High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:02.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal No.359 of 1995andC.M.P.No.18475 of 20051.Sulochanammal2.Munusamy Mudaliar ... Appellants/DefendantsVs.S.Ramachandran ... Respondent/PlaintiffPRAYER: Second Appeal against the Judgment and decree of the Sub court,Tiruvallur, passed in A.S.No.91 of 1989, dated 30.08.1993 reversing thejudgement and decree of the District Munsif Court, Ponneri in O.S.NO.277of 1984, dated 10.08.1989. For Appellants: Mr.R.Munusamy For Respondent : Mr.P.V.Arul PhazamneeJ U D G M E N TThe defendants in the suit are the appellants. The plaintiff filedthe suit for injunction from enjoyment of house site measuring 1 centbeing the housing plot and the backyard of 0.02 and three fourth centsadjacent on the Southern side. 2. The case of the plaintiff was that a total extent of 15 cents outof 29.88 acres comprised in gramanatham Survey No. 252/1 in Nanoor Villagewas divided among four brothers each having one cent for housing purposeand backyard to the extent of 0.02 3/4 cents. The first defendant, isstated to have purchased the site of one of the brothers SubramaniyaMudaliar under a sale deed dated 01.10.1966 marked as Ex.A.3. It is thecase of the plaintiff that among the four brothers who have divided exceptthe first defendant all other sharers including Govinda Mudaliar,Varadhappa Mudaliar and Abrahiyammal who purchased the share of NatesaMudaliar have orally exchange their backyard sites based on which thefirst backyard portion on the Eastern side was taken by Abrahiyammal thenext by Varadhappa Mudaliar and thereafter on the West by Govinda Mudaliarand accordingly they have been enjoying their respective shares. https://hcservices.ecourts.gov.in/hcservices/

3. The second defendant is stated to have purchased the share fromGovinda Mudaliar by a sale deed dated 18.07.1983 marked as Ex.A.2. Theplaintiff has purchased the share of Varadhappa Mudaliar on the same date18.07.1983 under a sale deed marked as Ex.A.1 and has been in possessionand enjoyment without interruption. The plaintiff is residing in theshare site of Abrahiyammal along with backyard which is on the SouthEastern side apart from the property purchased under Ex.A.1 which isadjacent. The defendants being the next adjacent owners on the Westernside are attempting to trespass into the suit property, which was thecause of action for the suit for injunction. The Trial Court hasdismissed the suit while on appeal the First Appellate Court has granted adecree for injunction. It is as against the said Appellate Courtjudgement the Second Appeal is filed by the defendants. 4. While admitting the Second Appeal, the following substantialquestion of law was framed by this Court. "Whether an oral exchange of immovable property is valid?"5. The contention raised on behalf of the appellants who are thedefendants in the suit is that the oral partition stated to have beeneffected between the brothers in respect of backyard portion by whichthere was a rearrangement of various portions of backyard among the fourbrothers cannot be valid in law. Even though the Trial Court hasdismissed the suit, the First Appellate Court while appreciating thecontents of various documents relied upon by both the parties which aresale deeds in respect of four portions along with four backyards, theFirst Appellate Court has come a conclusion factually that out of theentire extent of A,B,C,D which included the house site as well as thebackyard, the plaintiff who claims under Ex.A.1 sale deed has got the suitproperty allotted to him. The First Appellate Court has also appreciatedEx.B.2 based, which is a Xerox copy of a letter on which the defendantshave made a claim of a passage and considered that unless it is provedthat the original documents are not available, the Xerox copy cannot betaken into consideration for the purpose of deciding the issue and alsohaving considered the case of the defendants that there was anauthorization to use Xerox copy, since many other owners are involved butat the same time there is nothing in writing in the said document to showthat the defendants are entitled to have the Xerox copy by way of anendorsement. The First Appellate court has also found that when it is thecase of the defendants that original document of Ex.B.2 which was thebasis of their claim was stated to be with the plaintiff, no step has beentaken for the purpose of procuring the document from the plaintiff and insuch circumstances, the First Appellate Court has correctly come to aconclusion that Ex.B.2 Xerox copy which was solely relied upon by thedefendants cannot be taken into consideration. https://hcservices.ecourts.gov.in/hcservices/

6. It is also found that Ex.A.1 sale deed under which the plaintiffhas got property, has not been disputed by the defendants at all exceptclaiming passage on the Western side. It is also the case that exchangetook place in the year 1966 by virtue of the vendor under Ex.A.1 havingbeen in possession of the property and therefore, by the time the suit wasfiled, he has otherwise obtained title by adverse possession since he hasbeen in long enjoyment from 1966 onwards and suit having been filed in1984. It is seen in the written statement filed by the defendants thatthere is a specific admission that as per Hindu Customs and Usage therehas been a oral division among the brothers and the heirs of elders shouldtake from Western side towards the Eastern side. It is on that basisclear that the first defendant who has inherited from the elder brothercan only have the backyard on the Western side and there is no reason forhim to claim the portion which has been purchased under Ex.A.1 by theplaintiff. There is absolutely no question of easement of necessity sincethe property of the first defendant purchased under Ex.A.3 is on the NorthWestern side as far as the house site is concerned and the backyard is onthe Western side and he can never claim easement of necessity for thepurpose of reaching his housing site from Eastern side backyard. On theface of admission in the written statement about the oral partition amongthe brothers the First Appellate Court has correctly come to theconclusion on factual issue that the plaintiff is entitled for theproperty which is the third backyard from the Western side and adjacent tothe housing site on the Northern site. 7. As far as the validity or otherwise of oral exchange of immovableproperty is concerned while admittedly in law if the value of property isless than Rs.100/- it does not require any registration, it presupposesany oral partition as not in-admissible. A reference to Ex.A.6 documentshows that the value of the house site as well as the backyard itself isRs.100/- and in view of the said fact as it is seen in the document itcannot be said that the oral exchange is not valid. In fact as it hasbeen held by the Hon’ble Supreme Court in Brijvasilal Vs. Abdul Hajireported in 2001(9) SCC 367 as it has been narrated by Mulla of Transferof Property Act while referring to Section 54 of the Transfer of PropertyAct, "in case of tangible immovable property of value less thanRs.100/- transfer may be made either by a registered document orby deliver of possession. The delivery of possession takesplace when the seller places the buyer or such person as hedirects, in possession of the property. This mode of transferis only recognized in the case of tangible immovable property ofsmall value, as deliver of possession is a patent act."8. It is also relevant to point out that it is not even the pleadingby the defendants in the written statement that the common passage, whichis claimed by the defendant is a matter of necessity. On the other hand https://hcservices.ecourts.gov.in/hcservices/ it is the specific pleading by the plaintiff about the oral exchange andin the face of the admission of D.W.1 that the plaintiff has purchasedunder Ex.A.1 document, the learned First Appellate Judge has correctlycome to the conclusion by granting decree in favour of the plaintiff. 9. In view of the above said facts there is no substantial questionof law involved in this case. Therefore, the Second Appeal fails and thesame is dismissed. No cost. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnbjTo1. The Subordinate Judge,Tiruvattur.2. The District Munsif,Ponneri.3. The Section Officer,V.R.Section, High Court,Madras.1 cc To M/S.P.V.Arul Phazamnee, Advocate, SR.20972.S.A.No.359 of 1995 TEJ(CO)RVL 16.04.2007