Sulliammal vs Jagathambal and Others

G. Rajasuria, J.—This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 29.1.2009 passed by

the Subordinate Court, Cheyyar, in A.S. No. 22 of 2007, reversing the judgment and decree dated 30.3.2007 passed by the Principal District

Munsif, Vandavasi, in O.S. No. 212 of 1998, which was one for partition and permanent injunction. Heard the learned counsel for the appellant.

Despite printing the names of the respondents, there is no response.

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

A resume of facts absolutely necessary for the disposal of this second appeal would run thus:

The appellant herein, as plaintiff, filed the suit for partition seeking 1/3rd share in the ten items of the properties described in the schedule of the

plaint.

Precisely and pithily the averments in the plaint would run thus:

(i) The couple Jayarama Gounder and Mangammal had three children, namely, (i) Vasudeva Gounder (ii) Annammal and (iii) Sulliammal(plaintiff).

The said Jayarama Gounder died in the year 1983. Mangammal died in the year 1978.

(ii) Vasudeva Gounder died in the year 1995, leaving behind his four children, namely, (1) Jagadambal, (2) Edumalai(D2), (3) Chithra(D3) and (4)

Jamuna(D4).

(iii) Annammal died leaving behind D5-Susila, who died in the year 2012 and D12-M. Kuppusamy is the husband of Susila.

(iv) D6 to D11 are found portrayed and projected in the plaint as though they happened to be the strangers to the family, who attempted to

purchase the suit properties from D2.

(v) It is precisely the case of the plaintiff that the deceased Mangammal owned item Nos. 1 to 5 of the suit properties, by virtue of Ex. A3-the Sale

deed dated 2.9.42. Jayarama Gounder and Mangammal jointly owned the items 6 to 10 of the suit properties. According to the plaintiff,

consequent upon the death of Jayarama Gounder and Mangammal, their legal heirs, namely, Vasudeva Gounder, Annammal and Sulliammal were

entitled to 1/3rd share each in all the items. Accordingly, the plaintiff filed the suit.

(vi) Per contra, D2 filed the written statement inveighing and challenging, refuting and contradicting the averments/allegations in the plaint and it was

adopted by D1 and D3 to D11; however, the lower Court observed that D5 and D9 remained ex-parte. The gist and kernel of the written

statement would run thus:

The averments in the plaint are all false and the suit properties did not belong to Jayarama Gounder and Mangammal. All the suit properties

belonged to D1 to D4 absolutely. At no point of time, the plaintiff was in joint possession of the suit properties. The income from the suit properties

was not shared with the plaintiff. The suit properties were enjoyed by Vasudeva Gounder as absolute owner and on his death, the properties

devolved upon his four children, namely, D1 to D4. Accordingly, they became the absolute owners. Ultimately, the defendants prayed for the

dismissal of the suit.

(vii) Whereupon issues were framed. Up went the trial, during which, the plaintiff examined herself as P.W. 1 and marked Exs. A1 to A16. The

second defendant examined himself as D.W. 1 along with D. Ws. 2 and 3 and Exs. B1 to B10 were marked on the defendants'' side.

(viii) Ultimately the trial Court decreed the suit as prayed for and preliminary decree was passed.

Challenging and impugning the judgment and preliminary decree of the trial Court, D2 preferred the appeal. Whereupon, the first appellate

Court reversed the findings of the trial Court and dismissed the original suit.

Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the plaintiff preferred this second appeal on

various grounds and also suggesting the following substantial questions of law:

Whether the Revenue entries/chitta will give any title or patta to the respondents?

Whether adverse possession/ouster will applicable among the joint owners from the ancestral property?

Whether the defendant/respondent has raised any plea in the written statement regarding the adverse possession of the appellant/

Whether the learned subordinate Judge misconstrued and misappreciated the evidence on record?

(extracted as such)

On hearing the learned counsel for the appellant/plaintiff, this Court did choose to formulate the following substantial questions of law:

(i) Whether the first appellate Court, being the last Court of fact, was justified in reversing the judgment and decree of the trial Court, even though

the contesting defendants before the trial Court did not raise any plea relating to ''adverse possession''/prescription or ouster.?

(ii) Whether the first appellate Court was justified in placing reliance on Chitta and Adangal to decide the lis in favour of the contesting defendants

and in dismissing the appeal?

(iii) Whether there is any perversity or illegality in the judgment and decree of the first appellate Court?

All the substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with

one another.

