Madras High Court
K.Thiruselvam vs N.Pushpamala on 28 March, 2022
S.A(MD).No.795 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.03.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
S.A(MD).No.795 of 2021
C.M.P(MD).No.10955 of 2021
K.Thiruselvam ... Petitioner
Vs.
1.N.Pushpamala
2.V.Megala
3.M.Jayalakshmi ... Respondents
Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the judgment and decree passed in A.S.No.7 of 2018 dated
30.08.2019 on the file of the Sub-Judge, Pattukottai, by confirming the
judgment and decree passed in O.S.No.103 of 2014 dated 21.12.2017 on the
file of the Principal District Munsif Court, Pattukottai.
For Petitioner : Mr.M.Suresh
for Mr.J.Jeyakumaran
For Respondents : Mr.D.R.Murugesan
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S.A(MD).No.795 of 2021
******
ORDER
This Second Appeal has been instituted under Section 100 of
C.P.C, questioning the concurrent judgment and decree passed by the trial
Court and the First Appellate Court.
2. The plaintiff is the appellant in the second appeal. The suit was
instituted for permanent injunction.
3. The case of the plaintiff is that the suit property is situated at
Thamarankottai North, Sengapaduthankadu Village in Survey No.455/3C2
measuring to an extent of 41 ½ cents, out of total extent of 0.30.0 Ares. In
an oral partition occurred between the plaintiff's father namely Kumarasamy
and his brother namely Mani, the suit property and an extent of 0.17.5 ares
in Survey No.455/3C1 were allotted as share to the plaintiff's father as
manicut lands. After the said oral partition, the plaintiff's father, during his
life time, constructed a tiled house in one portion and a thatched house in
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S.A(MD).No.795 of 2021
another portion and enjoyed the same without any disturbance from
anybody. However, he died intestate on 27.10.2006. After the demise of the
plaintiff's father, the suit property was jointly enjoyed by the plaintiff with
his brothers and sister along with his mother. The plaintiff, his brothers,
sister and mother had partitioned the property left by the deceased
Kumarasamy. Each sharer was allotted with 56 Kuzhi and they started
enjoying their respective property by constructing house in their share.
There is a borewell in the property allotted to the share of the plaintiff. The
property allotted to the share of the plaintiff's mother was enjoyed by her
and the same was given to the plaintiff by way of Inam Settlement Deed
dated 13.12.2013. The plaintiff is enjoying his share, the share settled by his
mother and 12 kuzhi of land given by his sister as total 124 kuzhi of land.
The property enjoyed by the plaintiff is sub-divided as survey No.
455/3C/2B and a patta has been issued to the plaintiff. The defendants have
no right over the suit property. The suit property is in the lawful possession
of the plaintiff. The defendants 1 and 2 are the wife of his brothers. The
third defendant is the plaintiff's step mother. The first defendant's husband
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S.A(MD).No.795 of 2021
was allotted share on the southern side of the suit property and the second
defendant's husband was allotted share on the northern side of the suit
property. The property found on the western side of the suit property
belongs to the third defendant. The defendants, without having any right
over the suit property, is trying to disturb the peaceful possession and
enjoyment of the plaintiff on 29.03.2014.
4. The brief facts of the written statement filed by the defendant is
that the plaintiff's father died on 27.10.2006. After two years from the date
of death, the plaintiff and his brothers partitioned the properties orally. In
the said partition, no share was allotted to the plaintiff's mother and his
sister namely Akilandeswari. The plaintiff's mother is living with his
daughter Akilandeswari and not with the plaintiff as alleged by him. During
the partition happened between the said Kumarasamy and his brother Mani,
in Survey No.455/3C2, land measuring 14 Kuzhi was allotted for pathway
and the remaining extent was partitioned by the plaintiff and his three
brothers. The contention that the plaintiff's property has been sub-divided as
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S.A(MD).No.795 of 2021
survey No.455/3C/2B and separate patta has been given to the plaintiff is
not true. The sub-division did not bind the defendants. No property was
allotted to the second defendant's husband on the northern side of the
plaintiff's land. The property situated on the northern side of the plaintiff's
property was allotted to one Saminathan and he constructed a house in the
said property and now he is residing in the said house. On the eastern side to
S.No.455/3, there is a road running from South to North. After the demise of
Kumarasamy, his four sons partitioned the property orally by leaving
pathway. During partition, 81 kuzhi of land situated on the southern side of
the pathway was allotted to one Natarajan and 80 kuzhi of land situated on
the northern side of the pathway was allotted to the plaintiff. The next
northern portion of 80 kuzhi was allotted to Saminathan and the subsequent
northern portion of 82 Kuzhi was allotted to Viswanathan. All the sharers
are enjoying their portion of the land by constructing houses. The plaintiff is
having right only in 80 Kuzhi of land and he has no right over any excess
land other than 80 Kuzhi. In fact, the pathway available in land is necessary
for the sharers to reach their respective property and it is easement of
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S.A(MD).No.795 of 2021
necessity for Mani Pillai. In Survey No.455/3C, the plaintiff and his three
brothers got shares. Further, either the mother of the plaintiff or the sister of
the plaintiff was not allotted with any share in the above said property. So,
the mother of the plaintiff has no right to execute Inam Settlement Deed in
favour of the plaintiff and the said Inam Settlement Deed would not bind the
defendants. The said Inam Settlement Deed does not come into existence.
