K.G.Ramakrishna vs P.N.Loganathan
2021 Latest Caselaw 24642 Mad

                                                                                    S.A.No.713 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 15.12.2021

                                                       CORAM:

                                  THE HONOURABLE MR.JUSTICE M.GOVINDARAJ

                                                S.A.No.713 of 2017
                                            and C.M.P.No.18163 of 2017

                K.G.Ramakrishna                                               ... Appellant



                                                         Vs.

                1.P.N.Loganathan

                2.K.G.Santharam

                3.Prasad

                4.Srinivasalu                                                 ... Respondents


                PRAYER: The Second Appeal has been filed under Section 100 of the Civil
                Procedure Code to set aside the decree and judgment dated 21.12.2015 passed
                in A.S.No.209 of 2014 by the III Additional City Civil Judge, Chennai
                reversing the decree and judgment dated 08.11.2013 passed in O.S.No.9935 of
                2009 by the XIV Assistant City Civil Court, Chennai

                                       For Appellant           : Mr.K.P.Gopalakrishanan
                                       For Respondents     : Mr.N.Srinivasalu for R1
                                                         -----


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https://www.mhc.tn.gov.in/judis
                                                                                         S.A.No.713 of 2017



                                                      JUDGMENT

Aggrieved over the reversal of decree granted by the Trial Court, the

plaintiff has preferred the above Second Appeal against the judgment and

decree passed in A.S.No.209 of 2014 dated 21.12.2014.

2. The plaintiff's grandfather Sudarsana Venkataswamy and

grandmother Ragammal were the original owners of the super structure

morefully described in the suit schedule. The said Venkataswamy died leaving

behind his grandmother Ragammal. They had four daughters namely

Beddbella, Mangammal, Nagammal and Achammal. The plaintiff and the

defendants are the legal heirs of the four daughters. The plaintiff and the first

defendant are the sons of the 3rd daughter viz., Nagammal. The 2nd defendant is

the son of first daughter Beddbella and 4th defendant is the son of the last

daughter Achammal. Thus, all the grand sons are entitled to equal share in the

superstructure mentioned in the suit schedule. The plaintiff demanded partition

of the property with the defendants 2 to 4. Since they were postponing the same

under one pretext or the other was compelled to file the above suit for partition.

Defendants 1 and 4 sailed with the plaintiff. The 2nd defendant filed a written

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statement denying the claim of the plaintiff. The defendants 1 and 2 contended

that the land belong to the Chennakesava Perumal Temple and the

superstructure was built by his father Sudarsana Venkatasamy who adopted him

as his son after the death of his mother at the age of 3. Since his father deserted

his mother their grandfather Sudarsana Venkatasamy and Ragammal adopted

the 2nd defendant as their son and he was living in the suit schedule property

since his birth. Late Sudarsana Venkataswamy and Ragammal solemnised his

marriage on 17.04.1967 with his wife Vajravathyammal and they are living in

the suit schedule mentioned property since 1967. The daughters of Sudarasana

Venkataswamy were given sreedana at the time of their marriage and all of

them were settled with their husband and they do not have right over the suit

property. The 2nd defendant has been in possession of the property for 40 years

without any interruption and without any claim from the 3rd parties. He was

paying the statutory taxes during his life time continuously till date. Therefore,

the claim of the plaintiff and defendants 1,3 and 4 are illegal and they are not

entitled to the same. On 29.11.2007, the 2nd defendant executed a settlement

deed in favour of his wife Vajravathyammal and ever since she is in possession

and enjoyment of the property. She demanded the dilapidated superstructure

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which was causing danger to the life and put up a new superstructure during

September 2009 and she is the owner of the superstructure and therefore also

the plaintiff and other defendants have no right to claim partition over the

property. He as a dutiful son took care of his mother Ragammal and conducted

cremation as adopted son. Therefore, he prays that the suit should be dismissed.

3. The Trial Court held that all the four daughters are entitled to equal

share of the property. Since the 2nd defendant failed to prove the adoption by

Sudarsana Venkataswamy and Ragammal, his claim for the exclusive

ownership of the property is not tenable and also held that the legal heir

certificate produced by him as Ex.B1 mentions only his name leaving out the

other daughters cannot be relied on and not legally enforceable in the eye of

law and hence decreed the suit as prayed for and passed the preliminary decree.

4. Aggrieved over the same, the 2nd defendant preferred an appeal.

The First Appellate Court after analysing the evidence found that the plaintiff

himself would admit long and uninterrupted possession of the 2nd defendant and

the factum that the wife of the 2nd defendant demolished the superstructure and

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constructed the building would show that the plaintiff is not entitled to claim

partition over the property constructed by 2nd defendant wife. Further, the

plaintiff after having admitted that he confronted the 2nd defendant wife while

she was constructing the house and that he got knowledge about the settlement

deed then, did not aver all these facts in the plaint, comprehensively. Therefore,

it was held that the plaintiff is not entitled to claim partition on the

superstructure which was built by the 2nd defendant's wife. Admittedly, all the

lands belong to the temple. Therefore, set aside the judgment and decree of the

Trial Court and dismissed the suit.

5. Aggrieved over the same, the plaintiff has preferred the above

Second Appeal.

