High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 13.02.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANS.A.No.542 of 19971.Rani2.Minor Ramachandran3.Minor Jayakodi4.Minor Kumudam5.Minor Sundari .. Appellants/Appellant 2 to 6/LRs of the Def.4(Minors 2 to 5 represented by next friend and mother as guardian the 1st appellant) vs.1.Arunthavam2.Dhanalakshmi3.Chinnaponnu4.Panneer5.Selvam6.Tamilarasi .. Respondents(Respondents 2 to 6 are Exparte before the Lower Court and hence notice herewith)Prayer: This second appeal has been preferred against the decree andjudgment dated 28.10.1996 passed by the learned Subordinate Judge,Chidambaram, in A.S.No.31/1990, confirming the decree and judgmentdated 31.7.1990 in O.S.No.1058/81 on the file of the DistrictMunsif, Chidambaram.For Appellants : Mr.J.Antony Jesus for Mr. K. Srinivasan For Respondents : Mr.Srinath Sridevan R1 JUDGMENTThis appeal has been preferred against the decree and judgmentin A.S.No.31 of 1990 on the file of the Court of Subordinate Judge,Chidambaram. The defendants in O.S.No.1058/1981 on the file of theCourt ofDistrict Munsif, Chidambaram, who have lost their defencebefore the trial Court and also their appeal before the first https://hcservices.ecourts.gov.in/hcservices/ appellate Court, are the appellants herein.2. The short facts of the plaint relevant for deciding thisappeal sans irrelevant particulars are as follows:-The suit property absolutely belonged to Dhanabagyam, wifeof Subbaraya Chettiar. The said Dhanabagyam is the mother-in-law ofthe plaintiff. Dhanabagyam executed a Settlement deed on 5.5.1958at the time of plaintiff's marriage. Dhanabagyam's son Ayyathuraiwas married to plaintiff in 1958. As per the settlement deed, theplaintiff and her husband are entitled to the suit properties. Thesaid settlement deed was acted upon and possession was handedoverunder the document. The suit properties immediately vested with theplaintiff and her husband who have four children, they were incontinuous possession and enjoyment of the suit properties from thedate of said document. The settlor Dhanabagyam was maintainedthroughout by the plaintiff and her husband. Dhanabagyam died inthe year 1974 and Ayyadurai died in the year 1976. The plaintiff isthe present owner of the suit properties. She had right title andinterest in the suit property. Defendants have no right, title orinterest in respect of the plaint schedule properties. The seconddefendant is the daughter of Dhanabagyam. D3 is the daughter ofD2. D2 and D3 have set up D1 & D4 to give trouble to plaintiff.Troubles arose only after the death of plaintiff's husband in1976.In July 1977 defendants caused interference to plaintiff'spossession of suit properties. The plaintiff was not allowed tocultivate the suit property taking advantage that the plaintiff is ahelpless poor widow. Plaintiff's efforts to mediate the matterfailed. Defendants are powerful and highhanded. All these years shehoped that she could settle the matter and waited, but in vain.From July 1977 defendants are in wrongful possession and enjoymentof the suit properties. They are trespassers. They have no rightsto continue in possession. While the suit is pending the 1stdefendant died. His legal representatives are the defendants 5 to9. The 5th defendant is his widow and defendants 6 to 9 are hischildren. Hence, the suit.3. The D1 & D2 died. D3, D5 to D9 remain exparte.D4 is the only contesting defendant, who has filed the followingwritten statement:-The allegation in the plaint that the suit propertybelonged to plaintiff's mother-in-law Dhanabagyam and that theplaintiff and her husband became owner of the suit property under asettlement deed dated 5.5.1958 alleged to have been executed by thesaid Dhanabagyam are all not true. The suit properties do notbelong to Dhanabagyam. The settlement deed dated 5.5.1958 was notacted upon. The plaintiff and her husband never maintainedDhanapagyam. The defendants are not attempting to give any troubleto the plaintiff. It is not true that after the death ofplaintiff's husband, the defendants began to give trouble to theplaintiff. The defendants have not trespassed into the suit https://hcservices.ecourts.gov.in/hcservices/ property. In respect of plaint schedule item No.1 on the southern29 cents and in plaint item No.2, 78 cents and also in respect ofother properties the defendants are paying land tax and the pattaalso stands in the name of D4 and for the past 20 years D4 is inpossession and enjoyment of the suit property. D4 has purchased thesuit property on 26.6.1981 and he is in possession and enjoyment ofthe suit property from the date of the above said sale deed. Thefirst defendant had purchased 29 cents on the southern portion ofitem No.1 and 25 cents on the northern portion of item No.2 fromKumarasamy and Nagaraj on 22.10.1964. He has also purchased 53cents on the southern portion of item No.2 to the plaint schedulefrom Kaliyaperuma and Kupusamy. D4 has purchased the above saidproperties as per the sale deed dated 26.6.1981 from the D1. In theplaint item No.1 northern 87 cents belonged to D1 to D3 since theywere in possession and enjoyment of the same for the past 15 years,from whom, D4 had purchased the same on 11.7.1981 for a sum ofRs.4,400/-. Hence, the suit is liable to be dismissed with costs.4. On the above pleadings the learned trial judge had framedeight issues for trial. On the side of the plaintiff, plaintiff hasexamined herself has P.W.1 and Ex.A.1 to A.9 were marked. On theside of the defendants, D4 has examined himself as D.W.1 and Ex.B.1and B.2 were marked. After going through the evidence both oral anddocumentary the learned trial Judge has come to the conclusion thatthe plaintiff is entitled to 87 cents on the northern side of theplaint schedule item No.1 property and that plaintiff is entitled tothe entire plaint item No.2 property and consequently decreed thesuit in that line but has dismissed the suit in respect of southern29 cents in item No.1, and also with a direction to initiateseparate proceedings under Order 20 Rule 12 CPC in repsect of theplaintiff's relief for mesne profits. Aggrieved by the findings ofthe learned trial judge, D4 has preferred A.S.No.31 of 1990 beforethe Subordinate Judge, Chidambaram, who after hearing both sides hasdismissed the appeal confirming the decree and judgment of the trialCourt in O.S.No.1058/1981 without costs. Hence, the second appealbefore this court by the fourth defendant.5. The substantial questions of law involved in this secondappeal are as follows:-"a) Whether the findings of the courts belowregarding title to item 1 and2 of the suit property arevitiated by its failure to consider the prior title deedsunder Ex.B.1, Ex.B.2, in respect of northern 25 cents andEx.B.3 to Ex.B.5 and Ex.B.19 in southern 53 cents in item2 especially in the absence of any prior title producedon the side of the 1st respondent?b) Whether the findings of the courts belowregarding possession are vitiated by its failure toconsider Ex.B.9 to Ex.B.18 the Adangal Extracts of thepredecessors in title of the appellants? https://hcservices.ecourts.gov.in/hcservices/ c) Whether the findings of the courts below iscorrect in upholding the title of the 1st respondent onthe basis of Ex.A.1 especially when it was foundconcurrently that the 1st respondent is not entitled toa portion of the suit property in item 1?6.The Points:- 6(a) The plaint schedule properties are (i) 1 acres 16cents in R.S.No.91/1 and (ii) 78 cents in R.S.No.92/1 SethiathopeVillage. The plaintiff claims her title in respect of the suitproperties under Ex.A.1 settlement deed dated 5.5.1958 executed byher mother-in-law Dhanabagyam and that Dhanabagyam died in the year1974 and till her death she has been looked after by her and her(P.W.1) husband. 