Sankar vs Pappathi (died) Nagarathinam

A. Selvam, J.—The Judgment and decree dated 23.11.2010 passed in Appeal Suit No. 14 of 2009 by the Principal Sub Court, Tiruchirappalli are being challenged in the present second appeal.

The respondent herein as plaintiff has instituted Original Suit No. 917 of 1999 on the file of the First Additional District Munsif Court, Tiruchirappalli for the relief of permanent injunction, wherein the present appellants and deceased Pappathi have been shown as defendants.

In the plaint it is averred that the suit property is comprised in Survey No. 1668/2 and it measures 24 feet on east-west and 22 feet on north-south. The father of the plaintiff by name Krishnan Muthuraja has purchased the same by virtue of a sale deed dated 24.07.1950 from one Kunjammal and since then he is in possession and enjoyment of the same. After his demise, the plaintiff has succeeded his estate and further the mother of the plaintiff by name Thangammal has executed a release deed in favour of the plaintiff and thus the plaintiff has become absolute owner of the suit property. In the suit property, the defendants are not having any manner of right, title and interest and since the defendants have tried to interfere with the peaceful possession and enjoyment of the plaintiff in the suit property, the present suit has been instituted for the relief sought for in the plaint.

In the written statement filed on the side of the defendants, it is averred that the father of the plaintiff has not purchased 22 feet towards north-south and he purchased only 17 feet on north-south and immediately on the southern side of the property purchased by the father of the plaintiff, a common pial measuring 24 feet on east-west and 7 feet on north-south is in existence and by way of including the said common pial, the present suit has been instituted. The husband of the first defendant has got the property of the first defendant by virtue of settlement deed executed by Chinnakuttyammal and after his demise the first defendant has sold the property mentioned in the settlement deed in favour of the second defendant and there is no merit in the suit and the same deserves to be dismissed.

On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit to an extent of 24 feet on east-west and 17 feet on north-south and dismissed the suit in respect of the property measuring 5 feet on north-south. Against the disallowed portion, the plaintiff as appellant has preferred Appeal Suit No. 14 of 2009 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court in respect of disallowed portion and ultimately decreed the suit as prayed for. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the defendants 2 and 3 as appellants.

As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.

On the side of the appellants/defendants 2 and 3, the following substantial questions of law have been raised for consideration:

a) Whether the first appellate Court is right in decreeing the suit filed by the respondent/plaintiff even though the documents relied upon by the respondent/plaintiff show the existence of common pial in T.S. No. 1668?

b) Whether the first appellate Court is right in decreeing the suit filed by the respondent/plaintiff on the basis of assumption and surmises?

c) Whether the first appellate Court has properly appreciated the provisions of Section 92 of Indian Evidence Act?

d) Whether the precedents cited in R. Varadhan Vs. M. Harigopal, are not applicable to the facts of the case?

Before analysing the rival submissions made on either side, the Court has to narrate the following admitted facts. It is an admitted fact that the suit property is comprised in Survey No. 1668/2. In the plaint it is averred that the east-west measurement of suit property is 24 feet and north-south measurement is 22 feet.

The main defence taken on the side of the defendants is that the father of the plaintiff by virtue of sale deed dated 24.07.1950 has purchased only a property measuring 17 feet on north-south and apart from 17 feet on north-south on the southern side, a common pial measuring 7 feet on north-south is situate and by way of including the same the present suit has been instituted and therefore the plaintiff is not entitled to get the relief sought for in the plaint.

The trial Court on the basis of available evidence on record has granted a decree of permanent injunction after excluding 5 feet on north-south on the southern side of remaining suit property.

The learned counsel appearing for the appellants/defendants 2 and 3 has contended that even in the sale deed dated 24.07.1950, the father of the plaintiff has purchased only 17 feet on north-south and apart from 17 feet on north-south, the plaintiff cannot claim more extent, but the present suit has been instituted in respect of 22 feet on north-south and under the said circumstances the trial Court has rightly dismissed the suit in respect of the disallowed portion, but the first appellate Court without considering the recitals found in the sale deed dated 24.07.1950 has erroneously decreed the suit in toto and therefore the Judgment and decree passed by the first appellate Court are liable to be interfered with.

The learned counsel appearing for the respondent/plaintiff has contended that the father of the plaintiff by virtue of sale deed dated 24.07.1950 has purchased 24 feet on east-west and 22 feet on north-south and in fact the alleged common pial is not in existence and the trial Court without considering the recitals found in the sale deed dated 24.07.1950 has erroneously non-suited the plaintiff in respect of 5 feet towards north-south, but the first appellate Court has rightly decreed the suit in toto and therefore the Judgment and decree passed by the first appellate Court are not liable to be interfered with.

Even though on the side of the plaintiff as well as defendants so many documents have been filed, the present lis can be decided only on the basis of the recitals mentioned in the sale deed dated 24.07.1950 and a registration copy of the same has been marked as Ex. A.1.

It is an admitted fact that Ex. A.1 is a sale deed which stands in the name of the father of the plaintiff.

In fact this Court has meticulously perused the entire recitals found in Ex. A.1. In the property description initially total extent of the property has been mentioned as 24 feet on east-west and 22 feet on north-south. After mentioning the extent of total area, specific recitals are found place with regard to existence of common pial measuring 24 feet on east-west and 5 feet on north-south and after mentioning the said pial the property sold under Ex. A.1 has been mentioned as 24 feet on east-west and 17 feet on north south.

The learned counsel appearing for the respondent/plaintiff has made a fatuous exercise by way of arguing that the father of the plaintiff has purchased 22 feet on north-south and further no common pial is in existence.

It has already been pointed out that as per Ex. A.1, the father of the plaintiff has purchased only 17 feet on north-south and 24 feet on east-west. If really he purchased the alleged pial, definitely necessary recitals would have found place in Ex. A.1. But in Ex. A.1 it is clearly mentioned that in the said pial the purchaser is having only common interest. Since in Ex. A.1, no proprietary or absolute interest, title has been conveyed to the father of the plaintiff, the plaintiff cannot become absolute owner of the same. Therefore it is quite clear that even as per the recitals found in Ex. A.1 one can easily come to a conclusion that the father of the plaintiff has purchased a property measuring 24 feet on east-west and 17 feet on north-south.

The present suit has been instituted in respect of the property measuring 24 feet on east-west and 22 feet on north-south. The trial Court after considering the recitals found in Ex. A.1 has rightly decreed the suit in part. But the first appellate Court has decreed the suit in toto against the recitals found in Ex. A.1 and also on the basis of the contention putforth on the side of the plaintiff to the effect that no common pial is in existence on ground. The conclusion arrived at by the first appellate Court is totally erroneous and also against the recitals found in Ex. A.1. In view of the discussion made earlier, this Court has found considerable force in the contention putforth on the side of the appellants/defendants 2 and 3 whereas the contention urged on the side of the respondent/plaintiff is sans merit and further the substantial questions of law raised on the side of the appellants/defendants 2 and 3 are having substance to the extent mentioned supra.

In fine, this second appeal is allowed without costs at the stage of admission and the Judgment and decree passed in Appeal Suit No. 14 of 2009 by the Principal Sub Court, Tiruchirappalli are set aside and the Judgment and decree passed in Original Suit No. 917 of 1999 by the First Additional District Munsif Court, Tiruchirappalli are restored. Consequently, connected Miscellaneous Petition is closed.