Madras High Court
Indira vs Rakkammal on 21 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 21.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.798 of 2021
and
CMP(MD) No.10999 of 2021
1. Indira
2. Muthukumar
3. Selvi ....Appellants
vs.
Rakkammal ..Respondent
Second Appeal filed under Section 100 of CPC against the
judgment and decree dated 24.01.2020 passed in A.S. No.96 of 2019
on the file of the learned Subordinate Judge, Thirumangalam
confirming the judgment and decree dated 30.07.2019 passed in
O.S. No.123 of 2010 before the District Munsif court, Thirumangalam.
For Appellants : Mr.S. Karthick
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The present second appeal has been filed against the judgment
and decree dated 24.01.2020 passed in A.S. No.96 of 2019 on the file
of the learned Subordinate Judge, Thirumangalam confirming the
judgment and decree dated 30.07.2019 passed in O.S. No.123 of
2010 before the District Munsif court, Thirumangalam.
2. This matter is taken up for final hearing at the admission
stage itself.
3. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
4.The case of the plaintiff, as per the averments made in he
plaint, in short, reads as follows :
The plaintiff filed a suit in O.S No.123 of 2010 before the
learned District Munsif, Thirumangalam seeking for a prayer of
permanent injunction. Pending the suit the first plaintiff died and the
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plaintiffs 2 to 4 have been added as legal representatives. The court
after considering the points raised by the plaintiff that the property
belongs to the plaintiffs father, the plaintiff had constructed a well and
had a motor pump through which he was doing cultivation, paid kist
and other house tax receipt and he was in enjoyment of the same.
Electricity connection was obtained in his father’s name and the
electricity bill was also paid by the plaintiff father as the plaintiff father
has also got a patta in pattt No. 740 and the plaintiff used to pay the
kist even the after the death of the plaintiff father. The plaintiff submit
that the plaintiff father had the plaintiff and the respondent as the
legal heirs. On 1983 the defendant was given in marriage and given
50 soverigns of gold jewels were given as sreedhana and grand
wedding was also conducted and the defendant without the knowledge
of the plaintiff had created settlement deed in favour of herself and
also obtained a patta clandestinely patta no 1563 which is a joint
patta and started trespassing into the property of the plaintiff from
20.01.2010 onwards and trying to interfere with the peaceful
possession and enjoyment of the said right of the plaintiff. The plaintiff
is residing in the said house and doing cultivation and in possession of
the same. The defendant has no right or any possession in enjoying
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the same at any point of time and she wanted to sell the same to the
third party and trying to interefere with the peaceful possession, hence
filed a suit seeking permanent injunction.
5. The written statement of the defendants, in short, are as
follows:-
The property originally belonged to the plaintiff's father
Muthusamykonar and while he was alive, he had executed a gift
settlement in favour of his daughter Rakammal on 05.03.2007, who is
the defendant, out of love and affection in S.No.206/8, an extent of
1 acre 85 ½ cents in northern side, out of total 3 acres 75 cents. The
gift deed was a registered document, which was accepted by the
defendant and she has also mutated the revenue records and
obtained a patta. The plaintiff was gifted 1 acre and 85 ½ cents by his
father namely Muthusamy Konar, by virtue of gift settlement deed.
The joint patta has been issued to the defendant in respect of the
property which absolutely does not belong to the plaintiff and prayed
that the suit of the plaintiff has to be dismissed.
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6. Before the trial Court, on the side of the the plaintiff, one
Muthukumar was examined as PW. 1 and six documents were marked
as Exs. A1 to A6. On the side of the defendant Rakammal was
examined as DW.1, Sub Registrar of Checkanoorani village was
examined as DW.2, M.Jeyam, Assistant of Checkanoorani village was
examined as DW.3 and one Rajaram was examined as DW.4 and two
exhibits were marked as Ex.B.1 and Ex.B.2 and one court document
was marked as Ex.C.1.
7. After considering the oral and documentary evidence, the trial
Court had come to the conclusion that the plaintiff had failed to prove
his case and it has been made clear that the defendant had been in
possession and enjoyment of the property from 05.03.2007, by way of
gift settlement deed and accordingly, the plaintiff case was rejected
and dismissed the claim made by the plaintiff.
8. Aggrieved by the same, the plaintiffs have preferred an
appeal in A.S. No.96 of 2019, on the file of the learned Sub Judge,
Thirumangalam.
