Madras High Court
Kathiresan vs M.Malairaj on 17 December, 2021
SA(MD)No.307 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 17.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
SA(MD)No.307 of 2021
and
CMP(MD)No.4145 of 2021
1.Kathiresan
2.Kumaravel
M.Palanivel(died) ... Appellants
Vs.
1.M.Malairaj
2.M.Karthickraja
3.Parvathi
4.Shanmugarani
5.Vijayarani
6.Kulanthakkarasi ... Respondents
Prayer : Second Appeal filed under Section 100 Cr.P.C., against the
Judgment and Decree dated 12.03.2020 made in A.S.No.13 of 2016
on the file of Sub Court, Paramakudi confirming the Judgment and
Decree dated 19.03.2014 made in O.S.No.124 of 2012 on the file of
District Munsif Court, Paramakudi.
1/12
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SA(MD)No.307 of 2021
For Appellant : Mr.S.Siva Thilakar
JUDGMENT
This second appeal has been filed to set aside Judgment and
Decree dated 12.03.2020 made in A.S.No.13 of 2016 on the file of
Sub Court, Paramakudi confirming the Judgment and Decree dated
19.03.2014 made in O.S.No.124 of 2012 on the file of District
Munsif Court, Paramakudi.
2.The appellants/plaintiffs had instituted a suit in O.S.No.124
of 2012 on the file of the District Munsif Court, Paramakudi to
declare the suit property is belonged to the plaintiffs and
consequently declaring the sale deed dated 31.07.2006 executed by
the first defendant in favour of the second defendant is null and
void and to grant permanent injunction against the defendants
restraining them from interfering possession and enjoyment of the
plaintiffs in the suit property.
3.It is the case of the appellants/plaintiffs that the suit
property was originally belonged to plaintiffs' father namely
T.P.Muthu enjoying it as his ancestral properties and he died on
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SA(MD)No.307 of 2021
14.08.1996. After the demise of the plaintiffs' father, the plaintiffs
are enjoying the property jointly. The suit property comes under
the survey No.269-3 for an extent of 0.48.5 acres which comprised
in patta No.614. Now the plaintiffs are having possession and
enjoyment over the suit property. In the said circumstances, the
first defendant alleged to have executed inam settlement deed to
his son namely Karthickraja on 31.07.2006 regarding the suit
property. The first defendant's father name is Mangaikarasu, but,
fraudulently the first defendant had stated as Muthu @
Mangaikarasu in the deed. The plaintiffs had paid property tax till
2012 in the name of plaintiffs' father and the plaintiffs' sisters are
married and living separately and they are not necessary parties in
the suit. The defendants have no right over the suit property.
Hence, the plaintiffs filed the present suit.
4.The respondents/defendants filed written statement
denying the claim of the plaintiffs and stating that the suit property
originally belonged to one Muthu and his brother Shanmugam. The
said Muthu had mortgaged the suit property in favour of Raman on
17.06.1951. The said Muthu and his brother Shanmugam
redeemed the said mortgage and sold the suit property to the first
defendant's father namely Mangaikarasu on 11.06.1955 itself. The
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SA(MD)No.307 of 2021
plaintiffs, who are the legal heirs of the said Muthu, have no right
over the suit property after the sale. The suit is bad for non jointer
of necessary parties because the sisters of the plaintiffs are not
added as a party in the suit proceedings. The defendants father
died 30 years back and his mother also died 5 years back. Hence,
the first defendant is enjoying the suit property. At the time when
the plaintiffs' father was alive, he had only minor son, namely
Sithiravelu as his legal heir. The plaintiffs were not even born at
the time of execution of the sale deed by his father in favour of the
defendants. The first defendant's father also mortgaged the
property to one Gopal Chettiyar on 10.01.1961 and the same was
redeemed by the first defendant. Therefore, before birth of
plaintiffs itself, their father had executed a sale deed in favour of
the first defendant's father. Hence, the plaintiffs have no right at
all over the suit property. The first defendant's father also known
as Muthu @ Mangaikarasu. Therefore, it is stated in the sale deed
as Muthu @ Mangaikarasu. Due to the error occurred and wrong
patta issued in favour of the plaintiffs, they are claiming right over
the suit properties who have no right at all. Hence, they prayed for
dismissal of the suit.
