Madras High Court
Indirani vs Kaliya Moorthy @ Kaliyaperumal ... on 22 September, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 22.9.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.(MD) No.575 of 2021
Kunju Padayachi (died)
1. Indirani
2. Karpagam Appellants
vs.
Kaliya Moorthy @ Kaliyaperumal Padayatchi Respondent
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 30.9.2013 passed in A.S.No.8 of 2013 on
the file of the Additional Sub Judge, Kumbakonam, Thanjavur District
confirming the judgment and decree dated 14.9.2011 in O.S.No.140 of
2008 on the file of the Principal District, Kumbakonam.
For Appellant : Mr.G.Gomathi Sankar
JUDGMENT
Plaintiffs, who failed before both the courts below in their
attempt to get a decree for partition, have come up with the present
Second Appeal.
2. The case of the plaintiffs is as under:-
The suit property measuring 0.03.5 ares with a thatched shed in
S.F.No.196/6 Devanancheri Village, Kumbakonam Taluk had been in
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possession of the plaintiffs and the defendant. Originally, the suit
property belonged to the first plaintiff and the defendant and they had
been in joint possession of the same. The first plaintiff is the son
through the first wife of one late Maruthamuthu Padayatchi and the
defendant is the son through the second wife of the said
Maruthamuthu Padayatchi. The first plaintiff was residing 3 furlong
away from the suit property. The defendant is residing in the suit
property with the permission of the first plaintiff. After an inspection,
the Tahsildhar (Natham) Kumbakonam had issued a joint patta in
favour of the first plaintiff and the defendant. Pending the suit, the
first plaintiff died and plaintiffs 2 and 3 were impleaded as his legal
heirs. The plaintiffs have filed the present suit claiming their half share
in the suit property.
3. The defendant had filed written statement contending as
under:-
The suit property has not been in joint possession of the
plaintiffs and the defendant. On 12.1.1965, a registered partition
deed was executed between the first plaintiff and his father
Maruthamuthu Padayatchi wherein the property in 'A' schedule thereof
which is inclusive of the present suit schedule property was allotted to
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the said Maruthamuthu Padayatchi and his minor son through his
second wife and the property in 'B' schedule thereof was allotted to the
first plaintiff and the properties had been enjoyed by them accordingly.
Therefore, the plaintiffs have no right or share in the suit property and
it has been in exclusive possession and enjoyment of the defendant.
The mistaken entry of the first plaintiff's name in the revenue records
has been taken advantage by the plaintiffs. Therefore, the suit has to
be dismissed.
4. Before the Trial Court, the second plaintiff Indirani and one
Natarajan were examined as P.Ws.1 and 2 and six documents were
marked as Exs.A1 to A6. On the other side, the defendant examined
himself as DW1 and examined one Rajkumar as DW2 while marking
eight documents as Exs.B1 to B8.
5. The Trial Court framed the following issues:-
(i) Whether the plaintiffs are entitled to 1/2 share in the suit
property?
(ii) Whether the plaintiffs are entitled to permanent injunction as
sought for?
(iii) To what other relief, the plaintiffs are entitled?
6. On considering the oral and documentary evidence, the Trial
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Court dismissed the suit. The Appeal filed by the plaintiffs also was
dismissed by the first Appellate Court. Aggrieved against the same,
the present Second Appeal is filed by the plaintiffs.
7. Learned counsel appearing for the appellants would submit
that the courts below have failed to appreciate that Ex.A1, joint patta
standing in the name of the first plaintiff and the defendant proves
joint possession of them and the suit property being ancestral
property, the joint patta, Ex.A1 would prevail over the Partition Deed,
Ex.B1 executed between the first plaintiff and his father Maruthamuthu
Padayatchi as the defendant also does have any exclusive title over
the suit property.
