Madras High Court
Rajammal vs Muthu on 26 April, 2023
S.A.(MD)No.809 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.809 of 2022
and
C.M.P.(MD)No.12297 of 2022
Rajammal ... Appellant
/Vs./
Muthu ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 24.03.2022 made in
A.S.No.1 of 2021 on the file of the Additional District Judge, Sivagangai,
Sivagangai District, confirming the judgment and decree dated
08.03.2019 made in O.S.No.148 of 2013 on the file of the Subordinate
Judge, Sivagangai, Sivagangai District, by allowing this second appeal.
For Appellant : Mr.A.Prasanna Rajadurai
For Respondent : Mr.S.Srinivasa Raghavan
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S.A.(MD)No.809 of 2022
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the Courts below. The appellant is the defendant in the suit in
O.S.No.148 of 2013 on the file of the Sub Court, Sivagangai. The
respondent is the plaintiff in the said suit. The appellant / defendant is
the wife of the respondent / plaintiff. Admittedly, both of them are living
separately for a long number of years. The suit was filed for declaration
and for recovery of possession. The declaratory relief sought for by the
respondent / plaintiff is to declare that the respondent / plaintiff is the
absolute owner of the suit schedule property. The respondent / plaintiff
has also sought for recovery of possession, as according to him, the
appellant / defendant is in illegal possession of the suit schedule property.
In the forthcoming paragraphs, the parties are described as per their
litigative status in the suit.
2. As seen from the plaint averments, the defendant is the first
wife of the plaintiff and they have a daughter, by name Sudarkodi.
According to the plaintiff, his relationship with the defendant is
estranged. According to the plaintiff, in view of the estrangement of the
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S.A.(MD)No.809 of 2022
relationship between him and the defendant, they separated themselves
and the father of the plaintiff had settled S.Nos.49/3, 49/8, 77/2b, 90/9
and 161/8 in Mallaakottai Village by means of a registered Inam
Settlement deed in the year 1984 in the name of the defendant and the
daughter, Sudarkodi, in lieu of permanent alimony for maintenance.
3. The father of the plaintiff, by name Karupaiah, the plaintiff and
his brother, by name Chellappa have orally divided the properties and the
suit schedule property was allotted to the share of the plaintiff. The
property situated to the west of the suit schedule property was allotted to
the brother of the plaintiff, by name Chellappa. The properties continued
to be in the name of the father of the plaintiff, namely Karupaiah in the
Municipal records. There is a house in the suit schedule property, which
was assessed to property tax in the name of the father of the plaintiff,
namely Karupaiah and thereafter, house tax was also mutated in the name
of the plaintiff.
4. The plaintiff has been enjoying the suit schedule property and
the property, which was allotted to the brother of the plaintiff, namely
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S.A.(MD)No.809 of 2022
Chellappa, in the oral partition has been settled in favour of the plaintiff
by means of registered Inam Settlement deed dated 12.01.2009.
According to the plaintiff, when he was abroad on employment, the
defendant sought his permission to reside in the house property, which
was allotted to the plaintiff in the oral partition on condition that the
defendant would vacate the suit property, as and when demanded by the
plaintiff. According to the plaintiff, the defendant is only a permissive
occupant.
5. According to the plaintiff, in his absence, the defendant had
acted behind his back and has clandestinely changed the patta for the suit
schedule property in her name from the name of the plaintiff's father.
According to the plaintiff, the house tax assessment and electricity
connection, etc., were also fraudulently transferred in the name of the
defendant, without knowledge of the plaintiff. Only after returning back
to India, he came to know about the fraudulent activities of the
defendant. The plaintiff contends that on coming to know, he had
demanded the defendant to vacate the suit schedule property. However,
according to the plaintiff, the defendant refused to vacate the suit
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S.A.(MD)No.809 of 2022
property. The plaintiff contends that the house was built by his father.
The suit property was not given to the defendant by his father in the year
1984, as claimed by the defendant. Since the defendant failed to vacate
the suit property, the plaintiff was constrained to file a suit for declaration
and for recovery of possession as stated supra.
6. However, as seen from the written statement filed by the
defendant, she admits that the house in the suit property was built by her
father-in-law, ie., father of the plaintiff. However, she would state that
there is a dispute raised in the patta transfer proceedings between the
plaintiff and the defendant. According to the defendant, the father of the
plaintiff had settled the suit property to her by an unregistered deed of
Inam settlement dated 21.11.1984. According to the defendant, that is
the reason for not including the suit property in the registered deed of
inam settlement deed dated 21.11.1984 in her favour executed by the
plaintiff's father. According to the defendant, she is the owner of the suit
property by virtue of an unregistered deed of Inam Settlement dated
21.11.1984 executed by the plaintiff's father and the plaintiff has no legal
right to claim rights for the same.
