Madras High Court
Mekkiyan vs Sadavel on 10 October, 2022
S.A.No.578 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.10.2022
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
S.A.No.578 of 2017
Mekkiyan .. Appellant
-Vs.-
1.Sadavel
2.Mookan
3.Deivasigami .. Respondents
PRAYER: This Second Appeal is filed under Section 100 of C.P.C.,
against the Judgment and Decree passed by the Sub-Ordinate Judge (FTC-
3), Kallakurichi in A.S.No.20 of 2008 dated 28.04.2011, confirming the
judgment and decree rendered by the Additional District Munsif Court,
Kallkurichiin O.S.No.919 of 2000.
For Appellant : Mr.A.G.Rajan
For Respondents : Mr.P.Valliappan[R2]
R1 & R3 – Served – No Appearance
JUDGMENT
The plaintiff is the appellant before this Court. Originally, the plaintiff
has filed a suit in O.S.No.919 of 2000 for permanent injunction on the file
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S.A.No.578 of 2017
of the I Additional District Munsif, Kallakurichi. Thereafter, the plaintiff
had amended the plaint to include the relief of declaration and recovery of
possession.
2. The facts in brief, which has culminated in filing of the above
Second Appeal with the parties being referred to in the same ranking as
before the Tribunal are narrated herein below:-
3. It is the case of the plaintiff that the property originally
belonged to his maternal grandfather, Krishnan. As the plaintiff's
grandmother had passed away when the plaintiff was just 3 months old, his
grandfather Krishnan has acted as a guardian and on 22.11.1993, he had
executed a Gift Deed in respect of the suit properties in favour of the
plaintiff. It is the case of the plaintiff that from the date of the Deed, he has
been in possession and enjoyment of the suit properties. The defendants,
who had no right over the suit properties, on account of a recent
estrangement, had started interfering with the plaintiff's possession of the
suit properties. The plaintiff would submit that pending suit, in October
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S.A.No.578 of 2017
2000, he had left for Bangalore to eke out his living and at that point of
time, the defendants had trespassed into the suit properties. Therefore, the
plaintiff had come forward with the above suit.
4. The second defendant had filed a written statement, which was
adopted by other defendants, in which, they had denied the allegations
contained in the plaint. The defendants would submit that the plaintiff has
not even stated the name of his mother in the plaint. The gift deed dated
22.11.1993 was also denied as being a fabricated document. The
defendants would submit that on the basis of this document, the plaintiff did
not derive any title to the suit properties. They further contend that the said
Krishnan had a son, Mookan, who is the second defendant and three
daughters, Deivasikamani, Anjalai, Chinnaponnu. The plaintiff is the son of
Anjalai. It is the case of the defendants that the suit properties are the
ancestral property of Krishnan and Mookan. No partition had taken place
between the two. Therefore, the said Krishnan had no right to execute any
gift deed in respect of the suit properties in favour of the plaintiff. After the
death of Krishnan, the second defendant is in possession of the properties
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S.A.No.578 of 2017
with the help of the first defendant, who is the husband of Chinnaponnu.
5. An additional written statement was filed by the first defendant
after the amendment. In the said written statement, the first defendant had
stated that the allegations that the defendants had trespassed into the suit
properties in October 2003 is totally false, much prior to the said date, the
defendants are in possession and enjoyment of the properties. Therefore,
they prayed for dismissal of the suit.
6. On the pleadings, the trial Court had framed the following
issues:
1) Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for?
2) Whether it is true that the gift deed dt.22.11.93 is a
fabricated document?
3) Whether the cause of action for the suit is incorrect?
4) To what other relief the plaintiff is entitled to?
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S.A.No.578 of 2017
The same was thereafter recast as follows:-
1) Whether the gift deed dt.22.11.93 is a fabricated
document?
2) Whether the cause of action for the suit is true?
3) Whether the plaintiff is entitled to the relief of declaration
of title to the suit property?
4) Whether the plaintiff is entitled to recovery of possession
of the suit property through the Court?
5) To what other relief the plaintiff is entitled to?
7. The plaintiff had examined himself as P.W1 and one Annadurai
as P.W2 and Exs.A1 to A14 were marked. On the side of the defendants,
the first defendant had examined as D.W1 and the second defendant as
D.W2 and Exs.B1 to B5 were marked.
