Madras High Court

Perumal Konar (Died) : 1St vs Jeyaraj : 1St on 22 April, 2025

                                                                                             SA(MD) No.455 of 2004

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


                                                       Dated: 22/04/2025
                                                                  CORAM
                                           The Hon'ble Mr.Justice G.ILANGOVAN
                                                  SA(MD)No.455 of 2004
                     1.Perumal Konar (Died)                          : 1st Appellant/Appellant/
                                                                       Plaintiff
                     2.Rakkammal (Died)
                     3.Rasaiya (Died)
                     4.R.Saroja                    : Appellants 2 and 4
                       (4th Appellant is brought
                       on record as LR of the
                       deceased 3rd Appellant,
                       vide Court order, dated
                       11/01/2023 made in CMP(MD)
                       Nos.12427 of 2022 in SA(MD)
                       No.455 of 2004)
                                                 Vs.

                     1.Jeyaraj                                         : 1st Respondent/Respondent/
                                                                         Defendant
                     2.Chelladurai
                     3.Rasammal
                     4.Karuppayee
                     5.Palchamy
                     6.Muthuppillai
                     7.Tamillselvi                   : Respondents 2 to 7
                       (Appellants 2 and 3 and
                       Respondents 2 to 7 are
                       brought on record as LR.s
                       of the deceased 1st appellant,
                       vide court order, dated 16/12/2016
                       made in MP No.1 of 2012 in
                       SA(MD)No.455 of 2004)
                                  PRAYER:-Second Appeal is filed under Section 100 of
                     the          Civil    Procedure       Code,        against             the    judgment    and
                     decree, dated 11/06/2004 passed in AS No.51 of 2000 on
                     the file of the II Additional Subordinate Judge's Court,
                     Madurai,             confirming     the       judgment            and        decree,     dated
                     26/11/1999 passed in OS No.119 of 1996 on the file of the
                     District              Munsif-cum-Judicial                    Magistrate's              Court,
                     Usilampatti.

                     1/20


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                                                                                            SA(MD) No.455 of 2004

                                       For Appellants                : Mr.R.Subramanian

                                       For 1st Respondent             : Mr.PT.S.Narendravasan
                                                                        for Mr.Nandakumar

                                       For R2 to R7                  : No appearance

                                                        J U D G M E N T

This Second Appeal is filed against the judgment and

decree, dated 11/06/2004 passed in AS No.51 of 2000 by

the II Additional Sub Court, Madurai, confirming the

judgment and decree, dated 26/11/1999 passed in OS No.119

of 1996 by the District Munsif-cum-Judicial Magistrate

Court, Usilampatti.

2.The averments in the plaint in brief:-

(i)One Nattamai @ Perumal Kone had two sons by name

Ayyasamy @ Perumal Kone and Ramukalai @ Perumal Kone.

Ayyasamy @ Perumal Kone had a son by name Sarkarai @

Perumal Kone. He died leaving behind the defendant as the

sole legal-heir. Ramukalai @ Perumal Kone died leaving

behind the plaintiff as the sole legal-heir. The suit

properties along with some other properties are the

ancestral joint family properties of the plaintiff and

the defendant. In 1975, Sarkarai @ Perumal Kone the

father of the defendant and the plaintiff entered into an

oral family arrangement, by which the properties were

divided. The possession was handed over to the respective

parties.

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(ii)In the partition, items 1 and 2 were not

covered, since Hanuman Temple was installed and later

that temple became the public temple. But the properties

are in joint possession of the plaintiff and the

defendant.

(iii).The items 3 to 5 were allotted to the

plaintiff through oral partition. He was in possession

and enjoyment. But patta was wrongly transferred in the

name of the defendant. Based upon the wrong patta, the

defendant encroached Item Nos.3 to 5 some four years ago

when the plaintiff was away from the village. After

returning to the village, the plaintiff was demanding

restoration of the possession. But the defendant did not

oblique. So, notice was issued, on 22/04/1998 demanding

partition of the items 1 and 2 and restoration of the

possession of items 3 to 5. He sent reply notice

containing false averments. So, the suit is laid for

partition in respect of items 1 and 2; for declaration

and recovery of possession in respect of other items,

costs.