While the brothers and the husband of the defendant Nos.1 and 2 are alive,
without including them as party, the plaintiff has filed the suit by arraying
the defendants 1 and 2 as parties which is not at all maintainable. The
property to an extent of 42 ½ cents was not situated with separate
boundaries in Survey No.455/3C. The defendants filed a petition before the
Revenue Divisional Officer, Pattukottai for cancellation of sub-division as
455/3C/2B and the same is pending for enquiry. Thus, the plaintiff is not
entitled to get any relief as claimed by him in the plaint.
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S.A(MD).No.795 of 2021
5. The trial Court and the First Appellate Court considered the
documents elaborately and made a finding that in Survey No.455/3C, 0.17.5
ares are being house sites which were allotted to the plaintiff's father. In
similar way, in Survey No.455/3C2, 0.30.0 ares was allotted as share to the
plaintiff's father. There is no dispute about the family partition between the
said Kumarasamy and Mani. It is the specific case of the plaintiff that after
the demise of his father, all the legal heirs were given each 56 kuzhi of
manicut land and the sharers constructed house in their respective portions.
If that being so, having contrary to his own pleadings and the alleged oral
partition, the plaintiff got Inam Settlement Deed vide Ex.A1 from his
mother on 13.12.2013 to an extent of 124 ½ Kuzhi which is equal to 41 ½
cents out of 30 Ares.
6. In Ex.A1 Inam Settlement Deed, it has been mentioned that the
Executrix namely Valliyammai, who is the mother of the plaintiff, has
conveyed her share of 124.5 Kuzhi in S.No.455/3C2 in favour of the
plaintiff. The extent mentioned in Ex.A1 is not in consonance with the
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S.A(MD).No.795 of 2021
admitted case of the plaintiff about the oral partition. The Sub-ordinate
Courts below have considered the Ex.A1 elaborately. On perusal of the
averments made in the plaint and Ex.A1, it reveals that the Executrix of
Ex.A1 is not having any interest or title over the extent of land as mentioned
in the said Inam Settlement Deed. Thus, the Courts formed an opinion that
the said Vaillyammai had no right to convey the title to the plaintiff vide
Ex.A1. The plaintiff has failed to file any valid evidence with regard to the
alleged oral partition and the title of his mother over the suit property, prior
to 13.12.2013. Further, Ex.A1 does not confer any right or title on the
plaintiff in respect of the suit property and it appears as sham and nominal
deed.
7. The case of the plaintiff is that he is owning and enjoying 12
Kuzhi of land allotted to his sister namely Akilandeswari. The plaintiff
failed to produce any scrap of paper to substantiate the alienation by
Akilandeswari in favour of plaintiff. Thus, the pleading in respect of the
said alienation appears to be untenable and far from the truth. The entire
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S.A(MD).No.795 of 2021
case of the plaintiff is rest on Exs.A1 to A3. In Ex.A2, it is mentioned that
Patta was muted on the plaintiff's name based on the sale deed stands in his
name. The said findings of the Tahsildar appears to be mindless and liable to
be ignored. Thus, nothing referred in Exs.A2 and A3 would go to support
the case of the plaintiff, since the contents of both documents are erroneous.
Accordingly, those documents were dis-credited by the Sub-ordinate Courts.
The Courts have clearly made a finding that the plaintiff had not approached
the Court with clean hands as he has suppressed the material facts relating
to the vesting of the suit land on the sharers during oral partition. The
plaintiff failed to substantiate the golden principles of injunction i.e.,
existence of possession on the date of suit, balance of convenience and
irreparable loss and injury, in the absence of granting of relief.
8. Both the Courts have concurrently formed an opinion that the
plaintiff has not filed any document to establish his case and he has
approached the Court with unclean hands. Therefore, the concurrent
findings of the Sub-ordinate Courts with reference to the facts based on the
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S.A(MD).No.795 of 2021
documents cannot be interfered with by the High Court in the Second
Appeal. Coming to the first substantial question of law raised, this Court is
of the opinion that whether the Courts below is right in disbelieving the
EX.A1/Inam Settlement Deed is relatable to the facts and the Sub-ordinate
Courts have elaborately made a finding in respect of trustworthiness of the
documents marked in Ex.A1. Another question of law is relatable to
Ex.A2/Patta which was also considered by the Sub-ordinate Courts as the
Tahsildar has given the patta without proper verification and without notice
to the persons, who are connected with the property. Therefore, the patta
was dis-credited by the Sub-ordinate Courts. When the substantial questions
of law as raised in the second appeal are relatable to the facts which were
already adjudicated by the Subordinate Courts and the concurrent finding
was arrived that the appellant has not approached the Court with clean
hands and further, the documents filed are not trustworthiness, this Court is
of the considered opinion that there is no reason whatsoever to interfere
with the findings of the Sub-ordinate Courts.
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S.A(MD).No.795 of 2021
9. Accordingly, the judgment and decree passed by the learned
Sub-Judge, Pattukottai in A.S.No.7 of 2018 on 30.08.2019 confirming the
judgment and decree passed in O.S.No.103 of 2014 dated 21.12.2017 by the
Principal District Munsif Court, Pattukottai is confirmed and consequently,
the Second Appeal stands dismissed. No costs. Connected miscellaneous
petition is closed.
28.03.2022
ssb
Index:Yes
Internet:Yes
To
1. Sub-Judge, Pattukottai
2. Principal District Munsif Court, Pattukottai.
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S.A(MD).No.795 of 2021
S.M.SUBRAMANIAM, J.
ssb
S.A(MD).No.795 of 2021
28.03.2022
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