)Amutha vs )V.Palanimuthu
2021 Latest Caselaw 23260 Mad

                                                                            S.A.No.993 of 2021

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            DATED :29.11.2021

                                                    CORAM

                            THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

                                            S.A.No.993 of 2021
                                        and C.M.P.No.18591 of 2021
               1)Amutha

               2)P.Chithambaram                                             ...Appellants

                                                     Vs.

               Vaiyapuri (Died)

               1)V.Palanimuthu

               2)V.Srinivasan                                               ...Respondents

               PRAYER: Second Appeal filed under Section 100 of the Code of Civil
               Procedure, to set aside the judgment and decree in A.S.No.5 of 2019 dated
               21.11.2019 on the file of the learned Principal Sub Judge at Ariyalur,
               confirming the judgment and decree in O.S.No.256 of 2014 on the file of the
               learned Additional District Munsif Court, at Ariyalur.


                                   For Appellants    :   Mr.L.P.Balajiram




               1/13

https://www.mhc.tn.gov.in/judis
                                                                                      S.A.No.993 of 2021

                                                 JUDGMENT

This second appeal is directed against the judgment of the learned

Principal Sub Judge, Ariayalur in A.S.No.5 of 2019 confirming the judgment of

the learned Additional District Munsif, Ariyalur in O.S.No.256 of 2014.

2. Appellants/plaintiffs filed the suit seeking the relief of declaration

that first plaintiff is the absolute owner of the suit property and as a

consequential relief of permanent injunction restraining the defendants, their

men, agents, heirs, successors and servants from in any way interfering with the

plaintiffs peaceful possession and enjoyment of the suit property and for costs.

Appellants filed the suit claiming that suit property originally belonged to one

Krishna Padayachi. Krishna Padayachi and his two sons Appadurai Padayachi

and Vaithilingam Padayachi divided the suit property and other family

properties through a registered partition deed on 10.04.1968. The suit property

was allotted to the share of the Vaithilingam Padayachi as 'C' schedule in the

partition deed. Then, in an oral partition between Vaithilingam Padayachi and

his only son Sekar, the suit property was allotted to Sekar. Sekar was in

possession and enjoyment of the suit property. He gifted the suit property to his

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

wife Amudha, first plaintiff through a gift deed dated 04.07.1997. Patta stands

in the name of Sekar and other co-owner of the remaining extent. Second

plaintiff is a cultivating tenant of the suit property. Originally, second plaintiff

became a tenant of the suit property under the husband of the first plaintiff

through a tenancy document dated 20.09.1984. Still the second plaintiff

continues as a tenant in the suit property. First defendant is the father of the

second defendant. They claim that they purchased the remaining extent of the

suit property. They wanted the plaintiff to sell the suit property for a low price.

When the first plaintiff refused to sell the property, the defendants were trying

to interfere with the plaintiff's possession and enjoyment of the suit property.

Therefore, the suit for the aforesaid relief.

3. Deceased Vaiyapuri, first defendant filed written statement. The

partition between Krishna Padayachi and his sons on 16.04.1968 is admitted. It

is also admitted that the suit property was allotted to Vaithilingam Padayachi.

However, the case of the plaintiffs that suit property was allotted to plaintiff's

husband Sekar in oral partition between him and his father is denied. There was

no such oral partition. The settlement deed dated 04.07.1997 executed by Sekar

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

in favor of first plaintiff is denied. Sekar has no right to execute this settlement

deed. It is created for the purpose of case and will not confer any title to the

first plaintiff. The tenancy agreement between first plaintiff and second

plaintiff is also denied and it is created document. The real facts of the case are

that, Vaithilingam Padayachi borrowed loan from Rajupillai. Rajupillai filed

O.S.No.296 of 1970 and brought the suit property for sale in E.P.No.913 of

1970. The suit property was purchased in Court auction sale by one Sultan

Moiden on 18.08.1971. Sale was confirmed on 29.03.1972. Auction purchaser

took possession of the suit property and was enjoying the suit property. After

the death of auction purchaser, joint patta was issued in favour of his wife.

Eastern half of Survey No.369/13 belong to Appadurai and western portion

belong to Sultan Moiden's wife Bashira bheevi's family. First plaintiff

clandestinely included her name in the patta using the settlement deed. Joint

patta was issued for survey No.369/13 in favour of Appadurai, Bashira Bheevi

and Amudha. This suit is filed based on the joint patta, which was wrongly

given, including the name of the first plaintiff. Defendants purchased eastern

portion of the suit property from Appadurai. Then he purchased the suit

property in the name of second defendant and minor Srinivasan from Anwar

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

Basha, son of Sultan Moiden. Thus, the suit property belong to the defendants,

therefore, the suit has to be dismissed.

4. On the basis of the above pleadings, the learned Trial Judge

framed the following issues:

i) Whether the case of the plaintiff that there was an oral partition

between him and his father Vaithilingam, that he executed a settlement deed in

favour of his wife on 04.07.1997 are true? whether this settlement deed is

valid?

ii) Whether the second plaintiff is the cultivating tenant of the suit

property?

iii) Whether the suit property was bought in Court auction sale in

E.P.No.913 of 1970 by one Rajupillai on the file of the District Munsif Court,

Thuraiyur, and that Sultan Moiden purchased the suit property in the Court

auction sale?

iv) Whether patta was wrongly given to the first plaintiff in respect

of the suit property?

