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Before the Madurai Bench of Madras High Court
PUSHPA SATHYANARAYANA, J.
Karuppiah & Another
Versus
C. Muniyappan & Others
S.A.(MD) No.683 of 2011 in A.S.No.41 of 2010 in O.S.161 of 2007 & S.A.(MD) No.----of 2011 in A.S.No.42 of 2010 in O.S.161 of 2007
Decided on: 14-03-2014
partition suit - sale deed - mandatory injunction - declaration - permanent injunction - [Hindu Succession Act, Limitation Act, Principles of Latches and Acquiescence] - The court discussed the entitlement of the plaintiff to 1/7th share in the suit property, the validity of the sale deed, the relief of mandatory injunction, and the principles of latches and acquiescence. The court held that the sale deed executed by the sixth defendant was not valid, and the plaintiff was entitled to the relief of partition of his share in the whole of the suit property. The court also found that the relief of mandatory injunction was maintainable and that the principles of latches and acquiescence did not apply in this case.
Fact of the Case:
The plaintiff filed a suit for partition, claiming division of 1/7th share in the suit property, declaring a sale deed as void, and seeking various injunctions against the defendants. The trial court partly decreed the suit, and the appellate court allowed the plaintiff's appeal and dismissed the defendants' appeal.
Finding of the Court:
The court found that the plaintiff was entitled to 1/7th share in the suit property, the sale deed executed by the sixth defendant was not valid, and the relief of mandatory injunction was maintainable. The court also held that the principles of latches and acquiescence did not apply in this case.
Issues: The issues included the validity of the sale deed, entitlement to partition, and the applicability of the principles of latches and acquiescence.
Ratio Decidendi: The court's decision was based on the entitlement of the plaintiff to 1/7th share in the suit property, the invalidity of the sale deed, and the maintainability of the relief of mandatory injunction. The court also considered that the principles of latches and acquiescence did not apply in this case.
Final Decision: The Second Appeal was dismissed, and the suit in O.S.No.161 of 2007 on the file of the District Munsif, Sivagangai, was decreed as prayed for. No costs were awarded.
The appeal is filed by the seventh and eighth defendants against the decree in a suit for partition in O.S.No.161 of 2007 on the file of the District Munsif, Sivagangai, filed by the plaintiff for
(a). claiming division of 1/7th share in the suit property
(b). declaring the sale deed dated 20/7/2000 executed by the sixth defendant in favour of the seventh defendant as void and not binding on the plaintiff
(c). for a mandatory injunction directing the seventh and eighth defendants to demolish the house constructed in the suit properties
(d). deliver vacant possession of the suit properties and
(e). for permanent injunction restraining the seventh and eighth defendants from in any manner alienating and encumbering any part of the suit property.
2. By consent of both the counsels, date had been fixed earlier for final hearing and accordingly, it is taken up for hearing today.
3. For the sake of convenience, the parties will be referred to their status in the suit.
4. The case of the plaintiff is that the plaintiff and the defendants 1 to 6 are brothers and sisters born to one Chinnathambi Pillai. The suit property is an extent of 11.80 acres in S.No.149 in Puliyankulam Village, Sivagangai. The property was originally purchased by the father of the plaintiff and the defendants 1 to 6, out of his own earning under the sale deed dated 14/2/1944. The said Chinnathambi Pillai had been in possession and enjoyment of the property till he died in the year 1981 and after his demise, the plaintiff and the brothers and sisters became the joint owners and have been in joint possession of the same.
5. It is further stated that when the plaintiff was appointed as Executive Officer in HR & CE Department, the suit property was given as a security and the same was registered as Document No.1274/1967. According to the plaintiff, the patta, chitta and adangal and other revenue records all stood in the name of the father, who was paying the kist and taxes regularly. After the death of Chinnathambi Pillai, on 7/6/1981, it is alleged by the plaintiff that the sixth defendant, fraudulently got the patta transferred in his name without notice to the other legal heirs. On the strength of the patta issued in his name, the sixth defendant sold 5.90 acres out of 11.80 acres to the seventh defendant by way of a registered sale deed dated 20/7/2000. The plaintiff had no knowledge about the said sale. The seventh defendant, who is the purchaser from the sixth defendant had occupied the eastern side of the property as the property was never divided.
6. On coming to know of the sale, the plaintiff issued notices stating that the sixth defendant had only 1/7th share in the suit property and that the sale by him in favour of the seventh defendant is not binding on the other co-owners. The plaintiff also took steps to cancel the patta granted in the name of the seventh defendant and the Revenue Divisional Officer by an order dated 13/7/2014, cancelled the patta issued in the name of the seventh defendant and directed the Tahsildar to issue fresh patta after inspecting the spot.
7. However, on an appeal to the District Revenue Officer, the District Revenue Officer, by his order dated 14/10/2006, directed the issue of joint patta in the name of the joint owners viz., the legal heirs of Chinnathambi Pillai. The eighth defendant, who is the son-in-law of the seventh defendant is trying to put up construction in a portion of the suit property on the north eastern side to an extent of 300 sq.feet. As the sixth defendant who sold the property more than what he is entitled to and the eighth defendant who is trying to put up a construction in the suit property, the plaintiff filed the suit for the above said reliefs.
8. The defendants 1 to 6 were set ex parte in the suit. The seventh and eighth defendants filed the written statement resisting the suit on the ground that the sixth defendant had a patta in his name and based on the same, the seventh defendant, purchas
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