Madras High Court
Kasiammal vs Raman on 29 July, 2021
S.A.No.987 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.987 of 2009
and
M.P.No.1 of 2009
Kasiammal ...Plaintiff/Appellant/Appellant
Vs.
1.Raman
2.Murugambal ...Defendants/Respondents/Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree in A.S.No.30 of 2006
dated 25.07.2006 on the file of the learned Additional Subordinate
Judge, Tiruvannamalai, confirming the Judgment and Decree in
O.S.No.226 of 2002 dated 19.01.2005 on the file of the learned
Additional District Munsif, Tiruvannamalai
1/10
https://www.mhc.tn.gov.in/judis/
S.A.No.987 of 2009
For Appellant : Mr.R. Karthikeyan
For Respondents : Mr.Bharath Gowtham
for Mr.T.R. Rajaraman
JUDGMENT
The above Second Appeal has been filed by the plaintiff
challenging the Judgment and Decree in A.S.No.30 of 2005 of the
learned Additional Subordinate Judge, Tiruvannamalai, in and by
which the learned Judge has confirmed the Judgment and Decree of the
learned Additional District Munsif, Tiruvannamalai in O.S.No.226 of
2002. This appeal arises out of a suit for bare injunction filed by the
plaintiff against the defendants who are her brother-in-law (Late
husband's brother) and the wife of the 1st defendant. The dispute is
with reference to an extent of 1.13 cents comprised in Dry.S.No.92/5
situate at Kottakul Village, Chengam, T.S. District.
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S.A.No.987 of 2009
2.The case of the plaintiff is that the property which has been
assessed as excess land was assigned to her husband Anbalagan by an
Assignment Order dated 07.02.1974 issued by the Authorised Officer.
As per the terms of the assessment, the plaintiff's husband Anbalagan
was to pay costs of the land in 19 installments. She would submit that
her husband had paid 19 installments and the last such installment was
on 08.08.1995. According to the plaintiff, her husband died in the year
1979 and thereafter, she has been in occupation and enjoyment of the
suit property. Being an illiterate woman, she was taking assistance of
her brother-in-law for paying the Kist. It is her specific case that she
had been given the said money to her brother-in-law, the 1st defendant
and the said money was being used by him for paying the kist receipt.
It appears that clandestinely the patta has been changed in the name of
the 1st defendant. Thereafter, on the objection of the plaintiff, the same
was re-transferred in the name of her late husband. The plaintiff would
submit that the defendants attempted to forcibly take possession of the
suit property from the plaintiff and she had managed to prevent the
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S.A.No.987 of 2009
same. Once again in the first week of March 1997, an attempt was
made to trespass into the property. Therefore, the suit.
3.The defendants had filed a Written Statement inter alia
contending that though the plaintiff was married to one Anbalagan she
was relationship with one Govindasamy through whom she begot four
children. It is the case of the defendants that the assessment of the
property was obtained in the name of Anbalagan only on account of the
fact that he was the elder male member of the family. Anbalagan and
the 1st defendant were living together as a joint family. The payments
were only made by the 1st defendant and it is only the defendants who
are in uninterrupted possession of the suit property from the year 1979
since the plaintiff was living with Govindasamy in his house.
4.In their Additional Written Statement, the defendants further
elaborately stated how the plaintiff had deserted her husband
immediately after he had suffered from acute tuberculosis and also on
account of the fact that he did not have vision in his right eye when he
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S.A.No.987 of 2009
was young boy due to small box. In fact, the plaintiff is none other
than the daughter of the maternal uncle of Anbalagan and the 1st
defendant. The defendants would submit that the plaintiff did not live
with Anbalagan even for one day. In fact, the said Anbalagan did not
take any steps to bring back the plaintiff since they came to know that
the plaintiff was already in a relationship with Govindasamy. They
would also claim a customary practice to state that by deserting
Anbalagan and living with Govindasamy, the plaintiff is presumed to
have divorced by Anbalagan. The defendants would further contend
that Anbalagan had paid only five installments and the remaining 17
installments were paid by his mother and therefore, the plaintiff is not
entitled to the relief as prayed for.
