Chinna Thandi @ Muniammal vs Veeran, Paulchamy and Govindasamy

P.R. Shiva Kumar, J.—The arguments advanced by Mr. S. Ramesh, learned Counsel for the Appellant were heard. The copies of the judgments of the Courts below and the decrees passed thereon were also perused. Copies of other documents that have been produced in the form of typed set of papers were also perused.

The Plaintiff, who proved unsuccessful before the Courts below has come forward with the present Second Appeal. The Appellant/Plaintiff had filed the suit O.S. No. 318 of 2001 on the file of Sub Court, Srivilliputhur against the Respondents 1 to 3 herein and Punnavu @ Peruma (now dead) for:

(a) a declaration that the decree passed in an earlier suit filed by the 2nd Respondent herein/3rd Defendant, namely O.S. No. 796 of 1981, was not binding on the Appellant/Plaintiff;

(b) a declaration that the Appellant /Plaintiff had absolute title to the suit property and

(c) a consequential injunction not to disturb her peaceful possession and enjoyment of the suit property.

The 1st Respondent herein (1st Defendant) and Punnavu @ Peruma (the deceased 2nd Defendant) are none other than the brother and mother respectively of the Appellant herein. They did not contest the suit and they remained exparte. The suit was contested by the Respondents 3 and 4/Defendants 3 and 4 alone.

The learned trial Judge, after trial dismissed the suit holding that there was no merit in the suit filed by the Appellant herein/Plaintiff by the judgment and decree of the trial Court dated 26.08.2008. As against the decree of the trial Court dismissing the suit of the Appellant herein/Plaintiff, she preferred an appeal before the learned Principal District Judge, Virudhunagar at Srivilliputtur in A.S. No. 58 of 2008. The learned Principal District Judge, Virudhunagar District at Srivilliputtur, after hearing, concurred with the finding of the trial Court and dismissed the appeal suit by the judgment and decree of the lower appellate Court dated 30.07.2010. As against the concurrent judgments of both the Courts below, the present Second Appeal has been filed by the unsuccessful Plaintiff.

Though the Appellant/Plaintiff has chosen to file the suit for a declaration that the decree passed in O.S. No. 796 of 1981 is not binding on the Appellant/ Plaintiff, she has also sought for a further relief of declaration in respect of his title in respect of the suit property described in the plaint schedule and also for a consequential injunction not to disturb her peaceful possession and enjoyment. The case of the Appellant/Plaintiff is that a larger property bearing door No. 93, Chellam North Street, Rajapalayam Town originally belonged to two sisters Avudaiammal and Santhanakudiyal; that on the death of the said Santhanakudiyal in 1920, Avudaiammal and Veeran, the only son of Santhanakudiyal became the co-owners of the said property; that in 1940, there was an oral partition, in which Eastern portion of the said property was allotted to Veeran and the Western portion of the said property was allotted to Avudaiammal; that Avudaiammal''s only son Thangiah @ Thandi, the father of both the Appellant/Plaintiff and 1st Respondent/1st Defendant predeceased Avudaiammal; that Peria Thandiammal, the sister of the Appellant/Plaintiff also predeceased Avudaiammal at the age of 7 years and that Avudaiammal died in the year 1958, whereupon the Plaintiff and her brother T. Veeran (1st Defendant) and her mother Punnavu @ Peruma (2nd Defendant) became the legal heirs of Avudaiammal and got the western portion of the said property.

