Madras High Court
Veerapathiran vs Parasuraman on 24 February, 2022
S.A.No.231 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.231 of 2012
Veerapathiran ... Appellant
Vs.
1. Parasuraman
2. Indirani
3. Gantha
4. Valli
5. Elumalai
6. Malar
7. Kumar ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
Judgment and Decree dated 22.08.2005 in A.S.No.60 of 2005 on the file
of the Principal Subordinate Court, Tiruvannamalai, confirming the
Judgment and Decree dated 27.04.2005 in O.S.No.1029 of 1196 on the
file of the Additional District Munsif Court, Chengam.
For Appellant : Mr.S.Elangovan
for M.S.Elangovan Law Associates
For Respondents : Mr.R.Rajarajan for R1, 3 to 7
R2 – Died
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JUDGMENT
The plaintiff is the appellant in the second appeal.
2. The case of the plaintiff is that the schedule mentioned property
was purchased by his father by virtue of a registered sale deed dated
12.12.1921 and he succeeded to his father after his demise as the sole
legal heir and he is in possession and enjoyment of the property. The
further case of the plaintiff is that his paternal grandfather Gundu
Gounder had five sons and he did not have any ancestral family property
and the suit property is the exclusive property of his father.
3. The grievance of the plaintiff is that the defendants, who had
no right or title in the suit property, attempted to trespass into the
property and inspite of resistance, a portion of the property marked as
G, B, D, J in the plaint rough plan was also encroached. Hence, the
plaintiff filed a suit seeking for declaration of title over the property, i.e.,
the property marked as F, G, B and I, J, D in the plaint rough plan and for
mandatory injunction to remove the construction put up in the
encroached portion marked as G, B, D, J and for permanent injunction
restraining the defendants from in any manner interfering with the suit
property.
4. The defendants filed a written statement and took the defence
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that the entire property was an ancestral property, which was in
possession and enjoyment of Gundu Gounder and his five sons. On the
demise of the said Gundu Gounder, his sons were in possession and
enjoyment of the property jointly. Their specific case is that there was an
oral partition among the sons of Gundu Gounder and each of them were
allotted their respective shares and had been enjoying the shares for more
than 40 years. That apart, certain portions of the property were also dealt
with by the grandson of Gundu Gounder namely Govindasamy Gounder
who sold his share of the property through a registered sale deed dated
19.11.1973 and in turn that property was sold in favour of the second
defendant through a registered sale deed dated 22.04.1994.
5. According to the defendants, each sharer / purchaser was in
possession and enjoyment of their respective properties and the plaintiff
is in possession and enjoyment of the property that was allotted in favour
of his father during the oral partition and there is no question of any
encroachment in the portion belonging to the plaintiff. The defendants,
therefore, sought for the dismissal of the suit.
6. The Trial Court, on considering the oral and documentary
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evidence, dismissed the suit by Judgment and Decree dated 27.04.2005.
Aggrieved by the same, the plaintiff filed an appeal in A.S.No.60 of 2005
before the Principal Sub Court, Tiruvannamalai. The learned Principal
Sub Judge, after analysing the oral and documentary evidence and after
considering the findings of the Trial Court, dismissed the appeal by
Judgment and Decree dated 22.08.2006 and thereby confirmed the
Judgment and Decree of the Trial Court. Aggrieved by the same, the
plaintiff has filed the present second appeal.
7. This Court framed the following substantial questions of law :-
a) Where the property in question stands in the
individual name of the plaintiff's father who had
entered into an agreement of sale with the
defendant, whether the Courts below were right
in construing the property to be a HUF property
only based on oral evidence contrary to the
terms of Ex.A1?
b) Whether the suit property can be construed to be
HUF property only based on the fact that patta
was given to the other properties which were
HUF properties and the suit property was
actually standing in the name of the individual?
c) Whether the findings of the Courts below can be
termed as perverse owing to improper
appreciation of oral and documentary evidence?
8. The learned counsel for the appellant submitted that both the
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Courts below failed to note the fact that Ex.A1 was a registered sale deed
that stood in the name of the father of the appellant and it was his
exclusive property. The learned counsel further submitted that it is the
defendants, who claimed that the property formed part of the joint family
property and hence the burden of proof is upon them to prove that the
property also forms part of the joint family property. The learned
counsel further submitted that the defendants failed to prove the so called
oral partition and the evidence that was considered by both the Courts
below was running contrary to the terms of the registered sale deed
marked as Ex.A1. Hence, the learned counsel sought for inference of the
findings of both the Courts below.
