Madras High Court
Balachandran vs Krishnaveniammal on 11 November, 2021
S.A(MD)No.175 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.175 of 2020
and
C.M.P(MD)No.2485 of 2020
1.Balachandran
2.Chandrasekar
3.Boopathy
4.Aathilakshmi ... Appellants/Appellants/Plaintiffs
Vs.
1.Krishnaveniammal
2.Selvi
3.M/s.Vishwabharathi Textiles Limited,
Through its Managing Director,
R.Subramanian,
Vadamadurai,
Vedasunthur Taluk,
Dindigul District.
4.The Indian Bank,
Through its Senior Manager,
Thirupur,
Thirupur District. ... Respondents/Respondents/Defendants
1/12
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S.A(MD)No.175 of 2020
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 14.12.2018 passed in
A.S.No.18 of 2016, on the file of the Additional District Court, Dindigul,
confirming the judgment and decree, dated 30.06.2015, passed in
O.S.No.255 of 2012, on the file of the Sub-Court, Vedasunthur.
For Appellants : Mr.K.Balasubramani
For R - 3 : Mr.A.Hariharan
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.255 of 2012
by the Sub-Court, Vedasunthur and in A.S.No.18 of 2016 by the Additional
District Court, Dindigul, are being challenged in the present Second Appeal.
2.The appellants / plaintiffs have instituted a suit in O.S.No.255 of
2012, on the file of the trial Court for the relief of declaration and partition,
wherein, the present respondents have been shown as defendants 1 to 4.
3.It is the case of the plaintiffs that the suit property was originally
belonged to one Rajammal, through a registered sale deed, dated
19.04.1954. After her death, her daughter Muthulakshmi had sold the suit
property to one Sundararajan Naidu and his two sons, namely, Kondalrajan
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S.A(MD)No.175 of 2020
and Alagarsamy, under a registered sale deed, dated 27.04.1960. While-so,
the said Sundararajan had died leaving behind his two sons. Kodalrajan died
in the year 1967 and Alagarsamy died in the year 1972. The plaintiffs 1 to 3
are the sons of Kondalrajan and the fourth plaintiff is the wife of
Kondalrajan and they are the legal heirs of Kondalrajan. The first defendant
is the wife of Alagarsamy and the second defendant is the daughter of
Alagarsamy. After the death of Kondalrajan and Alagarsamy, the plaintiffs
and the defendants 1 and 2 inherited the suit property and enjoyed the same.
The plaintiffs and the defendants 1 and 2 are entitled to half share each. As
the said land is a barren land, the plaintiffs and the defendants 1 and 2
wanted to partition the property among themselves and they agreed for
division of the suit property. The defendants 1 and 2 did not assign any
reason for diving the same. Hence, the plaintiffs decided to initiate legal
action. The suit property is a very meagre extent and it has not derived any
income. While-so, the third defendant attempted to damage the fencing in
the suit property, so as to cover the suit property with the mill building, but
it was objected by the plaintiffs. The third defendant, from the year 2008,
demanded the plaintiffs to sell the suit property to them, but the defendants 1
and 2 were not ready and willing to sell the suit property. Hence, the
plaintiffs decided to file a suit for partition before the trial Court. When the
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S.A(MD)No.175 of 2020
first plaintiff had applied for a certified copy of the patta extract of the suit
property, in the month of September, 2011, he came to know that the patta
for the suit property had been transferred to the name of the third defendant.
Hence, the plaintiffs filed the suit stating that either their father Kondalrajan
or the husband of the first defendant had not executed any sale deed in
respect of the suit property, as they are the owners of the suit property. The
alleged sale deed was not acted upon and the third defendant had never
taken possession of the suit property and he never enjoyed the same and the
original sale deed is available with the plaintiffs and it has been filed along
with the suit. The third defendant cannot claim any right over the suit
property. The plaintiffs came to know that while mortgaging the adjacent
properties, the third defendant has mortgaged the suit property also in favour
of the fourth defendant-Bank. The alleged mortgage is not valid and it is not
binding on the plaintiffs. The third defendant had created a cloud on the title
to the plaintiffs. To avoid multiplicity of proceedings and to avoid technical
objection that may be raised by them during the course of execution of the
partition decree that may be passed in the above suit, the defendants 3 and 4
have also been impleaded as parties in the above suit and the relief of
declaration of title over the suit property was against the defendants 3 and 4.
Hence, the plaintiffs have filed the suit.
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S.A(MD)No.175 of 2020
4.The respondents 1, 2 and 4 have not filed any written statement.
5.In the written statement filed on the side of the third respondent /
third defendant, it is averred that originally, one Venkitalakshmi was the
owner of the suit property and she purchased the suit property from
Sundararaj Naidu and his wife Gnanammal, under a registered sale deed,
dated 23.03.1970 and after several transactions, third defendant purchased
the suit property by way of a valid registered sale deed, dated 25.05.1995
from one B.Murugesan and when the third defendant purchased the same by
a valid sale deed, there is no necessity to seek the same property from the
plaintiffs. From the year 1995 onwards, the third defendant is in possession
and enjoyment of the same. By merely filing a registered sale deed, the
plaintiffs cannot claim partition at any cost and prayed for dismissal of the
suit.
6.The plaintiffs filed a reply statement, wherein, they have stated that
the said Venkatalakshmi Ammal had no right, title or interest over the suit
property and she had never enjoyed the suit property at any point of time.