8. To arrive at the conclusion, the learned I Additional District
Munsif, Kallakurichi had taken note of the fact that the patta in respect of
the property continue to remain in the name of Krishnan even after his death
and further, it is the defendants, who are in possession of the properties,
which is evident from Ex.B3-Kist Receipts as also Ex.B5-Mortgage Deed.
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S.A.No.578 of 2017
The learned District Munsif has also considered the admission of P.W1 in
his cross examination, to arrive at the conclusion that the document is a
fabricated one. The cause of action pleaded was also found to be false and
held against the plaintiff.
9. Challenging the judgment and decree of the trial Court, the
plaintiff had filed an appeal in A.S.No.184 of 2005 on the file of the
Additional District Cum Sessions Court (FTC-III) Kallakurichi. The
learned District Judge had dismissed the appeal and confirmed the judgment
and decree of the trial Court. Challenging the same, the plaintiff is before
this Court.
10. Heard the learned counsel for the appellant and the learned
counsel for the second respondent and perused the materials available on
record. The 1st and 3rd respondent though served have not entered
appearance either in person or through pleader.
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S.A.No.578 of 2017
11. The plaintiff seeks to establish a right to the property on the
strength of the Gift Deed, which has been marked as Ex.A1. The plaintiff
has examined P.W2 to prove the Gift Deed. However, P.W2 has stated that
he had not attested the Gift Deed. The witness further deposed that the said
Krishnan had purchased the suit property out of the income from the other
properties and not from the ancestral properties. However, no documents
had been produced to substantiate the above statement. That apart, there is
no pleading to this effect. The plaintiff as P.W1 has in his cross
examination stated as follows:
“vd; jha; tHp ghl;ldhUf;F. g{h;tPfj;jpy; tPunfhHg[uk;
nghFk; nuhl;ow;Fk; fpHf;fpy; Rkhh; 2 Vf;fh; epyk; cs;sJ/ mJ
nlk; ghrd epyk;. nkw;go brhj;ij vdJ ghl;ldhh;
fpUco;zDk; mtuJ Fkhuh; 2k; gpujpthjpa[k; Tl;lhf mDgtk;.
bra;J te;jhh;fs; vd;why; rhpjhd;/ nkw;go 2 Vf;fh; epykhdJ
vdJ ghl;ldhUf;Fk;. 2k; gpujpthjpf;Fk; bghJ Flk;gj;Jf;F
ghj;jpakhd brhj;J vd;whhy; rhpjhd;”/
Therefore, from the above statement, the plaintiff has himself admitted that
the properties are joint family properties of the deceased Krishnan and the
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S.A.No.578 of 2017
second defendant. Therefore, the petitioner's grandfather, Krishnan did not
have the authority to gift the entire property to the plaintiff. That apart, it is
found that the some of the properties gifted under Ex.A1 are the ancestral
joint family properties of Krishnan, which he cannot settle, since the second
defendant is also a joint owner.
12. Therefore, the findings of both the Courts below that the Gift
Deed is a fabricated document and not acted upon, since the revenue records
continued to remain in the name of Krishnan has to necessarily be upheld.
P.W2 has been examined to prove Ex.A1-Settlement Deed. However, his
evidence does not prove that the the document has been executed by
Krishnan, since he is not an attesting witness and it is only one Gurusamy
and Veeramuthu, who had attested the document. Therefore, the plaintiff
has not been able to establish the execution of the Gift Deed by the
deceased Krishnan. That apart, no document had been filed to prove to
show that the plaintiff has been in possession of the properties, after the Gift
Deed. Therefore, I see no reason to interfere with the concurrent findings of
the Courts below and the plaintiff has not made out any substantial question
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S.A.No.578 of 2017
of law in the above matter. Accordingly, this Second Appeal is dismissed.
No costs.
10.10.2022
srn
To
1. The Sub-Ordinate Judge (FTC-3),
Kallakurichi.
2. The Additional District Munsif Court,
Kallkurichi
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S.A.No.578 of 2017
P.T.ASHA, J.,
srn
S.A.No.578 of 2017
10.10.2022
https://www.mhc.tn.gov.in/judis