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v) Whether the claim of the defendants that the suit property was

purchased by first defendant in the name of second defendant and minor

Srinivasan on 29.01.1998 from one Anwar Basha is true? and whether this sale

is valid?

vi) Whether the suit is bad for non-joinder of Srinivasan?

vii) Whether the first plaintiff is entitled for the relief of

declaration of title and for permanent injunction?

viii) To what other relief, if any, the plaintiffs are entitled?

5. During the course of trial PW1 and PW2 were examined and

Exhibits A1 to A19 were marked on the side of the plaintiffs. DW1 was

examined and Exhibits B1 to B4 were marked on the side of the defendant. On

considering the oral and documentary evidence produced in this case, the Trial

Court found that the suit property was brought in Court auction sale in

E.P.No.913 of 1970 and one Sultan Moiden purchased the suit property in

Court auction sale. Thereafter, the suit property could not have been partitioned

orally between Sekar and his father Vaithilingam Padayachi. Therefore,

subsequent settlement deed executed by Sekar in favour of the first plaintiff is

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not valid. The alleged tenancy agreement between the plaintiffs is not true. In

this view of the matter, the learned Trial Judge has dismissed the suit. The

appellants filed appeal in A.S.No.5 of 2019. The learned Appellate Judge on

going through the evidence, submissions of the parties and the judgment of the

Trial Court found no reason to interfere with the judgment of the Trial Court

and dismissed the appeal. Therefore, the appellants are before this Court by

way of this Second Appeal.

6. The learned counsel for the appellants submitted that the

appellants have produced several documents to show their title and possession

of the suit property. On the other hand, the respondents have not produced any

document to show that their possession and enjoyment of the suit properties.

When the appellants produced documents in support of their title and

possession dismissal of the suit is nothing but reverse appreciation of evidence.

Therefore, the learned counsel for the appellants prayed for setting aside the

judgment of the Court below and for entertaining this Second Appeal.

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

7. As seen from the pleadings of the parties that there is no dispute

with regard to the fact that suit property originally belong to Krishna

Padayachi. It is also not in dispute that Krishna Padayachi and his sons

Appadurai Padayachi and Vaithilingam Padayachi, divided the suit property

and other properties through a registered partition deed dated 10.04.1968.

Appellants claimed that subsequent to allotment of suit property in favour of

Vaithilingam Padayachi, there was an oral partition between Vaithilingam

Padayachi and his son Sekar. In the said oral partition, suit property was

allotted to Sekar. This case of the appellants is strongly denied by the

respondents. The reading of the plaint averments shows that though it is

claimed that there was an oral partition between Vaithilingam Padayachi and

Sekar and in which the suit property was allotted to Sekar, there is no specific

mention about the date and year of oral partition.

8. The case of the respondents is that even before the alleged oral

partition, one Rajupillai filed a suit in O.S.No.269 of 1970 on the file of the

District Munsif Court, Thuraiyur and the suit was decreed in his favour. He

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

filed E.P.No.913 of 1970 for bringing the suit property for sale. In Court

auction sale, one Sultan Moiden purchased the suit property on 18.08.1971 and

the same was confirmed on 29.03.1972. It is also claimed that the auction

purchaser took possession of the suit property and was enjoying the suit

property. Subsequently, the respondents said to have purchased the suit

property from the son of Sultan Moiden, Anwar Basha. The respondents

produced Exhibit B1 to show the sale of suit property in Court auction sale and

its registration in Perambalur Sub-Registrar's Office. Patta in the name of

second defendant and Bashira bheevi, are produced as Exhibits B2 and B3.

Then, the sale deed executed by Anwar Basha in favour of defendants 2 and 3

is filed as Exhibit B3. Thus, it is clear that even before the execution of

settlement deed Exhibit A2 by Sekar in favour of the first plaintiff, the suit

property was sold in Court auction sale to Sultan Moiden. Neither Vaithilingam

Padayachi nor his son Sekar had taken any steps to set aside the sale.

Therefore, the sale of the suit property in E.P.No.913 of 1970 had become

final.

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

9. As already stated, there is no specific details given with regard to

the date of alleged oral partition between Vaithilingam Padayachi and his son

Sekar. It is found on evidence that the suit property was sold in Court auction

sale, even prior to execution of Exhibit A2 settlement deed. Therefore, first

plaintiff cannot acquire any right or title in the suit property. As regards the

alleged tenancy agreement between the plaintiffs, both the Courts have refused

to believe the evidence of PW2 with regard to the tenancy agreement between

him and the first plaintiff for the reason that he was not able to give convincing

evidence with regard to the tenancy agreement in his favour. Therefore, claim

of the plaintiffs that second plaintiff was enjoying the suit property as

cultivating tenant was rejected. Both the Courts below have concurrently found

that the first appellant/plaintiff has not proved valid title and legal possession

in respect of suit property and therefore dismissed the suit. This Court finds no

reason to interfere with the findings of the Courts below. There is no

substantial question(s) of law involved in this Second Appeal.

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

10. In view of this matter, the judgment and decree of the learned

Principal Sub Judge, Ariyalur in A.S.No.5 of 2019 confirming the judgment

and decree of the learned Additional District Munsif, Ariyalur, in O.S.No.256

of 2014 is confirmed. Accordingly, this Second Appeal is dismissed. No costs.

Consequently, connected miscellaneous petition stands closed.

23.11.2021

ep Index:Yes/No Internet:Yes/No Speaking Order: Yes/No

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

To The Section Officer, VR Section, High Court of Madras.

https://www.mhc.tn.gov.in/judis S.A.No.993 of 2021

G.CHANDRASEKHARAN.J,

ep

S.A.No.993 of 2021 and C.M.P.No.18591 of 2021

29.11.2021

https://www.mhc.tn.gov.in/judis