6(b) A perusal of Ex.A.1, original registered settlementdeed dated 5.5.1958, will go to show that Dhanabagyam, the settlorhad settled her properties in favour of the plaintiff. UnderEx.A.1, settlement deed, 1 acre 16 cents in R.S.No.91/1 and 78cents in R.S.No.92/1 at Sethiathope Village, were settled in favourof the plaintiff. Ex.A.2 is the sale deed in favour of Dhanabagyamdated 13.12.1949 executed by one Chinapillai Ammal. Under the saidsale deed Dhanabagyam had purchased 1 acre 16 cents in R.S.No.91/1and 78 cents in R.S.No.92/1 at Sethiathope village.6(c) Ex.A.3 to A.8 are the land tax receipts in favour ofDhanabagyam, which also includes the land in patta No.526. Ex.A.9is the sale deed in favour of D4-Ranganathan dated 11.7.1981executed by Dhanabaluammal(D2), wife of Thangarasu Chettiar,Thanalakshmi(D3) wife of Ramalinga Chettiar, and Panchanathn(D1)S/o.Appadurai Padayachi. The said sale deed is for 87 cents inR.S.No.91/1 out of 1 acre 16 cents. Under Ex.A.9 D4 cannot claimany right in respect of 87 cents out of 1 acre 16 cents inR.S.No.91/1 because even before the execution of Ex.A.9-sale deed infavour of D4 by D1 to D3, the original owner Dhanabagyam hadexecuted Ex.A.1-settlement deed in favour of the plaintiff as earlyas on 5.5.1958 itself. Under Ex.A.9 the vendors are D1 and son ofDhanbagyam (D2) and the son of D2 (D3).6(d) D4, as D.W.1, would contend that he had purchased 29cents under Ex.B.3 in item No.1. Ex.B.3 is dated 26.6.1981. As perEx.B.3-sale deed, D4 has purchased from D1, 29 cents out of 78 centsin S.No.92/1 which is plaint schedule item No.1 property (1 acres 16cents) and he has also purchased 91 cents in S.No.92/3A (not suitproperty). D1 had purchased 29 cents in S.No.91/1 (plaint scheduleitem No.1 - 1 acre 16 cents) and also 54 cents out of 78 cents inS.No.92/1 from children of one Samynatha Padayatchi, who hadpurchased 29 cents in S.No.91/1 from one Narayanasamy Padayachiunder Ex.B.1. Ex.B.4 is in favour of D1 dated 30.6.1962 in respectof 53 cents out of 78 cents in S.No.92/1 and 25 cents out of 91cents in S.No.92/3A. But under Ex.B.4 D1 cannot claim any right inS.No.92/1 (plaint schedule item No.2) because the entire 78 centshave been purchased by Dhanabagyam under Ex.A.2 as early as https://hcservices.ecourts.gov.in/hcservices/

13.12.1949, who had conveyed the entire 78 cents in S.No.92/1 infavour of the plaintiff under Ex.A.1 dated 5.5.1958. Ex.B.4(30.6.1962) is later in point of time than Ex.A.1(5.5.1958). Asfar as item No.1 is concerned Narayana Padayachi has executed Ex.B.1on 28.10.1944 in respect of 29 cents in S.No.91/1. The children ofSamynatha Padayachi vendee under Ex.B.1 have conveyed the said 29cents under Ex.B.2 in favour of D1. Under such circumstances only,the courts below have correctly held that since Ex.A.2(13.12.1949)is later to Ex.B.1(28.10.1944), Dhanabagyam herself will beentitled in R.S.No.91/1 only 87 cents and hence under Ex.A.1Dhanabagyam could convey only 87 cents in R.S.No.91/1 in favour ofplaintiff since the remaining 29 cents in R.S.No.91/1 has alreadybeen sold under Ex.B.1 dated 28.10.1944 in favour of Samynathapadayachi by Narayana Padayatchi.6(e) The learned counsel for the appellant would contendthat under Ex.B.20 Samynatha Padayachi had purchased 25 cents out of78 cents in R.S.No.92/1 (plaint schedule item No.2) and hence theplaintiff cannot claim right in respect of entire 78 cents. Thiscontention of the learned counsel for the appellant cannot be upheldbecause in Ex.B.20 the patta number for the property sold underEx.B.20 is mentioend as No.526. But Ex.A.3 to A.8 tax receipts willgo to show that patta No.526 stands in the name of Dhanabagyam. Sounder Ex.B.20 Samynatha Padayachi cannot claim any right in respectof S.No.92/1. So in respect of item No.2 to the plaint scheduleproperty, the defendants cannot claim any right as rightly held bythe both the courts below. Further the plaintiff has also not filedany cross appeal in respect of 29 cents in S.No.91/1 in plaint itemNo.1 property. Under such circumstances, I do not find any reasonto interfere with the well considered judgment of the learned firstappellate Court in A.S.No.31/1990 on the file of the Court ofSubordinate Judge, Chidambaram, which is neither illegal nor infirmto warrant any interference from this Court. Points are answeredaccordingly.7 In fine, the second appeal is dismissed confirming the decreeand judgment in A.S.No.31/1990 on the file of the Court ofSubordinate Judge, Chidambaram, with costs.SsvSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To, 1.The Subordinate Judge, Chidambaram.2.The District Munsif, Chidambaram.3. The Record Keeper, VR Section, High Court, Madras+ one cc to Mr. K. Srinivasan, Advocate sr no. 9174+ one cc to Mr. Srinath Sridevan, Advocate sr no 9205PV(CO)NM(17.03.07)S.A.No.542 of 1997