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9. After considering the averments made in the appeal the first
appellate court has come to the conclusion that the plaintiff cannot be
granted the relief of permanent injunction, as the plaintiff has no
prima facie title for entire extent of suit property coupled with
exclusive possession of the same had dismissed the appeal filed by the
plaintiff and confirmed the judgement and decree of the trial court.
10. Aggrieved by the same, the plaintiffs 2 to 4 alone have
preferred the present second appeal raising various grounds.
11. The learned learned counsel appearing for the appellants /
plaintiffs 2 to 4 would submit that the Courts below without taking
note of the fundamental principles of law that by holding that the
father the defendant had executed a registered gift settlement deed
dated 05.03.2007 in respect of 1 acre 85 ½ cents without even seeing
the original documents allowed the suit erroneously. The courts below
failed to see that the defendant has not produced any documents to
show that she has got right and possession over an extent of 1 acre
85-1/2 cents in suit survey number. The courts below failed to follow
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the provision contemplated in Section 63 of Evidence Act., before
receiving Ex.B.1. Further, the Courts below failed to look into the
statement given by D.W.2 in that he himself admitted that the sign
which he signed in the original gift settlement deed has to be
compared with the original gift settlement deed. The findings of the
Courts below is purely based upon surmise and circumstantial evidence
and the same needs interference.
12. The learned counsel appearing for the respondents/
defendants would vehemently oppose the Second Appeal by
contending that the well considered Judgments of the Courts below
need not be interfered with, as there is no question of law involved in
this Second Appeal and prayed for dismissal of the Second Appeal.
13. This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
14. According to the plaintiffs, the suit property belonged to the
father of the 1st plaintiff. During the marriage of the defendant in the
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year 1983, fifty sovereign of jewels and 'Sridana' articles were given to
the defeendant and she is living separately. But, the defendant
created false documents without knowledge of the 1st plaintiff and
causing disturbance to the enjoyment of the 1st plaintiff from
20.01.2010 in respect of the suit property.
15. But, according to the defendant, the suit property originally
belonged to the 1st plaintiff's father and the defendant, by name,
Muthusamy Konar. He had executed a gift settlement deed in favour
of the defendant on 05.03.2007, in respect of the suit property,
comprised in S.No.206/8 having an extent of 1 acre 85 ½ cents on
the northern side, out of the total extent of 3 acres 75 cents.
Likewise, the plaintiff was also gifted an extent of southern 1 acre
85 ½ cents by Muthuchamy Konar. Hence, the suit property is not
absolute property of the 1st plaintiff. The joint patta also issued on the
basis of possession and enjoyment of the defendant.
16. It is not in dispute that the suit property originally belonged
to the father of the 1st plaintff and the defendant. The 1st plaintiff and
the defendant are brother and sister. The specific case of the plaintiff
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is that her father Muthuchamy Konar executed the gift settlement deed
under Ex.B1 in her faovur. On perusal of Ex.B1 it is seen that the
property measuring northern 1 Acre 85 ½ cents comprised in S.No.
206/8 out of total extent of 3 acres 75 cents was gifted in favour of the
defendant by her father. It is pertinent to note that the 1st plaintiff did
not file any document to show that the plaintiffs have been in exclusive
possession and enjoyment of the suit property ousting the enjoyment
of the defendant in respect of the suit property. That being the
position, this Court is of the opinion that the plaintiff have no prima
facie title in entire extent of the suit property coupled with exclusive
possession over the same. Therefore, the well considered Judgment of
the Courts below need not be interfered with in this appeal. There is
no question of law much less substantial questions of law involved in
this appeal. Hence, the appeal is liable to be dismissed at the
admission stage itself.
17. In fine, the Second Appeal is dismissed, confirming the
Judgment and Decree passed in A.S. No.96 of 2019 on the file of the
learned Subordinate Judge, Thirumangalam, in confirming the
Judgment and Decree passed in O.S.No.123 of 2010 by the District
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Munsif court, Thirumangalam. However, there shall be no order as to
costs. Consequently, the connected miscellaneous petition is also
dismissed.
21.12.2021
Index: Yes/No.
Internet: Yes/No.
aav
Note: In view of the present lock down owing to COVID 19 pandemic, a web
copy of the order may be utilised 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 Subordinate Judge, Thirumangalam
2. The District Munsif court, Thirumangalam
https://www.mhc.tn.gov.in/judis
V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.798 of 2021
and
CMP(MD) No.10999 of 2021
21.12.2021
https://www.mhc.tn.gov.in/judis
