Madras High Court
Vijayan vs Sivasamy (Died)
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
28.06.2019 31.07.2019
CORAM
THE HONOURABLE MR. JUSTICE R.PONGIAPPAN
S.A No.814 of 2001
Vijayan ... Appellant
Vs.
1.Sivasamy (died)
2.Velu
3.Sakthi
4.Ganapathy
5.Natesan
6.Arumugham
7.Azhagammal
8.Veerammal
9.Aruvugam
10.Karuppayya
11.Rakkamml
12.Sundaramma
13.Pushpavalli
14.Kalaiselvi
15.Lakshmi ...Respondents
(Respondents 10 to 15 brought on record
as LRs of deceased 1st Respondent vide Court
order dated 11.11.2016 made in M.P(MD) No.02 of 2009)
http://www.judis.nic.in
2
Prayer: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the decree and judgment of the Additional
District Judge Cum Chief Judicial Magistrate Court, Pudukottai
passed in A.S.No.115 of 1999 dated 24.10.2000 confirming the
decree and judgment of the Principal District Munsif Court,
Pudukottai passed in O.S.No.386 of 1991 dated 27.02.1998.
For Appellant : Mr.V.K.Vijayaragavan
For R-2 to R-9 : Ex parte
For R-10 to R-15 : Mr.K.Balasundharam
JUDGMENT
Aggrieved over the concurrent findings made in O.S.No. 386 of 1991 on the file of learned Principal District Munsif, Pudukottai and in A.S.No.115 of 1999 on the file of the learned Additional District Judge Cum Chief Judicial Magistrate, Pudukottai, the appellant herein who is the third defendant in the suit filed this second appeal seeking the relief to set aside the above referred concurrent findings.
2.Before the trial Court, the deceased first plaintiff, namely Sivasamy filed a suit, seeking the relief of declaration http://www.judis.nic.in 3 declaring that he is the absolute owner of the suit schedule properties, further, for the relief of injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit properties by the plaintiff. Alternatively, he prayed for the relief of recovery of possession. By judgment and decree dated 27.02.1998, the learned Principal District Munsif, Pudukottai, allowed the suit and granted the decree in favour of the plaintiff. Aggrieved over the same, the appellant herein filed an appeal before the learned Additional District Judge Cum Chief Judicial Magistrate, Pudukottai. The learned Additional District Judge Cum Chief Judicial Magistrate, in his judgment and decree dated 24.10.2000, dismissed the appeal after confirming the findings arrived at by the trial Court. Feeling aggrieved over the same, the third defendant in the suit is before this Court with the present second appeal. During the pendency of the second appeal, since the first respondent died, his legal representatives are impleaded as respondents 10 to 15.
3.For the sake of convenience, the parties are referred to as, as described by the trial Court.
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4.The averments made in the plaint, in brief, are as follows:-
In earlier, the suit schedule properties are the absolute properties of one Thirupathi Servai, who is the father of the plaintiff. Through his wife Srirangaththammal the said Thirupathi Servai blessed with the plaintiff and defendants 4 to 6, husband of the 7th defendant i.e., Mundan and 9th defendant as his legal heirs,. In respect to the suit schedule properties, the patta has also been issued in favour of Thirupathi Servai in Sl.No.500. After the demise of the said Thirupathi Servai, the plaintiff, defendants 4 to 6, the deceased Mundan and 9th defendant are derived the title by succession. Further, the patta has also been changed in the name of the plaintiff, defendants 4 to 6 and in the name of the Mundan Servai in Sl.No.1688. In the year of 1991, the above referred sons and daughter of the Tirupathi Servai partitioned the family properties orally, in which, the suit properties were allotted in favour of the plaintiff. Ever since from the date of partition, the plaintiff is in possession and enjoyment of the suit properties. Further, after the partition, the brother of the plaintiff Mundan was passed away. In respect to the suit schedule properties, the first and third defendants are not having any right and title. However, http://www.judis.nic.in 5 now they are attempted to interfere with the possession of the plaintiff. On 22.01.1991, the plaintiff sent a legal notice to the first and third defendants, for which, the third defendant sent a reply notice on 20.02.1991 in which he denied the title of the plaintiff. Subsequently, on 15.04.1991, the defendants are wrongfully entered and attempted to cultivate the suit properties. Hence, the suit.
