M. Adhimoolam vs R. Janakibai

AR. Ramalingam, J.—The second appeal has been preferred by one Adhimoolam, the defendant in O.S.No. 384 of 1986 on the file of the

District Munsif Court, Arakkonam, against the judgment and decree passed by the Sub Judge, Ranipet in A.S.No. 104 of 1992 in which the Sub

Judge, Ranipet has decreed the suit after setting aside the judgment and decree of dismissal of O.S.No. 384 of 1986 passed by the District

Munsif, Arakkonam.

The plaintiff in OS.No. 384 of 1986 viz., one Janakibai filed the said suit for the reliefs of declaration and permanent injunction in the alternative

for recovery of possession in respect of the suit property of 35 cents in Survey No. 285/1A as indicated in the plaint plan as ""ABCD"" at Ashok

Nagar, Arakkonam. The allegations in support of the said suit, in brief, are to the effect that an extent of 3 acre 95 cents in Survey No. 285/1A

originally belonged to one Rajendra Giri Goshai and he settled the said property in favour of his brother Ramagiri Goshai''s sons viz.,

Yeshwanthagiri, Narasimma Giri and Govardhana Giri and daughter Venubai under a registered settlement deed dated 11.9.1967 and delivered

possession to them and that those four settles were minors at that time and so, they were represented by their father Ramagiri Goshai and he

obtained delivery of possession by accepting the settlement deed on their behalf and that the said Ramagiri Goshai died on 30.3.1973 and that one

of the settles viz., minor Govardhana Giri also died in the year 1971 and that consequently, the plaintiff, being the mother of the settles became the

sole legal heir and succeeded to the share of the said Govardhana Giri and that thereafter in the year 1992, the remaining settles viz.,

Yeshwanthagiri, Narasimha Giri and Venubai divided the property by oral partition and after such partition, Yeshwanthagiri sold his entire share of

one acre to one Thilagavathy and Dhandapani as northern and southern half share (50 cents each) by way of sale deeds dated 18.8.1982. Further,

after such execution of sale deeds, Yeshwanthagiri has no property and that the plaintiff alone is enjoying 95 cents allotted to the deceased

Govardhana Giri and the plaint schedule property viz., 35 cents of extent forms part of the total 95 cents and that the other settles viz., Narasimma

Giri and Venubai are also alienating their shares of property in their own right. While so ,the defendant is attempting to interfere with the plaintiff''s

possession and enjoyment of the plaint schedule property of 35 cents alleging that he has interest upon the same by way of purchase from

Yeshwanthagiri, who, in turn, had no right to sell any property and that the alleged sale deed in favour of the defendant is not true, valid and binding

upon the plaintiff. That is why the plaintiff happened to file the suit for the reliefs of declaration and permanent injunction in the alternative for

recovery of possession.

The said suit was resisted by the defendant viz., Adhimoolam with material allegations to the effect that 35 cents as shown in the plaint plan is

not correct as if it forms part of entire 95 cents and that the allegation as if Yeshwanthagiri is not the legal heir of the deceased Govardhana Giri

and thereby the defendant cannot claim any right upon the suit property through purchase is not correct. In fact, the four settles ,as per the

settlement deed executed by Rajendra Giri Goshai, had � share each in the total extent of 3 acre 95 cents and immediately after the said

settlement deed, the settled land was divided among the four settles and the portions allotted to each have been clearly indicated in the plan filed

along with the written statement and that thereafter, since Govardhana Giri died in the year 1971, his share of 95 cents as shown in the plan filed

along with the written statement also was divided among the remaining three settles at the instance of their parents viz., Ramagiri Goshai and the

plaintiff herein and that in that partition 35 cents as shown in the plan attached with the written statement as ""AELP"" was allotted to the share of

