Madras High Court
S.Kothandan vs S.Mohanan on 20 July, 2021
S.A.Nos.97 & 101 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
S.A.Nos.97 & 101 of 2012
and
M.P.Nos.1, 1 of 2012
(Through Video Conferencing)
S.Kothandan ... Appellant
in S.A.No.97 of 2012
S.Mohanan ... Appellant
in S.A.No.101 of 2012
Vs.
S.Mohanan ... Respondent
in S.A.No.97 of 2012
S.Kothandan ... Respondent
in S.A.No.101 of 2012
Prayer in S.A.No.97 of 2012: Second Appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 30.06.2011 made in
A.S.No.26 of 2010 on the file of the Subordinate Court, Poonamallee
confirming the Judgment and Decree dated 21.01.20 10 in O.S.No.72 of
2007 on the file of the Additional District Munsif Court, Poonamallee.
Prayer in S.A.No.101 of 2012: Second Appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 30.06.2011 made in
A.S.No.25 of 2010 on the file of the Subordinate Court, Poonamallee
reversing the Judgment and Decree dated 21.01.2010 in O.S.No.10 of
2007 on the file of the Additional District Munsif Court, Poonamallee.
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S.A.Nos.97 & 101 of 2012
For Appellants : Mr.V.Raghavachari
in S.A.No.97 of 2012
: Mr.R.Kannan
in S.A.No.101 of 2012
For Respondents : Mr.R.Kannan
in S.A.No.97 of 2012
: Mr.V.Raghavachari
in S.A.No.101 of 2012
COMMON JUDGMENT
The appellant in S.A.No.97 of 2012 is the respondent in
S.A.No.101 of 2012. He was the plaintiff in O.S.No.72 of 2007 and
O.S.No.10 of 2007. The respondent in S.A.No.97 of 2012 is the
appellant in S.A.No.101 of 2012. He was the defendant in O.S.No.72 of
2007 and O.S.No.10 of 2007. Both the suits were filed by the
appellant/respondent in S.A.No.97 of 2012/S.A.No.101 of 2012.
2. The plaintiff is the elder brother while defendant is the younger
brother. They are the sons of late Somasundara Reddiar. For the sake of
clarity, the ranks of the parties before the trial Court in O.S.No.10 of
2007 and O.S No.72 of 2007 shall be referred.
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3. Both the litigation stem from the perceived rights of the plaintiff
in Ex.A4 partition deed dated 25.04.2003. Ex.A4 partition deed dated
25.04.2003 signed and executed between the plaintiff, the defendant and
their father late Somasundara Reddiar during his life time.
4. Vide Ex.A4 dated 25.04.2003 several properties including
agricultural lands were allotted inter-se between them as detailed below:-
SomasundaraReddiar Kothandan(plaintiff) Mohanan(defendant)
(father)
S.No Extent S.No Extent S.No Extent
209/4 81 cents 30/3 69 cents 17/4B 38 cents**
201/6 93 cents 57/1 31 cents
79 7114.5 66/1 28 cents
sq.ft*
66/4 25 cents
66/5 11 cents
67/1 107cents
67/3 32cents
Subject matter of this Appeal:
* O.S.No.10 of 2007 / A.S.No.25 of 2010 / S.A.No.101 of 2012
**O.S.No.72 of 2007 / A.S.No.26 of 2010 / S.A.No.97 of 2012
5. The above partition was preceded by a partition between the
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S.A.Nos.97 & 101 of 2012
father of the plaintiff and the defendant late Somasundara Reddiar with
his younger brother Induram Reddiar vide Ex A1 partition deed dated
28.05.1971. As per Ex.A1 partition deed dated 28.05.1971 the land in
Survey No.79 in Vilianjiambakkam Village measuring about 14229 sq
ft. was equally divided between their father and uncle together with an
equal share in the house. Both the suits were filed by the plaintiff for a
permanent injunction and cost. The suit schedule of the properties in the
respective suits are as under:-
Suit Schedule Property in Suit Schedule Property in
O.S.No.72 of 2007/A.S.No.26 of O.S.No.10 of 2007/A.S.No.25 of
2010/S.A.No.97 of 2012 2010/S.A.No.101 of 2012
Suit property to an extent of 38 Suit propety to an extent of 7114.5
cents situated in Survey No.17/4B sq ft situated in Survey No.79 in
in Vilianjiambakkam Village. Vilianjiambakkam Village.
