Madras High Court
Chellamuthu Gounder (Died) vs Thirumalaisamy Gounder on 11 October, 2018
Equivalent citations: AIRONLINE 2018 MAD 1582
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 11.10.2018 RESERVED ON : 24.09.2018 PRONOUNCED ON : 11.10.2018 CORAM THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN Second Appeal(MD) No.42 of 2005 Chellamuthu Gounder (Died) 2.Palaniammal 3.Saraswathi 4.Chelladurai 5.Selvaraj ... Appellants Vs 1.Thirumalaisamy Gounder 2.Valliammal 3.Gvindasamy 4.Thirumalaisamy ... Respondents (Appellants 2-5 are bring on records as legal heirs of deceased sole appellant, vide order dated 13.08.2018 in C.M.P(MD)Nos.6271 to 6273 of 2018) Prayer: The Second Appeal is filed under Section 100 of CPC, to set aside the judgment and decree passed in A.S.No.34 of 1998 on the file of the Subordinate Judge, Palani, dated 21.01.2004 confirming the judgment and decree passed in O.S.No.149 of 1995 on the file of the District Munsif Court, Palani, dated 18.03.1998. !For Appellants : Mr.R.Nandakumar ^For R1 and R3 : Mr.M.P.Senthil For R2 and R4 : No Appearance :JUDGMENT
The plaintiff in O.S.No.149 of 1995 on the file of the District Munsif Court, Palani, is the appellant herein.
2.O.S.No.149 of 1995 had been filed by the plaintiff, Chellamuthu Gounder, against four defendants, Thirumalasi Gounder, Valliammal, Govindasamy and Thirumalaisami, seeking a judgment and decree for declaration of title, partition of his 1/3 undivided share in the suit property and for separate possession. The said suit was partly decreed with respect to the declaration of title of 1/3 undivided share and dismissed with respect to the other reliefs. The plaintiff, then filed an appeal in A.S.No.34 of 1998, which came up for consideration before the Subordinate Judge, Palani, who, by judgment dated 21.01.2004, dismissed the appeal and confirmed the judgment and decree in O.S.No.149 of 1995. Challenging the said judgment and decree, the plaintiff had filed the present second appeal.
3.Pending the second appeal, the plaintiff / appellant, Chellamuthu Gounder, died and his legal heirs have been brought on record as 2-6 appellants.
4.This second appeal was admitted on the following substantial questions of law:
?a)Whether the Court below is right in ignoring the recitals in the document which would prove that the sale was with reference to undivided share?
b)Whether the Court below is right in directing the plaintiff to file a separate suit in the absence of any pleadings on other side??
O.S.No.149 of 1995:-
5.This suit was filed with respect to the lands in Appiyampatti Village, Palani Taluk, Dindigul District in S.No.256/2, measuring 5.98 acres. It was stated that the said land had been purchased by Nalla Gounder, by sale deed dated 22.07.1943 and 06.07.1946. He was in possession and enjoyment of the property. The lands were punja lands. He had three sons and two daughters. It was stated that Nalla Gounder and his three sons enjoyed the property as a joint family property. Nalla Gounder died on 21.10.1950. His wife had predeceased him. The properties were inherited by the three sons, and each had an undivided 1/3 share. It was claimed that they orally partitioned the properties.
6.The first defendant purchased through Court auction, the 1/3 share, which fell to one of the sons, Arumuga Gounder. The other son, Chozhiyappa Gounder, sold his 1/3 share to Palaniammal by sale deed, dated 01.12.1969. She, in turn, gifted that 1/3 share to the second defendant, Valliammal. It was, therefore, stated that the first and second defendants were entitled to 2/3 undivided share in the suit property. The 3 and 4 defendants were the children of the 1 and 2 defendants. The third son of Nalla Gounder, by name, Palaniappa Gounder sold his 1/3 undivided share to a third party by a sale deed dated 21.04.1965. It was stated that he then purchased the same.
7.It was stated that Palaniappa Gounder, his wife Naakkalammal and his daughter, Mayilaathal then sold their 1/3 undivided share, by sale deed dated 30.01.1995 to the plaintiff. The plaintiff, therefore, claimed 1/3 undivided share in the suit property. It was stated that the defendants, however, began to claim right over the said 1/3 undivided share. There were exchange of notices between the plaintiffs and 1st and 2nd defendants in this regard. It is under these circumstances that the suit had been filed seeking 1/3 undivided share in the suit property and partition and separate possession. The 3rd and 4th defendants were joined as proper parties to the suit.
8.In the written statement filed by the first defendant and and adopted by 2-4 defendants, it had been stated that the suit property in S.No.256/2 in Appiyanpatti Village, Palani Taluk, originally belonged to Nalla Gounder, who had purchased the same by sale deeds dated 22.07.1943 and 06.07.1946. It had been stated that the Nalla Gounder died on 21.10.1950. His wife Periyammal died on 12.09.1956. His three sons and two daughters orally partitioned the suit property and other properties. 1/3 undivided share was enjoyed by Palaniappa Gounder and his sister Valliammal. The other 2/3 undivided share in the suit property was enjoyed by Arumuga Gounder and Chozhiyappa Gounder. It had been stated that the first defendant purchased 1/3 undivided share of Arumuga Gounder through Court auction by sale deed dated 22.10.1973.