It is the further case of the Appellant/ Plaintiff that Paulchamy, the 2nd Respondent herein/3rd Defendant, who was a stranger in so far as the suit property was concerned, filed the suit O.S. No. 796 of 1981 against the mother of the Appellant/Plaintiff alone claiming that a portion of his property had been encroached upon by her and seeking the relief of recovery of possession of the said portion; that the said suit was decreed by the trial Court and the same was confirmed by the first appellate Court and the High Court in the Appeal Suit and the Second Appeal respectively; that thereafter, the Appellant/Plaintiff filed a suit O.S. No. 20 of 1996 against her mother and brother for partition of the property allotted to Avudaiammal in the above referred oral partition of the year 1940; that in the said suit a preliminary decree was passed on 26.07.1996 and a final decree was passed on 26.02.1997; that under the said circumstances, the 2nd Respondent herein, namely the 3rd Defendant, who got a decree in O.S. No. 796 of 1981 filed an execution petition in E.P. No. 349 of 1996 on the file of the trial Court and made efforts to get the decree executed; that since the Appellant/Plaintiff was not a party to the above said suit O.S. No. 796 of 1981, the decree passed in the said suit is not binding upon the Appellant/Plaintiff and that therefore, the reliefs sought for by the Appellant/Plaintiff should be granted.

As pointed out supra, the first Respondent herein/1st Defendant and the deceased Punnavua @ Peruma, the 2nd Defendant, being the brother and mother of the Appellant herein/Plaintiff did not contest the suit and remained exparte. The suit was contested by the Respondents 2 and 3/Defendants 3 and 4 alone contending that the present suit filed by the Appellant/Plaintiff is nothing but a abuse of process of Court to prevent the 2nd Respondent/3rd Defendant from enjoying the fruits of the decree, which he had obtained in O.S. No. 796 of 1981, even after the same was confirmed by the High Court in Second appeal; that the decree obtained by the Appellant/Plaintiff in O.S. No. 20 of 1996 was nothing but a collusive decree obtained against the other members of her own family; that neither the Appellant/ Plaintiff nor her mother, nor her brother did have any space on the Western side of the house owned by Avudaiammal and Santhanakudiyal; that the previous suit filed by the 2nd Respondent/3rd Defendant relates to a portion that lies on the Western side of the said house and that by creating documents and with the help of created documents, the Appellant/Plaintiff is trying to meddle with the suit property and prevent the 3rd Defendant from enjoying the fruits of the decree obtained in O.S. No. 796 of 1981.

The learned trial Judge framed necessary issues and tried the suit. In the trial, the Appellant/ Plaintiff figured as the sole witness (P.W.1) on her side and produced 8 documents as Exs.A.1 to A.8. The 2nd Respondent herein/3rd Defendant Paulchamy figured as the sole witness (D.W.1) on the side of the Defendants and produced 7 documents as Exs.B.1 to B.7.

The learned Subordinate Judge, on an appreciation of evidence, came to the conclusion that the subject matter of O.S. No. 796 of 1981 was different and the property owned by Avudaiammal and Santhanakudiyal was different and that the Appellant/ Plaintiff had nothing to do with the property that was sought to be recovered from the mother of the Appellant /Plaintiff by executing the decree obtained in O.S. No. 796 of 1981. The trial Court also came to the conclusion that the partition decree obtained in O.S. No. 20 of 1996 was a collusive decree obtained for the purpose of stalling the execution of the decree obtained by the 2nd Respondent/3rd Defendant in O.S. No. 796 of 1981. On the basis of the said finding, the learned Subordinate Judge non-suited the Appellant/ Plaintiff for any one of the relief sought for by her and dismissed the suit.

The appeal filed by the Appellant/Plaintiff in A.S. No. 58 of 2008 was also dismissed by the learned Principal District Judge, Viruduhunagar at Srivilliputhur by judgment and decree dated 30.07.2010. The learned Principal District Judge also re-appreciated the evidence, concurred with the conclusion arrived at by the learned Subordinate Judge, Srivilliputtur (trial Judge) and dismissed the appeal preferred by the Appellant herein/Plaintiff. As against the dismissal of the said appeal the present Second Appeal has been filed.