6. The defence of the defendant was that the suit schedule property
measuring an extent of 7114.5 sq.ft in Survey.No.79 in Vilianjiambakkam
Village together with the house was purchased by the defendant from
their uncle Induram Reddiar in the name of defendant’s wife vide Ex.B4
dated 01.11.1995 and the plaintiff cannot restrain the defendant from
selling Suit property to an extent of 38 cents situated in Survey No.17/4B
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S.A.Nos.97 & 101 of 2012
in Vilianjiambakkam Village in view of partition deed in Ex.A4 dated
25.04.2003 partition deed.
7. The Trial Court had framed the following issues in the respective
suits:-
O.S.No.10 of 2007 O.S.No.72 of 2007
Whether the plaintiff is entitled to Whether the suit for injunction
the injunction sought for? sought for by the plaintiff is
maintainable without such
partition?
To what other relief? Whether the plaintiff is entitled to
the permanent injunction sought
for?
To what other relief?
8. These suits were dismissed by the Trial Court on 21.01.2010 by
its common Judgment and separate Decrees. Further appeals filed by the
plaintiff in A.S.No.25 of 2010 and in A.S.No.26 of 2010 against
respective Judgment and Decree dated 21.01.2010 in O.S.No.10 of 2007
and in O.S.No. 72 of 2007 of the Trial Court.
9. The Appellate Court vide impugned Judgement and Decree
allowed A.S.No.25 of 2010 and dismissed A.S.No.26 of 2010. Thus,
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both the defendant and the plaintiff have filed these appeals.
10. Though these appeals were listed for admission on 28.02.2012,
they were not admitted.
11. No substantial questions of law were framed in 2012 for being
answered these appeals at the time of final hearing. Instead, these
appeals are now listed for final hearing after notice of admission was
ordered in 2012 as was the practice of this court.
12. The respective appellants have raised the following questions as
substantial question of law for being answered in these appeals:-
S.A.No.97 of 2012 S.A.No.101 of 2012
Whether the order of the Whether the learned Judge of the Lower
courts below erred in Appellate Courtsubstantially erred in law
dismissing the suit for in misreading the documentary evidence
injunction restraining the to consider Exhibit A-4 in not in which
respondents from alienating the family house which was allotted to
the property is not incorrect, the share of Somasundaram under
when the plaintiffs has Exhibit A1, was totally excluded in item
establish right over the No.3 of the schedule B which was
property? allotted to the plaintiff under Exhibit A4.
Whether the lower appellate Whether the Lower Appellate Courtafter
courts is right in dismissing giving a finding that the northern half of
the suit only on the ground the family house was allotted to the share
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S.A.No.97 of 2012 S.A.No.101 of 2012
that the Ex.A4 not challenged, of Induram under exhibit A-1 and was
when it is an admitted fact purchased by the defendant's wife,
that it is not the subject matter Buvaneswari under the sale deed dated
of controversy at the time of 25.4.2003 substantially erred in law in
division?” holding that the northern half of the
family house was the joint family
property of the plaintiff. Defendant and
their father on the date of Exhibit A-4 and
was allotted to the share of the
defendant/Appellant.
Whether the learned Judge substantially
erred in law in decreeing the suit for
permanent injunction in respect of the
suit property inspite of the finding that it
originally was allotted to the share of
Induram under Exhibit A1 and was later
purchased by Buvaneswari under a
registered sale deed without she being a
party to the suit?
Whether the learned Judge of the Lower
Appellate Courtsubstantially erred in law
in giving findings in respect of facts
about which no issues were framed and
no points for consideration arose?
Whether the learned Judge substantially
erred in law in decreeing the suit for
permanent injunction in respect of the
suit property inspite of the finding that it
originally was allotted to the share of
Induram under Exhibit A1 and was later
purchased by Buvaneswari under a
registered sale deed without she being a
party to the suit?
Whether the learnedJudge substantially
erred in law in misreading the
documentary evidence holding that under
Ex.A1 Induram was allotted 7020 sq.ft
and that Somasundaram was allotted
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S.A.No.97 of 2012 S.A.No.101 of 2012
7209 sq.ft?
