Shivappa vs Varadaiya Chetty

M. Duraiswamy, J.—Second Appeal No. 245 of 2014 arises against the judgment and decree passed in A.S. No. 56 of 2006 on the file of the Principal Subordinate Court, Krishnagiri, reversing the judgment and decree passed in O.S. No. 53 of 1996 on the file of the District Munsif Court, Krishnagiri. The appellant is the legal representative of the deceased plaintiff, the first respondent was the second defendant, the second respondent was the first defendant and the respondents 3 to 8 are the other legal representatives of the deceased plaintiff. The plaintiff filed the suit in O.S. No. 53 of 1996 for declaration and permanent injunction.

Second Appeal No. 246 of 2014 arises against the judgment and decree passed in A.S. No. 57 of 2006 on the file of the Principal Subordinate Court, Krishnagiri, reversing the judgment and decree passed in O.S. No. 32 of 2002 on the file of the District Munsif Court, Krishnagiri. The appellant is the legal representative of the deceased third defendant, the first respondent was the plaintiff, the respondents 2 and 3 were the defendants 2 and 3 and the respondents 4 to 9 are the other legal representatives of the deceased third defendant. The plaintiff filed the suit in O.S. No. 32 of 2002 for delivery of possession.

The trial court as well as the lower appellate court disposed of both the matters by common judgment. Since the issues involved in both the matters are common, both the second appeals are disposed of by this common judgment.

The brief case of the plaintiff in O.S. No. 53 of 1996 is as follows:

According to the plaintiff, he purchased a land measuring 0.50 cents from the first defendant on 07.10.1991. The second defendant is the son of the first defendant. According to the plaintiff, he has been in possession and enjoyment of the property since the date of his purchase. Since the second defendant attempted to trespass into the suit property stating that he got the land from the first defendant, the plaintiff filed the suit for declaration and for permanent injunction.

The brief case of the second defendant is as follows:

According to the second defendant, the first defendant settled the suit property in his favour on 23.09.1991. Therefore, the sale deed dated 07.10.1991 is not valid. Further according to the defendant, after the execution of the sale deed dated 07.10.1991, the plaintiff forcibly entered into the suit property and occupied the same. The plaintiff has no right or title over the suit property. The second defendant is the absolute owner of the property. The second defendant filed the suit in O.S. No. 463 of 1991 against his younger brothers and got a decree on 27.08.1993 in respect of the suit property. In these circumstances, the second defendant prayed for dismissal of the suit.

The brief case of the plaintiff in O.S. No. 32 of 2002 is as follows:

According to the plaintiff, he had filed the present suit against his two brothers and the purchaser who purchased the land from defendants 1 and 2 and their mother Subadrammal. According to the plaintiff, he is the absolute owner of the suit property which were inherited from his father late Krishnappa Chetty who died in the year 1976. The patta in respect of the suit land stands in his name till 1983. He had been in possession for more than three decades. He filed the suit in O.S. No. 166 of 1991 against his brothers viz., the defendants 1 and 2 which was decreed exparte on 26.08.1996, by which his title was declared. The defendants 1 to 3 have illegally encroached the suit lands on 18.01.2002. In these circumstances, the plaintiff filed the suit.

The brief case of the third defendant is as follows:

According to the third defendant, the suit property belonged to late Krishnappa Chetty and after his demise, his wife, three sons and four daughters have succeeded to the same. The family owned 4.04 acres of land. On 21.04.1984, there was a partition between the plaintiff and the remaining family members in which he was allotted 1.50 acres and others were jointly allotted 2.45 acres and the land measuring an extent of 9 cents bearing a well was kept as common for all. According to the third defendant, a registered partition deed was also executed on that day. The third defendant filed a suit in O.S. No. 220 of 1984 against the plaintiff and the trial court passed the decree on 28.12.1987 declaring that the plaintiff is entitled to 1.50 acres and the family members are entitled to 2.45 acres and a share in an extent of 9 cents where the common well situate, since then the respective parties are in possession and enjoyment of their respective shares. Thereafter, the third defendant purchased an extent of 2.45 acres of land from Subadrammal and her sons and daughters by way of two sale deeds dated 07.10.1991 and 04.12.1991 and since the date of purchase, the third defendant is in possession and enjoyment of the property. By suppressing all these facts, the plaintiff has filed the suit. After the judgment and decree passed in O.S. No. 220 of 1984, the plaintiff cannot claim more lands by pleading false allegations and by suppressing the true facts. The plaintiff had suppressed the filing of the earlier suit O.S. No. 166 of 1991 and suppressed the filing of the previous suit O.S. No. 220 of 1984. In these circumstances, the third defendant prayed for dismissal of the suit.