6. The learned counsel appearing for the appellant would vehemently

contend that though the 2nd defendant claims that he was adopted by late

Sudarsana Venkataswamy and Ragammal, he has not produced any iota of

evidence to prove the same. The adoption when not proved, he cannot claim

exclusive right over the property. The admitted facts remain that the

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superstructure was constructed by the Sudarsana Venkataswamy and after his

death it was inherited by Ragammal. The said Ragammal had four daughters is

also not denied. As such all the four daughters are entitled to equal share and

through them the parties to the suit are entitled to equal share over the property.

Infact an injunction was granted by the Trial Court and superstructure was put

up in violation of the injunction order granted in I.A.No. 19066 of 2009 dated

29.12.2009. Therefore, when adoption was not proved and the superstructure

was put up by the 2nd defendant's wife at her own risk violating the interim

order, will not entitle him to claim the exclusive ownership and they should be

deemed to have continued in the constructive joint possession of the property

and therefore the findings of the First Appellate Court is erroneous. The

construction made by the 2nd defendant's wife is hit by lispendence and the

elaborate judgment passed by the Trial Court holding that the adoption is not

proved and all the parties are entitled to equal share ought not to have been

interfered by the First Appellate Court without any valid basis for the same.

7. The learned counsel appearing for the respondents would submit

that it is an admitted fact that the land belong to Chennakesava Perumal

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Temple. The entire extent is only 210 sq.ft. It cannot be conveniently divided

between parties and it will result in 50 sq.ft to each party, if the claim is

affirmed. But from 1967 onwards the 2nd defendant and his wife alone was in

possession of the property. All the other defendants were admittedly residing

elsewhere particularly, the 1st defendant is residing in Andhra Pradesh and the

plaintiff as well as defendants 1,3 and 4 would categorically admit that they

were not in possession of the superstructure for over 40 years. The 2nd

defendant was paying the rentals to the temple through out his life time and

after the settlement the 2nd defendant's wife is paying the land rent as well as

statutory dues to the Government. Further, the factum that the 2nd defendant was

adopted son by the late Sudarsana Venkataswamy and Ragammal were not

denied by the defendants. Infact, there is categorical admission of his

possession and uninterrupted enjoyment over the property for four decades. The

evidence of the plaintiff would go to show that the building was demolished

because it was dilapidated and that the 2nd defendant's wife constructed the

superstructure. It contains only ground floor even as per the admission of the

plaintiff construction was completed even before the start of quarrel with the 2nd

defendant. Thereafter only, he demanded money from the 2nd defendant since it

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was refused he filed the suit. Therefore, the contention that construction was

put up in violation of interim order granted by the Court is absolutely false.

Therefore, the finding of the First Appellate Court is very much legal and based

on sound reasons and should not be interfered with.

8. Heard both sides.

9. On perusal of evidence placed before the Court, it is noted that the

plaintiff as P.W.1 would categorically depose that the superstructure built by

Sudarsana Venkataswamy was in dilapidated condition and therefore it was

demolished by the 2nd defendant's wife and a new construction was made.

Further evidence goes to show that the plaintiff went and picked up quarrel

with the 2nd defendant a year before at the time he laid the roofing to the

structure. It is also categorically admitted that the old building was built up by

his grandparents and that it was in dilapidated condition. Since he sought for

partition of the property at that time he came to know about the settlement

executed by the 2nd defendant. Therefore, it is clear that the partition is not

sought for the superstructure put up by his grandfather but over the subsequent

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superstructure which was put by the 2nd defendant's wife. In the plaint, the

plaintiff has simply stated that they are the legal heirs and therefore they are

entitled to 1/4th share. But the factum that it was enjoyed by the 2nd defendant

for long years and that the 2nd defendant's wife demolished the building and put

up a superstructure were all suppressed. Literally, the plaintiff has claimed

partition as if the superstructure constructed by his grandfather over the temple

land was still existing. On the other hand, it was not so. If at all the plaintiff

wants to get a share, he has to claim transfer of leasehold rights in respect of the

land and should have contributed to the construction made over the same. As

on today license has been transferred in favour of the 2nd defendant wife. She is

in lawful possession of the land and the entire superstructure was constructed

by the 2nd defendant's wife. None of the above viz., grant of license,

construction were questioned by the plaintiff. He has actually acquiesced

himself with the action against him and had failed to challenge the same in

time. The First Appellate Court has thus rightly found that the plaintiff is not

entitled to claim any partition over the superstructure built up by a third party

and that the suit is bad for suppression of material facts. I do not find any

discrepancy in the finding of the First Appellate Court and also there is no

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substantial question of law arising out of the facts. There are only question of

facts and no question of law much less substantial question of law arises for

consideration of the above Second Appeal. Hence the Second Appeal does not

deserve admission and accordingly dismissed. Consequently, Connected Civil

Miscellaneous Petition is closed. No costs.

15.12.2021

https://www.mhc.tn.gov.in/judis S.A.No.713 of 2017

M. GOVINDARAJ, J.

kpr

To

1. The III Additional City Civil Judge, Chennai

2. The XIV Assistant City Civil Court, Chennai

S.A.Nos.713 of 2017 and C.M.P.No.18163 of 2017

15.12.2021

https://www.mhc.tn.gov.in/judis