Madras High Court
Ponnusamy Karayalar (Died) vs Thangaraj Pandian on 27 January, 2022
S.A(MD)No.466 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.466 of 2021
Ponnusamy Karayalar (died) ... Appellant in A.S/Plaintiff in O.S
1.Saraswathi
2.Diraviam
3.Muthuselvi
4.Ariharasuthan .. Appellants/Lrs of the deceased
sole appellant in A.S & O.S
Vs.
Thangaraj Pandian ... Respondent/Respondent/Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 13.03.2020 passed
in A.S.No.1 of 2015, on the file of the Additional Sub-Court, Tenkasi,
confirming the judgment and decree, dated 07.11.2014 passed in
O.S.No.18 of 2011, on the file of the Additional District Munsif Court,
Tenkasi.
For Appellants : Mr.F.X.Eugene
1/16
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S.A(MD)No.466 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.18 of
2011, by the Additional District Munsif Court, Tenkasi and in A.S.No.1
of 2015, by the Additional Sub-Court, Tenkasi, are being challenged in
the present Second Appeal.
2. Originally, one Ponnusamy Karayalar, as plaintiff, has instituted
a suit in O.S.No.18 of 2011, on the file of the trial Court for for the
relief of declaration and permanent injunction, wherein, the present
respondent has been shown as defendant.
3. Since the plaintiff died, the appellants 1 to 4 herein, who are
the legal representatives of the deceased plaintiff, have filed the
present Second Appeal.
4. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
5. The case of the plaintiff is that the suit schedule property and
various other properties belonged to the plaintiff's father one Muthaiya
Karayalar, who has purchased the same by way of two registered sale
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deeds, dated 20.03.1964 and 03.03.1966 and he was in possession
and enjoyment of the same and the plaintiff's father was issued with a
patta in Patta No.463. The plaintiff purchased the property from his
father Muthaiya Karayalar for a valid consideration by a registered sale
deed, dated 16.08.2010 and he is in possession and enjoyment of the
same as a owner. The defendant, his men and agents have no right
over the suit property. Since the valuation of the property was
increased, the defendant, in order to grab the suit property from the
plaintiff, had started claiming right over the property from the year
2011. Since the defendant has tried to disturb the peaceful possession
and enjoyment of the suit property of the plaintiff, he has filed the suit
for the above stated relief.
6. The defendant filed a written statement denying all the
averments made in the plaint and submitted that though it is stated in
the plaint that the suit schedule property was purchased on
20.03.1964 and 03.03.1966 through the income earned by the
plaintiff's father and the sale deed was in the name of the plaintiff's
father, the suit schedule property was in possession and enjoyment of
Muthaiya Kariyalar and his sons Vellaichamy, Ponnusamy, Petchimuthu
Karaiyalar and Murugan as a joint family property. As per the family
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S.A(MD)No.466 of 2021
arrangement made between the parties, the lands comprised in 3rd
Ward, Old Door No.40, New Door No.41 in Kurichanpatti Village
measuring to an extent of 36 cents was allotted to one Pechimuthu
Karayalar, son of Muthiah Karayalar. On coming to know that the said
Pechimuthu Karayalar decided to sell the above said property, the
defendant had approached the said Pechimuthu Karayalar and he also
agreed to sell the same for a sum of Rs.35,000/-. On 16.04.2003, the
defendant paid a sum of Rs.30,000/- as advance for the said sale and
they have also entered into a registered sale agreement on
16.04.2003. After receiving the balance amount of Rs.5,000/- of sale
consideration, the said Pechimuthu Karayalar did not come forward to
execute the sale deed, as per the agreement. Hence, the defendant
filed a suit against the said Pechimuthu Karayalar in O.S.No.430 of
2009 and on 05.01.2007, the suit was decreed in favour of the
defendant. The defendant filed an Execution Petition in E.P.No.127 of
2007 and on 24.03.2009, the Executing Court itself has executed a
sale deed in favour of the defendant. After the said sale deed executed
by the Court, the defendant has taken possession of 36 cents
comprised in Survey No.23/7, Kurichanpatti Village on 17.11.2009,
