ex.A10. The second substantial question of law is answered accordingly. 23. In view of the above discussion, this Court answers both the substantial questions of law against the appellants in S.A. No. 179 of 2012. 24. Insofar as the substantial questions of law that have been framed in S.A. No. 279 of 2014 is concerned, the appellant Nataraj has already sold the property in favour of Thiruneelakandan and this Court is satisfied with the right title and interest of Thiruneelakandan in the property. The Lower Appellate Court has given a very valid reason for not granting the relief in favour of Nataraj since he had already conveyed the property. That apart, this Court has answered the substantial questions of law in S.A. No. 179 of 2012 against the appellants therein. Hence there is no requirement to separately answer the substantial questions of law framed in S.A. No. 279 of 2014. 25. That apart, this Court has answered the substantial questions of law in S.A. No. 179 of 2012 against the appellants therein. Hence there is no requirement to separately answer the substantial questions of law framed in S.A. No. 279 of 2014. 25. In the considered view of this Court, the appellants in S.A. No. 179 of 2012 apart from knocking of the property that fell to the share of Ganesa Pandithar have also attempted to knock of the property which fell to the share of Pachaiyappa Pandithar and after his lifetime, in favour of Nataraj. PW-1 accepts that Nataraj has a share in the property and inspite of the same, they do not want to allow Nataraj to deal with the property and they have clearly taken advantage of the fact that the property which is the subject matter in S.A. No. 279 of 2014 was remaining vacant. If according to the appellants in S.A. No. 179 of 2012, the property continues to be enjoyed in common by virtue of Ex.A10, they are not entitled to get an injunction against the co-owner viz. Nataraj who had sold his share in favour of Thiruneelakandan. Therefore the injunction suit filed by the appellants in S.A. No. 179 of 2012 is liable to be dismissed on this ground also. 26. In the result, this Court does not find any grounds to interfere with the Judgment and Decree of the Appellate Court in A.S. No. 8 of 2010 and A.S. No. 16 of 2010 and hence both the Second Appeals are dismissed with cost.