5.In the reply statement, the plaintiff sought to undo the
averments that she was living with one Govindasamy even during the
life time of Anbalagan. She would submit that after his demise, the
marriage has been taken place.
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S.A.No.987 of 2009
6.The trial Court had framed three issues and additional issues.
The additional issues framed by the trial Court is “Whether the
plaintiff had married Govindasamy after the death of Anbalagan and it
was true that the marriage was only after the death of Anbalagan?.”
7.The trial Court on considering the evidence on record had
returned a finding that even during the life time of Anbalagan, the
plaintiff was living with Govindasamy and through him she had two
sons and two daughters. The learned Judge had relied upon Ex.B.29,
Ex.B.30 and also the evidence of the plaintiff in cross examination to
come to the above conclusion. As regards the issue “Whether the
plaintiff was in possession and enjoyment of the suit property?, the
learned Judge had categorically held that it was only the defendants
who are in possession and enjoyment of the property and ultimately,
dismissed the suit. Challenging the said Judgment and Decree, the
plaintiff had filed A.S.No.30 of 2005 on the file of the learned
Additional Subordinate Judge, Thiruvannamalai. The Appellate Court
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S.A.No.987 of 2009
confirmed the findings of the trial Court and dismissed the said suit.
Challenging the same, the plaintiff has filed the instant Second Appeal.
8.When the matter came up for admission notice was issued to
the respondents/defendants. The defendants had also entered
appearance through counsel and had made their submission.
9.The learned counsel appearing for the appellant/plaintiff would
submit that admittedly, the plaintiff was the wife of Anbalagan and the
property stood in his name. The remaining installments had been paid
only from out of the money that had been given by the plaintiff to the
1st defendant. He would submit that she was in possession and
enjoyment of the property. The plaintiff's marriage to Govindasamy is
after the death of Anbalagan. The learned counsel appearing on behalf
of the respondents would submit that this allegation is futile. The
learned counsel for the respondents has relied upon a Judgment of the
Hon'ble Supreme Court in M. Govindaraju v. K.Munisami Gounder
(D) and others [(1996) 5 Supreme Court Cases 467].
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S.A.No.987 of 2009
10.Heard the learned counsels appearing on either side and
perused the papers.
11.The Courts below in a very great detail considered the
evidence regarding the fact that the appellant had deserted her husband
Anbalagan immediately after marriage and was living with one
Govindasamy through whom she had begotten four children. The Birth
Certificate of her children has been marked as Ex.B.29. The Voters
Card has been filed as Ex.A.9 and Ex.A.30 in which the age of the
plaintiff's children had been provided which would clinchingly prove
that she was living with Govindasamy even during the life time of her
husband. The trial Court has considered the customary practice of the
community to which the plaintiff and her husband belonged to and as
per their customary practice, the status of husband and wife has been
severed. Further, the Courts below have considered the overwhelming
evidence let in on the side of the respondents to show their continuous
possession of the suit property and that the payments of the
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S.A.No.987 of 2009
installments have been made only by the respondents to come to the
conclusion that the plaintiff had not made out a case. Therefore, this
Court sitting in Second Appeal cannot re-appreciate the evidence
which has been appreciated in a great detail by both the Courts below.
The appellant has not made out any question of law much less the
Substantial Questions of Law warranting interference by this Court.
This Second Appeal is dismissed, however, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is
closed.
29.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Additional District Munsif,
Tiruvannamalai.
2.The Additional Subordinate Judge,
Tiruvannamalai.
https://www.mhc.tn.gov.in/judis/
S.A.No.987 of 2009
P.T. ASHA, J,
mps
S.A.No.987 of 2009
and
M.P.No.1 of 2009
29.07.2021
https://www.mhc.tn.gov.in/judis/
