Madras High Court
Vijaya vs Lakhsmi on 19 January, 2021
A.S.(MD)No.158 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:19.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.158 of 2019
and
C.M.P.(MD).No.8221 of 2019
Nagammal (died)
1.Vijaya
2.Ramalakshmi
3.Ramachandran
4.Krishnaveni
5.Rathinakumar
6.Chandra
7.Indira : Appellants
Vs.
1.Lakhsmi
2.Parvathi
3.Kalimuthu Kumar
4.Malliga
5.Anusiya
6.Durga
7.Bharathi
8.Shanthi
9.Selvaraj : Respondents
PRAYER: Appeal is filed under Section 96 of the Code of Civil
Procedure praying to set aside the judgment and decree dated 15.02.2019
made in O.S.No.7 of 2016, on the file of the learned Principal District
Judge, Ramanathapuram and allow the appeal suit.
1/11
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A.S.(MD)No.158 of 2019
For Appellants : Mr.K.Srinivasa Raghavan
For R-1 to R-8 : Mr.P.Paranthaman
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JUDGMENT
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Aggrieved over the judgment and decree of the trial Court
granting preliminary decree, the present appeal is filed.
2. For the sake of convenience, the parties are referred to
herein, as per their ranking before the Trial Court.
3. The brief facts leading to the filing of this Appeal Suit, is as
follows:-
3.(1). The suit property originally belonged to one Kuthiri
Pagadai. By virtue of the purchase of the above said property in the year
1947, the said Kuthiri Pagadi died on 15.03.1970, leaving behind his
son, viz., Kali and daughter viz., Kali @ Kaliammal. His son and
daughter also died. The said Kali @ Kaliammal died leaving behind her
sons and daughters, namely, Muthumani, Lakshmi, Ramalingam,
Parvathi and Kalinuthu kumar. The plaintiff Nos.1 to 3 are the legal
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A.S.(MD)No.158 of 2019
heirs of Kali @ Kaliammal. The above said Ramalingam, who is the son
of Kali @ Kaliammal also died, leaving behind her wife and dauthters.
The fourth plaintiff is the wife of the deceased Ramalingam and the fifth
and sixth plaintiffs are the daughters of the deceased Ramalingam. The
above said Muthumani also died. The seventh and eighth plaintiffs are
the legal heirs of the deceased Muthumani. The second to eighth
defendants are the legal heirs of the deceased Kali, son of the original
owner Kuthiri Pagadai. The suit properties were in joint possession of
the plaintiffs and the defendants. Despite the request made for partition,
the defendants are not come forward to divide the properties. Hence, the
suit.
3.(2). The defendant Nos.1 to 8 filed a written statement. In
the written statement, it has been stated that the above said Kuthiri
Pagadai, died leaving behind one son namely Kali and in the written
statement, it is further stated that he had no daughter. The plaintiffs had
obtained the documents from the Government Authorities and filed a
suit. It is the further contention of the defendants that they are in
exclusive possession, since the defendants had not admitted the fact that
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A.S.(MD)No.158 of 2019
Kali @ Kaliammal was born to Kuthiri Pagadai and they have taken the
plea of adverse possession instead of ouster. It is the further contention
of the defendants that the plaintiffs were admittedly out of possession
and enjoyment of the suit property and there is no proof to show that they
have ever enjoyed the suit property at any point of time along with the
son of Kuthiri Pagadai.
4. Based on the above pleadings, the trial Court has framed the
following issues:-
“(i).Whether the plaintiffs are entitled to
partition as prayed for?
(ii).Whether the defendants 1 to 3 perfected their
title by an adverse possession of the suit property?
(iii).Whether the plaintiffs are entitled to claim
14/30 share of the suit property
(iv).To what other relief, the plaintiffs are
entitled?”
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A.S.(MD)No.158 of 2019
5. During trial, on the side of the plaintiff, P.W.1 to P.W.3 were
examined and Ex.A.1 to Ex.A.15 were marked. On the side of the
defendants, D.W.1 was examined and Ex.B.1 to Ex.B.3 were marked.
6. Based on the evidences and materials, the trial Court had
negatived the defence of the defendants and granted preliminary decree
in favour of the plaintiffs. Aggrieved over the same, the present appeal
has been filed.
7. Mr.S.Srinivasa Raghavan, learned Senior Counsel apparing
the appellants submitted that the plaintiffs had not established the legal
heirship certificate properly and the paternity has also not been
established. He further submitted that there is no clinching evidence to
show that Kuthiri Pagadai had two wives and through his second wife
viz., Karuppi, a daughter viz., Kali @ Kailammal was born. The
plaintiffs ought to have established the same. But, in any event, it is the
contention of the learned counsel that the plaintiffs were never in
possession of the property at any point of time. The trial Court has not
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A.S.(MD)No.158 of 2019
properly appreciated the evidence and proceeded as if the defendants
admitted the legal issue. Hence, he prayed for allowing the appeal.