which has been sold in favour of the defendant as per the agreement,
dated 16.04.2003 and from that day onwards, possession was handed
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S.A(MD)No.466 of 2021
over to him by the Court proceedings and he was in possession and
enjoyment of the same and he has also mutated the records and also
paid kists for the said land. With regard to the execution petition filed
by the defendant, by way of an objection, Pechimuthu Karaiyalar's
minor son Thiraviyam, represented by his mother Kaniammal, as
guardian, has filed E.A.No.309 of 2009 and the said application was
also dismissed by the Executing Court. After the proceedings ended in
favour of the defendant, either the Muthaih Karayalar nor the
Petchimuthu Karayalar has not raised any objection and not filed any
appeal as against the said Judgment. Hence, the defendant has
become the absolute owner of the suit property. On 16.08.2010, the
plaintiff had colluded with his father Muthaih Karayalar had executed a
sale deed, as if the said Muthaih Karayalar has sold the property to the
plaintiff and the said document is not a valid one, as 36 cents of land
which has been allotted to the other son was purchased by him and the
same would show that he is in possession and enjoyment of the suit
property and prayed for dismissal of the same.
7. A reply statement was filed by the plaintiff stating that all the
averments stated by the defendant are false and his father Muthaiah
Karayalar has purchased the property as a self-acquired property and
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S.A(MD)No.466 of 2021
these properties are not joint family properties and all the proceedings
pending between the defendant and Petchimuthu Karayalar are not
known to the plaintiff and only after the defendant filed a written
statement, it came to the knowledge of the plaintiff and when the
property has not been legally allotted to Petchimuthu Karayalar, he
cannot claim the same and the same will not bind on either the plaintiff
nor his father Muthaiah Karayalar. Patta No.463 stands in the name of
the plaintiff's father and the defendant's name was never found in the
said patta which would show that the defendant's claim is false and
prayed for allowing the suit.
8. Before the trial Court, on the side of the plaintiff, the plaintiff
was examined himself as P.W.1 and Exs.A1 to A6 were marked. On the
side of the defendant, D.W.1 was examined and Exs.B.1 to B.9 were
marked and Ex.C.1 to Ex.C.3 were also marked.
9. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has dismissed the suit.
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S.A(MD)No.466 of 2021
10. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in
A.S.No.1 of 2015. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
11. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the plaintiff, as appellant.
12. The learned counsel appearing for the appellants would
submit that both the Courts below have failed to appreciate the facts
and legal points and omitted to appreciate the documents, marked as
evidence on both sides and hence, the trial Court ought to have
dismissed the suit and the first Appellate Court ought to have allowed
the first appeal. The Courts below have omitted to note that the
defendant has not proved the oral partitions pleaded by him, as the
burden of proof is on the defendant under Sections 103 and 104 of the
Evidence Act. Both the Courts below have wrongly believed that the
suit in O.S.No.430 of 2006 would bind on the plaintiff Ponnusamy
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S.A(MD)No.466 of 2021
Karayalar and his father Muthusamy Karayalar. Both the Courts below
have failed to note that the order in E.P.No.127 of 2007 would bind on
the father Muthusamy Karayalar and the plaintiff Ponnusamy Karayalar,
as if E.A.No.309 of 2009 in E.P.No.127 of 2009 is dismissed. Both the
Courts below failed to appreciate the documents produced on the side
of the plaintiff and Ex.A6 is a motivated one and created for the
purpose of grabbing the scheduled property. The first Appellate Court
had failed to appreciate the documents viz., Ex.A.7 to Ex.A.9 and
produced by P.W.1 in the first Appeal and prayed for allowing the
Second Appeal.
13. Heard the learned counsel for the appellants and also
perused the records carefully.