5.The averments made in the written statement filed by the third defendant, in brief, are as follows:-
The suit schedule properties are the properties belong to both the plaintiff and third defendant. In the year of 1979, the said properties were divided into two parts in which one part was allotted in favour of the Thirupathi Servai and another part was allotted in favour of one Kanthiah Servai and Velu Servai. After the demise of Velu servai, the patta has been changed in his son's name. However, in the panchayat, partition was completed orally. After giving false information to the revenue authority, the plaintiff obtained the patta in his name and now, he filed a false suit against the defendants.
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6.The averments made in the written statement filed by the sixth defendant, in brief, are as follows:-
The plaintiff is the brother of sixth defendant. Apart from the plaintiff, the deceased Thirupathi Servai blessed with Mundan Servai, Nateshan Servai and Ganapathi Servai. From the above, as of now, the said Mundan is no more. The other brothers of the plaintiff was arrayed as fourth to sixth defendants and the ninth defendant is his sister. The suit schedule properties belong to the first defendant and his brother Kanthiah Servai. So far partition has not been completed in respect to the suit schedule properties. According to him, the suit is liable for dismissal.
7.Before the trial Court, the defendants 1, 2, 4, 5, 7 to 9 were remained ex parte.
8.Based on the above pleadings, the learned Principal District Munsif, Pudukottai, had framed necessary issues and tried the suit.
9.Before the trial Court, on the side of the plaintiff, two witnesses have been examined as P.W.1 and P.W.2 and 22 http://www.judis.nic.in 7 documents were marked as Ex.A.1 to Ex.A.22. On the side of the defendants, three witnesses have been examined as D.W.1 to D.W.3 and seven documents were marked as Ex.B.1 to Ex.B.7.
10.Having considered all the materials placed before him, the learned Principal District Munsif, Pudukottai, had allowed the suit in favour of the plaintiff and granted the decree for the relief of declaration and injunction. Against which, the third defendant filed an appeal before the learned Additional District Judge Cum Chief Judicial Magistrate, Pudukottai and the same was dismissed. Feeling aggrieved over the same, the third defendant is before this Court with the present Second Appeal.
11.At the time of admitting the Second Appeal, this Court has formulated the following Substantial Question of Law, for consideration:-
Whether the decree and judgment of the Courts below are liable to be set aside for non-consideration of relevant evidence available on record?
http://www.judis.nic.in 8 Substantial question of law:-
12.The specific case of the plaintiff is that in earlier the suit properties are in the hands of his father Thirupathi Servai. After his demise, in the year of 1991 there was a oral partition between the brothers and sister, in which the suit properties were allotted in favour of the plaintiff.
13.On the other hand, it is the specific case of the defendants that the suit properties are the ancestral properties of the plaintiff and third defendant family. So far partition has not been effected between the family of the plaintiff and defendants. Further as of now, the suit properties are in the hands of the third defendant.
14.Now in respect to this appeal, the learned counsel appearing for the appellant/third defendant would contend that the suit properties are the ancestral properties of the plaintiff and defendants. Ex.B.1 which is the copy of 'A' Register, will prove the same. D.W.2 who is the brother of the plaintiff, has also supported the case of the defendants. On the other hand, in order to prove the title on the side of the plaintiff, no title document has been http://www.judis.nic.in 9 produced. But the Courts below without considering those aspects granted the decree in favour of the plaintiff. He further added that at the most the plaintiff is entitled to file a suit for partition and not this suit.
15.Per contra, the learned counsel appearing for the respondents 10 to 15 would contend that in the appeal filed under Section 100 C.P.C, it is not necessary for this Court in interfering with the factual findings. Further appreciation of evidence recorded by the trial Court is not necessary for disposing this appeal. However the documents relied on by the plaintiff will prove from the year 1991 onwards only the plaintiff is in possession and enjoyment of the suit properties. The Courts below fully appreciated the said fact and concluded the suit in favour of the plaintiff. According to him, no substantial question of law is raised in this appeal.