9.It was also stated that the other 1/3 share of Chozhiyappa Gounder was sold to Palaniammal, by sale deed, dated 01.12.1969 and she had settled the properties by gift deed, dated 23.07.1973 to the second defendant. It had been stated that there was no partition of the property by metes and bounds. However, there had been sub division of the patta. It had been stated that even before the plaintiff purchased the property, the property had been sub divided and separate patta had been issued. It had been stated that S.Nos.256/2G and 256/2D alone were under the enjoyment of the predecessor-in-interest of the plaintiff. The plaintiff had purchased only those two sub-divided portions of S.No.256/2. It had been stated that since sub-division had already been done, the claim of the plaintiff for partition and separate possession cannot be granted. It had been stated that the plaintiff is entitled for the lands in S.Nos.256/2D and 256/2G. It had been stated that with respect to the other reliefs, the suit should be dismissed.
10.On the basis of the above pleadings, the learned District Munsif, Palani, framed the following issues for trial:
?1.Whether the plaintiff is entitled to the partition of the property?
2)Whether the plaintiff is entitled to future means profits?
3)To what other reliefs, the plaintiff is entitled??
11.the learned District Munsif, Palani, framed the following additional issues for trial:
?Whether there was oral partition, as claimed by the defendant??
12.During trial, the plaintiff examined himself as PW-1 and examined an independent witness, Arumuga Gounder, as PW-2. The first defendant examined himself as DW-1 and examined an independent witness, Muthu Gounder, as DW-2. The plaintiff marked Ex-A1 to Ex-A11. Ex-A1 and Ex-A2 are the sale deed in the name of Nalla Gounder, dated 22.07.1943 and 06.07.1946. Ex-A4, dated 01.12.1969, is the sale deed in favour of Palaniammal executed by Chozhiappa Gounder. Ex-A5 and Ex-A6, dated 23.03.1973, are the settlement deed executed by Palaniammal in favour of the second defendant. Ex-A8 is the sale deed in favour of the plaintiff, dated 30.01.1995. Ex-A10, dated 04.01.1995, is the notice issued by the defendants. Ex-A11, dated 23.02.1995 is the reply notice sent by the plaintiff.
13.On the side of the defendants, Ex-B1 to Ex-B20 were marked. Ex-B2 and Ex-B3 are the same documents as Ex-A5 and Ex-A6. Ex-B5 is the patta in the name of the first defendant and Ex-B6 is the patta in the name of the second defendant. Ex-B7, Ex-B8 and Ex-B10 are Chitta in the name of the 1 and 2 defendants. Ex-B9 is the Chitta in the name of Palaniappa gounder. Ex- B11 is the Adangal in the name of the 1 and 2 defendants. Ex-B12 is the kist receipt in the name of the defendants. Ex-B16 is the sale deed, dated 10.01.1995 in the name of the third defendant executed by Valliammal. Ex-B17 and Ex-B19 are the same documents as Ex-A10 and Ex-A11. Ex-B20 is the proceedings of the Tahsldar, Palani. During trial, Ex-C1, Commissioner report, Ex-C2 and Ex-C3, rough sketches were also marked.
14.By judgment dated, 18.03.1998, the learned District Munsif, Palani held that the property had been sub-divided by revenue proceedings. It had been held that the S.No.256/2 had been sub-divided as 256/2I, which was allotted to the first defendant and S.Nos.256/2B and 256/2F were allotted to the second defendant. It was also stated that the predecessor-in-title of the plaintiff, namely, Palaniappa Gounder and his sister Vallilammal were allotted S.Nos.256/2A, 256/2G and 256/2D. Valliammal had sold her share in S.No.256/2A to the third defendant. It was therefore, stated that the plaintiff was entitled to the property in S.Nos.256/2G and 256/2D. These facts were determined by the trial Court and since there had already been sub-division of the property, the learned District Munsif granted the relief of declaration of title alone with respect to the S.Nos.256/2D and 256/2G and with respect to 1/3 undivided share in S.No.256/2. The relief of partition and separate possession were negatived. The suit was partly decreed.
A.S.No.34 of 1998:-
15.The plaintiff filed an appeal in A.S.No.34 of 1998, which came up for consideration before the Subordinate Court, Palani. The learned Subordinate Judge framed necessary points for determination and re-examined the evidence on record. By judgment dated 21.01.2004, the learned Judge also found that the entire property had been sub-divided and the predecessor-in- title of the plaintiff, namely, Palaniappa Gounder and his sister Valliammal had not objected to the same. It had also been stated that though the plaintiff had objected before the District Revenue Officer with respect to the sub-division, that objection was negatived. It had been stated that all the allottees of the land knew about the sub-division. It was further held that the plaintiff had instituted the suit 11 years after the final orders were passed by the District Revenue Officer. It had also been held that with respect tot he easementary right, only a separate suit will lie. Consequently, the learned Subordinate Judge dismissed the appeal and confirmed the judgment and decree in O.S.No.149 of 1995.
