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2022 DIGILAW 528 (MAD)

M. Manikandan v. C. Kamatchi

2022-03-02

S.S.SUNDAR

body2022
JUDGMENT (Prayer: Second Appeal preferred under 100 of CPC against the judgment and decree made in AS.No.41/2016 dated 04.09.2021 by the learned Additional Subordinate Judge, at Dharmapuri, reversing the judgment and decree in OS.No.206/2012, dated 27.03.2015 by the learned District Munsif, Dharmapuri.) (1) This Second Appeal is preferred by the defendants in the suit in OS.No.260/2012 as against the judgment and decree of the Lower Appellate Court, namely, the learned Subordinate Judge, Dharmapuri, in AS.No.41/2016, dated 04.09.2021, reversing the judgment and decree of the Trial Court, namely, the learned District Munsif, Dharmapuri, dated 27.03.2015, dismissing the suit in OS.No.260/2012. (2) The 1st respondent in this Second Appeal, as plaintiff, filed the suit in OS.No.260/2012 for declaration of her title and for consequential injunction in respect of the suit properties which were described by two items. The 1st item is an extent of 0.07.5 Hectares in S.No.243/4 in Tokkupothanahalli Village, Dharmapuri Taluk and the 2nd item is an extent of 0.37.0 Hectares in S.No.245/B2A in the same village. (3) The case of the plaintiff in the plaint are as follows: The suit properties originally belonged to one Shanthamani Ammal, who is the grandmother of plaintiff. Defendants 1 to 3 are the daughters of one Madhaiyan who is the son of one Krishnan and Shanthamani Ammal. The 4th defendant is the wife of the said Madhaiyan. Plaintiff's mother, Tmt.Dhanalakshmi is the daughter of Krishnan and sister of Madhaiyan. since Dhanalakshmi, the mother of plaintiff died when she was four months old, the plaintiff was brought up by her grandmother Shanthamani Ammal. The said Shanthamani Ammal purchased the properties by a document dated 21.07.1977 and obtained patta for the suit properties and they are the self acquired properties of the said Shanthamani Ammal. Since the plaintiff was her granddaughter, the said Shanthamani Ammal executed a Settlement Deed in favour of plaintiff in respect of the suit properties on 25.05.2005. In view of the settlement in favour of plaintiff, the defendants have no right over the suit properties. Defendants 1 to 4 had earlier filed a suit in OS.No.107/2008 claiming partition in respect of several properties including the suit properties in the present suit in OS.No.260/2012. The said suit was dismissed by the Trial Court in respect of suit properties and thereafter, no further appeal was preferred as against the judgment and decree dated 21.01.2012. Defendants 1 to 4 had earlier filed a suit in OS.No.107/2008 claiming partition in respect of several properties including the suit properties in the present suit in OS.No.260/2012. The said suit was dismissed by the Trial Court in respect of suit properties and thereafter, no further appeal was preferred as against the judgment and decree dated 21.01.2012. A specific finding was given by the Court in the previous suit that the suit properties belonged to Shanthamani Ammal and she had already executed a Settlement Deed in favour of the plaintiff herein. Since the title had already been decided in the previous suit in OS.No.107/2008 in favour of the plaintiff herein, the plaintiff's title cannot be disputed by the defendants. However, the defendants tried to interfere with the plaintiff's possession and enjoyment which was sorted out by the plaintiff with the help of villagers. Stating that the defendants may interfere with her possession and enjoyment in future, the plaintiff came forward with the suit in OS.No.260/2012 for declaration of her title and consequential injunction. (4) The suit was contested by the defendants denying the averments made in the plaint. However, the relationship between the parties are admitted. (5) It is the case of the defendants that the suit properties did not belong to the said Shanthamani Ammal and the Sale Deed executed by her in favour of plaintiff is fraudulent. The defendants also disputed the Settlement Deed executed by Shanthamani Ammal on 25.05.2005 in favour of the plaintiff. It is stated that the suit properties are ancestral properties of Krishnan and the document of Settlement Deed had been created by Krishnan and Shanthamani Ammal without exclusive title. (6) The Trial Court, after framing necessary issues, decreed the suit in respect of the suit 1st item, but dismissed the suit in respect of the suit 2nd item on the ground that Shanthamani Ammal was not the owner of the suit 2nd item. Referring to the Sale Deed and the Settlement Deed under Ex.A1 dated 