Yeshwanthagiri and 30 cents each to Narasimma Giri and Venubai as shown in the plan were allotted and that the plaintiff being the mother was

never in possession and enjoyment of any portion of the land out of 95 cents or upon the entire 3 acre 95 cents. Further, the said Yeshwanthagiri

had perfected his title also by adverse possession in respect of 35 cents through enjoyment for more than statutory period. Under the said

circumstances, the said Yeshwanthagiri sold 35 cents with specific boundaries to the defendant for valuable consideration as per the registered sale

deed dated 23.6.1983 and also delivered possession to the defendant and that ever since the purchase, the defendant is in absolute possession and

enjoyment of 35 cents to the knowledge of the plaintiff. In fact, the entire extent of 10.45 acres covered by Survey No. 285/1A was in joint patta

No. 372 and after the defendant''s purchase, his name was also included in the said patta No. 372 and then resurvey was made under Town

Survey Scheme by Arakkonam Municipality and in that resurvey, 35 cents purchased by the defendant was sub-divided as Town Survey No.

7/1B in Block No. 2 in Ward No. A of Arakkonam Municipality and patta for the said extent of 35 cents was transferred in the name of the

defendant as Patta No. 546. So, the plaintiff has no manner of right or interest upon the extent of 35 cents purchased by the defendant. While so,

the plaintiff and her another son requested the defendant to exchange this 35 cents for the purpose of getting access to the newly formed road on

the north of 35 cents and since the defendant refused to have exchange, the plaintiff has chosen to file the suit with false allegations to harass the

defendant to coerce him to come to compromise. In any event, the settles viz., Narasimma Giri and Venubai and the vendor of the defendant

Yeshwanthagiri are necessary parties to the suit and so, it is bad for non joinder of necessary parties. Further, the court fee should have been paid

on the actual market value of the suit property and thereby the court fee paid also is not correct. Therefore, the suit is liable to be dismissed.

On Trial, the plaintiff Janakibai and one of his sons Narasimma Giri were examined as P.Ws.1 and 2 and Exs.A1 to A5 were marked on the

side of the plaintiff and that the defendant Athimoolam and one Subramani have been examined as D.Ws.1 and 2 and Exs.B1 to B22 have been

marked on the side of the defendant by the District Munsif, Arakkonam besides marking of a Court Exhibit. After considering the evidence in

detail, the District Munsif, Arakkonam, holding that proper court fee has not been paid and that the plaintiff cannot claim the suit property as sole

heir of the deceased Govardhana Giri and that the purchase made by the defendant from Yeshwanthagiri under sale deed dated 18.8.1982 is valid

and binding upon the plaintiff and others and that the suit is bad for non joinder of necessary parties and that the defendant has also perfected title

by adverse possession, dismissed the suit.

On appeal by the plaintiff in A.S.No. 104 of 1992, the Sub Judge, Ranipet, after holding that even the possession of the defendant upon 35

cents cannot be legal and that the plaintiff is entitled to get the reliefs of declaration and permanent injunction and lastly allowed the appeal and set

aside the judgment and decree of the Trial Court.

I have gone through the entire oral and documentary evidence available for either side in the light of the arguments of the counsel appearing for

either side in detail. From this, the following important and significant aspects have to be taken into consideration. There is no dispute on the fact

that Rajendra Giri Goshai executed a registered settlement deed marked as Ex.A1 dated 11.9.1967 in favour of Yeshwanthagiri, Narasimma Giri,

Venubai and Govardhana Giri who were minors then by appointing their father Ramagiri Goshai as guardian who is none other than the only

brother of the settlor Rajendra Giri Goshai and that the plaintiff Janakibai is none other than the mother of the settles and wife of Ramagiri Goshai.

