Madras High Court
T.Muthukrishnan Reddiar vs O.1847 Ngo Cooperative Building ... on 29 October, 2021
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
SA(MD).No.342 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 07.07.2021
PRONOUNCED ON : 29 .10.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
SA(MD)No.342 of 2021
CMP(MD)No.4579 of 2021
(Through Video Conferencing)
1. T.Muthukrishnan Reddiar
2. K.V.S.Ramanathan (died)
3. S.Anantha Pathmanaban
4. T.Veeraiya Reddiar
(Appellants 2 and 3 represented
by Power Agents, S.Paramasivam and S.Selvaraj)
5. Balakrishnan
6. K.V.S.Sankaran
7. Nambi
8. K.V.S.Alwar
9. Ratha Muthukrishnan
10.Anandha Kumar
11.Amutha Appellants
Vs
1. O.1847 NGO Cooperative Building Society by
its Secretary, Perumalpuram, Palayamkottai
Tirunelveli
2. Balakrishnan (not contesting party) Respondents
Prayer:- This Second Appeal has been filed, against the judgement and decree,
dated, 13.01.2020, passed in AS.No.159 of 2014, by the Sub Court, Tirunelveli,
confirming the judgement and decree, dated, 06.02.2014, passed in OS.No.724
of 2010, by the II Additional District Munsif Court, Tirunelveli.
1/9
https://www.mhc.tn.gov.in/judis
SA(MD).No.342 of 2021
For Appellant : Mr.V.S.Rishikesh for Mr.H.Arumugam
JUDGEMENT
1. The unsuccessful Plaintiffs before both the courts below have filed this Second Appeal, against the judgement and decree, dated, 13.01.2020, passed in AS.No.159 of 2014, by the Sub Court, Tirunelveli, confirming the judgement and decree, dated, 06.02.2014, passed in OS.No.724 of 2010, by the II Additional District Munsif Court, Tirunelveli.
2. The case of the Plaintiffs before the Trial Court is that the suit property and other properties originally belonged to the predecessors of the Plaintiffs under the sale deed, dated 08.07.1935 and after their demise, the Plaintiffs are the lawful owners of the suit property and they are in physical possession and enjoyment of the same. On 04.12.2010, when at the instance of the Plaintiffs, Palayamkottai Taluk Surveyor measured the suit property, the defendant's men had caused disturbance and hence, the suit had been filed, seeking permanent injunction, restraining the Defendants from interfering with their peaceful possession and enjoyment of the suit property.
3. The case of the Defendant is that the Defendant Society had purchased the property mentioned in the written statement under the sale deed, dated 27.07.1960 and the same was converted into residential plots, which were allotted to the Government Officers. The property measuring 6 acres 52 cents in S.No.722/1 is not the property mentioned in the written statement as alleged by the Plaintiffs. The properties mentioned in the written statement are 5 acres 46 cents in S.No.919 and 6 acres 45 cents in S.No.920/1. The 2/9 https://www.mhc.tn.gov.in/judis SA(MD).No.342 of 2021 Plaintiffs attempted to grab these properties stating that these properties are situated in S.No.722/1 and hence, a letter was sent to the Revenue Divisional Officer, Tirunelveli on 11.10.2010 and a public notice was also made in Dinamalar Daily Newspaper on 14.10.2010 and police complaints dated 25.10.2010 and 05.12.2010 were also made. The Defendant had also filed a suit against the 1st plaintiff in OS.No.700 of 2010 and a petition for appointment of commission in IA.No.1156 of 2010 and the said suit is pending. The description of property, survey number, measurement and boundaries are wrong. The details of the purchaser of the suit property, patta, relationship with the deceased predecessor, who allegedly stated to have purchased the suit property and the legal heirs of the deceased predecessor are not stated. In such circumstances, the present suit is liable to be dismissed.
