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2025 DIGILAW 458 (MAD)

Arundathi Ammal (Died) v. K. Saroja Ammal (Died)

2025-01-22

R.N.MANJULA

body2025
JUDGMENT : R.N. MANJULA, J. 1. This Second Appeal has been filed to set aside judgment and decree of the learned Additional District Judge (Fast Track Judge-II), Cuddalore dated 31.03.2011, passed in A.S.No.1 of 2003, dismissing the appeal and confirming the judgment and decree of the learned Subordinate Judge of Panruti in O.S.No.275 of 1996 dated 23.08.2000. 2. Heard Mr.R.Gururaj, learned counsel for the appellants, Mrs.J.Hemalatha Gajapathy, learned Standing Counsel for R1 to R4 and perused the materials available on record. 3 . The appellants are the defendants 1 and 2. The plaintiff has filed the suit against the defendants for seeking the reliefs of declaration, recovery of possession and mandatory injunction against the defendants 5 to 8 to disconnect S.C.No.753/Diversion Road along with cost. The Trial Court had decreed the suit as prayed. The First Appeal preferred by the defendants 1 to 4 has also been dismissed by confirming the judgment and decree of the Trial Court. Aggrieved over the same, the defendants 1 and 2 have filed this Second Appeal. 4. The brief facts pleaded in the plaint are as follows: The plaintiff had claimed title to the suit property as the legal heir of one S.V.Krishnamoorthy who is the owner of the suit properties. The suit property has been allotted to the share of S.V.Krishnamoorthy under a partition deed dated 09.05.1967 entered into between himself and his brothers. S.V.Krishnamoorthy died on 30.09.1970 and thereafter, the plaintiff has inherited the suit property as his legal heir. The plaintiff's husband S.V.Krishnamoorthy and his brothers were having joint family business in the name and style 'S.V.Sons'. After the demise of the plaintiff's husband, the plaintiff was a partner in the business. One of the brother of the plaintiff's husband by name S.V.Jayaraman died and his family got released from the business. With the permission of the plaintiff, the business was run by another brother by name S.V.Ramamoorthy who was the husband of the first defendant. 4.1. The plaintiff permitted the business to be conducted in the suit property. As the second defendant who is the son of S.V.Ramamoorthy had disconnected the service connection in the name of the plaintiff's husband and got a new connection in his name, the plaintiff revoked the permission given to the second defendant to have the business in the suit property. The plaintiff permitted the business to be conducted in the suit property. As the second defendant who is the son of S.V.Ramamoorthy had disconnected the service connection in the name of the plaintiff's husband and got a new connection in his name, the plaintiff revoked the permission given to the second defendant to have the business in the suit property. As the defendants caused disturbance to the title of the plaintiff, the plaintiff has filed a suit for seeking the reliefs of declaration, recovery of possession and mandatory injunction. 5. The averments made in the written statement filed by the second defendant are as follows: The defendants resisted the suit by claiming that the plaintiff had assured to give the suit property to the first defendant's husband S.V.Ramamoorthy as he had performed the last rites to the plaintiff's husband. It is further claimed by the defendants that they are in possession and enjoyment of the suit property by adverse possession. During the pendency of the First Appeal, the defendants have filed an interlocutory application in I.A.No.3 of 2003 to receive additional written statement. The said petition was also heard along with the First Appeal and the same was dismissed. In the additional written statement, the defendants had filed an additional document in order to show that the plaintiff while relinquishing the joint family business, also relinquished her right in the suit property. But the Courts below had not chosen to accept the release deed because it is unregistered. Hence, the relief as claimed by the plaintiff should not be granted. 6. On the basis of the above pleadings, the Trial Court has framed the following issues: "1. Whether the plaintiff had given the suit property to the second defendant under the circumstances stated in the written statement? 2. Whether the 1 to 4 defendants' possession over the suit property was of permissive possession in nature? 3. Whether the 2nd defendant has prescribed title by adverse possession to the suit property? 4. Whether the plaintiff is entitled to the relief of declaration of title and recovery of possession? 5. Whether the plaintiff is entitled to the relief of mandatory injunction as against the defendants 5 to 8? 6. Whether the defendants 1 to 4 are liable to pay damages to the plaintiff? if so, what is the quantum? 7. What other relief the plaintiff is entitled to?" 7. 5. Whether the plaintiff is entitled to the relief of mandatory injunction as against the defendants 5 to 8? 6. Whether the defendants 1 to 4 are liable to pay damages to the plaintiff? if so, what is the quantum? 