3.The statement:-

(i)The very plaint averment that Nattamai @ Perumal

Kone had two sons by name Ayyasamy @ Perumal Kone and

Ramukalai @ Perumal Kone is denied. But in fact, Nattamai

@ Perumal Kone had two wives namely Murugayee and

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Alagammal. Through Murugayee, he had a son by name

Ayyasamy @ Perumal Kone. Ayyasamy @ Perumal Kone had a

son by name Sakkarai @ Karuppan @ Perumal Kone. He had

three childrens namely Perumal Kone, Ayyavu Kone and

Jeyaraj. Among the above said persons, Sakkarai @

Karuppan @ Perumal Kone died, on 21/07/1981. His son

Perumal Kone also died leaving behind his wife by name

Chellathai @ Rakkayee. She also died in 1982. There was

no issue between them. Ayyavu Kone died without marriage.

(ii).Coming to the second wife branch, two childrens

were born by name Ramu Kalai @ Perumal Kone and

Vellaichamy Kone. Ramu Kalai @ Perumal Kone is the father

of the plaintiff herein. Vellaichamy Kone had five

childrens. They are not parties and they are alive and

there is a tracing of the family tree mentioned in the

written statement filed by the defendant.

(iii).Coming to the properties, it is denied that

the properties were the ancestral joint family properties

of Ayyasamy @ Perumal Kone and Ramu Kalai @ Perumal Kone

through Nattamai @ Perumal Kone. The oral family

arrangement stated in the plaint is specifically denied

as false. The defendant's grandson Ayyasamy @ Perumal

Kone was the absolute owner of the properties. Apart from

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some other properties, 2nd item was purchased by him on

15/04/1909. The other properties were allotted to him as

ancestral properties. Till his death, he was in

possession and enjoyment.

(iv).After his death, the defendant's father namely

Sakkarai @ Karuppan @ Perumal Kone inherited the

properties. He was in possession till his death. After

his death, the defendant became the absolute owner of the

properties. Pattas were issued in his name.

(v).The 2nd item was converted into house plots.

Contra allegation mentioned in the plaint in respect of

the 2nd item is denied as false. Item Nos.3 and 4 were

sold by the defendant long back. The 5th item alone is in

his possession.

(vi).In 1988, the plaintiff made a similar claim

before the Revenue Divisional Officer, Usilampatti, for

transfer of patta in his name. His claim was rejected by

order, dated 07/07/1989.

(vii).The plaintiff and his own brother Ayyasamy @

Perumal Kone divided of their joint family properties

through a registered partition deed, dated 23/12/1971.

The plaint schedule properties were not included in the

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partition deed. The defendant prescribed title by adverse

possession.

4.On the basis of the pleadings of both sides, the

following issues were framed by the trial court:-

(1)Whether the plaintiff is entitled to get half share in the 1st and 2nd items of the suit properties?

(2)Whether the plaintiff is entitled to get the relief of declaratory relief in respect of items 3 to 5 of the suit properties?

(3)Whether the plaintiff is entitled to get the relief of possessory right in respect of the items 3 to 5 of the suit properties?

(4)Whether the plaintiff can get past loss or future loss?

                                          (5)Whether          the        sale         deed,        dated
                                     15/04/1909 is true?


                                          (6)Whether        the       partition            deed    dated
                                     23/12/1971 is true?


                                          (7)Whether the suit is bad for non-
                                     joinder of necessary parties?






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                                             (8)To     what       relief,          the         plaintiff    is
                                     entitled to?


                                  5.During       trial,      on       the      side        of     the   plaintiff,

two witnesses were examined and 18 documents marked. On

the side of the defendant, one witness was examined and

51 documents marked.