There is also no dispute upon the fact that one of the settles viz., Govardhana Giri died in the year 1971. According to the stand of the plaintiff,

long after the death of Govardhana Giri, there was partition by which one acre to Narasimma Goshai, one acre to Venubai and one acre to

Yeshwanthagiri and 95 cents to the plaintiff, being the sole heir of the deceased Govardhana Giri were allotted and that thereafter, each sharer is

enjoying and dealing their own properties. Further, it is the stand of the plaintiff that Yeshwanthagiri has sold his share of one acre to one

Thilagavathy and Dhandapani Udayar as per two separate registered sale deeds dated 18.8.1982 by giving 50 cents each and there is no

remaining property for Yeshwanthagiri. It is also the stand of the plaintiff that as Yeshwanthagiri and other settles viz., Narasimma Giri and Venubai

also are dealing with their shares of properties in their own right and that thereby 95 cents succeeded as sole heir of the deceased Govardhana Giri

is in separate and exclusive enjoyment of the plaintiff and thereby the vendor of the defendant viz., Yeshwanthagiri had no manner of right to

execute a sale deed in respect of 35 cents in favour of the defendant. On the other hand, according to the stand of the defendant, immediately after

the settlement deed dated 11.9.1967, the entire extent of 3 acre 95 cents were orally divided among the settles with the help of their parents and in

that division, one acre each were allotted to Yeshwanthagiri, Narasimma Giri and Venubai and 95 cents to Govardhana Giri. The fact remains that

on the date of settlement deed viz., Ex.A1, all the settles were minors with the age of Yeshwanthagiri 5 years, Narasimma Giri 3 years, Venubai 2

years and Govardhana Giri 6 months and thereby it goes without saying that the division should be with the help of the parents. It is the further

stand of the defendant that one of the settles viz., Govardhana Giri died in the year 1971 itself at the age of about 4 years. Again the share of 95

cents belonging to the deceased Govardhana Giri was orally divided among the other remaining three settles as 30 cents to Narasimma Giri, 30

cents to Venubai and 35 cents to Yeshwanthagiri. This stand appears to be more reliable and believable because the settlor viz., Rajendra Giri

Goshai settled the entire extent of 3 acre 95 cents in favour of his brother''s sons and daughter exclusively for the purpose of their benefit and

disposal and he never intended to give the said property in favour of his brother Ramagiri or brother''s wife the plaintiff herein and that is why even

after the death of one of the settles viz., Govardhana Giri, his share of 95 cents was divided into three shares. That is why the plaintiff, being mother

of the deceased Govardhana Giri, has not chosen to have separate patta in her name for 95 cents or joint patta with the other settles as if she

became the owner of 95 cents either by succession as sole legal heir of the deceased Govardhana Giri or as absolute owner in pursuance of oral

partition among the three settles and herself. It is also the fact that she has not chosen to pay kist in her name at any time separately. On the other

hand, the plaintiff has given evidence to the effect as if she alone succeeded Govardhana Giri as sole legal heir and so, 95 cents was allotted to her

in the oral partition among the settlees. Such a version, in my view, does not appear to be acceptable and believable in the practical point of

approach. At the same time, on the contrary, the defendant has given evidence and produced his sale deed dated 23.6.1983 for 35 cents marked

as Ex.B1 and besides that sale deed, he has also produced patta book with No. 546 for 35 cents covered by Town Survey No. 7/1B, Block 2,

Ward A on the strength of his purchase under Ex.B1. Ex.B3 produced by the defendant shows that Town Survey has been effected and Ex.B4

shows that new Town Survey No. 7 has come into existence with Ward A Block No. 2. Ex.B5 shows that previous survey No. 285/1A2

pertaining to 35 cents has been changed into Town Survey No. 7/1B for 0.1408 hectare. Ex.B6 shows that at the request of the defendant

Adhimoolam, Town Survey No. 7/1 was sub-divided into 7/1A and 7/1B and 7/1B relates to 0.1408 hectare in the name of the defendant

Adhimoolam. Ex.B7 shows that the name of the defendant also has been included in patta No. 372. Ex.B8 shows that the defendant has obtained

encumbrance certificate before he purchased the suit property. Ex.B9 to B15 show that the defendant is paying kist for patta NO.372 and 546.

