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2007 Supreme(Mad) 407
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
Manickam Pillai & Another
Versus
Siva Chidambara Padayachi
S.A.No.346 of 1997
Decided On : 01-02-2007
For the Appellants:S. Krishnasamy, Advocate. For the Respondent:
V. Raghavachari, Advocate.
The central legal point established in the judgment is that a declaration of title and injunction cannot be granted for an undivided share in a property without a partition between the parties.
Headnote:
declaration - plaintiffs title - [Transfer of Property Act, 1882 - Section 54, Specific Relief Act, 1963 - Section 34] - The court discussed the provisions of Section 54 of the Transfer of Property Act, 1882, which deals with the sale of immovable property, and Section 34 of the Specific Relief Act, 1963, which pertains to the specific performance of contracts. The interpretation of these provisions influenced the court's decision regarding the declaration of the plaintiff's title and the consequential permanent injunction.
Fact of the Case:
The plaintiff filed a suit for declaration of title in a property and consequential permanent injunction. The defendants denied the plaintiff's right and title, claiming ownership based on a sale deed and oral partition. The trial court decreed the suit, which was upheld in the appeal, leading to the second appeal.
Finding of the Court:
The court found that the plaintiff's claim for declaration of title and injunction was not maintainable as the property was only an undivided 1/3 share, and there was no partition between the parties. The court directed the plaintiff to file a suit for partition to identify his share in the property.
Issues: The main issue was whether the courts were correct in decreeing the suit based on boundary recitals when the southern boundary did not match the description in the sale deed.
Ratio Decidendi: The court held that a declaration in favor of the plaintiff for the undivided 1/3 share in the property could not be granted without a partition between the parties. It also emphasized the need for maintaining status quo ante until the property is divided.
Final Decision: The appeal was allowed, and the plaintiff's suit for declaration was dismissed. The plaintiff was directed to file a suit for partition, and the parties were instructed to maintain status quo ante in respect of the property.
This second appeal has been preferred against the decree and judgment in A.S.no.240/1994 on the file of the Court of Additional District Judge, Villupuram. The defendants, who have lost their defence before the Courts below, are the appellants herein.
2. The short facts of the case of the plaintiff in the plaint relevant for the purpose of deciding this appeal are as follows:-
The suit is for declaration of the plaintiffs title in respect of the suit property and also for consequential permanent injunction. The plaint schedule property and the property lying south of the suit property belongs to the first defendant and his brothers Kaliyan and Azagappa Pillai. The plaintiff has purchased the suit property on 25. 1974 from D1 for a consideration of Rs.1,000/-. At the time of Ex.A.1-sale deed D1 and his brothers Kaliyan and Azhagappa Pillai were entitled to 0.41 cents in the plaint survey number property. In the sale deed dated 25. 1974, four boundaries for 0.41 cents have been given, and undivided 1/3 share in the suit survey number property has been sold under Ex.A.1 in favour of the plaintiff. After the purchase under Ex.A.1 the plaintiff has orally partitioned the property along with brothers of D1. Under the said oral partition 27 ½ cents was allotted to D1 on the southern portion of the plaint survey number property. After the sale in favour of the plaintiff, plaintiff was assigned joint patta No.125 for the suit property. During re-survey plaintiff was given patta No.150. The plaintiff is in possession and enjoyment of the suit property continuously for the past 12 years and is paying land tax for the same. Even if there is any defect in the plaint schedule property, the plaintiff has prescribed title to the suit property. The defendants cannot claim any right in respect of the suit property and after the execution of the sale deed they are estoped from doing so. The defendants have denied the right and title of the plaintiff in respect of the suit property on 24. 1987. Hence the suit.
3. The second defendant has adopted the written statement filed by the first defendant as follows:-
The suit is not maintainable. The averments in the plaint that the plaintiff got right in respect of the suit property under a sale deed dated 25. 1974 is not true. The averments regarding the four boundaries in respect of 41 cents has been described for his 1/3 share in the suit property is also not correct. The allegation about the oral partition between D1 and his brothers is also not true. The averments in the plaint to the effect that in the oral partition D1 was allotted Southern 0.27 cents is also not true. The plaintiff is not in possession of the suit property as per the alleged sale deed. In reality 0.41 cents comprised in the four boundaries for 1 acres 22 cents in re-survey No.8/2 belonged to one Sundaramurthy Padayachi. He was in possession and enjoyment of the property. The said property was purchased by D1 and his brothers on 1. 1970, for a consideration of Rs.2,000/-, under a registered sale deed. During February, 1970, the first defendant and his brothers Kaliyan and Azhagappa Pillai have partitioned the property in the presence of village panchayadars and in the said partition, the first defendant got 0.41 cents on the western side in the suit survey number property towards his 1/3 share. Adjacent to the western 1/3 share allotted to the first defendant the adjoining 1/3 share on the East was allotted to Kaliyan and the other 1/3 share was allotted to Azhagappa Pillai just Adjacent to the 1/3 share allotted to Kaliyan on the Eastern side. The above said three brothers were enjoying their respective shares by paying land tax. The first defendant is entitled to 0.41 cents towards his 1/3 share on the western side of the suit survey number property. The first defendant has sold his undivided 1/3 share in the suit property to this plaintiff for a sum of Rs.1,000/- on 25. 1974. The plaintiff is in possession and enjoyme