Whether the learned Judge of the Lower
Appellate Courterred in placing burden
of proving ownership of the northern
portion of the suit house belonged to
appellant inspite of the admission made
by the plaintiff in the pleadings including
the description of property in the plaint.”
13. I shall first deal with S.A.No.97 of 2012 and thereafter
with S.A No.101 of 2012.
14. This appeal has been filed by the plaintiff (in O.S.No.72 of
2007) against the Judgment and decree dated 30.06.2011 passed by the
Appellate Courtin A.S.No.26 of 2010.
15. O.S.No.72 of 2007 was filed by the plaintiff (appellant herein)
for a permanent injunction to restrain the defendant from selling or
alienating the suit schedule property measuring an extent of 38 cents in
S.No.17/4B at Vilinjambakkam village.
16. O.S.No.72 of 2007 was filedon the ground that partition in
Ex.A4-Partition Deed dated 25.04.2003 had resulted in unfair allotment
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of lesser extent of land by 19 cents to the plaintiff and therefore
thedefendant should be restrained from alienating the suit schedule
property.
17. After examining the evidence on record and the deposition of
witnesses, the Trial Court dismissed the suit filed by the plaintiff with the
following observations:-
“The plaintiff has admitted that 5814 sq.ft and the
1300 sq.ft properties stands in the name of the
defendant's wife. And this suit 38 cent in
S.No.17/4B was partitioned and enjoyed by the
defendant.
The plaintiff pleads that the partition was acted
upon, possession was handed over, enjoyed, and
most of the properties were also alienated. The
defendant condemns the attitude of the plaintiff
challenging the partition deed dated 25.04.2003 in
the year 2007. Since the grand children have share
in the grandfather’s property and O.S.229/2006
was filed by the defendant minor children seeking
share in the late SomasundaraReddiar properties
allotted through Ex.A-4. The contention of the
defendant that the partition is not fair and
justifiable is sustainable through their relief. The
aggrieved plaintiff is inclined to prefer a suit to
challenge the partition deed. The plaintiff has no
locus-standi to seek such relief against the
defendant in this suit. The plaintiff himself has
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admitted through Ex.A-4 the suit property was
allotted to the share of the defendant. Ex.A-4 also
reveals the same. Once a joint family property was
partitioned it becomes the absolute property of the
co-sharer. Others can not restrain the enjoyment of
absolute property. Under the circumstances the suit
is not maintainable. The plaintiff relief is not
justifiable in the eye of law.”
18. By the impugned Judgment and decree, the Appellate Court
had dismissed A.S.No.26 of 2010 filed by the plaintiff against the
Judgment and decree passed by the Trial Court in O.S.No.72 of 2007.
19. The Appellate Court has affirmed the above views by holding
that the plaintiff (appellant herein) had not challenged the partition in
Ex.A4-Partition Deed dated 25.4.2003 between their father late
Somasundara Reddiar, Appellant (plaintiff) and the respondent
(defendant).
20. The Appellate Court has noted that the plaintiff (appellant
herein) had admitted to the partition in Ex.A4 dated 25.04.2003 and
claimed a share over and above the share allotted therefore there any
relief cannot granted to the plaintiff (appellant herein).
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21. There is no dispute that the suit schedule property was allotted
to the plaintiff and the defendant (respondent herein) vide Ex.A4-
Partition Deed dated 25.04.2003 and their father Late Somasundara
Reddiar during his life time. Several properties came to be allotted
interse between the parties as noted above.
22. The appellant who was the plaintiff before the Trial Court has
not established that the partition in Ex.A4-Partition Deed dated
25.04.2003 was not executed by the appellant, respondent and their
father Late Somasundara Reddiar.
23. There is a specific bar under Chapter VI of the Indian Evidence
Act, 1872 to let in oral evidence contrary to the content of written
document. Sections 91 & 92 of the Indian Evidence Act, 1872
specifically deals with the same.
24. As per Section 92 of the Indian Evidence Act, 1872, when the
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terms of any such contract, grant or other disposition of property, or any
matter required by law to be reduced to the form of a document, have
been proved according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the parties to any
such instrument or their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting from, its terms.