16. Initially it is found in respect to the relationship between the plaintiff and defendants, one Vaithi Servai is having six sons viz., Muththaiyan Servai, Vellaiyan Servai, Raman Servai, Arunchalam Servai, Vairavan Servai and Chithambaram Servai. http://www.judis.nic.in 10 From the above, the said Muththaiyan has blessed with two sons namely Thirupathi Servai and Ranganservai. Similarly Vellaiyen Servai is having three sons namely Kanthiah, Velu and one unknown persons. Further, Thirupathi Servai is having six sons, already referred as above.
17.Before the trial Court the details of relationship above mentioned is not disputed on either side. In the said circumstances, the plaintiff has claimed the suit properties as through oral partition happened in the year of 1991, the same was allotted in his favour. In this regard, it is necessary for the plaintiff to prove that in earlier periods the suit properties are in the hands of Thirupathi Servai.
18.In this regard, when at the time of giving evidence as D.W.1, the third defendant has admitted that after filing the suit, he came to knowledge that the suit survey number is found in the name of Thirupathi Servai. Further before the trial Court, in order to prove the case of the plaintiff, the patta stands in the name of Thirupathi Servai was marked as Ex.A.1. Subsequently, the patta stands in the name of the plaintiff and his brother dated http://www.judis.nic.in 11 22.02.1985, was marked as Ex.A.2, the kist receipts pertaining to the suit properties were marked as Ex.A.3 to Ex.A.7. More than that, on 01.04.1991, the Village Administrative Officer issued a certificate that the suit properties are now in the name of plaintiff and on his brothers. Apart from that in a sale deed dated 07.10.1965 executed by the father of the third defendant in favour of Rangan he clearly mentioned as one of the boundary is the property belongs to Thirupathi Servai. Further, before the trial Court, the adangal extract stands in the name of the plaintiff and defendants pertaining to the year of 1991, have been marked as Ex.A.16 to Ex.A.22. So the said documents will clearly reveal the fact that from the year of 1985 to 1991, the suit schedule is in the hands of the plaintiff's family.
19.Only in the said circumstances, the plaintiff has claimed the suit property by saying that in the year 1991, through the oral partition happened between his brothers the suit property was allotted in his favour. However, it is the peculiar case that the third defendant has also claimed that the suit properties are belonged to him. In fact, the defendant in support of his contention produced the copy of 'A' Register dated 04.07.1996 pertaining to http://www.judis.nic.in 12 the suit proprieties. As per the 'A' registrar, the properties are in the name of the predecessor of the plaintiff and defendants. In otherwise, except the said document, he has not produced any other document to prove his title.
20.It is the settled position that the revenue records did not confer any title in favour of anyone. In this case, the plaintiff, for the reliefs prayed by him duty is cast upon him to prove his case. But, on the side of the plaintiff, in order to prove the title and possession, only the document pertains to the Revenue Department has been produced. Further, all the documents relied on by the plaintiff is upto the year of 1991 and thereafter no document is produced for subsequent periods. Therefore, the documents relied on by the plaintiff are all proved the possession and did not confer any title.
21.In this regard, the learned counsel appearing for the respondents 10 to 15 would contend that since both the Courts below pronounced concurrent judgments, it is not necessary to interfere with the factual findings given by the Courts below. In this regard, it is true that since the appeal is filed under Section http://www.judis.nic.in 13 100 C.P.C., ordinarily this Court has not interfered with the factual findings arrived at by the Courts below. However, if the Courts below committed error, grave injustice, it is the duty of this Court to interfere with the finding arrived at by the trial Court. It is obvious that as already stated, to prove the title except the revenue records stand in the name of the family of the plaintiff, no other document was produced on the side of the plaintiff. In this regard, before the trial Court, the sale deed executed by the father of the third defendant in respect to his land was marked as Ex.A.11. The said document was not disputed on the side of the defendants. In the said document, it was mentioned about the four boundaries as “jpUg;gjp nrh;it g{kpf;F fpHf;F” The said recital will clearly prove that the father of the plaintiff and the father of the third defendant who are the brothers already partitioned the properties. So it cannot be held that there was no partition effected in between the family of the plaintiff and third defendant.
22.Only in the said occasion, the plaintiff filed a suit stating that the suit schedule properties are in the hands of his family from the year of 1985. In order to prove the same, the copy of the adangal extract and kist receipt stands in favour of the http://www.judis.nic.in 14 plaintiff and in the name of the plaintiff's brother are marked as exhibits. So the said circumstances probablise that the suit properties in earlier periods stands in the name of the Thirupathi servai and after his demise, the same came to the hands of his sons and daughters.
