Madras High Court
Ayyaswamy Udayar vs Ayyaswamy on 5 April, 2023
S.A.No.197 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2023
CORAM : JUSTICE N.SESHASAYEE
S.A.No.197 of 2023
and CMP.No.5693 of 2023
Ayyaswamy Udayar .. Appellant / Appellant / Defendant
Vs
Ayyaswamy
Rep by Power Agent Poongavanam .. Respondent / Respondent / Plaintiff
Prayer : Second Appeal filed under Section 100 of CPC., praying to set
aside the judgment and decree in A.S.No.156/2019 on the file of the III
Additional District and Sessions Court, Cuddalore at Vridhachalam dated
18.10.2022, confirming the judgment and decree in O.S.No.267/2004 on the
file of District Munsif cum Judicial Magistrate Court, Tittakudi, dated
20.02.2017.
For Appellant : Ms.Abhirami
for Mrs.Srimathi V.
1/6
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S.A.No.197 of 2023
JUDGMENT
The defendant who lost his defence successively both before the trial Court
in O.S.No.267/2004, and before the first appellate Court in
A.S.No.156/2019, is the appellant herein. Parties would be referred to by
their rank before the trial Court.
2.The suit is laid for declaration of title and for recovery of possession with
mesne profits. The defendant / appellant herein is the brother of P.W.4, a
certain Muthusamy. On 08.05.1967, under Ext.A1, Muthusamy had
purchased a block of land measuring 1.96 acres comprised in S.No.45/14.
Out of this, he sold one Kaani (32 cents) to the defendant, and the rest he
retained, which the latter sold to the plaintiff vide Ext.A-2 sale deed dated
01.07.2003. While so, the defendant required the plaintiff to sell the
property that he had purchased under Ext.A2 to himself, and when the latter
refused, the defendant forcibly entered the property.
3. The defendant/appellant herein admits that the property was purchased by
P.W.4, and later it was pooled for partition along with the other properties
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S.A.No.197 of 2023
of his family, by which the P.W.4, the defendant and their brothers orally
partitioned, and that the entire 1.96 acres was allotted to the share of P.W.4,
While so, on 25.03.1983, P.W.4 and his sons divided the property under a
memorandum of partition, in which P.W.4's son Subramanian was alloted
1.33 acres in the said survey field. And that the defendant claims that he
had purchased the property validly from the said Subramanian (examined as
P.W.2) vide Ext.B1, sale deed dated 07.07.2003.
4. The dispute went to trial, before which, both sides adduced oral and
documentary evidence. As could be gathered by now, the plaintiff had inter
alia examined his own vendor P.W.4, under whom the plaintiff claims title
to the suit property. The entire defence was pivoted on a partition list dated
25.03.1983. During the examination of P.W.4, this document was
confronted to P.W.4, but he denied his signature in the said document.
Subsequently, the defendant did not do anything to produce or prove the
partition list.
5. Ultimately, the trial Court decreed the suit, which was later confirmed in
A.S.No.156/2019 by the first appellate Court in an appeal preferred by the
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S.A.No.197 of 2023
defendant.
6.Heard the learned counsel for the appellant. The learned counsel
contended that Ext.A2 document though was executed on 01.07.2003, but
was registered only on 21.07.2003, and this time difference between the
date of execution and date of registration has not been adequately explained,
and that Ext.A2 was deliberately ante-dated.
7. This Court is at a loss to understand how this contention is going to
benefit the appellant in any way. Ext.A2 was executed and was also
registered within the time stipulated for registering the document.
Secondly, the defendant had purchased the property few months later, to be
precise on 07.07.2003 under Ext.B1, on which date, Ext.A2 had already
come into existence. Now to defeat the right of the plaintiff, the defendant
attacks the right of P.W.4 to alienate the suit property in favour of plaintiff
under Ext.A2. To achieve this, he pleads a certain memorandum of partition
dated 25.03.1983. But it was neither produced nor proved in the manner
known to law.
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S.A.No.197 of 2023
8. While the defendant had admitted that the entire 1.96 acres was allotted
to the share of P.W.4 under an oral partition between P.W.4, himself and
other brothers, unless he could prove the alleged partition between P.W.4
and his son D.W.2, he cannot succeed. That precisely had happened to him
before the Courts below.
9. After carefully perusing the pleadings and the judgments of the Courts
below, this Court does not find any substantial questions of law to be
considered by this Court in this second appeal. The second appeal is
dismissed accordingly. No costs. Consequently, connected miscellaneous
petition is closed.
05.04.2023
Index : Yes / No
Speaking Order / Non-speaking Order
ds
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S.A.No.197 of 2023
N.SESHASAYEE.J.,
ds
To:
1.The III Additional District and Sessions Judge
Cuddalore at Vridhachalam.
2.The District Munsif cum Judicial Magistrate
Tittakudi.
3.The Section Officer
VR Section, High Court, Madras.
S.A.No.197 of 2023
05.04.2023
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