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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Lalithammal (deceased) & Others
Versus
Rajalakshmi & Others
S.A.Nos.131 of 1993 & 1181 of 1995 & Cross Objection No.48 of 1997
Decided on : 16-05-2012
LAND DISPUTE - ADVERSE POSSESSION - SALE DEED - RECTIFICATION DEED - ESTOPPEL - INJUNCTION - IMPROVEMENT - COMMON PROPERTY - ORAL PARTITION - BOUNDARIES - SURVEY NUMBER - KALA - CHITTA - FM BOOK - REVENUE RECORDS - SECTION 51 OF THE TRANSFER OF PROPERTY ACT - SECTION 63A OF THE TRANSFER OF PROPERTY ACT - ORDER 14 RULE 2 OF CIVIL PROCEDURE CODE - ORDER 20 RULE 5 OF CIVIL PROCEDURE CODE - ORDER 41 RULE 31 OF CIVIL PROCEDURE CODE - SUBSTANTIAL QUESTIONS OF LAW - REMAND - AMENDMENT OF PLAINT - LIMITATION.
Fact of the Case:
The dispute arose out of the purchase of a property by Kamalammal in 1960. The sale deed contained an error in the survey number, but the boundaries mentioned in the document related to the correct survey number. The property was orally partitioned among the family members in 1962, with the suit property being allotted to the 1st Respondent/1st Plaintiff. The 1st Respondent/1st Plaintiff sold the property to the 2nd Respondent/2nd Plaintiff in 1986, but there was a mistake in the description of the boundaries in the sale deed. The 1st Respondent/1st Plaintiff executed two rectification deeds in 1986 to correct the mistake. The Appellant/Defendant filed a suit for declaration of title to the suit property and for permanent injunction, claiming that the sale deed in favor of the 2nd Respondent/2nd Plaintiff was not valid. The 1st Respondent/1st Plaintiff and the 2nd Respondent/2nd Plaintiff filed a suit for declaration of title to the suit property and for consequential permanent injunction. The Appellant/Plaintiff filed a suit for declaration of title to the suit property and for recovery of possession after removing the foundation laid by the Defendant.
Finding of the Court:
The trial court decreed the suit filed by the 1st Respondent/1st Plaintiff and the 2nd Respondent/2nd Plaintiff, and dismissed the suit filed by the Appellant/Plaintiff. The First Appellate Court allowed the appeal filed by the Appellant/Defendant in part, declaring that the 2nd Respondent/2nd Plaintiff was entitled to get relief of half share in respect of the suit property and granted the relief of permanent injunction in favor of the 2nd Respondent/2nd Plaintiff and against the Appellant/Defendant. The Appellant/Defendant preferred a Second Appeal, and the Respondents/Plaintiffs filed a Cross Appeal against the judgment of the First Appellate Court.
Issues: 1. Whether the appellate Court was correct in holding that the appellant and the second respondent are entitled to have half share in the suit property since it is a common property, and whereas the same was not pleaded by either of the parties? 2. Whether the Courts below have committed material irregularity in ignoring descriptions and boundaries contained in the sale deed under Ex.B.6 which were not disputed by the respondents, and the same will prevail over the extent claimed by the respondents?
Ratio Decidendi: 1. The appellate Court erred in holding that the appellant and the second respondent are entitled to have half share in the suit property since it is a common property, and whereas the same was not pleaded by either of the parties. The issue of common property was not raised in the pleadings, and there was no evidence to support such a finding. 2. The Courts below did not commit material irregularity in ignoring descriptions and boundaries contained in the sale deed under Ex.B.6 which were not disputed by the respondents. The sale deed was not a true and legally valid document, and the boundaries mentioned in the document did not correspond with the actual boundaries of the suit property.
Final Decision: The Second Appeal and the Cross Appeal were allowed. The judgment and decree of the trial court in O.S.Nos.692 of 1986 and 447 of 1988 as well as the judgment and decree of the First Appellate Court in in A.S.Nos.12 and 14 of 1989 dated 25.03.1991 were set aside. The parties were granted liberty to amend the Plaints in O.S.Nos.692 of 1986 and 447 of 1988 if they are so advised in the manner known to law and in accordance with law. The trial Court was directed to dispose them within a period of six months from the date of receipt of copy of this Judgment.