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S.A.(MD)No.809 of 2022
7. Based on the pleadings of the respective parties, the trial Court
framed the following issues:
(a) Whether the declaratory relief and recovery of possession relief
sought for by the plaintiff can be granted?
(b) Whether the suit property was settled in favour of the defendant
through an unregistered Inam Settlement deed dated 21.11.1984 and
whether the possession was granted to her pursuant to the same?
(c) to what other reliefs?
8. Before the trial Court, the plaintiff filed nine documents, which
were marked as Exs.A1 to A9 and two witnesses were examined on his
side, namely the plaintiff himself as P.W.1 and one Ramachandran, an
independent witness as P.W.2. On the side of the defendant, no
documents were filed, but however, two witnesses were examined,
namely the defendant herself as D.W.1 and one Alagarsamy, a third party
witness as D.W.2.
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S.A.(MD)No.809 of 2022
9. Based on the oral and documentary evidence available on
record, the trial Court, namely the Sub Court, Sivagangai, by its
judgment and decree dated 08.03.2019 in O.S.No.148 of 2013 decreed
the suit in favour of the plaintiff by giving the following reasons:-
(a) There is no proof submitted by the defendant to prove that the
suit schedule property was settled in her favour by the father of the
plaintiff under an unregistered Inam Settlement deed dated 21.11.1984;
(b) The alleged Inam Settlement document relating to the suit
property, which was relied upon by the defendant has not been produced
by the defendant before the trial Court;
(c) Inam Settlement deed alleged to be executed in favour of the
defendant on 21.11.1984 by the plaintiff's father cannot be acted upon,
since the same was said to be an unregistered and unstamped document;
(d) The plaintiff has proved his title to the suit property, which is
also admitted in the written statement;
(e) Inam settlement deed dated 21.11.1984 does not comprise the
suit property, which was marked as Ex.A1.
(f) The receipt of electricity consumption charges (19 Nos.) and
house tax receipts (10 Nos.) were marked as Exs.A2 to A4 and all the
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S.A.(MD)No.809 of 2022
said documents stand only in the name of the plaintiff.
(g) Natham patta, FMB sketch, which were marked as Exs.A8 and
A9 also stand in the name of the plaintiff.
10. Aggrieved by the judgment and decree dated 08.03.2019
passed by the trial Court in O.S.No.148 of 2013, the defendant filed a
first appeal before the Additional District Court, Sivagangai in A.S.No.1
of 2021. The lower appellate Court has also confirmed the findings of
the trial Court by dismissing the first appeal, by its judgment and decree
dated 24.03.2022 passed in A.S.No.1 of 2021.
11. The substantial questions of law framed by the appellant in the
grounds of this Second Appeal have all rightly been considered by the
Courts below, only based on the oral and documentary evidence available
on record and only in accordance with law. There are no debatable issues
of fact or law involved for further consideration by this Court under
Section 100 of C.P.C. No documentary evidence has been produced by
the defendant to prove that the settlement deed has been executed in her
favour in the year 1984 by the plaintiff's father. The revenue records also
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S.A.(MD)No.809 of 2022
stand only in the name of the plaintiff, as seen from the exhibits marked
on the side of the plaintiff. The plaintiff has proved his case beyond
doubt that he is the absolute owner of the suit schedule property and on
the contrary, the defendant has miserably failed to establish her title over
the suit schedule property. In the result, there is no merit in this second
appeal. Accordingly, this Second Appeal is dismissed.
12. Considering the fact that the appellant / defendant is the wife
of the respondent / plaintiff and is an aged lady, this Court directs the
appellant / defendant to hand over the vacant possession of the suit
property to the respondent / plaintiff within a period of six months from
the date of receipt of a copy of this judgment and the Execution Petition,
which is still pending shall be kept in abeyance by the executing Court
for a period of six months from the date of receipt of a copy of this
judgment. There shall be no order to costs. Consequently, connected
Miscellaneous Petition is closed.
26.04.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.809 of 2022
ABDUL QUDDHOSE, J.
sm
TO:
1.The Additional District Judge, Sivagangai, Sivagangai District.
2.The Subordinate Judge, Sivagangai, Sivagangai District,
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.809 of 2022
Dated:
26.04.2023
https://www.mhc.tn.gov.in/judis
