Madras High Court
Murugan vs Masilamani on 13 October, 2023
2023/MHC/4769
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A(MD)NO.589 OF 2023
and
C.M.P(MD)No.13668 of 2023
1.Murugan
2.Shanthi
3.Kavitha :Appellants/Appellants 3 to 5/
LRs of the Plaintiff
.vs.
1.Masilamani
2.Raja
3.Muthuramalingam
4.Lakshmi
5.Latcham
6.Kanimuthu
7.Kayalvizhi
8.Muthupandi @Kaliyaperumal : Respondents 1 to 8/Respondents/
Defendants 2 to 9
Rajeshwari
9.Rajamani :9th Respondent/2nd Respondent/
LRS of the plaintiff.
PRAYER: Second Appeal filed under Section 100 of the Civil
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2
Procedure Code against the Judgment and decree made in A.S.No.
67 of 2017, dated 31.1.2023, on the file of the Principal Sub-Court,
Dindigul confirming the judgment and decree made in O.S.No.155
of 2009, dated 1.6.2017, on the file of Principal District Munsif,
Dindigul.
For Appellants :Mr.K.Guhan
JUDGMENT
*********
This Second Appeal is filed challenging the judgment of the
Principal Sub-Court, Dindigul in A.S.No.67 of 2017, confirming the
judgment of the Principal District Munsif, Dindigul in O.S.No.155 of
2019.
2.One Rajeshwari filed the suit in O.S.No.155 of 2019 against
Kathammal seeking the relief of declaration of title, recovery of
possession and mesne profits in respect of the suit property.
3.The averments in the plaint are as follows:
The suit property belongs to one Mayandi Thevar and
Veerammal.Plaintiff’s grand-father Karuppathevar and Mayandi
Thevar are brothers. Thus the plaintiff is the Mayandi Thevar’s
brothers grand-daughter. Mayandi Thevar and Veerammal has no
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legal heirs. The plaintiff’s father and mother died when the plaintiff
was very young.Therefore, the plaintiff was taken care of and was
in the care and custody of Mayandi Thevar and Veerammal. They
had alone arranged for the marriage of the plaintiff with one
Rajamani. To support the plaintiff, Mayandi Thevar and Veerammal
had executed a settlement deed on 6.9.1969.Thereafter they died
in the year 1970 and 1979 respectively. The defendant Kathammal
is plaintiff’s relative. The plaintiff is alone entitled for right, title and
possession of the suit property. However, when the defendant
requested the plaintiff to permit the defendant to reside in the suit
property, the suit property was given to the defendant on oral lease
in the year 1975 for Rs.6000/-.Even after terminating the lease and
several requests made by the plaintiff, the defendant has not
handed over the possession of the suit property, leading to the filing
of this Suit.
4.During the pendency of the suit, the defendant Kathammal
died and her legal representatives were impleaded as defendants.
5.The case of the plaintiff was resisted by the defendants
stating that it is true that a settlement deed was executed in favour
of the plaintiff in the year 1960 by Mayandi Thevar and Veerammal.
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Thereafter, on 15.3.1975, the plaintiff along with legal heirs had
executed a sale deed in respect of the suit property in favour of the
first defendant husband Nallaperumal Thevar. Since the date of
purhase, Nallaperumal Thevar and his family members were in
possession and enjoyment of the suit property. After his death, the
defendants are in possession and enjoyment of the suit properties
on the basis of the aforesaid sale deed.
6.On the basis of the above said pleadings, the Trial Court has
framed the following issues:
Issues:
1.Whether the plaintiff is entitled for the relief of declaration
of title as prayed for?
2.Whether the plaintiff is entitled for the relief of rejection of
Settlement Deed?
3.Whether the plaintiff is entitled for the mesne profits?
4.To what other relief, if any, the plaintiff is entitled to?
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Additional Issues:
1.Whether the plaintiff is entitled for recovery of possesison
from the defendants?
7.During the course of trial, P.W.1 and P.W.2 were examined.
Ex.A1 and Ex.A2 were marked on the side of the plaintiff. D.W.1 was
examined and Ex.B1 to Ex.B11 were marked. Ex.C1 and Ex.C2 were
also marked.
8.Considering the oral and documentary evidence, the trial
Judge found that the suit property was sold by the plaintiff to the
first defendant’s husband and therefore, the plaintiff is not entitled
to seek for the relief of claiming title. Thus the suit was dismissed.
The First Appellate Court had also concurred with the stand taken
by the trial Court and dismissed the appeal. Challenging the
judgments of the Courts below, this appeal is filed.
9.After the disposal of the appeal, sole plaintiff died.Therefore
her legal heirs filed the second appeal.
10.The learned counsel for the appellants submitted that
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through Ex.B1, the plaintiff had not sold the property to the
husband of the first defendant Kathammal. There are discrepancies
in the description of the property as found from Ex.B1 and in the
recital in the plaint with regard to the nature of the building found in
the property, the defendants have not produced any records to
show that they have mutated the revenue records .There is a
finding of the trial Court that Ex.B3 to Ex.B5 do not relate to the
suit property. In such cirumstances, the learned counsel submitted
that the dismissal of the suit by the Courts below cannot be
sustained.
11.This Court considered the rival submissions made on either
side and perused the records.