6.At the conclusion of the trial process, the trial

court dismissed the suit. Against which, appeal was

preferred in AS No.51 of 2000 before the appellate court

namely II Additional Sub Judge, Madurai. That also came

to be dismissed.

7.Against which, this second appeal is preferred.

8.At the time of admission, the following

substantial questions of law were framed:-

(i)Whether in law, has not the lower appellate court misconstrued the documents, which has resulted in perverse findings?

                                                 (ii)Whether          the      law       has      not   the
                                         lower       appellate              court              erred       in

dismissing the appeal after finding that

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in Ex.A-1 items 3 to 5 find a place belonging to the family of the plaintiff and the defendant?

(iii)Whether in law, are not the Courts below wrong n failing to mould the relief as the properties are joint family properties of the plaintiff and the defendant?

                                              (iv)Whether            in      law,        is     not     the
                                         finding    of     the       lower       appellate            court
                                         vitiated     when       the       defendant            has     not
                                         produced any title deed?


                                  9.Heard both sides.



                     Substantial question of law No.3:-

                                  10.This    is     taken       up      first         to       avoid    confusion.

Before entering into the disputed question with regard to

the properties, the plaint averments regarding the

genealogy of Nattamai @ Perumal Kone must be placed on

record. According to the plaintiff, Nattamai @ Perumal

Kone, his grandfather had two sons namely Ayyasamy @

Perumal Kone, who's grandson is the defendant herein.

Another son of Nattamai @ Perumal Kone namely Ramu Kalai

@ Perumal Kone the father of the plaintiff.

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11.Now as per the case of the defendant, Nattamai @

Perumal Kone had two wives. Through the first wife only

Ayyasamy @ Perumal Kone was born. To him, Sakkarai @

Karuppan @ Perumal Kone was born. He had three childrens

namely Perumal Kone, Ayyavu Kone and Jeyaraj. Through the

second wife, he had two sons namely Ramu Kalai @ Perumal

Kone and Vellaichamy Kone, To whom, five childrens were

born. This genealogical relationship is suppressed by the

plaintiff in the plaint.

12.During the course of the evidence, another

important matter that was brought on record is that

Nattamai @ Perumal Kone had a brother by name Vedimuthu.

To Vedikuthu only, Perumal Kone was born. This shows the

complete missing made by the plaintiff in the plaint. We

have to clarify the position first.

13.The appellate court recorded a finding that the

relationship or genealogical tree brought on record

during the course of the trial, it was not denied and

disputed by the parties.

14.First of all, we will go to the judgment of the

trial court on that aspect. Unfortunately, no specific

issue is framed by the trial court. The trial court has

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simply proceeded as if the relationship is admitted by

the parties, so also the ancestral character of the

properties. The branch of Vellaisamy Kone is completed

missed out by the trial court. Why the trial court has

not taken into account this important aspect is not

known.

15.In this context, now we will go to the partition

alleged to have taken place between the plaintiff herein

Perumal Kone and his brother Ayyavu Kone. The certified

copy of the partition is marked as Ex.B44. Wherein it is

stated that Perumal Kone, the plaintiff herein; and his

brother Ayyavu Kone entered into partition during the

life time of their father namely Skkarai @ Karuppan @

Perumal Kone; The plaintiff was married; Ayyavu Kone was

not married; After that, they divided the property

belongs to his father Perumal Kone.

16.So, this recital clearly indicates that the

plaintiff got another brother Ayyadurai Kone. But in the

plaint, the above said fact is completely suppressed.

This suppression of material fact assumes importance in

the light of the plaint prayer.

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17.As mentioned above, in the plaint, it is stated

by the plaintiff that items No.3 to 5 were allotted to

the plaintiff in an oral partition. According to the

plaint averments, in and around 1975, he entered into a

family arrangement with the father of the defendant. In

the oral arrangement, items No.3 to 5 was allotted to

him.

18.This could not be true. Because, he got another

brother namely Ayyavu Kone. If really, 3 to 5 items were

allotted to the plaintiff, in that, Ayyavu Kone might

have also joined. The plaint is completely silent.