The learned Counsel for the Appellant, relying on Ex.A.7 -mortgage deed dated 16.03.1993, made an attempt to show that the decree obtained by the 2nd Respondent/3rd Defendant in respect of the property that is lying on the West of the house of Avudaiammal and Santhanakudiyal is based on a perverse finding. In the said mortgage deed, the measurement of the total property belonging to Avudaiammal and Santhanakudiyal has been shown to be East-West 111/2 yard and North-South 131/2 yard. The learned Counsel for the Appellant/ Plaintiff also wanted this Court to hold that the Courts below failed to consider the measurements found in the above said document, which resulted in perversity of the finding of the Courts below. This Court is not in a position to accept the said contention of the learned Counsel for the Appellant because Ex.A.7 was taken into consideration in proper perspective not only by the trial Court but also by the first appellate Court. The measurements found noted therein were taken into consideration. In addition to that, the learned first appellate Judge observed that the documentary evidence adduced in the case would go to show that Avudaiammal and Santhanakudiyal had got no open space on the West of their house and the building itself was divided between Avudaiammal and Veeran S/o. Santhanakudiyal in which Avudaiammal got the Western part; that the Eastern boundary of the property of the 2nd Respondent/ 3rd Defendant has been clearly shown to be the building belonging to Avudaiammal and Ayyanar S/o. Veeran and that the claim of the Appellant/Plaintiff that there was an extra open space on the Western side and the said space was allotted to Avudaiammal could not be countenanced.

The learned lower appellate Judge has also categorically held that the partition decree obtained in O.S. No. 20 of 1996 was nothing but a collusive decree obtained by the Appellant/Plaintiff against her own brother and mother; that hence no importance could be attached to it and that, on the contrary the same would reveal the fervent effort made by the Appellant/Plaintiff in collusion with her family members to prevent the 2nd Respondent/3rd Defendant from enjoying the fruits of the decree obtained in O.S. No. 796 of 1981. Above all, it is not the case of the Appellant/ Plaintiff that there was any division between herself, her mother and her brother till the filing of the suit O.S. No. 20 of 1996 and they were joint. The Appellant''s /Plaintiff''s mother happened to be the eldest member of the family and she was the person who was in possession and enjoyment of the Western portion of the house bearing door No. 93. The 2nd Respondent/3rd Defendant being the owner of the property that lies on the West of the said property, filed the suit O.S. No. 796 of 1981 against the person who was actually in possession of the Western portion of door No. 93, contending that a portion of his property had been encroached upon by the mother of the Appellant for recovery of that encroached portion. In the said suit, it was not contended by the mother of the Plaintiff that her children were necessary parties. On the other hand she contested the case on merits representing the interest of all the persons, who inherited the property through Avudaiammal. Furthermore, the said suit was not in respect of any portion of the property inherited by them from Avudaiammal. On the other hand a portion of the property which lies on the West of the house inherited from Avudaiammal was shown to be the suit property in the said suit, on the premise that the said portion was encroached upon by the mother of the Plaintiff, who was in the actual possession of the Western portion of the house belonging to Avudaiammal and Ayyanar. After hearing the contesting Respondent, the said suit filed by the 2nd Respondent herein/3rd Defendant was allowed and only after the dismissal of the first appeal and the Second Appeal, the Appellant/ Plaintiff seems to have filed a suit for partition and obtained a collusive decree as a prelude to the filing of the present suit to stall the execution of the decree obtained by the 2nd Respondent/3rd Defendant in O.S. No. 796 of 1981. As rightly claimed by the contesting Respondents/contesting Defendants, the present suit is nothing but an abuse of process of Court. There is no merit in the Second Appeal. All the issues have been properly dealt with and correctly decided by the Courts below. No substantial question of law is proved to have involved in this Second Appeal. Not even a question of law is proved to have been decided erroneously by the Courts below.

For all the reasons stated above, this Court comes to the conclusion that there is no merit in the Second Appeal and the Second Appeal deserves to be dismissed at the stage of admission itself.

Accordingly, the Second Appeal is dismissed. Consequently, connected M.P.(MD) No. 1 of 2011 is also dismissed. However, there shall be no order as to costs as the Second Appeal is dismissed at the admission stage itself.