Madras High Court

Kaliammal vs S.Ramaiah on 13 October, 2023

                                                                               S.A.No.1886 of 2003

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 13.10.2023

                                                      CORAM:

                                  THE HONOURABLE MRS.JUSTICE KALAIMATHI

                                              S.A.No.1886 of 2003
                 1.Kaliammal
                 2.Malliga
                 3.Ramaiah
                 4.Murugan
                 5.Kaliappan                                                       ... Appellants
                                                       -Vs-
                 S.Ramaiah                                                        ... Respondent


                 PRAYER: The Second Appeal is filed under Section 100 of the Civil
                 Procedure Code, against the judgment and decree dated 08.09.1999
                 made in A.S.No.103 of 1997 on the file of Principal Subordinate Judge,
                 Tenkasi in reversing the judgment and decree dated 12.09.1997 made in
                 O.S.No.111 of 1996, on the file of District Munsif Court, Senkottai.


                                     For Appellants   : Mr.V.Shathurthi Raja
                                                        for Mr.R.Govindaraj
                                     For Respondent : Ms.R.J.Roshini
                                                       for Mr.D.Srinivasaragavan

                 1/14

https://www.mhc.tn.gov.in/judis
                                                                                      S.A.No.1886 of 2003

                                                       JUDGMENT

Aggrieved by the judgment and decree passed by the first

appellate Court viz., the Principal Sub Court, Tenkasi in A.S.No.103 of

1997, dated 08.09.1999, the legal heirs of the first defendant viz.,

Kaliammal, his wife and children have filed this second appeal.

2. Parties are indicated as per their litigative status before the trial

Court.

3. One S.Ramaiah, S/o.Shanmuga Pandian filed a suit for

declaration of title and for consequential permanent injunction in respect

of the suit property viz., a plot situated at Senkottai, Kalasami Kovil Street

in Re-survey No.L.3 171 sq.mtr., 62 mtr., L.3.170 sq.mtr., 55, against

Kalaperumal, S/o. Aandi Pandian.

4. According to the plaintiff, the suit property and other property

viz., Old Survey No.339/13 (Re-survey No.567/9), 60 cents at Senkottai

originally belonged to Raman Pandian. Raman Pandian had two sons viz.,

Shanmuga Pandian and Aandi Pandian (the first defendant's father).

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Easwari is the wife of Aandi Pandian. Aandi Pandian and his wife had only

son Kalaperumal, the defendant herein. The plaintiff is the only son of

Shanmuga Pandian and Kalammal. Through an oral partition, the suit

property was allotted to the share of plaintiff's father Shanmuga Pandian

and he was in possession and enjoyment of the suit property along with

other properties, he got through partition. The plaintiff further claims that

for the past 12 years, as his father was not mentally sound, not found and

for the above 12 years, his whereabouts are not known. Therefore, the

plaintiff is in possession and enjoyment of the suit property and also

paying kist, besides enjoying the suit property. On 07.07.1994, he

executed a mortgage deed in favour of Gomathi, W/o. Paramasivam.

Mean while, he received a notice from Senkottai Municipality that the

defendant has given an application for name change stating that his father

sold the suit property to his brother's wife Easwari Aandi Pandian. The

said sale deed will not bind the plaintiff. The plaintiff, as to the knowledge

of the defendant, has been in possession and enjoyment of the suit

property for more than 12 years and hence, he has claimed title by

adverse possession. Taking advantage of the fact that the property stands

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both the plaintiff and defendant name, the defendant seeks to interfere

with the possession of the plaintiff. Hence, the suit for declaration of title

and for consequential injunction was filed.

5. Counteracting to the contentions of the plaintiff, the defendant

claimed that the suit property along with the other properties were sold by

the plaintiff's father Shanmuga Pandian in favour of his mother Easwari

Aandi Pandian in the year 1959. Since then the suit property had been in

possession and enjoyment of his mother Easwari. Tax was demanded as

per the records of the Municipality. The suit property stands both in the

name of plaintiff and the defendant. As it was objected by the defendant in

the year 1995, the plaintiff name was deleted on 18.04.1996 and

thereafter, property tax was levied only in the name of defendant and he

has been making the payment of the same.