Common Judgment
S.A.No.131 of 1993:
1. The Appellant/Defendant (later deceased) has preferred the present Second Appeal as against the Judgment and Decree dated 25.03.1991 in A.S.No.12 of 1989 passed by the Learned Sub Judge, Cuddalore in modifying the Judgment and Decree dated 28.03.1989 in O.S.No.692 of 1986 passed by the Learned District Munsif, Cuddalore. During the pendency of the Second Appeal No.131 of 1993, the Appellant/Defendant has expired and hence, the Appellants 2 to 5 have been brought on record as Legal Representatives of the deceased sole Appellant as per order dated 11.09.2004 in C.M.P.No.21293 of 2003.
Cross Appeal No.48 of 1997: The Respondents/Plaintiffs (in S.A.No.131 of 1993) have preferred the instant Cross Appeal as against the Judgment and Decree dated 25.03.1991 in A.S.No.12 of 1989 passed by the Learned Sub Judge, Cuddalore, in so far as they are adverse to them. S.A.No.1181 of 1995: The Appellant/Plaintiff has filed the present Second Appeal as against the Judgment and Decree dated 25.03.1991 in A.S.No.14 of 1989 passed by the Learned Sub Judge, Cuddalore in declaring her half share in respect of the suit property etc.
2. The Plaint Facts in O.S.No.692 of 1986 filed by the Respondents/Plaintiffs:
(i) The suit property is a portion of property in T.S.No.866 within the municipal limits of Cuddalore. The said property has been purchased by one Kamalammal by means of a registered sale deed dated 17.06.1960. The sale deed makes reference to T.S.No.865 wrongly. As per boundaries mentioned in the document it ought to relate to S.No.866 only. Kamalammal is the wife of 1st Respondent/ 1st Plaintiff's husband's brother Perumal Padayachi. When the family of the 1st Respondent/1st Plaintiff's husband and his brothers remained joint, they purchased several items of properties south and west of the suit property through various sale deeds, joint exertions, though certain sale deeds have been taken in the name of respective wives. The purchase dated 17.06.1960 mentioned above is one such transaction. The benefit under the transaction enuring to the family. All the items of properties purchased have been orally divided some time in the year 1962 among the brothers with the consent of their female members in whose names the various items of properties stood purchased. In the partition, the suit property has been allotted to the 1st Respondent/1st Plaintiff and the property of equal extent on the west has been allotted to Kamalammal. The parties have been using the respective items as Kalam for the remaining items of properties, situate on their south and west. There was also a fence on the south demarcate the actual area in the kalam allotted to the 1st Respondent/ 1st Plaintiff.
(ii) There is a lack of amity between the 1st Respondent/ 1st Plaintiff's husband and his brother Perumal. Perumal and his wife Kamalammal sold away all their property situate in T.S.No.865, 866, 863 and 1074 to the Defendant to the Defendant contained several deliberate mistakes to spite the 1st Respondent/ 1st Plaintiff and her husband with reference to the extent of property conveyed, the existence of waterways etc. The Appellant/Defendant filed O.S.No.535/77 on the file of Learned District Munsif, Cuddalore against the 1st Respondent/1st Plaintiff and her husband to establish the purported Easementary Right to take water through the 1st Respondent/1st Plaintiff's lands, basing her claim on the false recitals in the sale deed. The said suit has been dismissed after contest. The Appellant/Defendant filed A.S.No.20/80 before the Sub Court, Cuddalore and the Appeal has been dismissed. The Appellant/ Defendant has allowed her property in T.S.No.866 to remain fallow and recently she has converted them into housing plots. The 1st Respondent/1st Plaintiff likewise wanted to dispose of her properties adjacent to the Anaikuppam road and has prepared a layout to sell them as house sites.
(iii) The 1st Respondent/1st Plaintiff sold
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