Madras High Court
Savarimuthu vs Adaikalamarry on 9 March, 2021
S.A.(MD)No.121 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.121 of 2021 and
CMP(MD) No.1941 of 2021
1.Savarimuthu
2.Jeevankumar Appellants
Vs.
1.Adaikalamarry
2.Anthonyammal
3.Natchathiram
4.Arockiyasamy
5.Justin Thiraviyam Respondents
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, against the decree and judgment in A.S.No.34 of 2018, on the
file of the Subordinate Court, Devakottai, dated 23.11.2020, confirming
the judgment and decree passed in O.S.No.93 of 2013, on the file of the
District Munsif Court, Devakottai, dated 24.04.2018.
For Appellant : Mr.C.Jeyaprakash
1/7
http://www.judis.nic.in
S.A.(MD)No.121 of 2021
JUDGMENT
The defendants 1 & 5 in O.S.No.93 of 2013, on the file of
the District Munsif Court, Devakottai are the appellants. They are
aggrieved by the judgment and decree of the Appellate Court, which
confirms the decree for partition and separate possession of the plaintiff's
1/4th share in certain items of suit properties, granted by the trial Court in
O.S.No.93 of 2013.
2.The plaintiff sued for partition and separate possession of
her 1/4th share, contending that the suit properties consisting 8 items
belonged to the father of the plaintiff and defendants 1 to 3, namely
Sebasthi Udayar, who died intestate, the plaintiff sought for partition. It
was also pleaded that the wife of Sebasthi Udayar, namely, Sengol
Ammal, mother of the plaintiff predeceased her husband.
3.The suit was resisted by the defendants contending that
the Sebasthi Udayar had executed a Settlement Deed dated 28.04.1989,
settling some of the suit properties in favour of the first defendant and
http://www.judis.nic.in
S.A.(MD)No.121 of 2021
some of the properties, belong to the first defendant. It was also pleaded
that there was a mistake in the settlement deed dated 28.04.1989, in
respect of two items of properties, situated in Survey No.300/2 and
308/2. According to the first defendant, what was intended to be settled
was 300/2 & 308/2, but the survey number was wrongly mentioned
200/2.
4.At trial, the plaintiff examined herself as PW 1 and one
Santhanam was examined as PW 2. Exs.A1 to A5 were marked. The
second defendant, who supported the case of the plaintiff was examined
as DW 1. The first defendant was examined as DW 2. Jeevankumar alias
Stephen Selvakumar was examined as DW 3. Exs.B1 to B3 were
marked.
5.The learned trial judge, upon consideration of the
evidence of record, rejected the plea of mistake raised by the first
defendant. It also concluded that the first defendant would be entitled to
the properties covered by the Settlement Deed, dated 28.04.1989,
executed by Sebasthi Udayar, in his favour. On the above conclusions,
http://www.judis.nic.in
S.A.(MD)No.121 of 2021
the learned trial Judge, while granting a decree in respect of Items 1,3,4
in 'A' schedule properties and Item 1 in 'B' Schedule properties dismissed
the suit, in respect of the other items. The plaintiff did not challenge the
said decree.
6.The first and fifth defendants filed an appeal in A.S.No.34
of 2018. The Appellate Court, on re-appreciation of the evidence,
concurred with the finding of the trial Court and dismissed the Appeal.
Hence, this Second Appeal.
7.I have heard Mr.C.Jeyaprakash, the learned counsel
appearing for the appellant. Mr.Jeyaprakash, the learned counsel
appearing for appellant would vehemently contend that the Courts below
were not right in rejecting the plea of mistake in the Survey number of
the suit item 3 in 'A' schedule properties and 1st item in 'B' Schedule
properties. He would claim that the boundaries and extent being the
same, the Courts below must have accepted the plea of mistake raised by
him.
http://www.judis.nic.in
S.A.(MD)No.121 of 2021
8.I am unable to countenance the submissions of the learned
counsel for the appellant. The title of Sebasthi Udayar to the suit
properties is admitted by the parties. The first defendant would claim that
Sebasthi Udayar had executed a Settlement Deed, which was marked as
Ex.B.1, in respect of some of the suit properties in his favour. Therefore,
he is the absolute owner of the properties. He would also raise a plea of
mistake. The plea of mistake that is projected by the first defendant has
to be established by him. There is a total lack of evidence for the said
plea of mistake. The Courts below have found that the plaintiff has not
established the plea of mistake and the boundary description as well as
the extent of the properties in Item 3 of 'A' schedule property and Item 1
of 'B' schedule property is different from what has been described in the
Settlement Deed and therefore, it cannot be concluded that the
predecessor in interest, namely Sebasthi Udayar had settled item 3 in 'A'
schedule property and Item 1 in 'B' schedule property in favour of the
first defendant along with other properties.
9.Once, such conclusion is reached on facts, I do no think
that sitting in Second Appeal, I can disturb the factual findings of the
http://www.judis.nic.in
S.A.(MD)No.121 of 2021
Courts below, in the absence of perversity. Despite his best efforts, the
learned counsel appearing for the appellant is unable to demonstrate that
the findings suffered from perversity or it could be termed as bad for
want of consideration of any available material.
10.Despite his best efforts, the learned counsel for the
appellant is unable to make out any question of law, much less a
substantial question of law in this appeal. Accordingly, this second
appeal is dismissed without being admitted. No costs. Consequently,
connected miscellaneous petition is closed.
09.03.2021
Index : Yes/No
Internet: Yes/No
vrn
To
1.The Subordinate Court, Devakottai
2.The District Munsif Court, Devakottai
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
S.A.(MD)No.121 of 2021
R.SUBRAMANIAN, J.
vrn
Judgment made in
S.A.(MD)No.121 of 2021 and
CMP(MD) No.1941 of 2021
Dated 09.03.2021
http://www.judis.nic.in