4. On the basis of the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to Ex.A8 were marked and PW.1 to PW.3 were examined. On the side of the Defendant, Ex.B1 to Ex.B15 were marked and DW.1 was examined. Both the courts below had dismissed the suit, by the impugned judgements. Aggrieved against the same, this Second Appeal has been filed.
5. The learned counsel for the Appellants has submitted that the courts below erred in dismissing the suit, ignoring Ex.A4, title deed, Ex.A3 patta and Ex.A6 kist and that the finding of the lower appellate court that Plaintiffs have not established their case is not supported by any evidence and that since the 3/9 https://www.mhc.tn.gov.in/judis SA(MD).No.342 of 2021 suit property is a joint family ancestral property, the question of proving title and possession by the 1st Plaintiff alone does not arise and for such grounds, the suit ought to have been decreed.
6. This Court heard the learned counsel for the Appellants and considered his submissions and also perused the materials available on record. For the sake of convenience, the parties herein after are referred to as they were arrayed in the suit.
7. The suit was filed for permanent injunction, on the ground that the suit property belonged to the Plaintiffs, as per Ex.A.4 sale deed, Ex.A3, patta and Ex.A6 kist receipt and that they are in possession and enjoyment of the same. It was the case of the Defendant Society that the property belonged to them lies in Survey No.919 to an extent of 5 acres 16 cents and in Survey No.920/1 to the extent of 6 acres 45 cents and that by claiming that the suit property is situated in the property purchased by them, the suit was filed falsely and that the Plaintiffs have not proved their case by valid evidence.
8. The courts below, on a perusal of Ex.A.4, had held that since the predecessor in title of the Plaintiffs, namely, Subba Reddiyar, Veera Reddiyar, Venkatachalam Reddiyar and Sankaranarayana Reddiyar had purchased only 1/12 share in S.No.721/3 to an extent of 2 acres 13 cents and in suit S.No.722/1 to an extent of 6 acres 58 cents, the Plaintiffs are not entitled to claim the entire Survey No.722/1 to an extent of 6 acres 58 cents, since it has not been pleaded by the Plaintiffs as to what happened to the remaining 11/12 shares and how they are entitled to the entire suit property 4/9 https://www.mhc.tn.gov.in/judis SA(MD).No.342 of 2021 and it was not proved that the Plaintiffs are entitled to the remaining extent of land in Survey No.722/1.
9. The courts below had also found that since, as per Ex.A.4, apart from Subba Reddiyar, there were other three purchasers, namely, Veera Reddiyar, Venkatachala Reddiyar and one Sankaranarayana Reddiyar, the Plaintiffs' predecessor, Subba Reddiyar is entitled to only 1/4 share, out of the 1/12 share purchased as per Ex.A.4 sale deed and that only during the cross examination of PW.1, it was stated that they are entitled to the remaining share in the suit property as per the partition deed of the year 1948, however, the said partition deed was also neither pleaded nor produced on the side of the Plaintiffs and therefore, it was rightly held by both the courts below that the claim of the Plaintiffs to the entire extent of Survey No.722/1 cannot be countenanced.
10.In so far as Ex.A3 and Ex.A6 are concerned, it was held by the courts below that Subba Reddiyar and his brothers are entitled to only 1/12 share in the suit property and that in Ex.A.3, apart from Subba Reddiyar, the name of the other purchasers as well as some other 3rd parties' name were found mentioned. Though the Plaintiffs claim that they are entitled to 6 acres 58 cents in Survey No.722/1 in Ex.A.3 itself, it has been clearly mentioned that Survey No.722/1 has been subdivided and the said Ex.A.3, which is 10(1) extract for Patta No.930, has been issued only for 722/1A to an extent of 65 ares alone and only for the said Patta, Ex.A.6 kist has been paid. It was also found by the courts below that as per, Ex.A.5, proceedings of the Tahsildar 5/9 https://www.mhc.tn.gov.in/judis SA(MD).No.342 of 2021 concerned, Survey No.722/1 had been subdivided into 722/1A, 722/1B1A, 722/1B1B, 722/1B2, the suit property does not disclose any such subdivision as per Ex.A.5. Further, considering the admissible evidence of P.W.1 during his cross examination that Survey No.722/1 has been subdivided and that there were several houses constructed in 6 acres 58 cents and some portions are remaining vacant and that he was not aware as to how much extent of land is remaining vacant in 6 acres 58 cents and who are all the owners of the buildings found in the suit property and that those buildings might have been built only after 1970 and that he has not raised any objection for such constructions and that the portion of property in which buildings were constructed is being called as N.G.O colony, the courts below have held that the suit property is not vacant land and that in the suit property, several buildings were there and only within the suit property, Defendant had sold plots and that therefore, the claim of the Plaintiffs that they are in possession and enjoyment of the entire property as per Ex.A.3 and Ex.A.6 cannot also be countenanced.
