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2008 Supreme(Mad) 2238
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
Chidambara Padayachi
Versus
Vellaiya padayachi & Others
S.A. No.239 of 1998
Decided on : 04-07-2008
For the Petitioner:Ms. Nilopher, R. Subramaniam, Advocates.
For the Respondents:R. Gururaj, Advocate.
The main legal point established in the judgment is the admissibility of previous judgments as evidence of assertion of right to property in dispute, and the limited legal implications of attestation in a sale deed.
Headnote:
Permanent Injunction - Property Dispute - O.S.No.656/1988 - Ex.A2, Ex.B1, Ex.B2, Ex.B3, Ex.B4, Ex.B5 - The court confirmed the findings of the trial court and held that the Plaintiffs have established their title and possession to 94 cents. The Defendant's claim that the Plaintiffs are entitled to only 84 cents was refuted based on evidence including sale deeds, Patta, and Kist receipts. The court also considered the previous judgments in O.S.No.521/1962 and O.S.No.946/1964, where the Defendants' predecessors had acknowledged the Plaintiffs' title to an extent of 94 cents. The court held that the Judgment in O.S.No.946/1964, though not inter partes, is admissible as evidence of the Plaintiffs' assertion of right to the property in dispute. The attestation by the deceased first Plaintiff in Ex.B4 sale deed was found not to operate as estoppel. The courts below were justified in holding that the Plaintiffs are in possession and enjoyment of the suit property. The Second Appeal was dismissed.
Fact of the Case:
The suit involved a property dispute over 0.94 cents in S.No.313/6. The Plaintiffs claimed title and possession to 94 cents under Ex.A2 sale deed dated 19.02.1964. The Defendant disputed this claim, asserting entitlement to 98 cents out of 2.80 acres in the same survey number.
Finding of the Court:
The court confirmed the findings of the trial court and held that the Plaintiffs have established their title and possession to 94 cents. The Defendant's claim that the Plaintiffs are entitled to only 84 cents was refuted based on evidence including sale deeds, Patta, and Kist receipts. The court also considered the previous judgments in O.S.No.521/1962 and O.S.No.946/1964, where the Defendants' predecessors had acknowledged the Plaintiffs' title to an extent of 94 cents. The court held that the Judgment in O.S.No.946/1964, though not inter partes, is admissible as evidence of the Plaintiffs' assertion of right to the property in dispute. The attestation by the deceased first Plaintiff in Ex.B4 sale deed was found not to operate as estoppel. The courts below were justified in holding that the Plaintiffs are in possession and enjoyment of the suit property. The Second Appeal was dismissed.
Issues: The issues revolved around the extent of the Plaintiffs' entitlement to the suit property, the admissibility and relevance of previous judgments, and the legal implications of the attestation by the deceased first Plaintiff in Ex.B4 sale deed.
Ratio Decidendi: The court relied on the evidence of sale deeds, Patta, and Kist receipts to establish the Plaintiffs' title and possession to 94 cents. It considered the previous judgments in O.S.No.521/1962 and O.S.No.946/1964 as admissible evidence of the Plaintiffs' assertion of right to the property in dispute. The attestation by the deceased first Plaintiff in Ex.B4 sale deed was found not to operate as estoppel. The courts below were justified in holding that the Plaintiffs are in possession and enjoyment of the suit property.
Final Decision: The Judgment of the lower Appellate court in A.S.No.59/1996 dated 20.08.1997 on the file of Subordinate Court, Panruti (arising out of the Decree and Judgment in O.S.No.656/1988 dated 27.09.1994 on the file of the District Munsif Court, Panruti) is confirmed and this Second Appeal is dismissed. No costs.
This Second Appeal is preferred against the concurrent findings of the Courts below in A.S.No.59/1996 whereby Permanent Injunction was granted in favour of the Respondents/Plaintiffs. 2nd and 3rd Plaintiffs in the suit and the legal representatives of the deceased 1st Plaintiff are the Respondents. For convenience the parties are referred as per their array in the suit in O.S.No.656/1988.
2. The suit property is 0.94 cents in S.No.313/6. It belonged to Palani Padayachi and his three sons. Genealogy of Palani Padayachi and the relevant sale deeds and the relevant sale transactions in respect of the suit S.No.313/6 are as follows:-
Suit property relates to 0.94 acre purchased by the Plaintiffs under Ex.A2 sale deed dated 19.02.1964. Defendant and his family members had purchased certain extent of property. Defendant claiming title to the suit property is causing obstruction to the Plaintiffs enjoyment of the suit property and therefore, Plaintiffs have filed the suit for Permanent Injunction.
3. Denying the plaint averments, Defendant has filed written statement contending that his mother had obtained sale of 24 cents under Ex.B1 sale deed dated 110. 1945 from Vellaiya Padayachi and his son. Defendants father purchased 08 ½ cents on 110. 1952 under Ex.B2 sale deed from Vellaiya padayachi. Defendants father also purchased 20 cents under Ex.B3 sale deed dated 06.09.1969 from Deivasigamani. That apart, Defendant had also purchased 10 ½ cents under Ex.B4 sale deed dated 21. 1988 from Kaliyaperumal and 35 cents under Ex.B5 sale deed dated 13. 1988 from Singaravelu. According to the Defendant, he and his family are entitled to 98 cents out of 2.80 acres in suit S.No.313/6. Since the Defendant also owned property, the Plaintiff is not entitled to the relief as prayed for.
4. On the above pleadings, relevant issues were framed. Upon consideration of oral and documentary evidence, trial court held that in the earlier proceedings in O.S.No.521/1962 the Defendants predecessor Thangarasu had attached the Plaintiffs property 0.94 cents and the Defendant is estopped from denying the same. Referring to Ex.A2 sale deed dated 19.02.1964 and the Kist receipts, trial court held that the Plaintiff has been in possession of 0.94 cents. Trial court further held that the Defendant who claims through Thangarasu cannot contend that the Plaintiffs are entitled to only 84 cents. Upon analysis of evidence, trial court held that the Plaintiffs are entitled to 94 cents and granted Permanent Injunction.
5. Confirming the findings of the trial court, lower Appellate court also held that Plaintiffs have established their title and possession to 94 cents. Confirming the findings of the trial court, lower Appellate court dismissed the appeal preferred by the Defendant.
6. Challenging the concurrent findings of the Courts below, Defendant has preferred this Second Appeal. At the time of Admission of the Second Appeal, the following substantial questions of law were formulated:
.(1) Whether in law the Courts below are right in overlooking that the respondents are estopped from staking a claim in the suit properties as the first plaintiff had signed as a witness in Ex.B4, sale deed, in favour of the respondents?
.(2) Whether in law the Courts below are not wrong in relying on the findings in a prior suit in which neither the respondent nor his predecessors were parties?
.(3) Whether in law the Lower Appellate Court is not wrong in omitting to frame proper points for determination as contemplated under Order 41 Rule 31 of the Code of Civil Procedure and laid down in 1997-1-L.W-764 DB?
.7. Assailing the concurrent findings, Ms. Nilopher, the learned counsel for the Appellant contended that under Ex.A1 settlement deed, suit S.No.313/6 is not covered which would show that Chinnammal did not have any right in S.No.313/6. The learned counsel for the Appellant would further submit that the Courts below erred in observing that the
.Judgments in O.S.No.521