25. Proviso to Section 92 of the Indian Evidence Act, 1872, reads
as under:-
“Proviso (1) – Any fact may be proved which
would invalidate anydocument, or which would
entitle any person to any decree or order relating
thereto, such as fraud, intimidation, illegality, want
of due execution, want of capacity in any
contracting party, [want of failure] of consideratin,
or mistake in fact or law.
Proviso (2) – The existence of any separate
oral agreement as to any matter on which a
document is silent, and which is not inconsistent
with its terms, may be proved. In considering
whether or not this proviso applies, the Courtshall
have regard to the degree of formality of the
document.
Proviso (3) –The existence of any separate
oral agreement, constituting a condition precedent
to the attaching of any obligation under any such
contract, grant or disposition of property, may be
proved.
Proviso (4) – The existence of any distinct
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subsequent oral agreement to rescind or modify
any such contract, grant or disposition of property,
may be proved, except in cases in which such
contract, grant or disposition of property is by law
required to be in writing, or has been registered
according to the law in force for the time being as
to the registration of documents.
Proviso (5) – Any usage or custom by which
indicates not expressly mentioned in any contract
are usually annexed to contracts of that
description, may be proved:
Provided that the annexing of such incident would
not berepugnant to, or inconsistent with, the
express terms of the contract
Proviso (6) – Any fact may be proved which
shows in what manner the language of a document
is related to existing facts.”
26. From a reading of the above, it is evident that none of the
instances mentioned were not attracted in the facts and circumstances of
the case.
27. Thus, the case of the plaintiff (appellant herein) for permanent
injunction, to restrain the defendant (respondent herein) from interfering
with the suit schedule property in any manner cannot be countenanced
based on the averments in the plaint and the deposition of the witnesses
before the Trial Court. Thus, the Judgment and Decree of the appellate
Court upholding the Judgment and Decree of the Court cannot be faulted.
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28. Therefore, no substantial questions of law arises for
consideration in this appeal and in any event as substantial questions of
law that may be raised by the plaintiff (appellant herein) in this appeal
are to be answered against the appellant/plaintiff. Therefore, S.A.No.97
of 2012 is liable to be dismissed.
29. S.A.No.101 of 2012 has been filed by the defendant in
O.S.No.10 of 2007. As mentioned above the suit was filed for a
permanent injunction to restrain the defendant (appellant herein) from
interfering with the peaceful possession and enjoyment of the suit
schedule property (Survey No.79 and extent of 7114.5 sq.ft) and to
restrain the defendant from entering into the suit schedule property
owned by the plaintiff.
30. The alleged cause of action for the above suit was an alleged
attempt of the defendant (appellant herein) to disturb the peaceful
possession over the suit schedule property by putting up construction
over the suit schedule property.
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31. Before the Trial Court, the case of the plaintiff (respondent
herein) was that the suit schedule property originally comprised of a total
extent of 14229 sq.ft in S.No.79 at Vilinjambakkam village, which was
partitioned between their father late Somasundara Reddiar and their
paternal uncle Mr. Indhuram Reddiar vide Ex.A1 dated 28.5.1971.
32. The plaintiff (respondent herein) submitted that their father late
Somasundara Reddiar later purchased vacant land for an extent of 5814
sq.ft in S.No.79 in the name of defendant’s (appellant’s herein) wife
(Bhuvaneswari) as a family property. It was the case of the plaintiff that
though the said property was purchased in the name of the defendant’s
wife, it was nevertheless ajoint family property.
33. It was further case of the plaintiff (respondent herein) that only
an extent of 1300.5 sq.ft of land was given to the defendant by their
father late Somasundara Reddiar.
34. The case of the plaintiff that an extent of 7114.5 sq.ft consisted
of a land measuring an extent of 1300 sq.ft with a tiled house which was
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allotted to the defendant and a land measuring an extent of 5814 sq.ft
though purchased in the name of defendant’s wife Bhuvaneshwari was
allotted to the plaintiff in terms of Ex.A4 partition deed dated 25.4.2003.
35. In his written statement the defendant (appellant herein) has
further stated that an extent of 7114.5 sq.ft was the absolute property of
the defendant along with his wife and it cannot be equated with the
property allotted to the plaintiff vide Ex.A4 Partition Deed dated
25.04.2003.
