M.Manikandan vs C.Kamatchi .. 1St
2022 Latest Caselaw 3954 Mad

                                                                              SA.No.154/2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 02.03.2022

                                                    CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                        SA.No.154/2022 & CMP.No.3107/2022

                                                 [Virtual Mode]

                    1.M.Manikandan
                    2.Sathya
                    3.Ramya
                    4.Madhammal                                             .. Appellants /
                                                                         Defendants 1 to 4

                                                       Vs.

                    1.C.Kamatchi                                        .. 1st Respondent /
                                                                              Plaintiff
                    2.Kandasamy
                    3.Munivel
                    4.Manickam
                    5.Ramachandran                                      .. Respondents /
                                                                           Defendants 5 to 8

                    Prayer:- Second Appeal preferred under 100 of CPC against the judgment
                    and decree made in AS.No.41/2016 dated 04.09.2021 by the learned
                    Additional Subordinate Judge, at Dharmapuri, reversing the judgment and
                    decree in OS.No.206/2012, dated 27.03.2015 by the learned District
                    Munsif, Dharmapuri.


https://www.mhc.tn.gov.in/judis                         1
                                                                                          SA.No.154/2022




                                         For Appellants             :   M/s.D.Ranjana


                                                          JUDGMENT

(1) This Second Appeal is preferred by the defendants in the suit in

OS.No.260/2012 as against the judgment and decree of the Lower

Appellate Court, namely, the learned Subordinate Judge,

Dharmapuri, in AS.No.41/2016, dated 04.09.2021, reversing the

judgment and decree of the Trial Court, namely, the learned

District Munsif, Dharmapuri, dated 27.03.2015, dismissing the suit

in OS.No.260/2012.

(2) The 1st respondent in this Second Appeal, as plaintiff, filed the suit

in OS.No.260/2012 for declaration of her title and for

consequential injunction in respect of the suit properties which

were described by two items. The 1st item is an extent of 0.07.5

Hectares in S.No.243/4 in Tokkupothanahalli Village, Dharmapuri

Taluk and the 2nd item is an extent of 0.37.0 Hectares in

S.No.245/B2A in the same village.

SA.No.154/2022

(3) The case of the plaintiff in the plaint are as follows: The suit

properties originally belonged to one Shanthamani Ammal, who is

the grandmother of plaintiff. Defendants 1 to 3 are the daughters

of one Madhaiyan who is the son of one Krishnan and

Shanthamani Ammal. The 4th defendant is the wife of the said

Madhaiyan. Plaintiff's mother, Tmt.Dhanalakshmi is the daughter

of Krishnan and sister of Madhaiyan. since Dhanalakshmi, the

mother of plaintiff died when she was four months old, the plaintiff

was brought up by her grandmother Shanthamani Ammal. The said

Shanthamani Ammal purchased the properties by a document dated

21.07.1977 and obtained patta for the suit properties and they are

the self acquired properties of the said Shanthamani Ammal. Since

the plaintiff was her granddaughter, the said Shanthamani Ammal

executed a Settlement Deed in favour of plaintiff in respect of the

suit properties on 25.05.2005. In view of the settlement in favour

of plaintiff, the defendants have no right over the suit properties.

Defendants 1 to 4 had earlier filed a suit in OS.No.107/2008

claiming partition in respect of several properties including the suit

SA.No.154/2022

properties in the present suit in OS.No.260/2012. The said suit was

dismissed by the Trial Court in respect of suit properties and

thereafter, no further appeal was preferred as against the judgment

and decree dated 21.01.2012. A specific finding was given by the

Court in the previous suit that the suit properties belonged to

Shanthamani Ammal and she had already executed a Settlement

Deed in favour of the plaintiff herein. Since the title had already

been decided in the previous suit in OS.No.107/2008 in favour of

the plaintiff herein, the plaintiff's title cannot be disputed by the

defendants. However, the defendants tried to interfere with the

plaintiff's possession and enjoyment which was sorted out by the

plaintiff with the help of villagers. Stating that the defendants may

interfere with her possession and enjoyment in future, the plaintiff

came forward with the suit in OS.No.260/2012 for declaration of

her title and consequential injunction.

(4) The suit was contested by the defendants denying the averments

made in the plaint. However, the relationship between the parties

are admitted.