S.A.(MD)No.42 of 2005:-
16.This appeal had been filed by the plaintiff in the suit. The plaintiff died pending the appeal and his legal heirs were brought on record as 2-5 appellants.
17.This second appeal was admitted on the following substantial questions of law:
?a)Whether the Court below is right in ignoring the recitals in the document which would prove that the sale was with reference to undivided share?
b)Whether the Court below is right in directing the plaintiff to file a separate suit in the absence of any pleadings on other side??
18.Heard arguments advanced by Mr.R.Nandakumar, learned Counsel for the appellants and Mr.M.P.Senthil, learned counsel for the R1 and R3.
19.For sake of convenience, the parties would be referred as plaintiffs and defendants. The plaintiffs are the legal heirs of the original plaintiff and appellants in the second appeal. The defendants are the respondents in the second appeal.
20.Nalla Gounder, S/o., Chozhiaappa Gounder, was the owner of the 5.9 acres land in S.No.256/2 in Appiyanpatti Village, Palani Taluk. He had purchased the land under two sale deeds dated 22.07.1943 and 06.07.1946. The sale deeds were marked as Ex-A1 and Ex-A2. He had three sons, namely, Palaniappa Gounder, Arumuga Gounder and Chozhiappa Gounder. He died on 21.10.1950. His wife, Periyammal, died on 12.09.1956. The property was inherited by his three sons. The 1/3 share, which was allotted to Arumuga Gounder was brought for sale in Court auction and by sale deed dated 22.10.1973, Thirumalaisamy Gounder, the first defendant, purchased the property. This sale was pursuant to order dated 01.12.1969 in E.P.No.289 of 1973 in O.S.No.1087 of 1970. This order has been filed as Ex-A9 and Ex-B4. Palaniammal purchased another 1/3 share from Chozhiappa Gounder, by sale deed dated 01.12.1969, which was marked as Ex-A4. Palaniammal executed settlement deed dated 23.07.1973 in favour of the second defendant, Valliammal, by Ex-A5 and Ex-A6, which had also been filed as Ex-B2 and Ex- B3.
21.It is thus seen that the first defendant and the second defendant together became entitled to 2/3 undivided share in S.No.256/2. The patta in the name of the first defendant was marked as Ex-B5 and patta in the name of the second defendant was marked as Ex-B6. The chitta in the name of the 1st and 2nd defendants were also marked as Ex-B7, Ex-B8 and Ex-B10. Adangal in the name of the 1st and 2nd defendants were marked as Ex-B11. The kist receipt in the name of the said defendants were marked as Ex-B12. It is therefore, seen that the property had been sub-divided and it is on record the predecessor-in-title of the plaintiff had not objected to the sub- division.
22.S.No.226/2I was allotted to the first defendant and S.Nos.256/2B and 256/2F were allotted to the second defendant. S.No.256/2A, 256/2G and 256/2D were allotted to Palaniappa Gounder and his sister Valliammal. Valliammal sold S.No.256/2A to the third defendant. Consequently, the third defendant was entitled to S.No.256/2G and 256/2D. These facts have been admitted by the defendants. These facts have been established during evidence and affirmed by the trial Court and the first appellate Court.
23.The first substantial question of law is whether the recitals in the deed reflected that it was with respect to the undivided share. However, it is seen that the plaintiff is entitled to only S.Nos.256/2G and 256/2D and this sub-division had been established by Ex-B20. It had also been re- enforced by Ex-C1 to Ex-C3, which are the Commissioner's report and sketches. The 1st and 2nd defendants have been allotted separate patta and they also paid kist, Chitta and Adangal were in these documents have also been produced. They had obtained title by separate documents. In these circumstances, the first substantial question of law is answered that the sale was with reference to a particular sub-division portion alone. Consequently, this being a findings on fact, I find no reason to differ with judgment of the trial Court as confirmed by the judgment of the first appellate Court.
24.The second substantial question of law was with respect to a direction to the plaintiff to file a separate suit for easementary right. Again, I find no reason to differ with the reasonings of the trial Court. The suit had not been laid seeking easementary rights. The relief of declaration of title had been granted and consequently there is no quarrel about the same. Partition and separate possession cannot be granted because the properties have already been sub-divided. Even if the plaintiff seeks further reliefs relating to easement, naturally, these reliefs would be beyond the scope of the present suit. It is only proper that a separate suit is filed seeking those reliefs.
25.In view of the above, I hold that both the Courts below have properly decided the original suit and the first appeal. There is no infirmity in the judgments pronounced and consequently, I hold that the second appeal has to be dismissed. It is dismissed with costs. The judgment and decree of the both the Courts below are confirmed.
To
1.The Subordinate Judge, Palani.
2.The District Munsif, Palani.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.