R. Ramuththevar (died) vs Selvi

G. Chockalingam, J.—Challenge in these second appeals is to the judgment and decree, dated 24.02.2005 passed in the Appeal Suit as well as in Cross Objection in A.S. No.64 of 2005, by the Subordinate Judge, Sivagangai, dated 24.02.2005, modifying the judgment and decree passed by the Principal District Munsif, Manamadurai, in O.S. No.32 of 1999, dated 31.01.2002

The 1st appellant herein as plaintiff has instituted Original Suit No.32 of 1999 on the file of the trial Court seeking the relief of declaration and permanent injunction, wherein the present respondent has been shown as defendant.

It is averred in the plaint that the suit property originally belonged to the plaintiff''s elder brother Athimoola Thevar and after the death of Athimoola Thevar, being the heirs of Athimoola Thevar, the plaintiff and the defendant were jointly enjoying the suit property and patta stands jointly in the name of the plaintiff and the defendant and in the year 1967 in the oral partition, the northern half portion was allotted to Athimoola Thevar and the plaintiff herein was allotted southern half portion. Athimoola Thevar is having one daughter, by name Pitchaimuthu Ammal and as the Pitchai Muthuammal died, her husband Karuppiah secondly married one Pitchai Pillai, who is not related to Athimoola Thevar and out of their wedlock, the defendant Selvi was born. As no there was no legal heir to Athimoola Thevar, the plaintiff has been enjoyment the suit property and without out the consent and knowledge of the plaintiff, the defendant changed the patta in respect of items 2 to 5, which is not valid in law. Hence, the suit is filed for declaration and permanent injunction.

In the written statement filed on the side of the defendant, it is averred as follows:-

The suit filed by the plaintiff is not maintainable. It is false to state that in the year 1967, there was an oral partition and the defendant is the only heir of Pichtaimuthu Ammal, who is the only daughter of Athimoola Thevar. The plaintiff created some documents in respect of the suit property in order to cheat the defendant, which are not valid in law. on 17.08.1998, the Revenue Divisional Officer, Sivagangai, has ordered to grant patta in favour of the defendant. In the first item of the suit property, the defendant raising Karuvelan trees and also paid the tax for the same for her possession and enjoyment. The defendant is also enjoying the other items of the suit property. Hence, the defendant prayed for the dismissal of the suit.

The trial Court, after considering the rival evidence and documents adduced on either side, passed preliminary decree in respect of Item No.1 and dismissed regarding the other items. Against the preliminary decree passed by the trial Court, the defendant has preferred an appeal in A.S.No.64 of 2002 before the First Appellate Court and the plaintiff has preferred cross appeal before the first Appellate Court. After hearing both parties and upon reappraising the evidence available on record, the First Appellate Court allowed the appeal filed by the defendant and dismissed the cross appeal filed by the plaintiff. Against the judgment of allowing the appeal and dismissal of the cross appeal, the plaintiff has preferred the above S.A. Nos.27 and 918 of 2006.

At the time of admitting these second appeals, the following substantial questions of law have been formulated for consideration:-

(1). Whether the judgment of the lower appellate court is liable to be set aside for not following the procedure contemplated under order 41 Rule 31 of Civil Procedure Code and as held in 1997 I CTC 559(DB)?

Whether the findings of the lower courts that Ex.X1, the receipt issued by Meenakshi Sundareshwarar Thirukkoil is a Public document under section 74 of Evidence Act and the reason adduced for the same are sustainable in law and whether the courts below are justified in not following 1989 2 Law Weekly 197?

Whether the finding of the Lower Appellate in construing Ex.A5 (Pakavisthi) as partition deed and that it requires registration is sustainable under law?

Before going into the merits of the case, it is necessary to narrate the admitted facts of this case.

The learned counsel for the appellants in S.A.(MD)No.27 of 2006 has argued that the courts below, without considering the oral and documentary evidence, have come to the conclusion that and not decided the question that who is the mother of the defendant and the first appellate court having found that Exs.X2 to X4 are inadmissible in evidence and ought not to have merely followed the trial court judgement, which has merely relied upon Exs.X2 to X4 and also the trial court has not followed the procedure contemplated under Order 41 Rule 31 CPC and equally failed to follow the relied upon documents available on record and the trial court without considering Ex.A5 document wrongly come to the conclusion and therefore, the first appellate court ought to have considered the partition took place in 1967 and without considering the same, the first appellate court has wrongly come to the conclusion and therefore, the judgment and decree of the first appellate court are liable to be set aside.