A mere running of the eye over the judgment of the trial Court would exemplify and demonstrate that the trial Court meticulously and thoroughly

analysed the evidence and arrived at the conclusion that item Nos. 1 to 5 of the suit properties were covered by Ex. A3-the sale deed dated

2.9.1943 executed by (i) Govinda Gounder, (ii) Ponnusamy and (iii) Thirumalai in favour of Mangammal-the wife of Jayarama Gounder and

mother of the plaintiff and deceased Annammal and Vasudeva Gounder. As such, there is clear documentary evidence to establish and prove, as

held by the trial Court, that item Nos. 1 to 5 of the suit properties were purchased by Mangammal, whereby she became the owner of those items

of properties, and on her death in the year 1978, leaving behind her three children, namely, Vasudeva Gounder, Annammal and Sulliammal, they

became entitled to 1/3rd share each in those items 1 to 5.

Relating to the other items, namely, items 6 to 10 of the suit properties are concerned, the trial Court considering both the oral and

documentary evidence held that precisely there was nothing on record to indicate and exemplify as to how the properties came into the hands of

Jayarama Gounder and his family. However, as per the records, the trial Court held that Jayarama Gounder and Mangammal jointly enjoyed those

properties and on their death, their children were entitled to 1/3rd share in respect of those items also.

No doubt, in the plaint there is some reference to the effect that D2 was attempting to sell some of the items of suit properties in favour of D6

to D11, but the plaintiff had not chosen to take the encumbrance certificate and show precisely as to what were all the items which were sold to

D6 to D11. Even though the written statement was filed by D2 on his behalf and on behalf of the other defendants, except D5 and D9, who

remained ex-parte, yet there is no whisper about some of the properties having been sold to D6 to D11.

My mind is reminiscent and redolent of the maxim ''In re dubia magis infitiatio quam affirmatio intelligenda'' In a doubtful matter, the negation is

to be understood rather than the affirmation.

The first appellate Court referred to the deposition of P.W. 1 to the effect that she admitted that to her knowledge D2 sold some of the items

to D6 to D11, but she did not sign it.

Be that as it may, D6 and D11 are eo-nominee defendants, even then, they have not chosen to furnish the details as to what were all the items

of properties they purchased. In such a case, the first appellate Court was not justified in giving undue importance to the deposition of P.W. 1 on

that aspect and simply rejecting her case. There is also nothing in the written statement to convey and prove that D6 to A11 had set up any

independent title over the suit properties. In fact, D2 asserted that all the 10 items of properties belonged to Vasudeva Gounder, so to say, the

father of D1 to D4, for which, D6 and D11 virtually agreed. In such a case, the first appellate Court was not justified in developing some doubt

that D6 and D11 being the children of the brothers of Jayarama Gounder might be entitled to some share; that is totally a wrong approach, which

cannot be countenanced and upheld. In civil cases the parties concerned should assert their right and the Court has to decide accordingly based on

proven facts and figures.

I recollect the maxim:

Secundum allegata et probata'' According to what is alleged and proved.

In fact, D2''s endeavour was to show that to the exclusion of others, the children of Vasudeva Gounder were entitled to the entire suit

properties and in fact D2 was enjoying all the items of properties, for which, absolutely there is no evidence, as has been highlighted supra. His

assertion turned out to be only his ipse dixit.

The first appellate Court, being the last Court of facts, was not justified in simply reversing the reasoned findings of the trial Court and

dismissing the original suit itself.

In fact, consequent upon the death of D5-Susila-the daughter of Annammal, D12 her husband was added. In stricto senso as per Section 15

of the Hindu Succession Act, in the absence of a child to D5, D12 her husband might not be entitled to any share in her property, which she got it

from her mother''s side. However, no first appeal was filed as against such findings in favour of D12 and in the grounds of appeal also it is not

found agitated, wherefore it is not for the Court to confer any additional benefit to the plaintiff than what she prayed.

Not to put too fine a point on it, on balance I am of the considered view that the judgment and decree of the first appellate Court is perverse

and it has to be set aside and the trial Court rendered its judgment and decree au fait with law and au courant with facts and it is upheld and

restored.

On balance, the substantial questions of law are answered as under:

Substantial Question of law No.(i) is decided to the effect that the first appellate Court was not justified in reversing the judgment and decree of the

trial Court, in the absence of the contesting defendants raising any plea relating to ''adverse possession''/prescription or ouster.

Substantial Question of law No.(ii) is decided to the effect that the first appellate Court was not justified in placing reliance on Chitta and Adangal

to decide the lis in favour of the contesting defendants and in dismissing the appeal.

Substantial Question of Law No.(iii) is decided to the effect that there is perversity and illegality in the judgment and decree of the first appellate

Court.

Accordingly the second appeal is allowed. No costs.