Madras High Court
T.J.Salvi @ Ambrose Selvi vs I.S.Jackrias on 27 November, 2023
S.A.No.36 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.36 of 2018
T.J.Salvi @ Ambrose Selvi ... Appellant
Vs.
I.S.Jackrias ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree in A.S.No.24 of 2015, dated
31.07.2017 on the file of the I Additional District Judge, Tiruvallur, in
confirming the judgment and decree in O.S.No.112 of 2006 dated 09.04.2015
on the file of the Subordinate Judge, Thiruvallur.
For Appellant : Ms.V.Srimathi
For Respondent : Mr.K.Balaji
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1/8
S.A.No.36 of 2018
JUDGMENT
The unsuccessful plaintiff in the suit for declaration of title and
injunction is the appellant. The suit filed by the appellant was dismissed by the
trial Court and the First Appellate Court confirmed the judgment of the trial
Court. Aggrieved by the concurrent findings, the appellant has come up with
this Second Appeal.
2. According to the appellant/plaintiff, the suit property was
originally owned and possessed by one Abraham Naidu. He had two sons
namely, Jackrias, the defendant herein and one Irudhayaraj. There was a
partition in the family of Abraham Naidu on 21.06.1975 and in the partition
deed Abraham Naidu and his wife were given life estate over the suit property
with vested remainder to their son Irudhayaraj. After death of his wife
Sowrammal and also Irudhayaraj, wife of said Irudhayaraj namely Leela
Arokiyamary executed a General Power Attorney in favour of one Lilli and the
plaintiff purchased the suit property from said Lilli on 03.10.2005. Thus, the
plaintiff claimed absolute title over the suit property. The defendant herein was
authorized to collect rent on behalf of his brother Irudhayaraj. Since the
defendant prevented the appellant/plaintiff from entering the suit property, the
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plaintiff was constrained to file a suit for declaration of title and delivery of
possession. The appellant also prayed for a permanent injunction restraining
the respondent/defendant from encumbering the suit property.
3. The respondent/defendant filed a written statement denying the
partition dated 21.06.1975 pleaded by the appellant. The respondent/defendant
claimed that he became absolute owner of the suit property, as he purchased
the portion of the property allotted to his brother by a sale letter on
15.12.1987. He also claimed that he has been in possession and enjoyment of
the suit property by having patta and electricity connection etc., in his name.
Therefore, he sought for dismissal of the suit.
4. The trial Court on appreciation of oral and documentary
evidence available on record, came to the conclusion that the appellant herein
failed to prove the partition pleaded by her and consequently rejected the plea
of exclusive title of appellant's vendor. Therefore, the trial Court dismissed the
suit. Aggrieved by the same, the appellant preferred an appeal in A.S.No.24 of
2015 on the file of the I Additional District Judge, Tiruvallur. The first
Appellate Court also on appreciation of evidence available on record concurred
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with the findings of the trial Court and dismissed the appeal. Aggrieved by the
same, the appellant is before this Court by way of this Second Appeal.
5. The learned counsel for the appellant submitted that the
respondent claimed absolute title over the suit property by virtue of the sale
letter allegedly executed by his brother and his wife. However, the said
document has not been produced by the respondent. In such circumstances, the
respondent miserably failed to prove his absolute title over the suit property.
The learned counsel for the appellant further submitted that as the respondent
admitted the right of appellant's vendor in respect of a portion of the suit
property, the Courts below ought to have accepted the plea of partition raised
by the appellant. The learned counsel for the appellant further submitted that
the Courts below failed to take into consideration the evidence let in by the
appellant to prove 1975 partition pleaded by her.
6. It is the specific case of the appellant/plaintiff that the suit
property originally belonged to one Abraham Naidu and there was a partition
in the family of Abraham Naidu on 21.06.1975 and in the said partition, the
suit property was allotted to Abraham Naidu and his wife with vested
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remainder to Abraham Naidu's son Irudhayaraj. The appellant claimed to have
purchased the suit property from the said Irudharaj and his wife Leela
Arokiamary under Ex.A3. Ex.A2 is the General Power Attorney executed by
the wife of Irudhayaraj in favour of one Lilli, who sold the property to the
appellant. Though the appellant claimed that there was a partition in the family
of Abraham Naidu on 21.06.1975 and in the said partition, the suit property
was allotted to Irudhayaraj, the appellant failed to produce any acceptable
evidence to show that there was a partition and the suit property was allotted to
the share of Irudhayaraj absolutely. The power deed executed by Irudhayaraj's
wife in favour of one Lilli to sell the property to the appellant was marked as
Ex.A2.
7. The recital in Ex.A2 reads as follows:
“vd; fzth; fhyk; brd;w ,Ujauh$; mth;fSf;Fk;. mthpd;
je;ij Mg;ufhk; eha[L. nkw;go ,Ujauh$; mth;fspd; jha;
jpUkjp/brsuk;khs;/ nkw;go ,Ujauh$; mth;fspd; rnfhjuh;
$f;fphpahy; eha[L Mfpath;fSf;Fk; ,ilna fpilf;fg;bgw;W ehd;
rh;t Rje;jpu ghj;jpaijjha; rh;t tpyy; ';f Rj;jpahf Mz;L
mDgtpjJ ; tUk; brhj;J tptuj;jpy;/”
8. In Ex.A2 power deed executed by the wife of Irudhayaraj in
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favour of Leela, there is no mention about 1975 partition pleaded by the
appellant. In the said document, the appellant's vendor clearly admitted that the
property belonged to one Abraham Naidu, his wife Sowrammal, his son
Irudhayaraj and the respondent herein. However, it was not clearly mentioned
about how Irudhayaraj's wife Leela Arokiamary got absolute right over the suit
property to convey the same in favour of the appellant. From the reading of
recital in Ex.A2 it is clear that the appellant's vendor namely Leela wife of
Irudhayaraj had no absolute right over the suit property, if at all she can claim
only a fraction of share in the suit property.
9. In such circumstances, the appellant failed to prove his
exclusive title over the suit property and consequently, her prayer for
declaration of title and recovery of possession is not maintainable.
10. The trial Court as well as the First Appellate Court on proper
appreciation of exhibits marked on behalf of the appellant rightly came to the
conclusion that the appellant miserably failed to prove her exclusive title over
the suit property. In such circumstances, no substantial question of law arising
for consideration in this Second Appeal to enable to this Court to interfere with
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the findings rendered by the Courts. Therefore, the Second Appeal is
dismissed. However, it is made clear that the dismissal of the Second Appeal
will not prevent the appellant from seeking other remedies available to her
under law including the relief of partition.
11. a) In the result, the Second Appeal stands dismissed by
confirming the judgment and decree passed by the Courts below.
b) In the facts and circumstances of the case, there shall be no
order as to costs.
27.11.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
dna
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S.SOUNTHAR, J.
dna
To
1.The I Additional District Judge, Tiruvallur.
2.The Subordinate Judge, Thiruvallur.
27.11.2023
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