Murugesan vs Tulasi & Anr

The second defendant is the appellant herein in a suit for declaration and permanent injunction filed by the plaintiff.

The case of the plaintiff is as follows :

(i) The suit property is an extent of 1080 sq.ft in old Survey No.521/6 and New Survey No.1158/27 in Chinnasalem Village, Villupuram District.

The plaintiff based his claim on the sale deed dated 08.04.1986 executed by one Virudhambal, W/o.Paranthaman. The said Virudhambal had

earlier purchased the said suit property by way of two sale deeds dated 16.07.1981 and 26.11.1981 from one Thangavel and Kaliyan, who in

turn, sold the property to the plaintiff on 08.04.1986. After the purchase, the plaintiff had obtained patta in patta No.468. It is stated that from the

date of purchase, the plaintiff had been in absolute possession and enjoyment of the suit property along with her other properties adjacent to the

suit properties.

(ii) Earlier, one Kaliyan and Thangapappa filed O.S.No.727 of 1991 seeking for declaration and permanent injunction against the plaintiff and her

husband, namely, Annamalai, the first defendant and two others. The said suit was dismissed on 14.11.1996 declaring the title of the plaintiff

herein. An appeal in A.S.No.31 of 1997 filed against the said judgment was also dismissed. It is stated that even in the earlier suit, the plaintiff had

claimed right only based on the sale deed dated 08.04.1986. Since the defendants disputed her right over the suit property, she was constrained to

file the present suit.

Resisting the suit, the appellant / second defendant filed the written statement stating that one Periyan had two sons namely, Arunachalam and

Mookan. After the death of the said Periyan, Arunachalam and Mookan partitioned the suit properties equally. The said Arunachlam''s wife

Thulasi was in possession of his share and after her death, her daughters Periyammal, Angammal and Virudhambal - Defendants'' mother got

specific shares as per oral arrangements made by their mother-Thulasi. It is the case of the appellant/second defendant that the said Periyammal

sold her share to the defendants'' mother-Angammal. Thus, the said Angammal got two shares. The said share was settled in favour of the second

defendant on 25.06.2003. After the said settlement, the second defendant put up a tiled house and has been in possession of the suit property.

Hence, the plaintiff does not have any right over the same and the second defendant sought for dismissal of the suit.

Before the trial Court, on the side of the plaintiff, one Annamalai was examined as P.W.1 and Exs.A1 to 11 were marked. On the side of the

defendant, one Murugesan was examined as D.W.1 and Exs.B1 to B5 were marked.

Before the trial Court, the suit was contested by the defendants. However, the suit was decreed in favour of the plaintiff. Aggrieved by the same,

an appeal was filed by the defendants in A.S.No.70 of 2012. The appeal was dismissed on 21.01.2015 and the decree granted in O.S.No.277 of

2009 was confirmed. Now, the present Second Appeal has been filed by the second defendant and the first defendant for the reasons best known

had not joined the appeal.

At the time of admission, by order dated 30.04.2015, the following substantial questions of law are formulated:-

a. Whether the judgments of the Courts below are vitiated by misreading of Ex.A1 produced by the first respondent, in holding that he proved his

title under the said document when it is not relating to the suit property?

b. Whether the judgments of Courts below are liable to be set aside in its decreeing the suit for declaration by stating the defendant failed to prove

his title over looking the settled proposition of law that plaintiff must win or lose on his own strength in a title suit?

Heard the learned counsel for the appellant/second defendant and the learned counsel for the first respondent and perused the materials

available on record.

The suit property is situated in Survey No.521/6, which was given a new Survey No.1158/27. Learned counsel for the first respondent states

that even the said Survey No.521/6 was later assigned as 521/48 around the year 1981, it is relevant to note that there is no dispute with respect

to the identity of the property or even the description of the property. Learned counsel for the appellant/second defendant contended that the suit

property and other properties belonged to the great grandfather, Periyan, who had two sons, namely, Mookan and Arunachalam and they had

orally partitioned the properties. The said Arunachalam''s wife was one Thulasi, who had three daughters, namely, Periammal, Angammal and

Virudhambal. The said daughters had once again partitioned the properties among themselves. While so, the said Periammal sold the property to

Angammal and the said Angammal settled the property upon the defendants on 25.06.2003 under Ex.B-1. The plaintiff had produced Exs.A1 to

A11 in support of his case. The other documents filed by the plaintiff are the prior title deeds in the name of Virudhambal as Exs.A2 and A3, patta

dated 21.03.1996 and the judgment and decree in the earlier suit in O.S.No.No.727/1991.

In the cross examination of D.W.1-Murugesan, he has specifically admitted that ""VERNACULAR MATTER OMITTED

Further, D.W-1, had deposed that he does not know the date, month or the year of the oral partition between Arunachalam and Mookan. He

had further stated the he did now know which were the properties and in which the Survey numbers they were allotted to each of them. He had

further deposed as follows:-

VERNACULAR MATTER OMITTED

As stated earlier, the brother of the appellant, namely, the first defendant, did not file an appeal and did not challenge the identity of the suit

property either in the written statement or in the grounds of appeal. In the oral evidence, as extracted above, D.W.-1 had categorically admitted

the suit survey number and suit property. The plaintiff had based his claim on the sale deed dated 08.04.1996. Learned counsel for the

appellant/second defendant contended that the second defendant never admitted the identity of the suit property. In the written statement, the

second defendant has stated that the plaintiff had purchased the property belonging to him from a person without title and is claiming right over the

same. However, the appellant has not produced any evidence to substantiate his contention. On the other hand, the plaintiff has proved the beyond

doubt that he has got valid title under Ex.A-1-Sale Deed dated 08.04.1986. It is also not clarified as to why the first defendant had not joined the

appellant in preferring the Second Appeal, when the defendants had challenged the trial Court judgment and decree together. As pointed out by

the learned counsel for the respondents, even in the earlier suit in O.S.No.727 of 1991, in which, the plaintiff herein had based his claim on the

same sale deed, it was upheld and the brother of the defendant was a party to the same. Even otherwise, the claim of the plaintiff is established by

satisfactory evidence. Though the appellant / second defendant claimed his right under Ex.B-1, in the absence of proof of ownership of Angammal,

the right or title does not pass on to the appellant and even Ex.B-1 has not been proved. As the appellant has admitted in his cross examination

that there is no document to prove the enjoyment of the property by his mother-Angammal, he has also not examined anybody else having

knowledge about the execution of Ex.B-1, though he had stated that one Dhanapal and Ramasamy had knowledge about the execution of Ex.B-1.

The suit was filed in the year 2009 and Ex.B-1 came into force in the year 2003. However, the appellant had not produced any revenue records to

prove that he is in possession of the suit property. Hence, even presuming that the settlement deed under Ex.B-1 is true, it has not been acted

upon. In the face of the findings recorded by the trial Court as also by the lower appellate Court on the question that the sale deed dated

08.04.1986 in favour of the plaintiff is a valid sale deed which conveyed the title of the property in question to the plaintiff. The substantial

questions of law are answered against the appellant / second defendant and there is no infirmity in the findings of the Courts below and the same do

not warrant any interference by this Court.

In fine, the Second Appeal is dismissed confirming the judgment and decree of the Courts below. No costs. Consequently, connected

miscellaneous petition is closed.