25.05.2005, the Trial Court held that the said Shanthamani Ammal had not purchased the suit 2nd item under the Sale Deed dated 21.07.1977. The Trial Court further held that the said Shanthamani Ammal cannot execute a Settlement Deed in respect of suit 2nd item. Referring to the Sale Deed and the Settlement Deed under Ex.A1 dated 25.05.2005, the Trial Court held that the said Shanthamani Ammal had not purchased the suit 2nd item under the Sale Deed dated 21.07.1977. The Trial Court further held that the said Shanthamani Ammal cannot execute a Settlement Deed in respect of suit 2nd item. With regard to the judgment and decree made in OS.No.107/2008, the Trial Court gave a peculiar reason that the judgment in the previous suit was on the basis that defendants 1 to 4 are not in possession of the properties and that there is no finding in the previous suit regarding the title of the plaintiff. Unfortunately, the Trial Court did not even consider the issues decided, but observed that the Court did not discuss elaborately how the plaintiff is entitled to the suit property in the previous suit. Holding that the plaintiff had failed to prove how the suit 2nd item belonged to the plaintiff's grandmother Tmt. Shanthamani Ammal , the suit was dismissed by the Trial Court in respect of the suit 2nd item only. Aggrieved by the judgment and decree of the Trial Court in respect of suit 2nd item, the plaintiff/appellant preferred an appeal in As.No.41/2016 before the learned Additional Subordinate Judge, Dharmapuri. (7) The Lower Appellate Court elaborately discussed the issues and found that Shanthamani Ammal is the exclusive owner of the suit 2nd item based on the judgment of the previous suit in OS.No.107/2008. The Lower Appellate Court found that the defendants have not produced even a scrap of paper to show that the suit 2nd item of properties is ancestral in chareacter and that the same was in joint possession and enjoyment of the plaintiff and defendants 1 to 4. While considering the judgment in the suit in OS.No.107/2008, it was found that the appellants/defendants have filed the said suit for partition against Krishnan, Shanthamani Ammal and the plaintiff/1st respondent herein who was then a minor. It is not in dispute that the suit properties in the present suit are also the subject matter of the suit in OS.No.107/2008. The suit for partition filed by the appellants was dismissed specifically holding that the suit properties, particularly the properties which are covered under the Settlement Deed are the exclusive properties of Shanthamani Ammal. It is not in dispute that the suit properties in the present suit are also the subject matter of the suit in OS.No.107/2008. The suit for partition filed by the appellants was dismissed specifically holding that the suit properties, particularly the properties which are covered under the Settlement Deed are the exclusive properties of Shanthamani Ammal. Though it is admitted that the Shanthamani Ammal purchased only the suit 1st item, the suit 2nd item was also held to be the property of Shanthamani Ammal as the revenue records and documents proved her exclusive title and possession. Since the suit for partition filed by the appellants was dismissed by recording the finding that the suit 2nd item is the exclusive property of Shanthamani Ammal and the said Shanthamani Ammal had settled the suit properties in favour of her granddaughter namely 1st respondent herein, the Lower Appellate Court held that the issue regarding title had already been decided in the previous suit in OS.No.107/2008. It was found in the previous suit that patta stands in the name of Shanthamani Ammal and she had every right to execute a Settlement Deed in favour of the plaintiff. Applying the principle of res judicata, the Lower Appellate Court has concluded that the plaintiff had established her right, title and interest in respect of both the suit items and that the judgment of the Trial Court without properly considering the issues and the decision in the previous suit in OS.No.107/2008 is not sustainable. (8) It is to be noted that in the Settlement Deed under Ex.A1 certainly establishes the title and possession of the plaintiff over the suit properties. The judgment in the previous suit also would show that the plaintiff's title and enjoyment under the Settlement Deed had been accepted. Therefore, the appellants are estopped from contending once again in the present suit disputing title and enjoyment of the suit property by the plaintiff. Challenging the well considered judgment of the Lower Appellate Court, the above Second Appeal has been preferred by defendants 1 to 4. (9) In the Memorandum