Ex.B16 shows that the plaintiff, her son Narasimma Giri and daughter Venubai, one Jayaraman, Pandu, Venkatesan and Mani have filed Caveat

O.P.No. 16 of 1984 on the file of The District Munsif Court, Sholinghur against the defendant Adhimoolam. Exs.B17 and B18 show that the

defendant has paid property tax for the property. Exs.B19 and B20 also show that the defendant Adhimoolam paid kist for patta No. 1120.

The defendant has significantly filed the registration copy of the sale deed executed in favour of one Chandra Ammal by Jayaraman, Pandu,

Venkatesan, Mani as power agents of Narasimma Giri and Venubai in respect of plot No. B2 covered by S.No. 285/1A at Ashoknagar,

Arakkonam for Rs. 7500/=. The very same power agents of Narasimma Giri and Venubai viz., Jayaraman, Pandu, Venkatesan and Mani are

figuring as petitioners along with the plaintiff in Caveat Petition No. 16 of 1984 on the file of the District Munsif Court, Sholinghur as evidenced by

Ex.B16. In this context, it is with significance to be pointed out that Ex.B22 sale deed has been attested by the very same Narasimma Giri,

Venubai and the plaintiff Janakibai. Further, with more significance it is to be pointed out that the property sold under this document as plot No. B2

has been described as ""east of 20 feet road, west of vacant site of Adhimoolam, south of B1 plot and north of B3 plot with measurements of

60x32 $hjp mo totalling 1920 sqft."" Therefore, it is to be noted that when according to the plaintiff, Yeshwanthagiri had no remaining property

after execution of sale deeds under Exs.A2 and A3 in favour of Thilagavathy and Dhandapani Udayar in August 1982 itself, there is no reason as

to how the very same plaintiff Janakibai and his daughter Venubai and son Narasimma Giri were able to attest the original of Ex.B22 which is a

sale deed executed by the power agents of Narasimma Giri and Venubai and there is no reason as to how the description of the eastern boundary

for plot B2 under Ex.B22 has been shown as vacant site of the defendant Adhimoolam. On the other hand, the eastern boundary should have been

mentioned as vacant site of Janakibai the plaintiff or Thilagavathy or Dhandapani. Therefore, it is to be noted that in line with the stand taken by the

defendant after the previous oral partition among the settles immediately after some time, the settles were given one acre to each and 95 cents to

Govardhana Giri and that after the death of Govardhana Giri, another oral partition was there and in that only the entire 95 cents appears to have

been divided between the remaining three settles each getting 30 cents, 30 cents and 35 cents and then the said 35 cents allotted to Yeshwanthagiri

alone appears to have been purchased by the defendant Adhimoolam under Ex.B1 on 23.6.1983. That is why Ex.B22 which came into existence

on 25.1.1984 i.e., nearly after seven months, the power agents of Narasimma Giri and Venubai have executed the sale deed in respect of B2 plot

to Chandra Ammal by describing the eastern boundary as vacant site of Adhimoolam besides the attestors being the very same plaintiff and her son

and daughter. If it is not so, there is no necessity or occasion for such a document to come into existence with such a description and such

attestation. Therefore, the very existence of Ex.B22 and its recitals, description of property and attestation clearly go to show that the purchase

made by the defendant Adhimoolam from Yeshwanthagiri has been in a way conceded and recognised by not only the plaintiff Janakibai but also

by Narasimma Giri and his sister Venubai.

But, surprisingly, the Sub Judge, Ranipet has failed to note and consider these important points before deciding the appeal and he has gone to

the extent of observing that even if there is possession of suit property with the defendant Adhimoolam, that cannot be legal and set aside the

judgment and decree of the Trial Court and decreed the suit. Accordingly, I am of the view that the judgment and decree of the Sub Court,

Ranipet deserves to be set aside and the judgment and decree of the Trial Court viz., the District Munsif, Arakkonam has to be restored.

In the result, the second appeal is allowed with costs and the judgment and decree of the Sub Court, Ranipet is set aside and the judgment and

decree of the Trial Court viz., the District Munsif, Arakkonam is restored.