8. To claim partition in the suit property, the plaintiff relies on
Ex.A1 joint patta and property tax receipts Exs.A2 to A6 whereas, the
defendant claims that the suit property was subjected to a partition as
evidenced by Ex.B1 dated 12.1.1965, Partition Deed entered between
Maruthamuthu Padayatchi and his son the first plaintiff whereby the
suit property was allotted to the father Marudhamuthu Padayatchi and
his minor son through his second wife viz., the defendant, while
another property under the said Partition Deed was allotted to the first
plaintiff and thereby the defendant claims exclusive title over the suit
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property. He also intends to rely on Exs.B2 to B6 property tax
receipts and Exs.B7 and B8, receipts for payment of electricity charges
and the EB card standing in his name.
9. So far as the supporting documents produced by the plaintiffs
viz., Exs.A2 to A6, property tax receipts are concerned, the courts
below, on scrutiny, found that they do not relate to the suit property
whereas, the documents filed by the defendant viz., Exs.B2 to B8,
property tax receipts, receipts for payment of electricity charges and
the Electricity Card relate to the suit property.
10. It also appears that PW1, during his cross examination, had
admitted that his house is near Manni River. An independent witness
viz. PW2 also admitted the above fact and further admitted about the
residence of the defendant in the suit property. He also admitted that
the first plaintiff has got ration card with the address near the Manni
river.
11. Having perused the above oral and documentary evidence,
the courts below have rejected the case of the plaintiffs that the suit
property is a joint family property and they are entitled to half share in
the same, but, it belongs exclusively to the defendant, as he had
traced his title by marking Ex.B1 and the other supporting documents
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like property tax receipts, receipts for payment of electricity charges
and EB card viz., Exs.B2 to B8.
12. It is a well settled law that patta itself cannot confer title
upon a party and it cannot prevail over the registered document of
title. A perusal of the pleadings and the evidence on the side of the
plaintiffs and that of the defendant would prove that they plaintiffs
have not at all denied the genuineness of the Partition Deed, Ex.B1
marked by the defendant whereas, the defendant had admitted the
joint patta originally granted, however, he fairly traces his title only
through the Ex.B1 partition deed executed between the father
Maruthmuthu Padayatchi and the first plaintiff. The first plaintiff being
a party to such a Partition Deed, plaintiffs 2 and 3 being his legal
heirs, are estopped to challenge the same after the death of
Maruthamuthu Padayatchi and they cannot still hang on the original
joint patta standing in the name of the parties and claim partition.
13. The courts below, after thoroughly appreciating the above
aspects, arrived at a finding that the plaintiffs are not entitled to
partition and permanent injunction, as claimed by the plaintiffs and
dismissed the suit. Therefore, this court does not find any error or
infirmity in the judgments rendered by the courts below. In the
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opinion of this court, the Appellant has not made any substantial
question of law to admit this Second Appeal.
14. The Hon'ble Apex Court in Kirpa Ram (D) Tr.Lrs. vs
Surender Deo Gaur (2020 Scc OnLine SC 935) has
categorically held as under:-
"23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High
Court if it is satisfied that the case involves a
substantial question of law. The substantial question
of law is required to be precisely stated in the
memorandum of appeal. If the High Court is
satisfied that such substantial question of law is
involved, it is required to formulate that question.
The appeal has to be heard on the question so
formulated. However, the Court has the power to
hear appeal on any other substantial question of law
on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the appellants
are found to be arising in the case, only then the
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High Court is required to formulate the same for
consideration. If no such question arises, it is not
necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or re- formulation of the
same in terms of the proviso arises only if there are
some questions of law and not in the absence of any
substantial question of law. The High Court is not
obliged to frame substantial question of law, in
case, it finds no error in the findings recorded by
the First Appellate Court."
15. In view of the above, the Second Appeal fails and is,
accordingly, dismissed without being admitted. No costs.
22.9.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
Advocate/litigant concerned.
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To
1. Additional Sub Judge,
Kumbakonam,
Thanjavur District.
2. Principal District,
Kumbakonam.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
S.A.(MD) No.575 of 2021
22.9.2021.
https://www.mhc.tn.gov.in/judis/
