Madras High Court
Kumaravel @ Subramoni vs Prema @ Petchiammal on 17 April, 2023
S.A.(MD)No.660 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.660 of 2020
and
C.M.P.(MD)No.12096 of 2022 and 3830 of 2023
Kumaravel @ Subramoni ... Appellant
/Vs./
Sekaran (Died)
1.Prema @ Petchiammal
2.Thangam
3.S.Raji
4.Kumari
5.Bagavathiammal
6.Thayammal ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.63 of 2017,
on the file of the I Additional Sub Court, Nagercoil, Kanyakumari
District, dated 13.07.2020 confirming the judgment and decree passed in
1/10
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S.A.(MD)No.660 of 2020
O.S.No.38 of 2013 on the file of the District Munsif cum Judicial
Magistrate, Boothapandi, Kanyakumari District, dated 01.07.2017.
For Appellant : Mr.M.Suri
For Respondents : Mr.V.Meenakshi Sundaram
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The appellant is the plaintiff in the suit in
O.S.No.38 of 2013 on the file of the District Munsif Cum Judicial
Magistrate, Boothapandi, Kanyakumari District. The respondents are the
legal representatives of the deceased defendants 1 and 2. In the
forthcoming paragraphs, the parties are described as per their litigative
status in the suit.
2. The suit was filed for recovery of vacant possession of the
plaint schedule property to the plaintiff from the defendants and for
recovery of future mesne profits at the rate of Rs.600/- per month till date
of surrender of vacant possession by the defendants. The plaintiff
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S.A.(MD)No.660 of 2020
claimed the suit reliefs on the ground that the suit schedule property was
originally owned by his mother, Perumal Pillai and the defendants 1 and
2 along with their mother were allowed to occupy the suit schedule
property as permissive occupants by the plaintiff's mother, Perumal Pillai.
3. According to the plaintiff, after the death of his mother, Perumal
Pillai, the defendants ought to have surrendered vacant possession to the
legal heirs of the deceased Perumal Pillai. But, despite repeated requests,
the defendants failed to hand over the vacant possession to the plaintiff
and in such circumstances, the plaintiff claimed that the defendants are
encroachers and unauthorised occupants of the suit schedule property.
Accordingly, the plaintiff has sought for recovery of vacant possession as
well as for recovery of future mesne profits as stated supra.
4. However, the defendants, as seen from their written statement,
claim that the plaintiff's mother was a party to the registered partition
deed dated 12.09.1961, by which the suit schedule property and other
properties were partitioned and 1 ½ cents was allotted to the plaintiff's
mother, Perumal Pillai under the said partition deed. According to the
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S.A.(MD)No.660 of 2020
defendants, the fourth defendant has derived his title under the sale deed
dated 01.10.2012 (Ex.B2), pursuant to the valid partition deed dated
12.09.1961 (Ex.B1). Therefore, according to them, there is no merit in
the suit claim, as the plaintiff's mother herself was a party to the partition
deed dated 12.09.1961.
5. The trial Court, namely, the District Munsif Court cum Judicial
Magistrate Court, Boothapandi, by its Judgment and decree dated
01.07.2017 in O.S.No.38 of 2013, after giving due consideration to the
documents filed on the side of the plaintiff, which were marked as
Exs.A1 to A8 and on the side of the defendants, which were marked as
Exs.B1 to B11 and also the oral evidence of the plaintiff through P.W.1
and the oral evidence of the defendants, namely, D.W.1, dismissed the
suit by giving the following reasons:
(a) The plaintiff's mother, Perumal Pillai purchased the suit
schedule property under the sale deed dated 14.06.1960 (Ex.A1) and
enjoyed the same and has also mortgaged the same by way of mortgage
deed dated 13.10.1960 (Ex.A8);
(b) Ex.B1, partition deed dated 12.09.1961 was entered into
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S.A.(MD)No.660 of 2020
between three persons, namely, Nagammal, Kesava Pillai and Perumal
Pillai, the plaintiff's mother. Nagammal is the grandmother of the first
defendant. As per the partition deed dated 12.09.1961 (Ex.B1), three
persons named supra partitioned 3 cents of property amongst themselves
in S.No.728/18 (2 cents) and S.No.728/19 (1 cent);
(c) In the aforementioned partition deed, dated 12.09.1961
(Ex.B1), it is specifically stated that Ex.A1 sale deed was purchased by
the plaintiff's mother and it also stated that the property purchased was
also put in common hotchpotch and then partitioned;
(d) When the suit schedule property in Ex.B1, partition deed,
referred to supra was allotted to the plaintiff's mother, Perumal Pillai and
she was allotted 1 ½ cents in S.No.728/18 alone. The defendants'
grandmother, Nagammal was allotted 1.25 cents, in which 1 cent in S.No.