6. The trial Court, upon hearing both sides and upon

consideration of oral and documentary evidence, concluded that the

plaintiff has not proved that the suit property belongs to him and he is in

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possession of the suit property and chosen to dismiss the suit. Aggrieved,

the plaintiff preferred an appeal before the Principal Sub Court, Tenkasi in

A.S.No.103 of 1997 and after hearing both sides, the first appellate Court

concluded that the suit property is in possession of the plaintiff and

allowed the appeal and decreed the suit. Against the said finding, the

defendants, who are the legal heirs of Kalaperumal have preferred the

second appeal.

7. Based on the above said pleadings, the following issues were

framed by the trial Court:

(i) Whether the suit property belongs to the plaintiff and whether

the plaintiff is in possession of the suit property?

(ii) Whether the plaintiff is entitled for the relief of declaration and

injunction?

(iii) Whether the suit property is in possession and enjoyment of

the defendant?

(iv) What are all the reliefs the plaintiff is entitled to?

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8. At trial, the plaintiff examined himself as P.W.1. One

R.Lakshmanan and M.Vellaipandi are P.Ws.2 and 3. Exs.A1 to A12 were

marked. Property tax book issued by Senkottai Municipality in the name of

plaintiff is Ex.A1. Property receipt issued in the name of plaintiff is Ex.A2.

Kist receipts in respect of the suit property issued in the name of both the

plaintiff and the defendant from the year 1989 to till 06.02.1996 are Exs.A3

to A9. The defendant Kalaperumal's son Ramaiah was examined as D.W.

1. Exs.B1 to B8 were marked. Registered sale deed executed by the

father of the plaintiff viz., Shanmuga Pandian in favour of the defendant's

mother Easwari Aandi Pandian dated 12.12.1950 is Ex.B2. The Kist

receipts in the name of defendant 5 in number are Exs.B3 to B7. The

order passed by Senkottai Municipality, which was issued to the defendant

is Ex.B8.

9. The following substantial questions of law are framed in this

appeal.

(a) Whether the first appellate Court erred in law in

decreeing the suit merely because Ex.B2 sale deed relied

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upon by the defendant is not acceptable?

(b) Whether the first appellate Court erred in law in rejecting

Ex.B2, sale deed merely because father's name of the vendor in Ex.B2,

sale deed has been stated as Kalaperumal Pandian instead of Ramar

Pandian.

10. After analysing the entire oral and documentary evidence, the

trial Court has concluded that when the plaintiff's father has sold the suit

property to the mother of the defendant through registered sale deed in

the year 1950 itself, with regard to the change of title, the plaintiff cannot

lead any evidence and concluded that the plaintiff is not entitled to either

for the relief of declaration of title or for consequential permanent

injunction and rejected the claim of the plaintiff in toto.

11. Whereas the first appellate Court, after hearing both sides

has held that the defendant has not let in any evidence that the suit

property and Ex.B2 property are one and the same and the defendant has

failed to produce the partition deed and failed to prove the sale deed /

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Ex.B2. The first appellate Court allowed the appeal by setting aside the

judgment and decree of the trial Court.

12. Hence, this second appeal by the defendants, who are the

legal heirs of Kalaperumal.