14. It is the case of the plaintiff that the suit schedule property
and various other properties belonged to the plaintiff's father one
Muthaiya Karayalar, who has purchased the same by way of two
registered sale deeds, dated 20.03.1964 and 03.03.1966 and he was
in possession and enjoyment of the same and the plaintiff's father was
issued with a patta in Patta No.463. The plaintiff purchased the
property from his father Muthaiya Karayalar for a valid consideration by
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a registered sale deed, on 16.08.2010 and he is in possession and
enjoyment of the same as a owner.
15. It is the case of the defendant that as per the family
arrangement made between the parties, the lands comprised in 3rd
Ward, Old Door No.40, New Door No.41 in Kurichanpatti Village
measuring an extent of 36 cents was allotted to one Pechimuthu
Karayalar, son of Muthiah Karayalar. On coming to know that the said
Pechimuthu Karayalar decided to sell the above said property, the
defendant had approached the said Pechimuthu Karayalar and he also
agreed to sell the same for a sum of Rs.35,000/-. On 16.04.2003, the
defendant had paid a sum of Rs.30,000/- as advance for the said sale
and they have also entered into a registered sale agreement on
16.04.2003. After receiving the balance amount of Rs.5,000/- of sale
consideration, the said Pechimuthu Karayalar did not come forward to
execute the sale deed, as per the agreement. Hence, the defendant
filed a suit against the said Pechimuthu Karayalar in O.S.No.430 of
2009 and on 05.01.2007, the suit was decreed in favour of the
defendant. The defendant filed an Execution Petition in E.P.No.127 of
2007 and on 24.03.2009 and the Executing Court itself has executed a
sale deed in favour of the defendant. After the said sale deed executed
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by the Court, the defendant has taken possession of 36 cents
comprised in Survey No.23/7, Kurichanpatti Village on 17.11.2009,
which has been sold in favour of the defendant as per the agreement
dated 16.04.2003 and from that day onwards, possession was handed
over to him by the Court proceedings and he was in possession and
enjoyment of the same and he has also mutated the records and also
paid kists for the said land. With regard to the execution petition filed
by the defendant, by way of an objection, Pechimuthu Karaiyalar's
minor son Thiraviyam, represented by his mother Kaniammal as
guardian, has filed E.A.No.309 of 2009 and the said application was
also dismissed by the Executing Court. After the proceedings ended in
favour of the defendant, either the Muthaih Karayalar or the
Petchimuthu Karayalar has raised any objection and not filed any
appeal against the said Judgment. Hence, the defendant has become
the absolute owner of the suit property.
16. From the materials available on record, it is seen that even
though the property has been purchased by the plaintiff's father viz.,
Muthaiya Karayalar by way of two registered sale deeds, dated
20.03.1964 and 03.03.1966, one of the son of Muthaiya Karayalar viz.,
Petchimuthur Karayalar has entered into a sale agreement with the
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S.A(MD)No.466 of 2021
defendant and the defendant has also filed a suit in O.S.No.430 of
2006 for the relief of specific performance before the competent Court
and only after the suit was decreed, the said sale deed was executed in
favour of the defendant by the Court and the Execution Proceedings
was also filed for taking possession in E.P.No.124 of 2007 and on
17.03.2009 there was an order issued and as per the order, on
24.03.2009, the sale deed was executed and on 17.11.2009 through
the Court proceedings, delivery was taken by the defendant, has been
proved by valid document. Regarding the payment of kist and other
revenue relief have been paid by the defendant was also proved by
producing and marking appropriate documents by the defendant. The
defendant has proceeded only as per the law by procedures established
under law and only through Execution Proceedings, he has taken
possession of the property. At that point of time, E.A.No.309 of 2009
was filed by minor son Thiraviyam, represented by his mother and the
said application was also dismissed by the Court. Further, all these
proceedings are known to both the parties and there was no document
produced by the plaintiff to prove that he was in possession and
enjoyment of the same and has mutated the documents.
