Kabulath Beevi (Deceased) and Others vs Muthathal and Others

S. Tamilvanan, J.—This Second Appeal has been preferred against the Judgment and Decree, dated 28.01.2000 made in A.S. No. 181 of

1996 on the file of the Principal District Judge, Ramanathapuram, confirming the Judgment and Decree, dated 26.09.1996 made in O.S. No. 111

of 1990 on the file of the Principal District Munsif, Ramanathapuram.

It is an admitted fact that the plaintiff had filed the suit, seeking the relief of declaration of title and permanent injunction. The trial court,

considering the oral and documentary evidence and the arguments advanced by both sides, decreed the suit as prayed for without costs.

Aggrieved by which, the defendant preferred appeal against the legal representatives of the plaintiff. The first appellate court, by Judgment and

Decree, dated 28.01.2000 confirmed the Judgment and Decree passed by the trial court and dismissed the appeal. Aggrieved by which, this

Second Appeal has been preferred by the legal representatives of the defendant.

It is not in dispute that the defendant in the suit had purchased 15 cents of land in S. No. 241/10 in Valudoor Village, Ramanathapuram District,

Velipatnam Sub District. Ex.B.1 is the original sale deed executed by the plaintiff in favour of the defendant Kabulath Beevi. As per the schedule of

property, the properties described in Patta No. 1042 of the aforesaid village in S. No. 241/10, a total extent of 1 acre 47 cents on the western

side, southern portion has been purchased. In the document, specific four boundaries are given. In the evidence both the parties have not disputed

the aforesaid sale deed executed by the plaintiff on 22.10.1981 in favour of the defendant. In the plaint, the plaintiff, who was the vendor in Ex.B.1

has specifically stated that the schedule of property which is in S. No. 241/10, Valudoor Village consisting of 24 1/2 cents, out of which, after

deducting 15 cents, that had been sold in favour of the defendant. However, he has stated the balance in his possession on the northern side was 9

1/2 cents, only the extent of the balance land stated as 9 1/2 cents by the plaintiff, is not admitted by the defendant.

As the plaintiff has filed the suit for declaration and injunction in respect of the land, leaving the portion, that was sold by him in favour of the

defendant, under Ex.B.1, the trial court considering the admitted fact, by both the parties, has decreed the suit as prayed for, which was confirmed

by the first appellate court. Aggrieved by which, this Second Appeal has been preferred.

In this Second Appeal, the following Substantial Questions of Law have been framed for consideration:

Whether the Courts below are correct in holding that the plaintiffs have title of 9 1/2 cents instead of 2 cents out of 24 1/2 cents in Survey No.

241/10, as per Ex.A.1, when there is no such recital in Ex.A.1 itself and it was admitted by P.W.1 himself in his evidence?

Whether the Courts below are correct in holding that the suit property belong to the plaintiffs even though in Ex.C.4, Exs.B.12 to B.14, it

appears that only 2 cents are available, the sub division does not reflect the real enjoyment of parties.

Whether the Courts below are correct in holding that there was no evidence on record to show that the sub division was brought to be

knowledge of the deceased plaintiff while it was categorically admitted by P.W.1 in his evidence?

Mr. P. Chenthurpandian, learned Counsel appearing for the appellants, legal representatives of the defendant, submitted that subsequently, the

land was sub-divided as S. No. 241/10A and 10B. S. No. 241/10A is only two cents of land, as per Ex.C.4. As per the Commissioner''s plan, it

was only an extent of 2 cents and S. No. 241/10B is the land sold in favour of the defendant, which is being enjoyed by the appellant herein as

legal representatives of the defendant.

Mr. V. Sitharanjandas, learned Counsel appearing for R1 to R6 fairly conceded that the appellants are entitled to claim 15 cents in view of

Ex.B.1, sale deed, executed in favour of the defendant, Kabulath Beevi by the plaintiff.

In the plaint, in paragraph number 5, the plaintiff has specifically stated that though the land sold under Ex.B.1 is on the southern side, it was

brought to the notice that the patta is being given for the property on the north and with regard to the same, he has raised objection before the

Revenue Divisional Officer, Ramanathapuram. Even in the cause of action, the plaintiff has stated that instead of issuing patta for the land

purchased by the defendant under Ex.B.1, which is lying on the south, the other part of the land on the north belongs to the plaintiff, patta was

wrongly given. However, there is no supporting document available to show that the patta was issued wrongly for the land available on the North

in S. No. 241/10 of the land.

The learned Counsel appearing for the appellants submitted that by filing the suit and getting a decree, the respondents are claiming 9 1/2 cents

of land on the North, though they are entitled only to 2 cents of land. Per contra, the learned Counsel appearing for the respondents submitted that

as per the sale deed, Ex.B.1, copy of which has been marked as Ex.A.1, the appellants are entitled to 15 cents of land on the southern side and

therefore, they need not bother about the balance of land, which is being enjoyed by the respondents, legal representatives of the vendor of the

defendant, so far as the property sold under Ex.B.1 is concerned. Admittedly, the appellants are the legal representatives of the defendant, who

was only the purchaser of a portion of the property, under Ex.B.1 and the respondents are the legal representatives of the vendor, who was the

original owner of the property.

It is not in dispute that the appellants can claim right only for an extent 15 cents of land, as specified in the sale deed, Ex.B.1, which is on the

southern side with specific boundaries, as per the sale deed. In the schedule of property of the plaint itself, the plaintiff had specifically stated that

he was seeking the relief in the land, leaving the 15 cents of land sold in favour of the defendant and therefore, there is no legal grievance available

to the defendant or her legal representatives, the appellants herein. In such circumstances, I am of the view that there is no error committed by the

courts below in the concurrent finding.

Admittedly, the appellants are entitled to claim right only for the 15 cents of land sold, as per the sale deed, Ex.B.1 and therefore, the first

substantial question of law is no way relevant to be decided, whether vendor had balance of 2 cents or 9 1/2 cents. Similarly, the second

substantial question of law is, as per Ex.C.4 and Exs.B.12 to B.14, the available land on the North could be two cents and hence, the court below

could not have decreed the suit.

It is clear that the appellants have not claimed title, by way of adverse possession, therefore, the claim is based on the sale deed, Ex.B.1, which

is not in dispute. Since the respondents have admitted that the appellants are entitled to 15 cents of land in S. No. 241/10B, as per the sale deed,

Ex.B.1, the second substantial questions of law already framed has no significance in the second appeal to be decided. The only substantial

question is whether the concurrent finding of the courts below is perverse, in respect of granting declaration and injunction in favour of the

respondents.

When the finding is against the evidence or without evidence, that can be said to be a perverse finding. In the instant case, it has been clearly

admitted by both the parties that the defendant had purchased 15 cents of land in S. No. 241/10 on the southern side and for the balance on the

north only, the plaintiff was the owner. The prayer sought for in the plaint is relief of declaration and consequential injunction, only for the land in S.

No. 241/10, leaving 15 cents of land already sold to the defendant under Ex.B.1 and therefore, the concurrent finding is based on the admitted

facts and the evidence available on record. Therefore, the finding cannot be construed as perverse finding and accordingly, the third substantial

question of law is answered. Therefore, I am of the view that there is no illegality or irregularity in the impugned Judgment to be interfered with by

this Court in this Second Appeal, accordingly, the Second Appeal fails.

In the result, confirming the Judgment and Decree of the courts below, this Second Appeal is dismissed. However, there is no order as to

costs.