9. Per contra, the learned counsel for the respondents 1, 3 to 7
submitted that the appellant came to the Court with a false case. The
learned counsel submitted that the appellant projected a case, as if there
were no joint family properties and that the suit property was the
exclusive property of his father. Whereas, in the course of evidence, the
falsity of the case of the appellant got exposed and both the Courts below
categorically found that there were joint family properties through Gundu
Gounder and it was orally partitioned among his sons and they were in
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possession and enjoyment of their respective shares and even the revenue
records marked as Ex.B1 stood in the name of all the five sons of Gundu
Gounder, which also included the plaintiff's father's name. The learned
counsel submitted that both the Courts below have appreciated the
materials available on record and rendered the findings and therefore,
there is no scope for any interference in the present second appeal.
10. This Court carefully considered the submissions made on
either side and the materials available on record.
11. The thrust of the contention of the learned counsel for the
appellant is that the property was purchased by the father of the appellant
through Ex.A1 in his name and after his demise, the appellant as his son
is the exclusive owner of the property. Whereas, the case of the
defendants is that the suit property originally was part of the larger extent
of the joint family properties and there was an oral partition whereby the
sons of Gundu Gounder divided the properties among themselves and
they are in possession and enjoyment of their respective shares.
Therefore, the defendants are categorically denying the very claim made
by the plaintiff is if the suit property is the exclusive property of the
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father of the plaintiff.
12. The specific stand in the plaint by the appellant is that there
were no ancestral Joint Hindu Family property through his paternal
grandfather Gundu Gounder. This stand taken by the plaintiff was
completely exposed in the course of trial and the Courts below found that
Ex.B1, which was the Patta Pass Book, was issued in the name of all the
sons of Gundu Gounder for the total property measuring 5.35 acres. In
the said Patta Pass Book, the name of the father of the plaintiff was also
mentioned. This document by itself shows that the specific stand taken
by the plaintiff in the pleadings is false.
13. The Courts below also took into consideration, Ex.B8
wherein the property, which originally fell in the share of one Muniya
Gounder, was dealt with by one of his son Govinda Gounder, who had
alienated his half share in the property in favour of one Govindasamy
Gounder. In turn, the said Govindasamy Gounder alienated the property
in favour of the second defendant by virtue of a registered sale deed
dated 22.04.1991, marked as Ex.B10. The Courts below took into
consideration the fact that Exs.B8 and Ex.B10, were much prior to the
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filing of the present suit.
14. Both the Courts below also took into consideration, the
entries that were made in the revenue records. The patta that was
marked as Ex.B2 stood in the name of Govindasamy. That apart, the
patta marked as Ex.B9 stood in the name of the first defendant. When
all these pattas were issued, the plaintiff never raised any objections, if
really the plaintiff was aggrieved by the same. During the course of
evidence, the plaintiff himself comes up with a categorical statement that
there were properties in and around the property in possession and
enjoyment of the parties and he admitted the respective shares that were
enjoyed by other sharers. Both the Courts below on appreciating the
evidence of the plaintiff came to a categorical conclusion that the
plaintiff intentionally was trying to conceal the possession of the second
defendant of the property that was sold in his favour.
15. The over all findings of both the Courts below clearly
substantiate the case of the defendants and the plaintiff got exposed
during the course of evidence when the nature of the property got
revealed and when the plaintiff himself admitted the availability of the
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joint family properties. The Courts below also took into consideration
the discrepancy in the survey number. The survey number that was
found in Ex.A1 was the old survey number and this was shown as the
survey number in the plaint. Whereas, the plaintiff had marked Exs. A6
& A7, which is the patta that was issued in favour of the plaintiff and it
showed survey Nos.223/6 & 223/7. This was in variance with the survey
number shown in the suit, which is survey No.162/1. This was probably
done by the plaintiff only to conceal the subsequent partition among the
parties and the division of shares and the sub-division of the survey
numbers.
16. In view of the above, even though Ex.A1 stood in the name of
the father of the plaintiff, it was sufficiently proved before the Courts
below that it formed part of the joint family property and the properties
were orally partitioned among the sons of Gundu Gounder and each one
was enjoying their respective share that was allotted. Hence, there is no
perversity in the findings of both the Courts below that the property was
part of the HUF property. The substantial questions of law framed by
this Court are answered against the appellant. This Court does not find
any ground to interfere with the judgments of both the Courts below.
17. In the result, the Second Appeal is dismissed. Considering
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the facts and circumstances of the case, the parties shall bear their own
costs.
24.02.2022
Index :Yes/No
Internet :Yes/No
Lpp
To
1.The Principal Subordinate Court, Tiruvannamalai
2.The Additional District Munsif Court, Chengam.
N. ANAND VENKATESH, J.
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Lpp
S.A.No.231 of 2012
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