of Grounds of Appeal, the appellants have raised the following substantial questions of law:- 1) Whether the Lower Appellate Court is correct in finding that when the Settlement Deed is created for the property belong to the Santhamani, it should be enquired about the mother document of the Schedule Property SF.No.245/B2A? (9) In the Memorandum of Grounds of Appeal, the appellants have raised the following substantial questions of law:- 1) Whether the Lower Appellate Court is correct in finding that when the Settlement Deed is created for the property belong to the Santhamani, it should be enquired about the mother document of the Schedule Property SF.No.245/B2A? 2) Whether the Lower Appellate Court is correct in reversing the decree of the Trial Court when the title of the Settlement Deed enquired about the absolute owner of the item 2 of the Schedule property SF.No.245/B2A is not proved which is a primary requirement for grant of decree to declare a absolute owner? 3) Whether the Lower Appellate Court has committed an error on verifying the item 2 of the suit property SF.No.245/B2A was belong to Kondi @ Perumal Gounder only. The Perumal Gounder was not executed any Sale Deed to Santhamani. Kandhan alone executed a Sale Deed to Santhamani on 21.07.1977 document No.646/1977 for the item 1 of the Suit property SF.No.243/4? 4) Whether the Lower Appellate Court has committed an error in casting the burden on the defendant to prove that the suit property was not belong to the executor of Settlement Deed late Mrs.Santhamani? 5) Whether the Lower Appellate Court has committed any error in granting a decree of absolute ownership without rendering a clear cut finding as to whether the defendant claims that the title as well as possession is with them? (10) Except referring to the fact that the previous Sale Deed was not in respect of the suit 2nd item, no other valid ground is raised by the appellants in the whole Memorandum of Grounds. (11) As seen from the records, Shanthamani Ammal has purchased the suit 1st item with a larger extent under the Sale Deed dated 21.07.1977. In the Settlement Deed, it is seen that Shanthamani Ammal described the properties as self acquired and in possession and enjoyment by getting patta. She claimed title de hors the Sale Deed based on revenue records in her name including patta. (12) When the issue was specifically considered in the previous suit filed by the appellants and a decision was rendered in favour of the plaintiff/1st respondent herein, upholding the title of Shanthamani in respect of both items, the judgment of the Lower Appellate Court is perfectly in order. (12) When the issue was specifically considered in the previous suit filed by the appellants and a decision was rendered in favour of the plaintiff/1st respondent herein, upholding the title of Shanthamani in respect of both items, the judgment of the Lower Appellate Court is perfectly in order. By applying the principle of res judicata, the Lower Appellate Court, decreed, the suit in toto. Though there is a reference to the judgment in OS.No.107/2008 in the Memorandum of Grounds of Appeal, it is to be noted that the appellants have pleaded that they are illiterate persons and therefore, failed to file an appeal as against the judgment and decree in the previous suit. It is further stated that the present suit which is purely on the basis of the Settlement Deed executed by Shanthamani, the Court can consider the issue independently as the issue in the earlier suit is not relevant. This submission is unsustainable having regard to the settled principles of law. The previous suit in OS.No.107/2008 is the suit filed by the appellants for partition. Their claim that the property belonged to the joint family was specifically rejected holding that the said Shanthamani Ammal is the absolute owner of both the items of suit properties. When the finding has become final, this Court is unable to consider the arguments of the learned counsel for the appellants. (13) None of the substantial questions of law raised by the appellants have merits in view of the factual findings of the Lower Appellate Court which is supported by material documents and admission during the course of proceedings. (14) This Court, therefore, finds no merit in this Second Appeal. (15) In find, the Second Appeal is dismissed with cost confirming the judgment and decree dated 04.09.2021 made in AS.No.41/2016 by the learned Additional Subordinate Judge, at Dharmapuri, in reversing the judgment and decree dated 27.03.2015 made in OS.No.206/2012, by the learned District Munsif, Dharmapuri. Consequently, connected miscellaneous petition is closed.