Though the plaintiffs have traced their title from the year 1951 and though
the third defendant has traced the title from the year 1978, he has not stated
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S.A(MD)No.175 of 2020
as to how the said Venkatalakshmi Ammal was entitled to the suit property.
Since the said Venkatalakshmi Ammal and the alleged subsequent transferor
had no right over the suit property, the sale deed in the name of the third
defendant is also not valid and it will not convey any right and title to the
suit property in favour of the third defendant.
7.Before the trial Court, on the side of the plaintiffs, the first plaintiff
examined himself as P.W.1 and another witness by name Muthusamy as
P.W.2 and Exs.A.1 to A.3 were marked. On the side of the defendants, D.W.1
and D.W.2 were examined and Exs.B.1 to 13 were marked.
8.On the basis of the rival pleadings on either side, the trial Court has
framed necessary issues and after evaluating both the oral and documentary
evidence, has dismissed the suit.
9.Aggrieved by the Judgment and decree passed by the trial Court, the
plaintiffs as appellants, had filed an appeal suit in A.S.No.18 of 2016. The
first Appellate Court, after hearing both sides and upon re-appraising the
evidence available on record, has dismissed the appeal and confirmed the
judgment and decree passed by the trial Court.
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S.A(MD)No.175 of 2020
10.Challenging the said concurrent judgments and decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the plaintiffs as appellants.
10.Heard the learned counsel appearing for the appellants and the
learned counsel appearing for the third respondent and perused the records
carefully.
11.The learned counsel appearing for the appellants / plaintiffs would
submit that the Courts below have erroneously held that under Ex.B.3, the
plaintiffs grand-father Sundararajan had sold the property to the defendants
pre-decessor in title. The father of the plaintiffs 1 to 3 is the co-owner of the
suit property with his father and brother, but Ex.B.3 executed by the
plaintiffs grand-father would not bind the father of the plaintiffs 1 to 3 share
in the suit property. The Courts below have erroneously held that the third
defendant had acquired title under Ex.B.9 and prayed for allowing the
Second Appeal.
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S.A(MD)No.175 of 2020
12.The learned counsel appearing for the third respondent / third
defendant would submit that the Courts below, after analysing the
documents available on record, has rightly decreed the suit in favour of the
third respondent / third defendant,in which, no interference is called for and
thus prayed for dismissing the Second Appeal.
13.On going through the materials available on record and the
Judgment and decree passed by the trial Court as well as the first Appellate
Court, it is seen that without any doubt, the sale deed has been proved by the
third defendant, who has clearly demonstrated that the property was
originally sold by the plaintiffs grand-parents in favour of Venkitalakshmi
Ammal, who in-turn had sold it to Murugesan. Murugesan family entered
into a partition deed. After the brother of Murugesan had executed a
separate sale deed in favour of the third defendant, who in-turn had
constructed a Mill in the said land and also mortgaged the property by
obtaining loan and running the said Mill, which would show that the said
third defendant has got right over the property.
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S.A(MD)No.175 of 2020
14.The appellants submission that the volume of evidence in a case
without testing its quality, cannot be accepted. It could be seen that the
document of title has been devolved on the said persons from the year 1978
onwards. Even assuming that the appellants/plaintiffs parents were dead and
the appellants have become major in the year 1985 onwards, if they had
right any over the property as co-owners, immediately after they become
major, they ought to have claimed right over the property. The period of
limitation comes into existence and the appellants cannot slept over the
matter for years together and now come and canvass that they are the
co-owners. If the appellants have right over the property, the appellants
ought to have claimed their right by proceeding appropriately in the manner
known to law. After 1978, the same has been sold. The appellants filed the
suit only in the year 2012 ie., after a lapse of 34 years. Even in the claim
petition, they have stated that they have half share in the property seeking
for partition and also stated that the defendants 3 and 4 are aware that the
said property has already been in possession of the third defendant, who has
also mortgaged the same before the fourth defendant.
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S.A(MD)No.175 of 2020
15.The appellants claimed that the first and second defendants are not
willing to come for any kind of partition and settlement, which would show
that the said persons are very well aware that they are not having any right
over the property. The appellants herein seeks for a partition in the suit
without any basis. If at all they had any right, the plaintiffs ought have to
claimed right over the suit property within the period prescribed under the
Limitation Act and cannot make a claim after the said period. As such, this
Court is of the view that the claim made by the appellants are very belated
and so many transactions have been effected in the course of time. That
being the case, now the appellants cannot come and canvass that the said
document has been executed by his grand-father.
16.As it is clear that a third party interest has been created, who has
constructed a Textile company and that being the case, the appellants cannot
come and seek for indulgence of this Court, which are optly answered by the
trial court, based on the evidence. The appellants claim cannot be accepted
regarding the ownership, as it has been barred by limitation and the same is
hereby dismissed.
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S.A(MD)No.175 of 2020
17.For the reasons aforesaid, this Court is of the considered view that
no questions of law much less substantial questions of law, has been made
out by the appellants / plaintiffs calling for interference by this Court in the
well-considered judgment and decree rendered by the Courts below and
accordingly, the Second Appeal stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
11.11.2021
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.175 of 2020
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Additional District and Sessions Judge,
Fast Track Court, Ramanathapuram.
2.The Subordinate Judge,
Paramakudi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.175 of 2020
11.11.2021
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