7. What other relief the plaintiff is entitled to?" 7. During the course of the trial, on the side of the plaintiff, one witness has been examined as P.W.1 and Exhibits A1 to A40 were marked. On the side of the defendants, four witnesses have been examined as D.W.1 to D.W.4 and Exhibits B1 to B25 were marked. 8. At the conclusion of the trial and on considering the evidence on record, the Trial Court has decreed the suit as prayed and on the First Appeal preferred by the defendants 1 to 4, the First Appellate Court has dismissed the First Appeal by confirming the judgment and decree of the Trial Court. Aggrieved over the same, the defendants 1 & 2 have preferred this Second Appeal by claiming that the following substantial questions of law would arise in the Second Appeal: "1. Were not the Lower Courts grossly wrong in failing to see that the theory of permissive occupation was not proved? 2. Did not the Lower Courts grossly err in failing to see that the defendants had prescribed for title by adverse possession and in any event the plaintiff's right to recover possession stood extinguished? 3. Did not the Courts below fail to see that Ex.A32 has not been legally proved and that its validity has not also been proved? 4. Was not the Lower Appellate Court at gross error in not even discussing the case raised by the additional written statement or passing orders upon it? 5. Are not the judgments and decrees of the Lower Courts perverse?" 9. The learned counsel for the appellants / defendants 1 and 2 submitted that since the release deed is in respect of relinquishing the rights in the business, it need not be registered. The plaintiff was not in possession of the suit property after the death of her husband and she was residing in another house. The Will dated 12.05.1987 said to have been executed by the plaintiff in favour of one J.Sudhakar, who is a power agent of the plaintiff is false and the said Will is a forged one. 10. The plaintiff was not in possession of the suit property after the death of her husband and she was residing in another house. The Will dated 12.05.1987 said to have been executed by the plaintiff in favour of one J.Sudhakar, who is a power agent of the plaintiff is false and the said Will is a forged one. 10. When the defendants have filed the written statement at the first instance, they have not stated anywhere that the suit property also forms part of the joint family business and that, it belongs to the partnership business. In fact, the defendants have admitted that as per the partition deed dated 09.05.1967, the suit property has been allotted to the share of the plaintiff's husband. Having made a categorical admission that the suit property has been allotted to the share of the plaintiff's husband, the defendants cannot claim that the above property belonged to the joint family business by taking advantage of the fact that the plaintiff has allowed the first defendant's husband S.V.Ramamoorthy to run the business in the said premises. So it is right for the First Appellate Court to dismiss the petition filed by the defendants to receive additional written statement and additional documents which are not admissible. By producing the document alleging to have been executed by the plaintiff for relinquishing her right in the business, the defendants cannot be allowed to plead that the plaintiff had relinquished her interest in the suit property which is an immovable property. 11. Admittedly there is no release deed executed by the plaintiff or her husband in favour of the first defendant's husband for releasing their interest in the suit property. The defendants having admitted the partition deed Ex.A3 and the right over the suit property flew out of the same in favour of the plaintiff's husband, are estopped from taking any other plea contrary to the same. The defendants 1 and 2 have also claimed adverse possession over the suit property without any basis and hence, the Trial Court has rejected the defence taken by the defendants. 12. As the suit property was allotted to the share of the plaintiff's husband and the same has been admitted by the defendants themselves, it is right for the Trial Court to proceed on the above admission and to decree the suit as prayed by the plaintiff. 12. As the suit property was allotted to the share of the plaintiff's husband and the same has been admitted by the defendants themselves, it is right for the Trial Court to proceed on the above admission and to decree the suit as prayed by the plaintiff. The First Appellate Court has also rightly appreciated the merits of the judgment of the Trial Court and had chosen to dismiss the First Appeal preferred by the defendants 1 to 4 as baseless. Neither the arguments nor the materials available on record could make out a question of law much less a substantial question of law for consideration and hence, this Second Appeal does not deserve to be admitted. 13. In the result, this Second Appeal is dismissed and the judgment and decree passed by the First Appellate Court in A.S.No.1 of 2003 dated 31.03.2011 is confirmed. No costs. Consequently, connected miscellaneous petition is closed.