SA.No.154/2022

(5) It is the case of the defendants that the suit properties did not

belong to the said Shanthamani Ammal and the Sale Deed

executed by her in favour of plaintiff is fraudulent. The defendants

also disputed the Settlement Deed executed by Shanthamani

Ammal on 25.05.2005 in favour of the plaintiff. It is stated that the

suit properties are ancestral properties of Krishnan and the

document of Settlement Deed had been created by Krishnan and

Shanthamani Ammal without exclusive title.

(6) The Trial Court, after framing necessary issues, decreed the suit in

respect of the suit 1st item, but dismissed the suit in respect of the

suit 2nd item on the ground that Shanthamani Ammal was not the

owner of the suit 2nd item. Referring to the Sale Deed and the

Settlement Deed under Ex.A1 dated 25.05.2005, the Trial Court

held that the said Shanthamani Ammal had not purchased the suit

2nd item under the Sale Deed dated 21.07.1977. The Trial Court

further held that the said Shanthamani Ammal cannot execute a

Settlement Deed in respect of suit 2nd item. With regard to the

SA.No.154/2022

judgment and decree made in OS.No.107/2008, the Trial Court

gave a peculiar reason that the judgment in the previous suit was

on the basis that defendants 1 to 4 are not in possession of the

properties and that there is no finding in the previous suit regarding

the title of the plaintiff. Unfortunately, the Trial Court did not even

consider the issues decided, but observed that the Court did not

discuss elaborately how the plaintiff is entitled to the suit property

in the previous suit. Holding that the plaintiff had failed to prove

how the suit 2nd item belonged to the plaintiff's grandmother Tmt.

Shanthamani Ammal , the suit was dismissed by the Trial Court in

respect of the suit 2nd item only. Aggrieved by the judgment and

decree of the Trial Court in respect of suit 2nd item, the

plaintiff/appellant preferred an appeal in As.No.41/2016 before the

learned Additional Subordinate Judge, Dharmapuri.

(7) The Lower Appellate Court elaborately discussed the issues and

found that Shanthamani Ammal is the exclusive owner of the suit

2nd item based on the judgment of the previous suit in

OS.No.107/2008. The Lower Appellate Court found that the

SA.No.154/2022

defendants have not produced even a scrap of paper to show that

the suit 2nd item of properties is ancestral in chareacter and that the

same was in joint possession and enjoyment of the plaintiff and

defendants 1 to 4. While considering the judgment in the suit in

OS.No.107/2008, it was found that the appellants/defendants have

filed the said suit for partition against Krishnan, Shanthamani

Ammal and the plaintiff/1st respondent herein who was then a

minor. It is not in dispute that the suit properties in the present suit

are also the subject matter of the suit in OS.No.107/2008. The suit

for partition filed by the appellants was dismissed specifically

holding that the suit properties, particularly the properties which

are covered under the Settlement Deed are the exclusive properties

of Shanthamani Ammal. Though it is admitted that the

Shanthamani Ammal purchased only the suit 1st item, the suit 2nd

item was also held to be the property of Shanthamani Ammal as the

revenue records and documents proved her exclusive title and

possession. Since the suit for partition filed by the appellants was

dismissed by recording the finding that the suit 2nd item is the

SA.No.154/2022

exclusive property of Shanthamani Ammal and the said

Shanthamani Ammal had settled the suit properties in favour of her

granddaughter namely 1st respondent herein, the Lower Appellate

Court held that the issue regarding title had already been decided in

the previous suit in OS.No.107/2008. It was found in the previous

suit that patta stands in the name of Shanthamani Ammal and she

had every right to execute a Settlement Deed in favour of the

plaintiff. Applying the principle of res judicata, the Lower

Appellate Court has concluded that the plaintiff had established her

right, title and interest in respect of both the suit items and that the

judgment of the Trial Court without properly considering the issues

and the decision in the previous suit in OS.No.107/2008 is not

sustainable.

(8) It is to be noted that in the Settlement Deed under Ex.A1 certainly

establishes the title and possession of the plaintiff over the suit

properties. The judgment in the previous suit also would show that

the plaintiff's title and enjoyment under the Settlement Deed had

been accepted. Therefore, the appellants are estopped from

SA.No.154/2022

contending once again in the present suit disputing title and

enjoyment of the suit property by the plaintiff. Challenging the

well considered judgment of the Lower Appellate Court, the above

Second Appeal has been preferred by defendants 1 to 4.