13. The learned counsel appearing for the appellants/defendants

would strenuously argue that the suit property came to the share of

Shanmuga Pandian through family partition. As the defendant had given

application to Senkottai Municipality to effect name change in the property

tax register, pursuant to Ex.B2, sale deed, a notice was sent to the plaintiff

and pursuant to the receipt of the said notice sent by the defendant, the

plaintiff filed the suit. He would further contend that only at the instance of

the defendant, name of the plaintiff was deleted by the Municipality in the

year 1996. His candid contention is that the plaintiff's father Shanmuga

Pandian sold the suit property in favour of the defendant's mother Easwari

by way of registered sale deed executed on 12.12.1950 (Ex.B2, registered

sale deed) and since then Easwari and after the life time of Easwari, the

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first defendant Kalaperumal have been in possession and enjoyment of

the suit property. To prove the same, the tax receipts in the name of

defendant have also been filed and marked As Exs.B4 to B7. Therefore,

he would contend that without any right or title, the plaintiff has filed the

vexatious suit and sought for dismissal of the same.

14. Per contra, the learned counsel appearing for the

respondent/plaintiff would vehemently contend that admittedly, the suit

property fell to the share of his father Shanmuga Pandian and in the

capacity of his son, his family is in possession and enjoyment of the suit

property. In Ex.B2 / sale deed, the name of Kalaperumal's father is found

incorrect. To prove his enjoyment and possession in the suit property, the

kist receipts viz., Exs.A2 to A9 have been marked and seeks for dismissal

of the appeal.

15. Heard the rival submissions of Mr.V.Shathurthi Raja, learned

counsel appearing for the appellant/defendant and Ms.R.J.Roshini,

learned counsel appearing for the respondent/plaintiff.

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16. The facts that one Raman Pandian had two sons viz.,

Shanmuga Pandian and Aandi Pandian, the plaintiff Ramaiah is the son of

Shanmuga Pandian, Aandi Pandian's wife is Easwari and the first

defendant Kalaperumal is the son of Aandi Pandian are not in dispute. The

suit property was originally fell into the share of plaintiff's father Shanmuga

Pandian in the oral partition is not in dispute. The plaintiff has laid the suit

for declaration of title and for consequential permanent injunction. P.W.1,

during his cross - examination has stoutly denied the execution of

registered sale deed by his father in favour of Easwari Aandi Pandian,

contending that his father's name Shanmuga Pandian is not mentioned

correctly. Both sides have filed kist receipts for different period. The prime

contention of the defendant is that the suit property was purchased by

Easwari Ammal, who is none other than the mother of Kalaperumal on

12.12.1950, from the father of plaintiff and since then they have been in

possession and enjoyment of the suit property.

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17. Though the plaintiff states that for a long period his father's

whereabouts was not known and it is to be considered that his

abscondance is a civil death, no steps appeared to have been taken by

the plaintiff in this regard. The defendant, apart from the pleadings in the

written statement and examined himself as D.W.1. to prove the averments

made in the written statement, he filed the original sale deed, dated

12.12.1950. Ex.B2 reads as follows:

“brA;Bfhl;il gFjp bjw;F bjUtpy; Mz;o ghz;oad; !;jphp ghz;oa Fy Q!;jphp, tPl;L Btiy, Kg;gj;J mq;R taJs;s Nrthp mk;khSf;F fhybgUkhs; ghz;oad; kfd,; ghz;oa Fyk;, tptrhak;, Kg;gJ taJs;s rz;Kfk; ghz;oad; jdf;fhft[k; jd; kfd; vl;L taJs;s uhikaht[f;F Btz;o fhh;oadhft[k; To vGjpf; bfhLj;j tpiygj;jpuk;...”””

18. Of course, as rightly pointed out by the learned counsel for

the plaintiff, the vendor's father name is incorrectly mentioned. The plaintiff

has filed the suit for declaration of title and for injunction. However, the

defendant stoutly contend that his mother Easwari Ammal purchased the

suit property by way of Ex.B2 (registered sale deed, dated 12.12.1950)

and since then they have been in possession and enjoyment of the suit

property and thereby the defendant has rightly substantiated his claim.

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Therefore, Ex.B2, the registered sale deed was executed by the father of

the plaintiff Shanmuga Pandian in favour of Easwari Aandi Pandian,

mother of Kalaperumal. It is made clear that the suit property does not

belong to the plaintiff and he is not in possession and enjoyment of the