Before the trial Court, on the side of the plaintiff, four witnesses were examined and 12 documents, Exs. A1 to A12 were marked and on the side of the defendants, the second defendant was examined as D.W. 1 and 14 documents, Exs. B1 to B14 were marked.

The trial Court, after taking into consideration the oral and documentary evidences of both sides, decreed the suit filed by the appellant and dismissed the suit filed by the first respondent Varadaiya Chetty. Aggrieved over the Judgment and decrees of the trial Court, the first respondent viz., Varadaiaya Chetty preferred appeals in A.S. Nos. 56 and 57 of 2006 on the file of the Principal Subordinate Court, Krishnagiri and the lower Appellate Court reversed the judgment and decrees of the trial Court and allowed both the appeals. Aggrieved over the judgments and decrees of the lower appellate court, the appellant has filed the above Second Appeals.

Heard Mr. Nicholas, learned senior counsel appearing for the appellant and Mr. P.M. Duraiswamy, learned counsel appearing for the first respondent.

The appellant has raised the following substantial questions of law in the Second Appeal No. 245 of 2014:

(i) When the settlement dated 23.09.1991 was obtained by the second defendant fraudulently from the first defendant and after came to know about the fraud committed by the second defendant the said settlement deed was cancelled by the first defendant on 04.10.1991 within 11 days and the said settlement deed was not given effect to and acted upon and as such no right could be claimed by the second defendant and consequently the first defendant has the right to sell the property to the plaintiff, whether the lower appellate court is correct in not granting the relief to the plaintiff who has purchased the suit property from the first defendant who is the lawful owner.

ii) When the plaintiff is a bonafide purchaser for value having purchased the suit property on 7.10.1991 after the settlement deed dated 23.09.1991 was cancelled by the first defendant under a cancellation deed dated 4.10.1991 and as such the plaintiff is entitled to the suit property whether the lower appellate court is correct in dismissing the suit filed by the plaintiff.

The appellant has raised the following substantial questions of law in the Second Appeal No. 246 of 2014:

i) When it is established that under the partition deed dated 21.04.1994 the plaintiff is entitled to 1.50 acres and his brothers the defendants 1 and 2 and his two sisters and their mother are entitled to 2.45 acres and as such the plaintiff could not claim more than 1.50 acres in the suit property and in the absence of evidence placed by the plaintiff that he is entitled to the entire suit property whether the lower appellate court is correct in setting aside the decree of the trial court.

ii) When the lower appellate court having found that the plaintiff could not claim right upon the entire suit property is not correct in allowing the first appeal on the ground that the third defendant purchased the suit property pending the suit to which the third defendant is not a party and consequently any decision in the said suit would not be binding on him, whether the lower appellate court is correct in holding that the sale deed executed by the defendants 1 and 2 and their sisters in favour of the third defendant is not a valid one.

iii) When the right and of the plaintiff and the defendants 1 and 2 and their sisters and mother has already been decided in respect of the suit property in O.S. No. 220 of 1984 and as such the said decision would operate us res judicata and consequently the plaintiff could not claim again right over the entire suit property whether the lower appellate court is correct in allowing the first appeal.

iv) When there is a dispute of title of the plaintiff in respect of the entire suit property and as such the suit for possession without seeking the relief of declaration the suit is not maintainable in law whether the lower appellate court is correct in allowing the first appeal.