728/19 and 0.25 cents in S.No.728/18. The said Kesava Pillai was
allotted 0.25 cents in S.No.728/18. Therefore, the plaintiff's mother had
title in respect of 1 ½ cents alone in S.No.728/18, but she did not have
any right of ownership in S.No.728/19;
(e) Ex.A1, sale deed dated 14.06.1960 has got merged with Ex.B1,
partition deed dated 12.09.1961, because the plaintiff's mother, Perumal
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S.A.(MD)No.660 of 2020
Pillai has voluntarily agreed to put the property in the common
hotchpotch and has partitioned the property along with other co-sharers
and has agreed to take 1.5 cents in S.No.728/18 alone by signing Ex.B1,
partition deed.
6. Only based on the oral and documentary evidence available on
record, the trial Court has dismissed the suit by giving the
aforementioned reasons. This Court does not find any infirmity in the
same. Though the learned counsel appearing for the appellant would
submit that the plaintiff's mother, Perumal Pillai is entitled for 3 cents in
S.No.728/18 and S.No.728/19, based on the parent document of the year
1924, as seen from the pleadings filed by the plaintiff in the plaint, there
is no reference to the partition deed of the year 1924, by which the
plaintiff's mother, Perumal Pillai, came to be owner of the larger extent of
the land. When there is no pleading and that too when the plaintiff has
not produced any evidence to that effect, this Court is of the considered
view that the trial Court has rightly dismissed the suit.
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S.A.(MD)No.660 of 2020
7. At the second appeal stage, the appellant cannot file any
application under Order 41 Rule 27 of C.P.C., to mark any fresh
additional documents, that too when there is no pleading made by the
plaintiff in the plaint to that effect. Even though the learned counsel
appearing for the appellant would submit that he has filed an application
to seek permission of this Court to receive the partition deed of the year
1924 referred to supra, which has been returned by the registry, even if
the same is numbered, the question of entertaining such an application
will not arise at this stage, that too when there is no pleading to that
effect in the plaint.
8. In view of the fact that the trial Court has rightly dismissed the
suit, the question of entertaining C.M.P.(MD)No.3830 of 2023 filed by
the plaintiff seeking for reception of a copy of the preliminary decree,
final decree and the compromise memo in O.S.No.383 of 1988 on the file
of the Principal District Munsif Court at Nagercoil, as additional
evidence has also got to be rejected. According to the plaintiff, in
another suit in O.S.No.383 of 1998, a compromise decree was passed and
the plaintiff's sisters had released their shares in the suit schedule
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S.A.(MD)No.660 of 2020
property by receiving certain sums of money. When admittedly the
plaintiff's mother, Perumal Pillai was a party to the partition deed
(Ex.B1) and the plaintiff also claimed declaratory title from his deceased
mother, the question of accepting the plaintiff's contention that after
death of his mother, as a legal heir, he is entitled to the suit schedule
property will not arise. The trial Court has rightly rejected the plaintiff's
contentions and has dismissed the suit.
9. The lower appellate Court, namely, the I Additional Sub Court,
Nagercoil, Kanyakumari District in A.S.No.63 of 2017 in the appeal filed
by the plaintiff, has also rightly confirmed the findings of the trial Court
by dismissing the first appeal. All the issues raised by the appellant /
plaintiff in this second appeal have been rightly considered by the Courts
below. There are no substantial questions of law involved in this second
appeal. Accordingly, this Second Appeal is dismissed. Consequently,
connected Miscellaneous Petition in C.M.P.(MD)No.3830 of 2023 is also
dismissed.
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S.A.(MD)No.660 of 2020
10. The learned counsel appearing for the respondents is also not
pressing the Civil Miscellaneous Petition in C.M.P.(MD)No.12096 of
2022 and he has also made an endorsement to that effect in the Court
bundle. Accordingly, the Civil Miscellaneous Petition in C.M.P.(MD)No.
12096 of 2022 is dismissed as not pressed. There shall be no order as to
costs.
17.04.2023
Index : Yes / No
NCC : Yes / No
Sm
TO:
1.The I Additional Sub Court, Nagercoil, Kanyakumari District.
2.The District Munsif cum Judicial Magistrate,
Boothapandi, Kanyakumari District.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.660 of 2020
ABDUL QUDDHOSE, J.
Sm
Judgment made in
S.A.(MD)No.660 of 2020
Dated:
17.04.2023
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