11.As rightly pointed out by the courts below, the Plaintiffs had laid the suit, by describing the entire suit property as vacant site by suppressing the real fact that there were residential houses and buildings situated in the said property which was admitted during the cross examination of PW.1. Therefore, both the courts below have concurrently and rightly come to the conclusion that the Plaintiffs are entitled to only 1/12 share in the suit property and suppressing the same, the Plaintiff claimed title to the entire 6 acres 58 cents 6/9 https://www.mhc.tn.gov.in/judis SA(MD).No.342 of 2021 by projecting as if they are in possession and enjoyment of the entire property and accordingly, rejected the claim of the Plaintiffs, holding that the Plaintiffs had failed to prove their his case that they have title or interest in the suit property and that they are in possession and enjoyment of the same, by letting in valid evidence. This Court is of the view that the said concurrent findings of the both the courts below are well founded and cannot be interfered with for want of compelling reasons.
12.The 'question of fact' is whether a particular factual situation exists or not. An inference of fact from the recitals or contents of a document is only a 'question of fact'. Where the determination of an issue depends upon the appreciation of evidence or materials resulting in ascertainment of basic facts without application of any principle of law, the issue merely raises a 'question of fact'. But, under Section 100 of CPC, the jurisdiction of the High Court to entertain a Second Appeal is confined only to such appeals, which involve a 'substantial question of law' and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact, while exercising its jurisdiction under Section 100 of CPC.
13.The Honourable Supreme Court, time and again, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 of CPC must be avoided, unless warranted by compelling reasons. The High Court has no jurisdiction in a second appeal to interfere with the finding of facts, as has been held in (2005) 9 SCC 232 (Hindu Religious & Charitable Endowments v. P. Shanmugama), in 2005 7/9 https://www.mhc.tn.gov.in/judis SA(MD).No.342 of 2021 10 SCC 139 (State of Kerala v. Mohd. Kunhi) and 2005 10 SCC 553 (Madhavan Nair v. Bhaskar Pillai).
14.The principle laid down by Honourable Supreme Court laid down in the case of Kirpa Ram Vs. Surendra Deo Gaur (2020 SCC OnLine SC 935) is that that a Second Appeal can be dismissed at the admission stage itself, without formulating a substantial question of law, if none arises was reiterated.
15.This second appeal does not give rise to any substantial question of law and the ones raised are inference of facts arising from the documents. In this case, when both the courts below have concurrently recorded findings of facts, as discussed above and in the absence of warranting compelling reasons, the same cannot be interfered with in this second appeal and accordingly, this Second Appeal deserves to be dismissed.
16.In fine, this Second Appeal is dismissed. No costs. Consequently, the connected MP is closed.
29.10.2021 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To
1. The Sub Court, Tirunelveli
2. The II Additional District Munsif Court, Tirunelveli
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai 8/9 https://www.mhc.tn.gov.in/judis SA(MD).No.342 of 2021 A.A.NAKKIRAN, J.
Srcm Pre-Delivery Judgement in SA(MD).No.342 of 2021 29.10.2021 9/9 https://www.mhc.tn.gov.in/judis