8. Whereas, Mr.P.Paranthaman, learned counsel appearing for
the respondents 1 to 8 would contend that the documents filed on the side
of the plaintiffs would clearly show that the plaintiffs 1 to 3 were born to
Kali @ Kaliammal and the defendants have failed to prove the fact that
Kali @ Kaliammal was not born to Kuthiri Pakadai. Besides, no
evidence whatsoever has been filed by the defendants to show that there
is an exclusive possession of the property excluding the plaintiffs. The
oral evidence on the side of P.W.2 and P.W.3 also proved this
relationship. Hence, he submitted that the trial Court has appreciated the
evidence properly and granted decree in favour of them. Hence, he
prayed for dismissal of the suit.
9. Now the points arose for consideration are as follows:-
“(i). Whether the plaintiffs are the
legal heirs of the deceased Kuthiri Pagadai?
(ii). Whether the defendants have
perfected their title by adverse possession?
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A.S.(MD)No.158 of 2019
(iii). To what other relief, the plaintiffs
are entitled?”
10. The plaint has been laid for claiming partition on the
ground that the plaintiffs are also the legal heirs of Kuthiri Pagadai. The
specific case of the plaintiffs is that the said Kuthiri Pakadai had one
daughter, namely, Kali @ Kaliammal and one son namely Kali. The
plaintiff Nos.1 to 3 are the daughters of the deceased Kali @ kaliammal.
The defendant Nos.1 to 8, who are the legal heirs of Kuthiri Pagadai,
born through his son viz., Kali.
11. The specific contention of the defendants is that the said
Kuthiri Pakadai had no daughter namely Kali @ Kaliammal.
12. The evidence of P.W.1 to P.W.3 would categorically state
that the above said Kuthiri Pagadai was working in Mandapam in the
Government Department, where, one Karuppi was also working and the
said Kuthiri Pagadi married Karuppi and out of their wedlock one Kali @
Kaliammal was born to them. Originally, they were residing in the
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A.S.(MD)No.158 of 2019
Mandapam Camp. The evidence of P.W.2 and P.W.3 would clearly show
that the above said Kuthiri Pagadi had one son and one daughter. P.W.2
also supported the version of P.W.1. His evidence has also not been
shattered in the cross examination. Be that as it may, the documents
which were filed by the plaintiffs, particularly, in Ex.A.2-PassPort of
Kali @ Kaliammal, the name of her daughter viz., Lakshmi and her son
viz, Ramalingam were mentioned and her father's name was mentioned
as Kuthiri. After the death of the above said Kuthiri Pakadai, pension
has also been received by his wife Karuppi. Ex.A.5 to Ex.A.13 makes it
very clear that pension was sent to Karuppi, the wife of Kuthiri Pagadai.
These documents have not even been denied specifically, except in the
pleading and the written statement. Even in the pleading and the written
statement, it was denied only in evasive manner. From the documents,
particularly, Ex.A.2-Pass Port, issued in the name of Kali @ Kaliammal,
it is seen that her father's name was mentioned as Kuthiri in the pass port.
13. In Ex.A.4-Citizen Certificate, the declaration signed by the
wife of Kuthiri Pagadai indicates that Karuppi was shown as the wife of
Kuthiri Pakadai. Similarly, Ex.A.5-the evidence given by the daughter of
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A.S.(MD)No.158 of 2019
Kuthiri Pagadai before the authorities and Ex.A.6-the proceedings of the
Accountant General of Tamil Nadu makes it very clear that Kaliammal @
Kali, the mother of the plaintiffs has received pension.
14. Based on the above evidences and materials, the enquiry
has been conducted by the Village Administrative Officer and it shows
that Kali @ Kaliammal, was the daughter of Kuthiri Pakadai and this
document established that Kuthiri Pakadai had a daughter namely Kali @
Kaliammal and these documents have not been seriously challenged and
disputed by the defendants. When the documents and evidences were
adduced by the plaintiffs to prove their case, on the other contention that
the defendants perfected title by adverse possession, no iota of evidence
is available.
15. Therefore, this Court is of the view that having pleaded the
adverse possession, the defendants in fact admitted the fact that the
plaintiffs have title over the suit property. Further there is no pleading in
the written statement whatsoever as to the character and to the nature of
the possession when their possession become adverse to the plaintiffs.
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A.S.(MD)No.158 of 2019
Therefore, mere pleadings itself are not sufficient to prove that they have
perfected the title by adverse possession. The plaintiffs, being the legal
heirs through the daughter of Kuthiri Pakadai and being co-sharers, are
deemed to be in joint possession. Therefore, this Court do not find any
infirmity in the judgment passed by the Court below. Accordingly, points
are answered.
16. In the result, the judgment and decree passed by the learned
Principal District Judge, Ramanathapuram made in O.S.No.7 of 2016
stands confirmed and the appeal suit stands dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
19.01.2021
Index : Yes/No
Internet : Yes/No
tsg
To
1.The Principal District Judge, Ramanathapuram.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.158 of 2019
N.SATHISH KUMAR, J
tsg
Judgment made in
A.S.(MD)No.158 of 2019
Dated:19.01.2021
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