19.We will go to the evidence now. During the course

of the cross examination, the plaintiff would admit that

his father was born to Nattamai @ Perumal Kone through

the second wife. But was not aware about his grandmother.

His father died when he was at the age of 10. He would

also say that the partition between his father and

Ayyasamy Kone @ Perumal Kone is not known to him. The

meaning of this suggestion by the defendant is that even

during the life time of the plaintiff's father and the

defendant's grandfather, there was a partition in the

family. He would further admit that his brother did not

relinquish his right in the suit properties. But was

relinquished in his favour orally.

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20.Reading of the evidence of PW1 does not inspire

any confidence at all. Why this important fact was

suppressed by the plaintiff, absolutely there is no

explanation. When the suit is filed for declaration,

suppression of fact, if noticed will amount to clear

fraud on the court. This is the major defect available in

the plaint. With this in mind, let us go further.

21.At the time of argument, the learned counsel

appearing for the appellant would submit that the

ancestral character of the items 3 to 5 are found by the

trial court as well as the appellate court. When the

plaintiff has failed to prove the oral partition, then

automatically it will amount to ancestral joint family

property, in which the plaintiff got equal share. So,

the trial court or at least the appellate court ought to

have granted a decree of partition by moulding the

relief.

22.But this sort of argument is completely out of

place and cannot be taken into account at all. Even if

we take the argument into account, the plaintiff's

brother namely Ayyavu Kone when alive, the plaintiff

cannot seek the relief of partition in the absence of

Ayyavu Kone. So, this argument is rejected outright,

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since it is a specific case of the plaintiff that items 2

to 5 allotted to him in the partition, it is his duty to

prove the same. It is simply stated in the plaint that

even though he was regularly paying the kist, originally

patta was standing in his name in respect of items 3 to

5. Later, transferred in the name of the defendant.

Against which, he made objections.

23.Now in respect of these items, it is the case of

the defendant that those items were allotted to his

grandfather namely Ayyasamy Kone @ Perumal Kone. After

his death, his father inherited the property. He dealt

with the property as his own. After his death, the

defendant inherited. Among the three items, 3 and 4 were

already sold by him. In the 5th item only, the defendant

is in possession.

24.Regarding the transfer of patta, it is stated by

the defendant that the Revenue Divisional Officer by

order, dated 07/07/1989 in Na.Ka.No.2170/88B5 rejected

his claim and thereafter, no further appeal.

25.Regarding the transfer of patta proceedings, this

court need not discuss much. Even though much discussion

was made by the appellate court in this regard, any

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finding recorded in the revenue proceedings is only

subject to the result of the a civil suit. We need not

take much pain in this regard. When it is the case of the

plaintiff that the items 3 to 5 were allotted to him, it

is his duty to prove the same. To prove the oral

partition, absolutely, no independent witness was

examined on his side. PW2 is his own son. Whose evidence

is not helping the court much upon this point. Ex.A1 is

the old patta passbook standing in the name of the

plaintiff and Perumal Kone. Regarding the pattas, he

would admit that separate pattas were standing in the

name of his father and Ayyasamy @ Perumal Kone. So, this

admission on the part of the plaintiff clearly indicates

that even during the life time of his father, they

divided the properties. If it is not so, separate pattas

could not have been issued in the name of his father and

Ayyasamy @ Perumal Kone. So, this indicates that prima

facie his claim over the items 3 to 5 are not well

founded.

Now indirect circumstance:-

26.As mentioned above, if really the properties were

allotted to the branch of the plaintiff, then Ayyavu Kone

could have also demanded the right. As mentioned above,

he did not. Even in Ex.B4, it is not stated that apart

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from the properties partitioned under Ex.B44, some more

properties were allotted to his branch are also

available. Absolutely, there is no recital in Ex.B44. The

reason assigned by the plaintiff for not including those

properties namely 3 to 5 items in Ex.B44 also does

indicate that his claim is not true.

27.PW1 would admit that on 02/06/1965, he exchanged

some of the properties allotted to him with one

Thiruvenkatam. The certified copy is marked as Ex.B45.

