Karuppayee vs Ayee Ammal, Kumar and Senthil

S. Rajeswaran, J.—The plaintiff in O.S. No. 329 of 2005 is the appellant before this Court. The suit was filed by the plaintiff in O.S. No.

329 of 2005 before the District Munsif Court, Melur against the respondents for permanent injunction restraining the respondents herein from

interfering with her peaceful possession and enjoyment of the suit property, namely a house.

The case of the plaintiff is that the suit property originally belonged to her husband. The plaintiff and her husband lived together in the said house.

The husband of the plaintiff after 10 years of marriage with the plaintiff, married the first defendant. Since the plaintiff opposed the marriage of her

husband with the first defendant, the suit property was allotted to the plaintiff by the husband. Thereafter, the plaintiff and her son lived in the said

house. House tax was paid in the name of the plaintiff''s husband. The husband of the plaintiff kept the first defendant in a separate house. Five

months before the filing of the suit, the husband of the plaintiff passed away and the plaintiff and her son performed the last rites to him. Now, the

plaintiff is residing in her native village at Therkkutheru. The suit property has been in possession and enjoyment of the plaintiff for the past 40

years. While so, on 24.9.2005, the defendants attempted to break open the lock of the suit property in order to enter into the house. But the

neighbours of the plaintiff thwarted the said attempt. As the defendants are claiming their rights as well as interfering with the plaintiff''s possession

of suit property, she has filed the above suit for the aforesaid relief.

The said suit was resisted by the defendants on the ground that the plaintiff is the second wife of the husband of the plaintiff. The husband of the

plaintiff by name Muniyan Ambalam married the first defendant about 40 years ago and begot two children through the first defendant. Therefore

the defendants 2 and 3 are the legal heirs of the late husband Muniyan Ambalam. According to the defendants, the plaintiff has no right whatsoever

over the suit property and she has not given possession of the suit property. Further, the defendants have stated that there is a Will executed by

Late Muniyan Ambalam in favour of the defendants and as per that the defendants are the only lawful owners of the suit property.

On the basis of the above said pleadings, the trial court framed the following issues:

(1) Whether the plaintiff is entitled to the relief of permanent injunction against the defendants as prayed for?

(2) To what other reliefs, the plaintiff is entitled ?

On the basis of the evidence, both oral and documentary, the trial court dismissed the suit. Aggrieved by the same, the plaintiff filed A.S.No.

131 of 2007 before the Principal Subordinate Judge, Madurai. The lower appellate court has also confirmed the judgement and decree of the trial

court and dismissed the appeal. Aggrieved by the concurrent judgements of both the Courts below, the plaintiff has filed the above second appeal

before this Court u/s 100 of Civil Procedure Code.

The following substantial questions of law have been raised on behalf of the appellant:

(1) Whether the learned lower appellate court is correct in coming to the conclusion that the Will is valid one?

(2) Whether the learned lower Court is correct in coming to the conclusion, the ancestral property can be included in the Will and whether it will

bind the appellant?

(3) Whether the lower appellate Court is correct in coming to the conclusion that the patta of the suit property and the Marriage Certificate of the

appellant are not valid documents to prove the possession and enjoyment of the suit property?

The learned Counsel for the appellant/plaintiff submits that the lower appellate Court failed to appreciate the crux of the case involved in the suit.

The failure on the part of the lower appellate Court to see that the plaintiff has proved her possession and enjoyment of the suit property vitiates the

judgements warranting interference of this Court. According to the learned Counsel for the appellant, the suit property originally belonged to the

husband of the plaintiff/appellant and she got the property through him and since then, she has been in continuous possession and enjoyment of the

suit property. But, however, both the trial Court and the lower appellate Court, without properly appreciating the documents adduced on the side

of the plaintiff, dismissed the suit. According to the learned Counsel for the appellant, both the trial Court and the lower appellate Court have

committed an error and hence, the appellant prays for interference of this Court.

I am not able to accept the submissions made by the learned Counsel for the appellant.

Before the trial Court, the plaintiff examined herself as PW1 and marked Exs. A1 to A9. The second defendant was examined as DW1, and

another witness was examined as DW2 and Exs. B1 to B7 were marked on the side of the defendants. The trial Court found that though the

plaintiff claims that the suit property was orally allotted to her and she has been in possession of the same for the past 35 years, no proof was

produced by her to substantiate her case. The trial Court found that there is no date available in Exs. A6 & A7 and Ex. A9, which is a registered

sale deed executed by her late husband Muniyan Ambalam is dated 29.7.1998, whereas Exs. B7 Will is dated as 8.11.2004 and therefore the

plaintiff failed to produce documents of contemporaneous period to prove Ex. B7, the Will, is a forged one. On the other hand, the defendants

proved the execution of the Will, by examining one of the attesting witnesses namely, DW2. The trial Court has also considered Exs.B1 which is a

manaivari thoraya patta, Ex.B3 ration card, Ex.B4 which is the Election Commission identity card of the deceased Muniyandi Ambalam and Ex.B5

which is the Election Commission identity card of D2. On the basis of the above documents, and Ex.B6 which is the house tax receipt in the name

of D2, the trial Court found that the defendants are in possession of the suit property and accordingly dismissed the suit.

The lower appellate Court, after re-evaluating the entire evidence found that the plaintiff failed to prove that the suit property was allotted to

her by her late husband. It also adverted to the fact that the plaintiff is residing at Therkutheru and she has failed to produce any tax receipt,

Electricity Bill, family card, election card etc., showing the suit property''s address so as to establish her possession. On the other hand, after

evaluating the Exs. B1 to B7, the lower appellate Court has also found that the defendants are in possession of the suit property.

Thus, both the courts on the basis of the evidence let in, not only found that the plaintiff failed to prove her possession but also, held that the

defendants are in actual possession of the suit schedule property. This factual findings could not be interfered with by this Court u/s 100 of CPC

unless they are perverse. After going through the judgements of both the Courts below, I am of the considered view that proper findings were

rendered by the Courts below by correctly evaluating the evidence adduced before them.

Therefore, I do not find any question of law much less substantial questions of law arising for consideration in this second appeal. Hence, the

second appeal has to necessarily fail, accordingly fails and the same is dismissed. No costs, consequently the connected MP No. 1 of 2008 is also

dismissed.