Madras High Court
A.Sethuraman vs A.Radhakrishnan on 3 August, 2023
S.A.(MD)No.16 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.08.2023
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.(MD)No.16 of 2008
A.Sethuraman ...Appellant
vs.
1.A.Radhakrishnan
2.A.Rajasekar
3.A.Murugesan
4.A.Maheswaran ... Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 06.02.2007 in A.S.No.
93 of 1998 on the file of the Additional District Judge (Fast Track Court
IV), Periyakulam reversing the Judgment and Decree dated 21.07.1998 in
O.S.No.86 of 1997 on the file of the District Munsif cum Judicial
Magistrate, Bodinayakkanur.
For Appellant : Mr.S.Madhavan
For Respondents : No appearance
Page 1 of 12
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S.A.(MD)No.16 of 2008
JUDGMENT
The appellant is the plaintiff in the suit in O.S.No.86 of 1997 on
the file of the District Munsif cum Judicial Magistrate, Bodinayakkanur.
The respondents are the defendants in the above suit.
2. The suit was filed by the appellant / plaintiff seeking for
permanent injunction restraining the respondents / defendants and their
men from interfering with his possession and enjoyment of the suit
schedule property.
3. The case of the plaintiff is that the suit scheduled property
originally belonged to one Vadamalu Servai and his minor sons.
Vadamalu Servai on his behalf and on behalf of his sons, sold the
property to the plaintiff by virtue of sale deed Ex.A1, dated 17.01.1969.
Since the plaintiff was minor at that time, the plaintiff's grandmother
purchased the property as a guardian of the plaintiff. After attaining
majority, in the year 1971, the plaintiff took possession of the suit
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S.A.(MD)No.16 of 2008
schedule property. Subsequently the plaintiff obtained Patta in his favour
and the same was marked as Ex.A2, dated 10.08.1991. The plaintiff has
been paying kist regularly. The plaintiff as a owner is in possession and
enjoyment of the suit schedule property. The defendants are the brothers
of the plaintiff. The defendants have no right or title over the property.
The defendants were never in possession and enjoyment of the suit
schedule property. The plaintiff and the defendants are living separately.
The defendants tried to interfere with the possession and enjoyment of
the suit schedule property on 16.01.1994 and the same was prevented.
Therefore, the plaintiff filed the suit.
4. The case of the defendants is that as per the partition that took
place in the family on 30.12.1979, the suit schedule property is allotted
to the third defendant and the same is in separate enjoyment of the third
defendant. The plaintiff and the defendants are brothers. Since the father
of the plaintiff and the defendants, namely, Arunachalam (late) had many
number of lands, in order to get exemption from land ceiling, the suit
schedule property was purchased in the name of the plaintiff. Though,
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S.A.(MD)No.16 of 2008
the property was purchased in the name of the plaintiff, the same was
enjoyed by the family members as a joint family property. Since the
plaintiff is the elder member of the family, the documents are available
with him. The family arrangement that had taken place on 30.12.1979
was accepted by all the family members. As per the family arrangement,
the plaintiff was allotted 2 acres and 8 cents of land in S.No.1708/3. The
grandmother of the plaintiff and the defendants passed away after the
family arrangement. The plaintiff has filed the suit suppressing all the
facts.
5. Before the Trial Court, the plaintiff has examined himself as
PW1 and one another as PW2 and marked 45 documents as Exs.A1 to
A45 in order to substantiate his case. The defendants examined four
witnesses DW1 to DW4 including the third defendant (DW1) and
marked 18 documents as Exs.B1 to B18 in order to substantiate their
case.
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S.A.(MD)No.16 of 2008
6. After considering the oral and documentary evidence on both
sides, the Trial Court came to the conclusion that since the plaintiff was a
minor, the suit schedule property was purchased in the year 1969 by the
grandmother of the plaintiff as a guardian of the plaintiff and that after
attaining majority, the plaintiff took possession of the property and
obtained Patta in his name. The Trial Court found that kist was paid by
the plaintiff regularly for the suit schedule property and kist receipts were
also issued in his name. Therefore, the Trial Court granted Judgment and
Decree in favour of the plaintiff.
7. Aggrieved over the said Judgment and Decree, an appeal was
filed by the third defendant in A.S.No.93 of 1998 before the Additional
District Judge (Fast Track Court IV), Periyakulam. After hearing both
sides, the first Appellate Court came to the conclusion that though the
suit schedule property was purchased in the name of the plaintiff, it was
treated as joint family property and that the suit schedule property was
purchased in the name of the plaintiff only to avoid land ceiling. The
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S.A.(MD)No.16 of 2008
first Appellate Court, therefore, set aside the Judgment and Decree
granted by the Trial Court. Aggrieved over the same, the appellant /
plaintiff filed the present Second Appeal.
8. This Court admitted this appeal on 08.01.2008, by framing the
following substantial question of law.
"Whether the finding of the first
appellate court with respect to document dated
30.12.1979 and Ex.B17 is perverse inasmuch
as there is absence of admissible evidence to
show the existence of such document?"