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17. When the plaintiff alleged to have purchased the property in
the year 2010 and he has filed the suit in the year 2011, no steps have
been taken or no document has been produced to show as to whether
he has taken steps to mutate the revenue records. Regarding the claim
of declaration, he should prove his legal right as a owner and also for
claiming permanent injunction, he should prove his possession of the
property. Other than the document executed by his father viz., sale
deed, dated 16.08.2010, no other document has been filed by the
plaintiff. The defendant has stated that as per the family arrangement,
the property was allotted in favour of Petchimuthu Karayalar, who had
entered into a sale agreement, but had failed to execute a sale deed
and the specific performance suit was filed, then only in Execution
Proceedings sale deed was executed by the Court. In the sale
agreement viz., Ex.A.6, it has been found that the property was
devolved on him only ancestrally and he is in possession and
enjoyment of the same. He never stated anything about the property
that the same belonged to his father. Further, there was no mention
about the family arrangement also in the said sale agreement.
18. When the plaintiff's case is that he is in possession and
enjoyment of the suit schedule property, no document has been
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produced by the plaintiff with regard to the same, but the defendant
has produced a document and on perusal of Ex.B.9, it is seen that on
07.11.2009, the Court had directed the Ameen to take possession of
the suit property and for taking possession, the matter was listed on
20.11.2009. On 20.11.2009, the first schedule of property alone could
not be taken possession, as lock has to be break open. With regard to
the second schedule immovable property, possession was handed over
was recorded. Further, it is seen that on 26.11.2011, delivery of the
immovable property of the first schedule property was delivered on
25.11.2010, has been recorded and hence the delivery of the first
schedule property and the second schedule property has been proved.
Further, with regard to the first schedule property, Police intervention
was sought and V.A.O's help was sought for and only on 26.11.2011,
possession and delivery was taken place and it would prove that on
17.11.2009, possession of the second schedule property was handed
over to the defendant. The plaintiff was not in a position to prove his
case by producing any other document.
19. Further, the patta has also been issued in favour of the
defendant for Survey No.23/7 measuring to an extent of 0.59.00
hectare in Patta No.1415 and kist receipts also have been produced. As
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S.A(MD)No.466 of 2021
the possession has been proved by the defendant, the plaintiff cannot
claim for permanent injunction. If there is any other proof to show that
there was no such family arrangement, the plaintiff ought to have let in
appropriate evidence to prove the same. Even in his cross-
examination, he submitted that his father and his brothers are having
cordial relationship between themselves and they are residing in next,
next streets in the Village and when they are in cordial relationship, the
averments made by the plaintiff that he was not aware of the legal
proceedings initiated and Judgment rendered was not known to him
was also not acceptable by this Court. Further, the payment of amount
for a valid consideration to his father for a sum of Rs.85,000/- was paid
to him was also not proved appropriately, as there was contradictory
evidence let in by the plaintiff. As the document has been executed
after the sale deed executed by the Court on 24.03.2009, this sale
deed, dated 16.08.2010, is later to the said execution. Further, it is
also seen that in the year 2009, E.A.No.309 of 2009 was also filed by
way of objection petition, which was also dismissed which would prove
that the plaintiff and his family members in order to defeat the claim
by the defendant, had executed the sham and nominal document. As
the possession and enjoyment of the defendant has been proved by
the defendant without any ambiguity, this Court is of the view that the
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S.A(MD)No.466 of 2021
findings of the trial Court as well as the first Appellate Court, wherein,
it has been admitted by the plaintiff and could not prove his case, the
same has to be confirmed. The plaintiff has also not let in any evidence
through his father to prove that there was no family arrangement and
as such, the Second Appeal is liable to be dismissed.
20. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellants to interfere with the well considered judgments and decrees
rendered by the Courts below and accordingly, the Second Appeal fails
and the same stands dismissed. No costs.
27.01.2022
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized 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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S.A(MD)No.466 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Additional Sub-Court,
Tenkasi.
2.The Additional District Munsif Court,
Tenkasi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.466 of 2021
27.01.2022
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