Kamalam vs Rukmani and 3 others

A. Selvam, J.—Challenge in this second appeal is to the Judgment and decree dated 19.12.1997 passed in Appeal Suit No.23 of 1997 by

the Principal District Court, Pudukottai. The respondents herein as plaintiffs have instituted Original Suit No.406 of 1992 on the file of the

Additional Munsif Court, Pudukottai for the reliefs of declaration and perpetual injunction, wherein the present appellant has been shown as sole

defendant.

It is averred in the amended plaint that the suit property and some other properties have been sold to one Soosai Udayar under a registered sale

deed dated 28.08.1950 by one Chinniah Naicker who is none other than the brother of the father of the plaintiff viz., Palani Naicker and the

plaintiff''s father viz., Palani Naicker has purchased all the properties from the said Soosai Udayar under a registered sale deed dated 11.05.1952.

Since then he has been in possession and enjoyment of the the same. After the demise of the father of the plaintiff, the plaintiff has been in

possession and enjoyment of the suit property and patta for the suit property stands in the name of one Sebasthiar son of the said Soosai Udayar.

Even though patta for the suit property stands in the name of Soosai Udayar, the plaintiff has been enjoying the suit property by way of paying kist

etc., to the Government. The plaintiff has been working in Andakulam High School. The defendant is not having any manner of right, title and

interest over the suit property and she is a Ceylon repatriate and she made a false claim to the effect that her father Palani Naicker has purchased

the suit property and subsequently gone to Ceylon. Since the defendant has been making arrangement to disturb the peaceful possession and

enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for therein.

In the written statement filed on the side of the defendant, it is stated that it is true to allege that the suit property has been purchased by Soosai

Udayar from Chinniah Naicker under a registered sale deed dated 28.08.1950. The father of the defendant viz., Palani Naicker has purchased the

suit property under a registered sale deed dated 11.05.1952 and subsequently in the year 1953 he has gone to Ceylon and entrusted the suit

property with Soosai Udayar and in the year 1974 he has returned to India and he passed away in the year 1976. During Updating Registry

scheme, the defendant has obtained patta for the suit property in her name. It is false to say that the suit property has been enjoyed by the father of

the plaintiff and after his demise, he has been enjoying the same. The plaintiff is not having title to the suit property and there is no merit in the suit

and the same deserves dismissal.

On the basis of the rival pleadings raised on either side, the trial Court has dismissed the suit. Against the Judgment and decree passed by the

trial Court, the legal heirs of the deceased plaintiff as appellants (plaintiffs) have filed Appeal Suit No.23 of 1997 on the file of the first appellate

Court. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and

thereby set aside the Judgment and decree passed by the trial Court and consequently decreed the suit as prayed for. Against the Judgment and

decree passed by the first appellate Court, the present second appeal has been filed at the instance of the defendant as appellant.

At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration:

(i) Whether the lower appellate Court is correct in coming to the conclusion that the plaintiffs are entitled to the suit property by placing reliance

upon Exs.A10 and All in the absence of any evidence as required u/s 50 read with Section 104 of the Indian Evidence Act, 1872?

(ii) Whether the lower appellate Court is correct in coming to the conclusion that the plaintiffs are entitled for declaration and permanent injunction

in the absence of necessary evidence for the same?

The crux of the case of the plaintiff is that the suit property and other properties have been sold in favour of one Soosai Udayar under a

registered sale deed dated 28.08.1950 by one Chinniah Naicker who is none other than the brother of the father of the plaintiff viz., Palani Naicker

and the father of the plaintiff has purchased all the properties including the suit property from that Soosai Udayar under a registered sale deed

dated 11.05.1952 and till his demise he enjoyed the same and after his death the plaintiff has succeeded his estate and he has been enjoying the

suit property as rightful owner and the defendant is not having any title and interest over the suit property and now he has been making

arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying her title. Under the said circumstances the present

suit has been filed for the reliefs sought for therein.

On the side of the defendant it has been contended that the father of the defendant by name Palani Naicker has purchased the suit property from

Soosai Udayar under a registered sale deed dated 11.05.1952 and subsequently he has gone to Ceylon in the year 1953 by way of entrusting the

suit property with the said Soosai Udayar and he returned to India in the year 1974 and passed away in the year 1976 and after his demise the

defendant has obtained UDR patta in her name and therefore, the plaintiff is not having title to the suit property and altogether the present suit

deserves dismissal.

The trial Court after considering the rival contentions raised on either side has dismissed the suit. But the first appellate Court after evaluating the

evidence available on record has decreed the suit.

The only point that comes up for consideration in the present second appeal is as to whether the Judgment and decree passed by the first

appellate Court are perfectly correct or the same need interference.

The learned counsel appearing for the appellant/defendant