36. Before the Trial Court the plaintiff examined himself as PW1
and the defendant examined himself as DW1. The plaintiff marked an
Ex.A1 to Ex.A11 and the defendant marked an Ex.B1 to Ex.B15 also
Court document was marked as Ex.C1 and C2.
37. The Trial Court after considering the evidences on record,
dismissed the O.S.No.10 of 2007 filed by the plaintiff.
38. The Trial Court accepted that the contention of the defendant
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(appellant herein) that their uncle Induram Reddiar’s property measuring
an extent of 7114.5 sq.ft along with the house site was purchased by the
defendant along with his wife was satisfactorily proved. The Trial Court
also held that the plaintiff had not proved that the plaintiff was entitled
and enjoying an extent of 7114.5 sq.ft land in S.No.79 at Vilinjambakkam
village.
39. The Trial Court also observed that there was variance in the
measurement in the subsequent partition in Ex.A4dated 25.4.2003
between plaintiff, defendant and their father late Somasundara Reddiar
and that the extents of the plots were held not identical in Exhibits Ex.A1
partition deed dated 28.5.1971 and Ex.A4 partition deed dated 25.4.2003
based on the commissioner’s report. It held that the plaintiff failed to
satisfy the extents of land allotted to their father late Somasundara
Reddiar and the same was partitioned and devolved upon the plaintiff and
defendant.
40. Further appeal was filed by the plaintiff in A.S No.25 of 2010.
The Appellate Court reversed the Judgment and Decree in O.S No. 10 of
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2007 dated 21.1.2010. The appellate Court observed that on perusal of
Ex.A1 partition deed dated 28.5.1971, it cannot be construed that late
Somasundara Reddiar got an extent of 7114.5 sq.ft in S.No.79 at
Vilinjiambakkam village since the extent was not specifically mentioned
in Ex.A1 partition deed dated 28.05.1971.
41. The Appellate Court further observed that vide Ex.A1 dated
28.5.1971 total extent of property in S.No.79 at Vilinjiambakkam village
was only 14229 sq.ft, and pursuant to partition between Somasundara
Reddiar and his brother Mr.Induram Reddiar and later it was allotted half
share on which he built a house on the northern side 67x18=1206 sq.ft
and also land on the northern side of house property measuring
153x84=5814 sq.ft, thus totaling an extent of land to Induram Reddiar
1206+5814=7020 sq.ft. The remaining extent 14229-7020=7209 sq.ft.
was allotted to the plaintiff and the defendant’s father late Somasundara
Reddiar.
42. The Appellate Court further observed that Mr.Induram Reddiar
executed Ex.B4/A3 sale deed dated 01.11.1995 in favour of defendant’s
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wife in respect of land measuring only 5814 sq.ft and on the same day
Mr.Induram Reddiar also executed another sale deed in favour of
defendant’s wife house measuring 1206 sq.ft. though the copy of the sale
deed was not produced before the court.
43. The Appellate Court concluded that the land was purchased in
the name of defendant’s wife Bhuvaneswari measuring an extent 7114.5
sq.ft (5814+1206=7020sq.ft) from Mr.Induaram Reddiar, and that
Mr.Induram Reddiar could not have conveyed more land than what was
allotted to later under Ex.A1 partition deed dated 28.5.1971 between
their father and uncle.
44. The Appellate Court further observed that title of the plaintiff
was proved by Ex.A4 partition deed dated 25.4.2003 and once a partition
was effected, the properties allotted to the parties are their individual
properties. It further held that the plaintiff was in occupation of suit
property was not in dispute as per Ex.A7- Town Survey Field Register.
The Appellate Court thus allowed A.S No.25 of 2010. Aggrieved by the
same, the defendant has filed this appeal. A reading of the Judgment and
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Decree of Trial Court and the Appellate Court, the location of the property
and division has been made different.
45. The land that identified by the Trial Court graphically represent
as follows:-
46. The land that identified by the Appellate Court graphically
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represent as follows:-
47. On perusing the records, what is evident is that the
property in S.No.79 was divided equally between the plaintiff’s and
defendant’s father and paternal uncle vide deed Ex.A1 dated
28.05.1971.