Further the learned counsel for the appellants has argued that the first appellate court ought to have allowed the cross appeal and ought not to have allowed the appeal filed by the defendant and the reasons given by the first appellate court holding that the defendant is the legal heir of Pitchaimuthu Ammal is unsustainable in law, when she is the daughter of Karuppaiah and Pitchaipillai. The first appellate court ought to have held that the plaintiff being the only legal heirs of Ramuthevar is entitled to the suit properties and the finding of the first appellate court holding that the defendant is entitled to all the properties is not based on the acceptable evidence and there is no valid reasons given to reverse the judgment and decree of the trial court regarding share regarding the 1st item of the suit property.

The learned counsel for the respondents, in both the appeals argued that the first appellate court after analysing the evidence on record documents produced on behalf of both sides, dismissed the suit regarding the 2nd and 3rd item and one portion of the first schedule. But the first appellate court, after considering the entire evidence adduced on both sides, correctly come to the conclusion that the plaintiff has not entitled to any relief and dismissed the whole suit and there is no irregularity or infirmity in the judgment and decree of the courts below and the second appeals have to be dismissed in to.

In support of his contention, the learned counsel for the appellants in both the appeals, relied upon the following judgement:-

1989 (2) LW 197 (DB) [Mohan and another v. Santha Bai Amman and others]

2009 (5) CTC 1 [M.Kothai Achi @ Chellammai Achi v. PL.Manickam and others ].

AIR 1974 Mad. 239 [C.s. Kumaraswami Gounder v. Aravagiri Gounder and another]

2000 (II) CTC 230 [M.K.Narayanan and two others v. The State of Tamil Nadu rep by the Assistant Commissioner of Urban Land Tax Trichy and another]

2013 (3) CTC 160 [Venkatasubramaniya Chettiar (died) and two others v. Perumal Chettiar and others]

6.(2007) 8 SCC 120 [Haryana State Industrial Development Corporation v. Cork Manufacturing co.]

2005 (4) CTC 9 [M.E.A Mohamed Ali and others v. The District Revenue Officer, Ramnad Collectorate, Ramanathapuram and others]

2010 (6) CTC 225 [Bajaj Auto Ltd. v. TVS Motor Company Ltd]

1997 (I) CTC 559 [K.M.M. Kadar Hussain v. O.M.R. Selvaraj and two others]

(2010) 13 SCC 530 [B.V. Nagesh and another v. H.V. Sreenivasa Murthy]

2011 (4) CTC 343 [H.Siddiqui (dead)by LRs v. A. Ramalingam

12.(2001) 7 SCC 189 [Hafazat Hussain v. Abdul Majeed]

13.2010 (2) CTC 515 [A.C. Bakthan and another v. Rosi Ammal]

14.2006 (4) CTC 79 [Hero Vinoth (Minor) v. Seshammal]

In this case, the first appellate has come to the conclusion rejecting Ex.A5 partition deed, as it is not admissible in evidence. According the learned counsel for the defendant, Ex.A5 partition deed is only a lease agreement, it is admissible in evidence and the trial court has wrongly come to the conclusion.

In Ex.A5, it is stated as follows:

"1974k; tUlk; R{iy khjk; 29 k; ehs; fPHU'';fpad; fpuhkj;jpy; 5 ngh; g";rhaj;jhh;fs; Kd;dpidapy; i& fpuhkj;jpypUf;Fk; rp/uhRj;njth; kf;fs; MjpK:yj;njth; (1) i&ahh; jk;gp uhKj;njth; ,uz;L ngh;fSk; ghfk; bra;J bfhz;l ghftp!;jp"

14 .On the reading of Ex.A5 on the date of document alone, it was partitioned among the brothers in the presence of the Panchayatars and all the Panchayadars and the plaintiff and the defendant had signed in the documents and it shows that on that date alone, partition had taken place in the presence of the panchaydars and it was read by all the parties. Hence, the argument of the learned counsel for the appellants that the partition has already taken place and it was entered into only lease on that date against the document, is not acceptable. So the partition was taken place from the date of document and only the property was partitioned on that date and the same is liable to be registered under the Registration Act, but the document has not registered. Hence, the first appellate court rightly rejected the document Ex.A5, which is not admissible in evidence.

The learned counsel for the appellants submitted that the defendant Selvi is not the legal heir of Athimoola Thevar and she has no connection with the family of Athimoola Thevar. Further, even in the plaint as well as the in his evidence, the plaintiff (PW1) stated that:-

"2 Kjy; 4 ,yf;f brhj;Jf;fs; vd; mz;zQqf;F fpiuag; ghj;jpak; MFk; ...........