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SA(MD)No.307 of 2021
5.Before the Trial Court, on the side of the plaintiffs, PW.1
was examined and Ex.A1 to Ex.A5 were marked. On behalf of the
defendants, DW1 to DW3 were examined and Ex.B1 to Ex.B9 were
marked. On the basis of the rival pleadings on either side, the trial
Court has framed the necessary issues and after evaluating both
the oral and documentary evidence, had dismissed the suit.
6.Aggrieved by the Judgment and decree rendered by the
trial Court, the plaintiffs, had filed an Appeal Suit in A.S.No.13 of
2016. The first appellate Court, after hearing both sides and upon
reappraising the evidence available on record, has dismissed the
appeal by confirming the Judgment and decree passed by the trial
Court. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present second appeal has been
preferred at the instance of the plaintiffs as appellants.
7.Heard the learned counsel for the appellants and perused
the materials available on record.
8.The learned counsel appearing for the appellants submitted
that the suit property was originally belonged to the plaintiffs'
father namely T.K.Muthu and title deed are also available to prove
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SA(MD)No.307 of 2021
it. Further, the first defendant executed a inam settlement deed in
favour of the second defendant on 31.07.2006 with respect to the
suit property. The first defendant has no right over the suit
property. Further, he pointed out that as per the claim of the first
defendant in the settlement deed his father's name is shown as
Muthu @ Mangaikarasu. In order to defraud the plaintiffs, the
defendants have cited as if his father's name as Muthu @
Mangairkarasu in the settlement deed. The patta for the suit
property stands in the name of the plaintiffs' father only. The
defendants and his father has not mutated the revenue records
after alleged purchase of the suit properties. It proves that the
defendants have no possession and right over the suit properties.
He further submitted that the plaintiff's father T.P.Muthu never sold
the property to the first defendant's father Mangaikarasu and sale
deed dated 11.06.1955 does not disclose the present suit property.
Moreover, mortgage deed/Ex.B3 dated 10.10.1961 reveals that the
schedule mentioned in the mortgage deed in respect of survey No.
252/6, which is not covered in the suit schedule. Therefore, from
the records of settlement and survey show that the property stands
in the name of the plaintiffs' father T.P.Muthu only. While that
being so, the defendants have no such rights over the suit property.
However, both the Courts below without going into the merits of
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SA(MD)No.307 of 2021
the case, had dismissed the plea of the appellants. Hence, he
prayed for allowing of this second appeal.
9.On going through the above facts of the case, it is seen that
the suit properties are belonged to the plaintiffs as their ancestral
properties. Hence, the title deeds for the suit properties are not
available. It is claimed by the appellants that they are having
possession and enjoyment over the properties and patta is still
stands in the name of the plaintiff's father. On the other hand, it is
seen that the first defendant's father Mangaikarasu had purchased
the property from one Muthu, who is the father of the plaintiffs on
11.06.1955 and the sale deed was marked as Ex.B2 to prove it.
After purchasing the suit property, the father of the first defendant
had mortgaged the suit property to one Gopal Chettiyar on
10.10.1961, which was also proved by marking Ex.B3. The same
has been redeemed by the first defendant on 02.01.2010 and the
said endorsement redemption is marked as Ex.B4 in the suit.
