Muruganandam vs Govindasami Mudaliar

B. Rajendran, J.—The plaintiffs 2 to 4 are the appellants. This second appeal is filed, challenging the judgment and decree dated 30.04.2014 passed by the learned Principal Subordinate Judge, Cuddalore in A.S.No. 97 of 2011 in confirming the judgment and decree dated 03.08.2011 passed by the learned Principal District Munsif, Cuddalore in O.S.No. 241 of 2004.

The parties are referred to here under according to their litigative status and ranking before the trial Court.

The short facts that are necessary for the disposal of this Second Appeal would run thus:

(a) The plaintiffs 2 to 4/appellants filed the suit seeking declaration of title of the suit "C" scheduled property and for permanent injunction restraining the defendant from interfering with their peaceful possession and enjoyment of the said suit property. According to the plaintiffs, originally the entire property belonged to one Kunjammal, which is described as "A" scheduled property in the plaint; later her daughter one Chinnaponnu Ammal sold the "B" scheduled property to one Rajaram Singh vide registered sale deed dated 16.06.1959. Subsequently by way of compromise decree in O.S.No. 709 of 1979, the entire B Scheduled property was obtained by the heirs of said Rajaram Singh and the first plaintiff purchased the undivided half share from one Tagore Singh vide registered sale deed dated 02.01.1991 and the remaining undivided half share from Neelamai and Sarasabai vide sale deed dated 17.06.1992. Accordingly, the plaintiffs would contend that they are in possession and enjoyment of the entire property measuring an extent of 11891 sq.ft. When the plaintiffs wanted to construct another shed in the western most portion of the B Scheduled property, which is marked as FGHI in the plaint, the defendant objected to the same claiming that he is entitled to the property beyond the portion marked as I, H up to FG, which is marked as C scheduled property. Hence, the suit seeking the aforesaid reliefs.

(b) The defendant by way of filing written statement resisted the suit by contending that one Deivayani Ammal was the original owner of the entire extent marked as BCGHIJ in the plaint and she was in possession and enjoyment of the same. It is their further contention that the said Deivayani Ammal sold the entire extent to this defendant vide sale deed dated 05.05.1963 and till date he is in possession and enjoyment of the entire property including the C scheduled property as mentioned in the plaint. The defendant further contended that when the plaintiffs requested this defendant to remove the live fence put up by him for constructing a compound wall in their property, he bonafidely believing them removed the live fence by cutting the trees also. However, to his shock and surprise, the plaintiffs issued suit summons claiming that they are in possession of the C scheduled property and the defendant is obstructing them from constructing the shed. The defendant would further contend that when the plaintiffs'' predecessor-in-title was not in possession of the suit scheduled property, the plaintiffs cannot also claim any right. Accordingly, he prayed for the dismissal of the suit.

(c) The trial Court framed the relevant issues.

(d) During trial, on the plaintiffs'' side, the second plaintiff- Muruganantham examined himself as P.W.1 along with P.Ws.2 and 3 and marked Exs.A1 to A43; and on the defendant''s side, the defendant examined himself as DW1 along with D.W.2 and marked Exs.B1 to B9 and the Court documents Exs.C1 to C5 were also got marked.

Ultimately, the trial court after analysing the oral and documentary evidence adduced on both sides, dismissed the suit. As against the same, the plaintiffs 2 to 4 preferred appeal for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court. Aggrieved against the same, the present second appeal has been filed by the plaintiffs 2 to 4, raising the following substantial questions of law:

Did not the lower courts grossly erred in not taking into account the admissions made by DW1?

Were not the courts below wrong in not raising a plea of estoppel and answering it in favour of plaintiffs?

Did not the courts below grossly erred in failing to see that the purchase by plaintiffs'' predecessor is anterior in point of time and it should prevail?

Were not the lower courts wrong in failing to see that the sale under Ex.A39 is void for want of permission from the competent court?

Did not the courts below grossly erred in failing to see that the sale under Ex.A39 relates to some other place and not the disputed property?

Are not the judgments of the lower courts perverse inasmuch as they have ignored oral evidence?

Did not the courts below grossly erred in ignoring the Advocate Commissioner''s report and the defendant''s conduct?

The main ground of attack made by the learned counsel for the plaintiffs 2 to 4/appellants is that both the courts below failed to see that the plaintiffs'' vendor is the earliest purchaser and hence, the plaintiffs alone is entitled to the entire C Scheduled property. He would further contend that the courts below ignored the oral and documentary evidence adduced on the side of the plaintiffs'' in proper perspective. He would further submit when the permission of the District Court was not obtained for selling the share of minors, such sale made by the minor is void. Accordingly, he would pray for setting aside the judgments and decrees of both the courts below.

I have heard the learned counsel for the appellants and perused the records.

On an analysis of the judgments rendered by both the courts below, it is seen that the trial court has relied upon the document exhibited by the plaintiffs themselves under Ex.A39, which revealed that the vendor of the defendant, viz., Deivayani Ammal herself has purchased the entire C scheduled property from the legal heirs of the original owner Kunjammal, in order to resolve a dispute between them by means of a registered sale deed dated 21.06.1944 and the defendant/respondent had purchased the said property from the said Deivayani Ammal and he is possession and enjoyment of the same from the date of purchase. It is further held that though the plaintiffs/appellants contended that the sale deed executed in favour of their father is the earliest one, they have not discharged their burden to show that they are in possession and enjoyment of the same and accordingly dismissed the suit. The first appellate court also after analysing the oral and documentary evidence adduced on both sides, held that the legal heirs of the deceased Kunjammal, who is the original owner had executed a sale deed in favour of Deivayani Ammal, the vendor of the defendant by conveying an extent in the suit property measuring 30 feet in East-West and 47 feet in North-South under Ex.A39 registered sale deed dated 21.06.1944. As such the property mentioned in the portion marked as BCGHIJ in the plaint sketch belonged to said Deivayani Ammal. Though the sale deed under Ex.A39 was executed on behalf of minor Chinnaponnu Ammal by her guardian/father, the said Chinnaponnu Ammal after attaining majority had not challenged the said sale and the same has attained finality. Hence, without cancelling the sale deed executed under Ex.A39, the said Chinnaponnu Ammal had got no right to execute the sale deed dated 16.05.1959 under Ex.A2 to the vendor of the plaintiffs'', viz., Rajaram Singh. Accordingly, the first appellate court also held that the plaintiffs'' have got no right in the C scheduled property and hence, no declaratory relief as prayed for by them could be granted and dismissed the appeal confirming the judgment and decree passed by the trial court.

In view of the aforesaid factual finding arrived at by both the courts below, I do not find any reason to interfere with the reasoned order passed by the courts below. In the result, no question of law much less substantial question of law is involved in this second appeal for consideration. Accordingly, the second appeal fails and the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.