2 Kjy 4 ,yf;f brhj;Jf;fSf;F ehd;F khy; bjhpa[k;/ rh;nt ek;gh; 62/3v, 2tJ ,yf;fj;jpd; tp!;jPuzk; 1 Vf;fh; 10 brzv;l; MFk;/ ehd;Fkhy; ,e;j brhj;Jf;F bjhpahJ"

Hence from the above admission of the plaintiff that items 2 to 4 belonged to Athimoola Thevar and he originally purchased the above properties. After analysing the evidence and the documents produced on behalf of both sides, the trial court and the first appellate court come to the conclusion that the present defendant is the daughter of Pichtai Muthu, who is the Daughter of Athimoola Thevar and there is a definite conclusion by the both the courts below that the present defendant is a legal heir in branch of Athimoola Thevar. Hence, it is the question of fact that whether the defendant is the legalheir of Athimoola Thevar and on the same question of fact, both the courts below concurrently held that Selvi is the daughter of Pitchamuthu Pillai and who is daughter of Athimoola Thevar.

Further, on the side of the respondent, for payment of charges, receipt dated 14.09.1969 has been marked. Ex.X1 is the receipt for the payment of marriage fee between V.Karuppiah Thevar and Pitchaimuthu Ammal. D/o. C.R. Athimoola Thevar. It is seen from Ex.X1, the payment was made on 14.09.1969 for the marriage between Karuppiah Thevar, who is the son of Veerapathira Thevar and Pitchai Muthu Ammal, D/o. C.R. Athimoola Thevar. Therefore, the marriage of Pitchai Muthu Ammal D/o. Athimoola Thevar with V.Karuppiah Thevar was definitely happened after the date of Ex.X1. But the case of the plaintiff is that Athimoola Thevar died on 19.07.1981 and his daughter Pitchaimuthu Ammal died in the year 1965 and her only daughter born in 1964 and died on 1968 for that no acceptable evidence was produced on the side of the appellants. Hence, this court is of the view that from Ex.X1 also it is clearly proved that the defendant is the legal heir of Athimoola Thevar is acceptable one. Therefore, this court is of the considered view that the findings of the courts below with regard to above need not be interfered with.

Further it is admitted that in the items 2 to 4 are belonged to Athimoola Thevar and therefore, his legalheir, namely the defendant is the owner of the items 2 to 4. So, the plaintiff has no right or title in respect of items 2 to 4.

Further, regarding first item of the suit property, the trial court has come to the conclusion that the plaintiff is having half share in the property. But the first appellate court has come to the conclusion that even with regard to the 1st item, the plaintiffs have not proved their title through admissible documents. The plaintiff mainly rely upon Exs.A2, A3 and A5. This court has already come to the conclusion that Ex.A5 is not a registered partition deed, which is not admissible in law. The documents produced on the side of the plaintiff A.2 and A.3 are said to be copy of plaints which are not containing the signatures and they are not certified copies, no credential value to be given to those documents. So, no right would derive from Ex.A5 partition deed and A2 and A3 are not valid in law and that has to be thrown out. A4 is copy of the sale deed. The plaintiff has not adduced any evidence in this connection and there is no evidence available to connect the document with first item of the suit property and the first appellate court has come to the correct conclusion that the plaintiff has not proved his title to the half share in the first item of the suit property. As discussed earlier that the partition deed is not admissible in evidence and no reliance can be based on the above documents. Since the above documents cannot relied upon, the claim of the plaintiff half share in the first item of the schedule of the property has not been proved. So, the first appellate court has correctly come to the conclusion that the plaintiff is not entitled any share in the first item of the property and regard to the items 2 to 5 also. The first appellate court has correctly given finding that the plaintiff has no title or possession to the above properties.

The first appellate court, after hearing both parties, framed point for determination in the appeal and it was stated in the judgment and discussed with reasons for its decision arrived. Hence, the argument of the learned counsel for the appellant that the first appellate court has not followed Order 41 Rule 31 CPC is not acceptable.

The ruling cited on the side of the appellants are not applicable to the facts and circumstances of the case.

In the above said circumstances and in view of the earlier discussion, this court is of the considered view that the plaintiff has no right or title over the items 1 to 4 of the suit property and the judgment and decree of the first appellate court is confirmed and the second appeals are liable to be dismissed.

For all the reasons stated, both the second appeals are dismissed and the judgment and decree of the first appellate court is confirmed. Considering the fact and circumstances of the case both the parties are directed to bear their own costs.