9. The learned counsel for the appellant submitted that there is no
document available to prove the family arrangement that is said to have
taken place on 30.12.1979 and that Ex.B17, document filed in support of
the family arrangement is a concocted document. The learned counsel
further submitted that the first respondent / third defendant using his
influence, has created bogus Tax Receipts in order to substantiate his
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S.A.(MD)No.16 of 2008
case. He also submitted that the first Appellate Court erred in finding
that the appellant / plaintiff filed an injunction suit without filing a
declaration suit and that when the title document of the suit schedule
property, revenue records and tax receipts stand in the name of the
appellant / plaintiff, there is no necessity to file a declaration suit.
Therefore, the learned counsel prayed for setting aside the order passed
by the first Appellate Court and confirming the order passed by the Trial
Court.
10. Eventhough, notice has been served and the names of the
respondents are printed in the cause list, there is no representation on
behalf of them. Therefore, this Court, after hearing the learned counsel
for the appellant and perusing the oral and documentary evidence on
record, proceeded to pass orders.
11. The appellant / plaintiff has filed a suit in O.S.No.86 of 1997
before the District Munsif cum Judicial Magistrate, Bodinayakkanur for
permanent injunction restraining the respondents / defendants and their
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S.A.(MD)No.16 of 2008
men from interfering with his possession, since he is the owner and is in
absolute possession of the suit schedule property. Since the appellant /
plaintiff was minor in the year 1969, the suit schedule property was
purchased by the grandmother of the plaintiff as a guardian of the
plaintiff. The sale deed pertaining to the purchase was marked as Ex.A1.
The plaintiff attained majority in the year 1971. Subsequently, he
obtained Patta in his favour for the suit schedule property. The said Patta
was marked as Ex.A2. The appellant / plaintiff filed as many as 45
documents including Patta, Chitta, Adangal Extract and Revenue receipts
up the year of filing the suit to prove that he is in possession of the
property. The appellant / plaintiff has also paid the kist properly.
12. The defence taken by the defendants was that the suit schedule
property was a joint family property and for the purpose of avoiding the
land ceiling, it was purchased in the name of the plaintiff. That apart,
another defence is that, by way of a family arrangement, the suit schedule
property was allotted to the third defendant on 30.12.1979 and all the
parties agreed to go by that family arrangement. In order to substantiate
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S.A.(MD)No.16 of 2008
the family arrangement, Ex.B17, dated 11.02.1993 was marked by the
defendants. However, nothing has been mentioned in the Ex.B17 about
the property for which the family members have entered into agreement.
It is to be noted that no appropriate document is available to prove the
family arrangement that is said to have taken place on 30.12.1979. Even
on the assumption and presumption that family arrangement had taken
place on 30.12.1979, it would be for the ancestral properties and the
properties purchased by the father of the plaintiff and the defendants. At
any cost, the present suit schedule property was purchased by the
grandmother in favour of the plaintiff, which is an independent property
and does not come under the joint family properties.
13. The another main defence taken by the respondents /
defendants is that the suit schedule property was purchased in the name
of the appellant / plaintiff only to avoid land ceiling. The respondents /
defendants while taking such a defence, ought to have filed documents to
show that the father of the plaintiff and the defendants had large extent of
land beyond the limit of land ceiling. However, the respondents /
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S.A.(MD)No.16 of 2008
defendants have failed to do so. The intention of the Land Ceiling Act
was only to distribute the large extent of land which accumulates on one
hand. In that analogies also, I do not agree with the approach of the first
Appellate Court. Therefore, in any angle, this property cannot be
considered as a joint family property. I am of the view that the first
Appellate Court has arrived at a wrong conclusion and it suffers from
non-application of mind. So as to answer the substantial question of law
framed by this Court, as discussed above, since the details of the
properties have not been mentioned in the Ex.B17, at any cost, Ex.B17
would not substantiate the case of the respondents / defendants that the
suit schedule property was allotted to the third defendant by virtue of the
family arrangement. Accordingly, the substantial question of law framed
by this Court is answered in favour of the appellant / plaintiff.
14. Therefore, for the reasons stated above, the Judgment and
Decree dated 06.02.2007 in A.S.No.93 of 1998 on the file of the
Additional District Judge (Fast Track Court IV), Periyakulam is set aside.
The Second Appeal is allowed. The Judgment and Decree dated
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S.A.(MD)No.16 of 2008
21.07.1998 in O.S.No.86 of 1997 on the file of the District Munsif cum
Judicial Magistrate, Bodinayakkanur is hereby confirmed. No costs.
03.08.2023
NCC:Yes/No
Index:Yes/No
Speaking/Non-speaking order
mbi
To
1.The Additional District Judge,
Fast Track Court IV, Periyakulam
2.The District Munsif cum Judicial Magistrate,
Bodinayakkanur
3.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.16 of 2008
KRISHNAN RAMASAMY, J.
mbi
S.A.(MD)No.16 of 2008
03.08.2023
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