Madras High Court
T.Mathialagan vs Karuppathal on 13 December, 2021
S.A(MD)No.741 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.741 of 2021
and
C.M.P(MD)No.9974 of 2021
T.Mathialagan ... Appellant/Appellant/Defendant
Vs.
Karuppusamy @ Karuppanna Gounder (Died)
... Plaintiff
1.Karuppathal
2.K.Chellamuthu
3.K.Velusamy ... Respondents/Respondents 2 to 4/
Lrs of the deceased plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 17.03.2021 passed
in A.S.No.106 of 2018, on the file of the Additional District Court (Fast
Track Court), Palani, confirming the judgment and decree dated
24.03.2015 passed in O.S.No.12 of 2011 on the file of the District
Munsif Court, Oddanchathiram.
For Appellant : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Associates
1/14
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S.A(MD)No.741 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.12 of
2011 by the District Munsif Court, Oddanchathiram and in A.S.No.106
of 2018, by the Additional District Court (Fast Track Court), Palani, are
being challenged in the present Second Appeal.
2. One Karuppusamy @ Karuppanna Gounder, as plaintiff, has
instituted a suit in O.S.No.12 of 2011 on the file of the trial Court for
the relief of declaration and permanent injunction, wherein, the present
appellant has been shown as the defendant.
3. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
4. The case of the plaintiff is that originally, the property
comprised in Survey No.540, measuring to an extent of 7.56 acres
belonged to Nallappa Gounder, son of Kumar Gounder. The said
Nallappa Gounder sold 6 acres of land in the Northern side on
12.01.1948 in favour of one Thirumlai Gounder, son of Marimuthu
Gounder and retained an extent of 1.56 acres on the Northern side,
which forms part of the suit property. After the death of Nallappa
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Gounder, his sons viz., Kumar Gounder and Velusamy Gounder, sold
the said extent of lands in favour of Chellappa Gounder by virtue of a
sale deed, dated 16.10.1978. The plaintiff further states that after the
death of Thirumalai Gounder, 6 acres purchased by him in Survey No.
540 belonged jointly to his three sons, namely, Chellappa Gounder,
Muthusamy Gounder and Palanichamy Gounder. On that basis, during
updating of registry, joint patta was issued in favour of the said three
brothers in respect of Survey No.540. Later, they partitioned 6 acres
among themselves. Chellappa Gounder, who was entitled to 1.56 acres
in Survey No.540, on the basis of a registered settlement deed dated
07.06.1984, settled an extent of 1.17 acres, which includes the suit
property, in his favour and his sister Velathal. Later, the said Velathal
executed a Release Deed, dated 30.06.1986 relinquishing her
un-divided half share in favour of her brother. The extent in Survey
No.540 has been sub-divided and with respect to the suit property,
joint patta was issued in the name of the plaintiff and other family
members. From the year 1974 onwards, the plaintiff was in possession
and enjoyment of the suit property. Adjacent to the plaintiff's suit
property, the defendant's property is situated. Hence, the defendant on
12.11.2007 in order to grab the suit property, claimed that he had
right over the suit property by partition deed. The defendant had no
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S.A(MD)No.741 of 2021
right over the suit property. Since the defendant tried to trespass into
the suit property of the plaintiff on 03.01.2011, he had filed the suit.
5. The defendant filed a written statement denying all the
averments and submitted that originally the property comprised in
Survey No.540, measuring an extent of 7.56 acres belonged to one
Kumar Gounder and his sons viz., Nallappa Gounder, Chinnappa
Gounder and Palaniappa Gounder. After the death of Kumar Gounder,
without any partition, his sons were enjoying the same. As Nallappa
Gounder sold 6 acres in Survey No.540 without consent of other
brothers, there was a rift in the family and consequently, oral partition
was effected between the brothers with respect to the remaining
property. The half share in 1.56 acres in Survey No.540 was allotted to
Nallappa Gounder's branch and other half share was allotted to his
grandfather-Chinnappa Gounder's branch and they were in enjoyment
of the same. The defendant further stated that contrary to the said
partition, the sons of Nallappa Gounder, after his demise, sold 1.56
acres in entirety in favour of Chellappa Gounder and this sale will not
curtail any interest in the suit property. Apart from this, when the
revenue entries show that the sons of Thirumalai Gounder are in
possession and enjoyment of Survey No.540, the act of Chellappa
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S.A(MD)No.741 of 2021
Gounder in executing a settlement deed in favour of his son and
daughter is not valid. The defendant further stated that in a partition
effected between his father and his brothers, the suit property was
allotted to his share and later in a partition effected in his family, the
suit property was allotted to his share and the defendant is in
possession and enjoyment of the same and prayed for dismissal of the
suit.
