Madras High Court
Narayanan vs Kathirvel on 23 August, 2021
S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.630 of 2021
and
CMP No.13060 of 2021
Narayanan ... Appellant
Vs.
1. Kathirvel
2. Senthil ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree passed in A.S.No.2 of 2019,
dated 06.11.2019 on the file of the Learned Sub Judge, Gobichettipalayam
confirming the Judgment and Decree passed in O.S.No.133 of 2012 on the
file of the Learned District Munsif Court, Gobichettipalayam, dated
29.09.2016.
For Appellant : Mr.S.Parthasarathy
1/8
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S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
JUDGMENT
The unsuccessful Plaintiff before the Courts below is the Appellant
before this Court. The Second Appeal arises against the judgment and
decree in a Suit for declaration of the Plaintiff's right, title and interest to the
suit property and for a consequential injunction. The parties are referred to
in the same litigative status as before the trial Court.
2. The facts in brief necessary for disposing of the Second Appeal are
as follows:
The Suit schedule properties admittedly belong to one Vella Gounder,
the father of the Plaintiff. He had purchased the suit property under the sale
deed, dated 30.08.1971. It is the case of the Plaintiff that his father had
executed a consent deed dated 20.10.2005, transferring the property in
favour of the Plaintiff. As a consequence, the Plaintiff had also got the
revenue records mutated in his name.
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S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
3. The Plaintiff's father died on 26.12.2011 and on 02.04.2012, the
defendants attempted to enter the suit property with their henchmen and
tried to dispossess the Plaintiff forcibly. However, the Plaintiff was able to
successfully prevent the attempt. The defendants have given out that they
would somehow evict the Plaintiff from the suit property. It is in these
circumstances that the Plaintiff had come forward with the suit impugned in
these proceedings.
4. The defendants had filed a written statement, inter alia, denying
the allegations contained in the plaint. They would deny the consent deed
dated 20.10.2005 terming it a rank forgery. The defendants would contend
that it was they (who are the grandsons of Vella Gounder) who had
maintained their grandfather Vella Gounder, during his lifetime and out of
his love and affection, Vella Gounder had executed a registered settlement
deed dated 12.12.2011, settling the suit property in the name of the First
Defendant. On the very same day, Vella Gounder had also executed a
registered settlement deed in favour of the Second Defendant settling on him
a house situated on the western side of the suit property.
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S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
5. The Defendants would further submit that the Plaintiff had earlier
filed a suit for a similar relief against Vella Gounder, the mother of the
Defendants, namely Vasantha and the defendants herein, in respect of the
very same suit property. This suit was dismissed on 23.11.1999 after
contest. Therefore, the Defendants would contend that the present suit is
barred by Res-judicata and the plaintiff is a trespasser in the suit property.
6. The trial Court namely, the learned District Munsif,
Gobichettipalayam had framed the following issues in O.S.No.133 of 2012:
a. Whether the Plaintiff is entitled for the relief of declaration as
prayed for?
b. Whether the Plaintiff is entitled to the relief of permanent
injunction as prayed for?
c. To what other reliefs the Plaintiff is entitled to?
7. The Plaintiff had examined himself as P.W.1 and two others as
P.W.2 and P.W.3 and marked Ex.A1 to Ex.A7. The first defendant had
examined himself as D.W.1 and Ex.B1 to Ex.B5 were marked. After
considering the evidence on record, the trial Court dismissed the suit by its
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S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
judgment and decree, dated 30.06.2007. Aggrieved by the same, the
Plaintiff had filed A.S.No.2 of 2019 on the file of the learned Subordinate
Judge, Gobichettipalayam. The learned Subordinate Judge considering the
arguments and the evidence on record, dismissed the appeal, confirming the
judgment and decree of the trial Court. It is aggrieved by the said Judgment
and decree that the Plaintiff is before this Court.
8. Today the matter had come up for admission. The arguments of
Mr.Parthasarathy, the Learned Counsel for the appellant/plaintiff are heard.
From the arguments and on a perusal of the records it is seen that the
Plaintiff claims a right to the suit property on the basis, of consent deed
dated 20.10.2005. The Consent deed which has been marked as Ex.A1,
would contain a recital that Vella Gounder consented to have the house tax
and the right to the property in favor of his son, the plaintiff herein. The
document would further read that on the said date, the father namely Vella
Gounder had agreed to transfer the house in favor of the plaintiff.
9. It is needless to state that the transfer of a property can only be
through a registered document. Admittedly, the Consent deed has not been
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S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
registered. Further the veracity of the same has also been questioned.
Admittedly the properties are the self acquired properties of Vella Gounder.
Vella Gounder in a sound disposing state of mind has settled the suit
property in favor of the First Defendant under Ex.B1 settlement deed. The
Plaintiff as PW1 during his cross examination has also admitted knowledge
about the execution of the sale deed on the date of the death of his father i.e.,
on 26.12.2011, however, no steps have been taken by the Plaintiff to set
aside the settlement deed. On the contrary, it is seen that the Plaintiff had
earlier filed a suit in O.S.No.24 of 1998 on the file of the Learned District
Munsif, Gobichettipalayam against his father, the defendants mother and the
defendants for a declaration and injunction in respect of the very same
property. The said suit has been dismissed. The consent deed appears to
have been prepared after the dismissal of the earlier suit which was
dismissed on 23.11.1999. Therefore, it is clear that the plaintiff has not
proved his right to the property and both the Courts below have rightly
dismissed the suit. I do not find any reason to interfere with this concurrent
finding of the Courts below.
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S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
10. Further, the Second Appeal does not give rise to any question of
law much less a substantial question of law. The Second Appeal is
dismissed. However, there shall be no order as to costs. Consequently,
C.M.P.No 13060 of 2021 stands closed.
23.08.2021
Index : Yes/No
Speaking Order : Yes / No
ep/vum
To
1. The Sub Court, Gobichettipalayam.
2. The District Munsif Court,
Gobichettipalayam.
3. The Section Officer,
VR Section, Madras High Court,
Chennai.
http://www.judis.nic.in
S.A.No.630 of 2021 &
C.M.P.No.13060 of 2021
P.T. ASHA, J,
ep/vum
S.A.No.630 of 2021 and
C.M.P.No.13060 of 2021
23.08.2021
http://www.judis.nic.in