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48. The total extent of land in S.No.79 at Vilianjiambakkam
Village, Avadi Taluk measured an extent of 14229 sq.ft which was
divided between the plaintiff’s and defendant’s father late Somasundara
Reddiar and his brother Induram Reddiar equally vide Ex.A1 dated
28.05.1971. Thus, each of them could have been entitled to 7114.5 sq.ft
out of 14229 sq.ft in S.No.79 in Vilianjiambakkam Village.
49. The southern portion of the land was allotted to the plaintiff’s
and defendant’s father while the northern portion of the land was allotted
to their uncle Induram Reddiar.
50. The property which was allotted to the plaintiff and defendant’s
uncle Induram Reddiar was on the northern side of land in S.No.79 at
Vilianjiambakkam Village. It was later purchased in the name of
Bhuvaneswari wife of defendant (appellant herein) vide Ex.A3/B4 dated
01.11.1995.
51. The defendants purchased the northern portion from their uncle
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Induram Reddiar in the year 1995 vide Ex.A3/B4 dated 01.11.1995
which was allotted to later vide partition deed Ex.A1 dated 28.05.1971.
The purchase precedes Partition in 2003 vide Ex. A4 dated 25.04.2003.
52. The plaintiff was allotted the southern portion of the property
vide Ex.A4 partition deed dated 25.04.2003 which was earlier allotted to
plaintiff and defendants father vide deed Ex.A1 dated 28.05.1971.
53. Precedes that the land purchased by the defendant partition in
Ex.A4 dated 25.04.2003. Ex.A4 dated 25.04.2003 was executed much
after the land was purchased in the name of defendant’s wife
Bhuvaneswari in Ex.A3/B4 dated 01.11.1995. If it was a joint family
property, Ex.B4 Partition Deed dated 25.04.2003, would have certainly
reflected it as a joint family property and partitioned in 2003.
54. The defence of the defendant (appellant herein) that an extent
of 5814 sq.ft in S.No.79, was purchased in the name of defendant’s wife
Bhuvaneshwari vide Ex.A3/B4 dated 01.11.1995, and that an extent of
1206 sq.ft was separately purchased again by the defendant again in his
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wife name Bhuvaneshwari and that the defendant was in possession of
the suit schedule property is therefore to be accepted. If it was otherwise
as was claimed by the plaintiff, same would have been subject matter of
partition in Ex.A4 partition deed dated 25.04.2003.
55. Thus the land that was allotted to the father of the plaintiff and
defendant late Somasundara Reddiar vide Ex.A1 dated 28.05.1971 was
the land allotted to the plaintiff vide Ex.A4-partition deed dated
25.04.2003 and the land that was alloted to Induram Reddiar was
purchased vide Ex.A3/B4 dated 01.11.1995 by the defendant. The
plaintiff cannot claim right over it.
56. The defendant also cannot claim right over the land allotted to
the plaintiff vide Ex.A4 dated 25.04.2003. The parties cannot claim oral
rights over each other’s property. Though the appellate court had allowed
the appeal, there is no substantial question of law that has arises to be
answered. Therefore, Second Appeal No.101 of 2012 is also liable to be
dismissed.
57. The extent arrived by the Appellate Court based on the above
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graphic diagram appears to improbable based on the evidence on record.
Therefore, the extent arrived by Appellate Court for the plaintiff for a
large extent of 7209 sq.ft and for the defendant 7020 sq.ft lesser extent of
7020 sq. Ft for the defendant cannot be accepted in the light of the
documents. The land was divided equally. However, the fact remain that
the land that was allotted to plaintiff vide Ex.A4 dated 25.04.2003 and
the land purchased by the defendant vide Ex.A3/B4 dated 01.11.1995
can neither be increased nor decreased.
58. In the result both the appeals are dismissed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
20.07.2021
Internet : Yes / No
Index : Yes/No
Speaking Order/Non-speaking Order
arb
C.SARAVANAN, J.
arb
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To:
1.The Subordinate Court,
Poonamallee.
2.The Additional District Munsif Court,
Poonamallee.
S.A.Nos.97 & 101 of 2012
and
M.P.Nos.1, 1 of 2012
20.07.2021
http://www.judis.nic.in___________
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