12.From the case projected by the parties, it is not in dispute
that the suit property was originally belonged to Mayandi Thevar
and Veerammal. The fact that the said Mayandi Thevar had
executed a settlement deed, dated 6.9.1967 in favour of the
plaintiff Rajeshwari, is also not disputed. Rather the defendants
have admitted the execution of the settlement deed in the Written
Statement. The settlement deed, dated 6.9.1969 is marked as
Ex.B2. It is the case of the plaintiff that the suit property was leased
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out to the husband of the first defendant Kathammal by oral lease
for a sum of Rs.6000/- in the year 1975.
13.On the other hand, the case of the defendants is that the
suit property was sold to Kathammal’s husband Nallaperumal
Thevar by the plaintiff and the legal heirs on 15.3.1975.The Sale
deed is marked as Ex.B1. It appears from the documents produced
that the plaintiff has not produced any documents in support of the
oral lease alleged in the plaint.
14.It is submitted that the property sold under Ex.B1 is not
the suit property. It is imperative to find out the truth or falsity of
this statement. For this purpose, it is necessary to compare the
description of the property given in the plaint and in the sale deed
Ex.B1. In the plaint schedule suit property is described as follows:
“; nrhj;J tpguk;
jpz;Lf;fy; hPb> Mj;J}h; rg;b fypf;fk;gl;b fpuhkk;>
rpd;df;fypf;fk;gl;bapy; rpd;dhsg;gl;b 5 tJ thHL khhpKj;J Mrhhp
gphptpy; ,Uf;Fk; gioa fjT vz;.36>37 nfhz;l tPl;bw;F ehd;Fkhy;.
godpahap tPl;bw;Fk;> nghJ re;jpw;Fk; - fpof;F
fpoNky; tPjpf;Fk; - tlf;F
Nehl;il fhkhl;rp Mrhhp kidf;Fk; - njw;F
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gpujpthjp ,lj;jpw;Fk; - Nkw;F
,jw;Fs; nghJ RtH cl;gl fpoNky; [hjp mb 20 njd;tly; [hjp mb
36 cs;s kidaplKk; mjpy; fl;bapUf;fpw njw;FghHj;j nfl;b yhfl kid
fjT epiy [d;dy; Nky;Nfhg;G nfhy;iy fhypaplk; tifawhTk; NrHe;J
fl;Lg;gl;lJ.
15.In Ex.B1 Sale Deed, the property sold was described as
follows:
nrhj;J tpguk;
jpz;Lf;fy; hPb rpd;dhsg;gl;b rg;b> fypq;fk;gl;b fpuhkk;>
rpd;df;fypf;fk;gl;bapy; vq;fSf;F nrhe;jkhd rpd;dhsg;gl;b Ng&uhl;rp 12 / 3
– 7 Nkw;gb kidf;F khy;.
godpahap tPl;bw;Fk;> nghJ re;jpw;Fk; - fpof;F
fpoNky; tPjpf;Fk; - tlf;F
Nehl;il fhkhl;rp Mrhhp kidf;Fk; - njw;F
gpujpthjp ,lj;jpw;Fk; - Nkw;F
,jw;Fs; fpoNky; mb 20 njd;tly; mb 36 cs;sJkhd ,lKk; ,jpy;
50 tU\q;fSf;F Kd; kz;rhe;J kz;RtH Ntg;gkuk; fs;spf;Nfhl;il
XL ,itfshy; fl;lg;gl;lJkhd Nky; Nkw;Nfhg;G fjT thp – 1y; nrq;fy;
mbj;jy; kz;RtH thp gpsg;G epiy Nkw;Nfhg;G tifawhf;fSk;.
16.A comparison of the description of the property given in
the plaint and in Ex.B1 sale deed shows that the four boundaries
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and extent of both properties exactly tally with each other. In the
plaint, it is mentioned as D.No.36-37 and in the sale deed it is
mentioned as D.No.12/37. In the plaint it is described as; ‘’mjpy;
fl;bapUf;fpw njw;FghHj;j nfl;b yhfl kid fjT epiy [d;dy; Nky;Nfhg;G
nfhy;iy fhypaplk; tifawhTk; NrHe;J fl;Lg;gl;lJ.; whereas in the sale
deed, it is stated as tiled house constructed with mud 50 years
back, was in existence.
17.When four boundaries, extent and location of the property
tally in both the plaint and Ex.B1 sale deed, merely because the
nature of the building exist changes, we cannot come to the
conclusion that both properties are different properties. Probably
the tiled mud house might have been demolished and a new house
would have been constructed in the place of old mud house.In other
respects, there is absolutely no iota of doubt that the plaintiff
along with legal heirs had sold the suit property to the first
defendant’s husband through Ex.B2 Sale deed. Therefore, this
Court is of the view that when the property was already sold by the
plaintiff Rajeshwari, seeking the relief of declaration of title,
recoveryof possession and mesne profits, cannot be maintained.
Thus this Court is of the view that both the Courts below considered
the evidence in proper perspective and had rightly dismissed the
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suit. Hence, the Second Appeal is liable to be dismissed.
18.In this view of the matter,, the Second Appeal is dismissed
confirming the judgments of the Courts below, as there is no
substantial questions of law arises for consideration in this Second
Appeal. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
13.10.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Principal Sub-Judge,
Dindigul.
2.The Principal District Munsif,
Dindigul.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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G.CHANDRASEKHARAN,J.
vsn
JUDGMENT MADE IN
S.A(MD)NO.589 OF 2023
and
C.M.P(MD)No.13668 of 2023
https://www.mhc.tn.gov.in/judis
13.10.2023
https://www.mhc.tn.gov.in/judis