On a careful consideration of materials available on record and the submissions made by either side, it could be seen that the father of the appellant viz., Bangaloorappa purchased an extent of 50 cents in the suit property under Ex. A5 sale deed dated 07.10.1991. Similarly, he purchased an extent of 1.98 acres under Ex. A6 sale deed dated 04.12.1991. Under Ex. A1 partition deed dated 21.04.1984, the properties were divided among Subadrammal, the first respondent and her sisters. Under Ex. A2, decree passed in O.S. No. 220 of 1984 on the file of the District Munsif Court, Krishnagiri, a decree was passed as per Ex. A1 partition dated 21.04.1984. Ex. A3 Settlement deed was executed by Subadrammal in favour of the first respondent. Under Ex. A4 revocation deed dated 04.10.1991, Subadrammal cancelled Ex. A3 settlement deed dated 23.09.1991. P.W. 2 who is the brother of the first respondent in his evidence deposed that the first respondent Varadaiya Chetty is entitled only to an extent of 1.50 acres pursuant to the partition and also pursuant to the decree passed in O.S. No. 220 of 1984. P.W. 3 who is also another brother of the first respondent deposed that the first respondent did not celebrate the marriages of their sisters. Subadrammal was examined as P.W. 4. In her evidence, she has stated that she owned an extent of 4.04 acres of land in the year 1984 and that she partitioned the properties along with her children.

From the evidence let in by the parties, it is clear that the first respondent was not maintaining his family after the death of his father. In O.S. No. 32 of 2002, the first respondent contended that the defendants therein encroached into the property. The first respondent purchased Ex. B2 patta which was issued in the year 1983. Though the first respondent contended that he was in possession of the property for several decades, the said contention was not supported by any other acceptable evidence on his side. Ex. B3 is the decree passed in O.S. No. 166 of 1991 wherein the parties in the present suit were not the parties therein. Therefore, the trial court has rightly held that Ex. B3 decree is not binding on the parties, who are not the parties herein. Since the first respondent Varadaiya Chetty was not looking after his family, his mother Subadrammal gave only an extent of 1.50 acres to him. The other children of Subadrammal were given remaining 2.45 acres of land. The courts below have rightly found that the father of the appellant viz., Bangaloorappa is a bonafide purchaser.

By virtue of Ex. A1 partition, it cannot be disputed that the first respondent is the absolute owner of an extent of 1.50 acres by way of partition. Apart from that, under Ex. A3 settlement deed, Subadrammal settled an extent of 50 cents in favour of the first respondent which was subsequently cancelled by Ex. A4 Revocation deed.

There is no dispute that the total extent of land owned by Subadrammal was 4.04 acres. The father of the appellant had purchased an extent of 50 cents. In the absence of any power to revoke Ex. A3 Settlement deed, the lower appellate court has rightly found that Subadrammal had no right to cancel the settlement deed executed in favour of the first respondent. The lower appellate court found that Ex. A3 settlement deed is valid. Under Ex. A3 settlement deed, an extent of 50 cents was given to the first respondent Varadaiya Chetty. Therefore, Varadaiya chetty is entitled to an extent of 1.50 acres under Ex. A1 partition deed and an extent of 50 cents under Ex. A3 settlement deed, in toto is entitled to 2 acres.

It is not in dispute that the well situate in an extent of 9 cents is common to all the parties. The trial court decreed the suit filed by the plaintiff''s father and dismissed the suit filed by the first respondent. On appeal, the lower appellate court reversed the judgment and decrees of the trial court. In the suit filed by the appellant''s father, the relief was sought for is in respect of an extent of 50 cents and in the common well which he purchased under Ex. A5 sale deed. But in the suit filed by the first respondent, Varadaiya Chetty, he sought for a decree for recovery of possession in respect of 4.04 acres which he is not entitled to. But the lower appellate court erroneously dismissed the suit filed by the appellant''s father and decreed the suit filed by the first respondent. It cannot be disputed that the first respondent is entitled to an extent of 2 acres of land as stated above and 1/3rd share in common well situate in an extent of 9 cents of land.

In these circumstances,

(i) the judgment and decrees passed in A.S. No. 56 of 2006 on the file of the Principal Subordinate Court, Krishnagiri are set aside. The judgment and decree passed in O.S. No. 53 of 1996 on the file of the District Munsif Court, Krishnagiri are restored. Second Appeal No. 245 of 2014 is allowed. No costs.

ii) the judgment and decrees passed in A.S. No. 57 of 2006 on the file of the Principal Subordinate Court, Krishnagiri is modified by granting a decree for delivery of possession in respect of an extent of 2 acres of land in S. No. 98/1 instead of the extent of 4.04 acres. Second Appeal No. 246 of 2014 is partly allowed. The plaintiff is entitled to 1/3rd undivided share and the third defendant is entitled to 2/3rd share in the common well situate in an extent of 9 cents. No costs. The connected miscellaneous petitions are closed.