6. Before the trial Court, on the side of the plaintiff, P.W.1 to
P.W.4 were examined and Exs.A1 to A9 were marked. On the side of
the defendant, the defendant was examined as D.W.1 and Ex.B.1 was
marked.
7. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has decreed the suit.
8. Aggrieved by the Judgment and decree passed by the trial
Court, the defendant, as appellant, had filed an Appeal Suit in
A.S.No.106 of 2018. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
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S.A(MD)No.741 of 2021
the appeal and confirmed the Judgment and decree passed by the trial
Court.
9. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendant, as appellant.
10. Heard the learned counsel for the appellant and also perused
the records carefully.
11. The learned counsel appearing for the appellant/defendant
would submit that the Judgments and Decrees passed by the Courts
below in decreeing the suit filed by the plaintiff seeking the relief of
declaration and permanent injunction are vitiative by improper
consideration of pleadings and the evidence adduced in proper
perspective and the same are liable to be set aside. Though the
plaintiff claims the relief of declaration on the basis of the settlement
deed, dated 07.06.1984 executed by his father with respect to an
extent of 1.17 acres of land, the Courts below failed to give a clear
finding as to whether the suit property comprising an extent of 70
cents in Survey No.540/2A1 forms part and parcel of the settled extent
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S.A(MD)No.741 of 2021
made in favour of the plaintiff. The Courts below failed to appreciate
that the mutation entries with respect to the suit property remains
jointly in the name of Chellappa Gounder, who is the father of the
plaintiff and Muthusamy Gounder, Palanichamy Gounder, who are the
paternal uncles of the plaintiff and this gives raise to a presumption
that the suit property is in occupation and enjoyment of the three
persons, as co-owners.
12. The learned counsel appearing for the appellant/defendant
would submit that the Courts below failed to appreciate that no
explanation has been offered by the plaintiff for not taking steps to
correct the revenue entries in his favour with respect to the suit
property. The Courts below failed to appreciate that except the oral
evidence of P.Ws.1 to 4, the plaintiff has not produced any
documentary evidence to substantiate that he is in exclusive
possession and enjoyment of the suit property. Ex.B.1 is a registered
partition deed, dated 11.08.2009 executed between the family
members of the plaintiff shows that the suit property is claimed to be
held in common between the parties. The Courts below had erred in
coming to a conclusion that the plaintiff is entitled to the suit property
mainly on the basis of oral testimonies of P.W.2 to P.W.4 and the Courts
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S.A(MD)No.741 of 2021
below failed to see that the witnesses, who were parties to Ex.B.1,
have given testimony contrary to the recitals therein. The Courts below
failed to appreciate that the admission of P.W.2 to P.W.4 alone cannot
vest any title in favour of the plaintiff, without there being any
documentary evidence showing conveyance or vesting or title in favour
of the defendant. The Courts below failed to attach due importance to
the pleadings of the defendant with respect to devolution of right,
interest regarding suit property in his favour. The trial Court had erred
in disbelieving the pleadings of the defendant mainly on the ground
that that he is a stranger or third party in relation to the suit property
and failed to see that the defendant had claimed title through Kumar
Gounder, who was the common ancestor and the alleged owner of
Survey No.540 Nallappa Gounder is the brother of the paternal
grandfather of the defendant.
13. On a perusal of the materials available on record, it is the
case of the plaintiff that 7.56 acres in Survey No.540 belonged to
Nallappa Gounder, son of Kumar Gounder by sale deed, dated
12.08.1919, which was marked as Ex.A.6 and the said Nallappa
Gounder sold 6 acres out of 7.56 acres to Thirumalai Gounder by sale
deed, dated 12.01.1948, which was marked as Ex.A.7. After the
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S.A(MD)No.741 of 2021
demise of Nallappa Gounder, the extent of 7.56 acres was partitioned
between his sons, Kumar Gounder and Vellaichamy Gounder and the
said Kumar Gounder got the entire 1.56 acres. Kumar Gounder and his
son, Veluchamy Gounder sold 1.56 acres to Chellappa Gounder, son of
Thirumalai Gounder by sale deed, dated 11.09.1974 which was marked
as Ex.A.1 and the suit property of 70 cents is part of 1.56 acres.
