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2012 Supreme(Mad) 238
High Court of Judicature at Madras
V. PERIYA KARUPPIAH
Ramasami Pillai
Versus
Amarajothi
Second Appeal Nos. 116 & 117 of 2005
Decided On :Decided on: 12-01-2012
For the Appellants:Mrs. Mythili Suresh for M/s. Sarvabhauman Associates, Advocates.
For the Respondent:A.G. Rajan, Advocate.
Headnote:CIVIL PROCEDURE CODE, 1908 - Order 39, Rule 1 - Decree of lower court for possession and injunction confirmed by lower appellate court - In Second Appeal plaintiff contended that even though the unregistered sale deed Ex.A5 would not prove title in respect of the suit property, it can looked into to prove possession of the said property, which is a collateral purpose; that plaintiff held the possession of the suit property along with the other properties and dealt with the same in a partition deed dated 20-12-1975 in between the brothers of the plaintiff, that plaintiff was continuously enjoying the suit property for over a statutory period and thus, prescribed title through adverse possession.
Held, plea of the plaintiff was that the unregistered sale deed was executed by the mother of the defendant and the same was agreed to be registered along with the partition deed in Ex.A1 and it could not be registered thereafter and however, the partition deed was registered and in the said partition deed, the property comprised in Ex.A5 was also included and partitioned in between the parties. The description of the said property in Ex.A5 shows that the measurements as 19% feet on the north-south and 54 feet on the east-west but the description as mentioned in the suit schedule would only depict different measurements namely 21 feet on the north-south and 84 feet on the east-west with different boundaries. The same description as mentioned in the suit schedule in O.S.No.650/1995 was mentioned only in Ex.A1, the partition deed. Therefore, the case of the plaintiff that the property purchased under Ex.A5 was referred to in Ex.A1 and thereby the truth and validity of Ex.A5 was recognized by including the property comprised in Ex.A5 in the partition deed Ex.A1, cannot be accepted - Judgment and decree of lower court confirmed.
Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 3.3.2004 passed by the Subordinate Judge, Kallakurichi in A.S.No.132 of 2000 in confirming the judgment and decree passed by the II Additional District Munsif Court at Kallakurichi in O.S.No.642 of 1995 dated 19.07.2000.)
COMMON JUDGMENT
S.A.No.116 of 2005
1. This appeal has been preferred by the plaintiff whose appeal filed before the First Appellate Court against the judgment and decree passed by the trial Court in dismissing the suit in O.S.No.650 of 1995 dated 19.07.2000 was dismissed in A.S.No.132 of 2000 dated 3.3.2004.
S.A.No.117 of 2005
This appeal has been preferred by the defendants against the judgment and decree passed by the First appellate Court in dismissing the appeal in A.S.No.133 of 2000 dated 3.3.2004 filed against the judgment and decree passed by the trial Court in O.S.No.642 of 1995 dated 19.07.2000.
2. The First Appellate Court has heard both the appeals in A.S.Nos. 132 and 133 of 2000 jointly and had delivered a common judgment on 3.3.2004.
3. The case of the plaintiff in O.S.No.650 of 1995 would be as follows:
The plaintiff is having right, title and enjoyment in the suit property. A part of the suit property and the property situated adjacent to the northern side originally belonged to one Velayutham Pillai and others which was purchased by the plaintiff and his elder brother Palaniyapillai on 5.2.1962 for a valuable consideration by means of a registered sale deed. On the south-west corner, a portion of the suit property was a vacant site and was in possession of plaintiffs aunt one Meenakshi Ammal which was also purchased by plaintiff and his brother Palaniyapillai on 17.12.1975 for a valuable consideration by means of a registered sale deed. After purchasing the property, they have enjoyed the suit property and property situated on the northern side jointly and thereafter,the plaintiff and his brother divided the property on 20.12.1975 by means of a registered partition deed. In the partition, they have divided the other family properties also along with the suit properties. In the partition, plaintiff was allotted B schedule and plaintiffs brother was allotted on the northern side of the suit property and suit properties also fall to the share of the plaintiff. Thereafter, plaintiff is in possession and enjoyment of the suit property by paying kist to the Government. Moreover, the plaintiff is enjoying the property by keeping haystack and by tying live stocks also. In that way, the plaintiff has perfected title by adverse possession. The defendant is not having any right or title in the suit property at any time. Due to the enmity arose between the plaintiff and defendant on 20.06.1995, the defendant attempted to restrain the plaintiff from keeping haystack and tying livestock in the suit property which is illegal. Hence, the plaintiff has sought for permanent injunction restraining the defendant and his men and agent from interfering with the peaceful possession and enjoyment of the suit property by dumping garbage and keeping haystack and tying goats and bulls. Hence the suit.
4. The contentions of the defendant raised in the written statement are as follows:-
The defendant denied the averments made in the plaint, except the averments stated hereunder. The plaintiff has to prove the same. The suit properties and the properties situated on the northern side were never owned by Valayutham and others and were also not enjoyed by them. Hence, the sale deed said to have been executed by Velayutham on 05.02.1962 to the plaintiff and Palaniyapillai is not valid. It is true that a portion on the suit property, situated on the North-West Corner, which was a vacant plot, was owned by plaintiffs aunt Meenakshi Ammal. Suit property was never enjoyed by plaintiff or Palaniyapillai at any time. Neither the plaintiff nor his brother are having any right to divide the property on 20.12.1975. The said partition deed