(9) In the Memorandum of Grounds of Appeal, the appellants have

raised the following substantial questions of law:-

1) Whether the Lower Appellate Court is correct in finding that when the Settlement Deed is created for the property belong to the Santhamani, it should be enquired about the mother document of the Schedule Property SF.No.245/B2A?

2) Whether the Lower Appellate Court is correct in reversing the decree of the Trial Court when the title of the Settlement Deed enquired about the absolute owner of the item 2 of the Schedule property SF.No.245/B2A is not proved which is a primary requirement for grant of decree to declare a absolute owner?

SA.No.154/2022

3) Whether the Lower Appellate Court has committed an error on verifying the item 2 of the suit property SF.No.245/B2A was belong to Kondi @ Perumal Gounder only. The Perumal Gounder was not executed any Sale Deed to Santhamani. Kandhan alone executed a Sale Deed to Santhamani on 21.07.1977 document No.646/1977 for the item 1 of the Suit property SF.No.243/4?

4) Whether the Lower Appellate Court has committed an error in casting the burden on the defendant to prove that the suit property was not belong to the executor of Settlement Deed late Mrs.Santhamani?

5) Whether the Lower Appellate Court has committed any error in granting a decree of absolute ownership without rendering a clear cut finding as to whether the defendant claims that the title as well as possession is with them?

SA.No.154/2022

(10) Except referring to the fact that the previous Sale Deed was not in

respect of the suit 2nd item, no other valid ground is raised by the

appellants in the whole Memorandum of Grounds.

(11) As seen from the records, Shanthamani Ammal has purchased the

suit 1st item with a larger extent under the Sale Deed dated

21.07.1977. In the Settlement Deed, it is seen that Shanthamani

Ammal described the properties as self acquired and in possession

and enjoyment by getting patta. She claimed title de hors the Sale

Deed based on revenue records in her name including patta.

(12) When the issue was specifically considered in the previous suit

filed by the appellants and a decision was rendered in favour of the

plaintiff/1st respondent herein, upholding the title of Shanthamani

in respect of both items, the judgment of the Lower Appellate

Court is perfectly in order. By applying the principle of res

judicata, the Lower Appellate Court, decreed, the suit in toto.

Though there is a reference to the judgment in OS.No.107/2008 in

the Memorandum of Grounds of Appeal, it is to be noted that the

appellants have pleaded that they are illiterate persons and

SA.No.154/2022

therefore, failed to file an appeal as against the judgment and

decree in the previous suit. It is further stated that the present suit

which is purely on the basis of the Settlement Deed executed by

Shanthamani, the Court can consider the issue independently as the

issue in the earlier suit is not relevant. This submission is

unsustainable having regard to the settled principles of law. The

previous suit in OS.No.107/2008 is the suit filed by the appellants

for partition. Their claim that the property belonged to the joint

family was specifically rejected holding that the said Shanthamani

Ammal is the absolute owner of both the items of suit properties.

When the finding has become final, this Court is unable to consider

the arguments of the learned counsel for the appellants.

(13) None of the substantial questions of law raised by the appellants

have merits in view of the factual findings of the Lower Appellate

Court which is supported by material documents and admission

during the course of proceedings.

(14) This Court, therefore, finds no merit in this Second Appeal.

(15) In find, the Second Appeal is dismissed with cost confirming the

SA.No.154/2022

judgment and decree dated 04.09.2021 made in AS.No.41/2016 by

the learned Additional Subordinate Judge, at Dharmapuri, in

reversing the judgment and decree dated 27.03.2015 made in

OS.No.206/2012, by the learned District Munsif, Dharmapuri.

Consequently, connected miscellaneous petition is closed.

02.03.2022 AP Internet : Yes

To

1.The Additional Subordinate Judge Dharmapuri.

2.The District Munsif, Dharmapuri.

3.The Section Officer VR Section, High Court Chennai.

SA.No.154/2022

S.S.SUNDAR, J.,

AP

SA.No.154/2022

02.03.2022

https://www.mhc.tn.gov.in/judis 14