Chellappa Gounder settled 1.17 acres, out of 1.56 acres to the plaintiff,
Karuppuchamy @ Karuppana Gounder and the plaintiff's sister Velathal,
by gift settlement deed, dated 07.06.1984, which was marked as
Ex.A.2 and the said Velathal had released her half right to the plaintiff
by release deed, dated 30.06.1986, which has been marked as Ex.A.3.
14. It is the case of the defendant that under Ex.A.6, 7.56 acres
belonged to Nallappa Gounder, his brothers Chinnappa Gounder and
Palaniappa Gounder and their father Kumar Gounder, as joint family
property. Hence, the defendant, who is the grandson of Chinnappa
Gounder is claiming that there was oral partition between Nallappa
Gounder and his brother Chinnappa Gounder. The defendant further
claims that 70 cents of suit property was allotted to Chinnappa
Gounder and later, there was a partition between their family and the
partition deed, dated 11.08.2009 was marked as Ex.B.1.
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S.A(MD)No.741 of 2021
15. On a perusal of Ex.B.1, it is seen that 'C' schedule property
has been allotted to Muthusamy Gounder and his son Muthu Kumar
and in Survey No.540/2A, with regard to 'C' schedule property, the
allotted 1.60 acres is situated in the Northern side of the suit schedule
property and four boundaries have been ear-marked and in the
Northern side in Survey No.540/2A, A, B, C schedule, it is stated as a
common property and the claim made by the defendant that the suit
property does not belong to the individual property of the plaintiff and
it belongs to the joint family property, is not accepted, when the owner
of 'C' schedule property was examined as P.W.2, he deposed that the
suit schedule property belongs to the plaintiff and he has no right over
the property. P.W.2 and P.W.3, during cross-examination states that
the suit schedule property belonged to the plaintiff. Though the plaintiff
states that he is in possession and enjoyment of the property as per
the settlement deed and release deed, the defendant claimed that the
partition cannot be accepted, since P.W.2 and P.W.3 have categorically
stated that they have got no right over the suit property and P.W.2 and
P.W.3, who are aged about 85 and 88 years, have also proved the case
of the plaintiff and the defendant claiming title over the property is
without any defence and the same has to be rejected.
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S.A(MD)No.741 of 2021
16. Further, the other legal heir of Thirumalai Gounder have not
disputed the Settlement Deed and Release Deed, which were marked
as Ex.A.2 & Ex.A.3 and also agreed that the suit property was in
possession and enjoyment of the plaintiff. Considering the above
aspects, the defendant had no right to say that the plaintiff cannot
make any claim in the suit property based on the Settlement Deed and
Release Deed and this Court also agrees with the same. Further, the
plaintiff has not proved as to how the documents Ex.A.8 and Ex.A.9
were related to the present suit and hence, there is no need to discuss
about the same.
17. Further, the defendant is a stranger to suit survey number
and he has created documents as if the suit Survey No.540 was
allotted to him in the family partition. However, he has not filed the
related document and the same was accepted by him during trial and
in the counter, failed to do so. To overcome these defects only, the
defendant has stated that the suit property belongs to his family and
the property in Ex.B.1 was in common enjoyment of the plaintiff and
P.W.2 to P.W.4. These two different type of arguments would show that
to defeat the rights of the plaintiff, the defendant tried to establish that
in the oral partition, 1.56 acre land was partitioned equally between
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S.A(MD)No.741 of 2021
Nallappa Gounder and Chinnappa Gounder and that half portion of the
property allotted to Chinnappa Gounder was taken by the legal heirs of
Nallappa Gounder and that was partitioned between them and based
on the said partition, the said property was sold to the plaintiff's father
and in the above oral partition, suit property was allotted and enjoyed
by the grandfather of the plaintiff. The defendant has failed to establish
his right over the suit property by examining independent witness, but
the plaintiff has proved his right and title over the suit property. Hence,
this Court is of the view that the partition deed, dated 12.11.2007
executed between the family members of the defendant is not valid in
the eye of law.
18. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellant/defendant to interfere with the well considered judgment and
decree rendered by the Courts below and accordingly, the Second
Appeal stands dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
13.12.2021
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.741 of 2021
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate / litigant concerned.
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S.A(MD)No.741 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Additional District Court (Fast Track Court),
Palani.
2.The District Munsif Court,
Oddanchathiram.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.741 of 2021
13.12.2021
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