It is dated 02/06/1965. So, this admission on the part

of the plaintiff clearly indicates that the properties

were divided much prior to 1975. So, the above said

circumstantial evidence also does indicate that items 3

to 5 were not allotted to the plaintiff in the oral

partition said to have taken place around 1975.

28.First of all, as mentioned above, there is no

evidence on record to show that there was an oral

partition in 1975. In the partition, items 3 to 5 were

allotted to the share of the plaintiff.

29.Now, we will go to the defendant side document in

respect of the items 3 to 5. The defendant relied upon

Ex.B25 in respect of the 5th item. This is dated

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28/04/1927. The mortgagor is the grandfather, wherein it

has been stated that the property is his share in the

ancestor. It was made over under Ex.B26. Later patta was

granted in the name of the defendant's father under

Ex.B27. Later, he mortgaged the property under Exs.B29

and B30 to one Karupayee. Wherein it has been

specifically stated that the property was allotted to his

father's ancestor. It was redeemed under Ex.B30. So,

these documents clearly indicates that 5th item was

allotted to the share of the defendant'S grandfather and

ever-since, their branch were dealing with the

properties. So, the contention on the part of the

plaintiff that taking advantage of the wrong issue of

patta, the defendant encroached upon the items 3 to 5

some three or four years prior to the plaint, is not

true.

30.Now we will go to the items 3 and 4. These items

were sold by the defendant on 10/08/1993 in favour of one

Ashokan and Tamil Selvi. But the certified copies of

those documents are not available. The reason assigned by

the defendant is that the stamp duty penalty was imposed

and so also, the certified copy was not issued due to non

payment of the stamp duty penalty. The Assessment Order

is marked as Ex.B43. This also clearly indicates that

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items 3 and 4 were already sold by the defendants much

before the date of the plaint. But the plaint reads as if

the defendants encroached upon the items 3 and 4. So, it

is seen that the defendant was dealing with the property

as his own and never encroached upon the property. So,

this substantial question of law is answered that Ex.A1

does not indicate any title over the property of the

plaintiff. So the 3rd substantial question of law is

answered.

31.Substantial question of law No.1 is also

consequential, which is answered that the appellate court

has not committed any mistake in interpreting or reading

the document. Absolutely, there is no perverse finding

and this substantial question of law is answered

accordingly.

32.Substantial question of law No.4:- Now coming to

the items 1 and 2 even at the time of argument, the

learned counsel appearing for the appellant would fairly

submit that they are not claiming any right in the two

items. So, no discussion need be made in respect of 2nd

item. So far as the first item is concerned, again it is

the case of the plaintiff that this property is a portion

of 1st item in the oral partition to be divided later.

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33.Regarding the 2nd substantial question of law:-

the defence taken is that it was allotted to them, but

the plaintiff would say that it is included in Ex.A1

patta. The finding recorded by the appellate court is

that in Ex.A1, 1st item is not mentioned. But the patta

was granted in favour of the defendant's father. From the

beginning namely from 1914 onwards in respect of the 1 st

item, the defendant's father was issued with patta during

the resettlement and subsequent survey. So, as contended

by the defendant, 1st item would also been allotted to the

share of the defendant's grand father even around 1914.

Ex.B5 is the certified copy of the EP proceedings in EP

No.698 of 1942 in OS No.156 of 1941. The properties were

sold as properties of the Perumal Kone. Two persons were

shown as the respondents namely Ayyasamy @ Perumal Kone

and Sarkarai @ Perumal Kone. The father's name is

mentioned as Nattamai % Perumal Kone. According to the

defendant, this was discharged by his grand-father and

become his absolute property. Even though, it is stated

that the decree amount was discharged by the defendant's

grandfather and father under Ex.B5, subsequent documents

shows that the 1st item might have also been allotted to

the defendant's grandfather. So, this substantial

question of law is also answered that there is no

perverse finding, either by the appellate court or by the

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trial court.