10.It is also seen that at the time of execution of Ex.B2, the
plaintiffs were not born. Therefore, claiming of the suit property by
the plaintiffs that there is no sale is not sustainable. In this
respect, PW.1 in his cross examination clearly admitted about the
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SA(MD)No.307 of 2021
same. Further, on perusing of Ex.B2, it is stated that the plaintiffs'
father had only one son, namely, Chithiravel, at the time of
execution of Ex.B2. However, the plaintiffs does not aver in the
plaint whether the said Chithiravel is the son of the plaintiff's
father. Further, on perusing Ex.B3, which is a mortgage deed
executed by the first defendant's father on 10.10.1961 to one Gopal
Chetttiyar, which was subsequently, redeemed on 02.01.2010 by
the first defendant. In this respect, the plaintiffs stated that after
obtaining sale deed by the first defendant's father, there was no
mutation of revenue records in their name. Hence the alleged sale
is not proved and mere redemption after a long period does not
amount to title to the defendants.
11.As it is seen that the plaintiffs did not produce UDR patta
issued on the plaintiffs' father. However, the plaintiffs have
produced a patta which stands in the name of the plaintiff's father,
marked as Ex.A1, which is obtained by the plaintiffs recently.
Further, the plaintiffs have not produced patta which is issued to
the property in Ex.A1. Therefore, the plaintiffs have failed to
prove their case. Further, the plaintiffs have produced only tax
receipt/Ex.A4, which is obtained recently. In this respect, the
defendants have clearly established better title over the plaintiffs
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SA(MD)No.307 of 2021
regarding the suit property. It is settled principle, merely mutation
of revenue records does not prove the title.
12.It is further seen that the first defendant had executed
settlement deed dated 31.07.2006 in favour of the second
defendant. The plaintiffs stated that the execution of settlement
deed is nothing but fraudulent document. However, they have not
produced the said document of settlement deed. On the other
hand, the defendants have produced the said document, which is
marked as Ex.B5. Merely saying the father name of the first
defendant is not Muthu @ Mangaikarasu does not amount to
execution of settlement deed dated 31.07.2006 as fraudulent
document. Further, the first defendant has redeemed the mortgage
which was executed by the first defendant's father to one Gopal
Chettiyar on 02.01.2010. The endorsement has been marked as
Ex.B4. After redeeming the mortgage, the first defendant has filed
an application to transfer the patta in his name. The said
application is marked as Ex.B9 and acknowledgment marked as
Ex.B8. In this respect, the defendant has summoned DW3, who is
the Tahsildar, Paramakudi stated that the first defendant's
application has been dismissed on the ground that joint patta alone
can be issued and individual patta cannot be issued. Therefore, on
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SA(MD)No.307 of 2021
perusing of Ex.X1 to X3 and Ex.B8 & Ex.B9, would show that the
first defendant had already taken steps to transfer the patta in his
name. Moreover, the revenue authorities has not declined the legal
right of the first defendant and they had passed an order that joint
patta alone can be issued. Therefore, the contention of the
plaintiffs that neither the first defendant nor his father did not take
steps to mutate the revenue records, is not acceptable
13.As rightly observed by the Courts below, before birth of
the plaintiffs, the plaintiffs' father was executed sale deed/Ex.B2 in
favour of the first defendant's father and thereafter, as a sole legal
heir of Mangaikarasu, on 31.07.2006, the first defendant had
executed settlement deed/Ex.B3 in favour of the second defendant.
In view of the same, now the second defendant is having valid title
over the suit property and the plaintiffs have failed to prove their
title by letting oral and documentary evidence. Hence, both the
Courts below dismissed the prayer of the appellants/plaintiffs.
Moreover, the plaintiffs approached the Court after a lapse of 40
years and hence, the suit is also barred by limitation.
14.For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
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SA(MD)No.307 of 2021
appellants/plaintiffs 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.
17.12.2021
Index :yes/No
Internet:yes/No
gns
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.
To
1.The Sub Court, Paramakudi.
2.The District Munsif Court, Paramakudi.
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SA(MD)No.307 of 2021
V.BHAVANI SUBBAROYAN, J
gns
SA(MD)No.307 of 2021
17.12.2021
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