23.It is the case of the plaintiff that in the year 1991 there was an oral partition happened in his family. But in order to prove the same no document is produced on the side of the plaintiff. However the suit has been filed only after including the plaintiff's brother and sister as parties to the suit. In the said situation, both the brothers and sister of the plaintiff had not appeared before the trial Court after receiving the notice from the trial Court. It shows if really the family members of the plaintiff is having objection in respect to the suit property, necessarily they have to appear before the trial Court. But they are all remained ex parte. The said circumstance reveals that they are not having any objection for allowing the suit. So the non-appearance of fourth to nineth defendants is a clinching evidence that an oral partition had happened in the year of 1991 in the family of plaintiff. http://www.judis.nic.in 15
24.The Courts below have clearly analyzed the said aspect and only thereafter concluded the suit in favour of the plaintiff. In the said circumstances, the learned counsel appearing for the appellant relied the judgment of Ethirajula Naidu and other Vs. Yasodammal and others reported in 2010 (4) CTC 378, the judgment pronounced by this Court in S.A.No.1157 of 1963 and 19 of 1964. On relying those judgments he made a submission that the boundary mentioned in Ex.A.11 alone is not sufficient to hold that the case of the plaintiff is true one.
25.On considering the said argument with the facts of this case it is necessary to see other circumstances also in fact, in this case the third defendant has also claimed that the suit properties are belongs to him. But except 'A' Register (Ex.B.1) pertaining to the year of 1996 no other document was produced on his side to prove the title. More than that in Ex.B.1 the portion of the suit properties alone has been mentioned. Since 'A' Register is the permanent Register we cannot hold that it is sufficient to prove the title and possession. In either way, this matter has to be decided only based on the evidence.
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26.In this occasion, the learned counsel for the appellant relied the judgment of this Court reported in 2000 (1) L.W 853 in the case of Narayanaswamy Vs. Raman, in which this Court has held as follows:-
Though the findings of the two courts below are concurrent, this Court is unable to sustain the judgment of the Courts below as they have miserably failed to consider the material documents and oral evidence. The omission to consider the material documents and material portion of the evidence by the two Courts below is a valid ground for interference in the Second Appeal, even if it is against concurrent findings. Merely because the findings are concurrent, this Court is not helpless when it is demonstrated that the two Courts below have failed to advert or consider the material portion of the evidence or their appreciation of evidence is perverse or the findings recorded by the two Courts below are demonstrably incorrent on the face of the documentary evidence produced before the two Courts below. This Court is considering this appeal, being conscious of the pronouncement of the Apex Court as to the Court's power under Section 100 C.P.C.
Further, he relied on the judgment of the Hon'ble Apex Court reported in 2019 AIR (Civil) 366 in the case of Jagdish Chander Vs. Satish Chander & Ors, in which it was decided as follows:-
...in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record and further the High Court has misconstrued the document of gift, we are of the view that judgment of the High Court is liable to be set aside.
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27.So from the judgments relied on by the appellant it is clear that interference of this Court in the factual findings arrived at by the Courts below, is legal, subject to the irregularity committed by the Courts below. So applying the said principle with the case in our hand, the appellant did not specify the material irregularity committed by the Courts below. In fact, there is no substantial question of law arises in this appeal. Further, the Courts below, concurred their judgment only on the evidence let in by either side.
28.In the result, this Second Appeal is dismissed, by confirming the Judgment and Decree, dated 24.10.2000, passed in A.S.No.115 of 1999, by the learned Additional District Judge Cum Chief Judicial Magistrate, Pudukottai confirming the Judgment and Decree, dated 27.02.1998, passed in O.S.No.386 of 1991 by the learned Principal District Munsif, Pudukottai. No costs.
31.07.2019 Index : Yes/No Internet: Yes/No cp http://www.judis.nic.in 18 R.PONGIAPPAN, J.
cp To
1.The Additional District Judge Cum Chief Judicial Magistrate, Pudukottai
2. The Principal District Munsif, Pudukottai.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
S.A No.814 of 2001
31.07.2019 http://www.judis.nic.in