Back
HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
Lokanathan
Versus
Narayanaswamy
S.A.No. 1463 of 2007 & M.P.No. 1 of 2007 & M.P. Nos. 1 & 2 of 2008
Decided on: 06-01-2015
Limitation Act of 1963 – Civil Procedure Code - Order XX - Rule 12 - Separate possession of his half share in suit properties – Claim of compensation - Permanent injunction - Father of appellant and respondent claimed to be absolute owner of properties that are subject matters of suit from which present second appeal has arisen and also all other properties - Contending that all those properties were his self-acquisitions and thus they were his absolute properties filed a suit on file of Sub-Court for a declaration to said effect and for a permanent injunction against his sons namely appellant and respondent herein - Said suit ended against and it was dismissed by Sub-Court by a decree a certified copy of which is Ex.A1 - Challenging said decree dismissing suit filed by him for declaration and injunction filed an appeal file of District Court - In said appeal a compromise was effected and a compromise decree came to be passed based on a compromise memo signed by parties to said case containing – Held, Respondent plaintiff has made a clear averment in plaint that appellant defendant sold property allotted to him as per compromise decree to a third party and thereby accepted and gave effect to compromise decree - Same was not specifically denied in written statement – Respondent plaintiff while deposing as PW1 made it clear that said property was sold by appellant defendant to one - Said part of his testimony was not challenged by any suggestion in cross-examination - On other hand appellant defendant while deposing as DW1 has made a categorical admission that under compromise decree one property which stood in name of his father was held to be appellants defendants property and that after compromise decree he sold it to one - He has also clearly admitted that in said sale deed he narrated his title as one obtained under compromise decree passed by Court - There is also a clear admission that acting upon compromise decree he sold property allotted to him under compromise decree - For better appreciation relevant portions of his deposition in vernacular are reproduced - Above said portions extracted from his deposition will make it clear that he himself accepted compromise decree and conveyed properties allotted to him under compromise decree to third parties and thus he acted in confirmation and in furtherance of Ex.A2 Compromise decree - Having acted upon compromise decree in respect of properties allotted to him under compromise decree appellant defendant cannot contend that decree was not given effect to or acted upon and he is stopped from doing so - In view of forgoing discussions second substantial question of law is also answered against appellant defendant and in favor of respondent plaintiff - Appeal is dismissed
1. The defendant in the original suit is the appellant in the second appeal. The appellant and the respondent are the sons of Late Velayudham. The respondent herein filed the suit O.S.No.75 of 2004 on the file of the trial Court for partition and separate possession of his half share in the suit properties and for mesne profits. The learned trial Judge granted a preliminary decree for partition by judgment and decree dated 26.04.2005. The appellant herein filed an appeal in A.S.No.86 of 2005 on the file of the lower appellate Court. The lower appellate Court by its judgment and decree dated 18.07.2007 confirming the decree of the trial Court, dismissed the appeal. As against the said decree of the lower appellate Court dated 18.07.2007, the present second appeal has been filed.
2. Velayudham, the father of the appellant and respondent, claimed to be the absolute owner of the properties that are the subject matters of the suit from which the present second appeal has arisen and also all other properties. Contending that all those properties were his self-acquisitions and thus they were his absolute properties, Velayudham filed a suit in O.S.No.104 of 1984 on the file of the Sub-Court, Virudhachalam for a declaration to the said effect and for a permanent injunction against his sons namely, the appellant and the respondent herein. The said suit ended against Velayudham and it was dismissed by the Sub-Court, Virudhachalam by a decree dated 13.01.1988, a certified copy of which is Ex.A1. Challenging the said decree dismissing the suit O.S.No.104 of 1984 filed by him for declaration and injunction, Velayudham filed an appeal in A.S.No.50 of 1988 on the file of the District Court, Cuddalore. In the said appeal, a compromise was effected and a compromise decree dated 03.02.1989 came to be passed based on a compromise memo signed by the parties to the said case containing the following clauses:
1) a decree declaring Velayudham to be the absolute owner of Item 1 of 'A' Schedule and item 4 of 'B' Schedule as per the schedules provided in the plaint in the said case and a consequential permanent injunction not to disturb his peaceful possession and enjoyment of the same was granted;
2)'C' schedule property was in possession of the appellant herein and it would belong to him absolutely.
3) The sons of Velayudham viz., Lokanathan and Narayanaswamy shall jointly own Items 2 to 5 of the plaint 'A' schedule and Items 1 to 3 and 5 and 6 of 'B' schedule subject to a life interest of Velayudham in respect of a portion measuring 0.31 acres out of the property described as 6th item in the 'B' schedule in the plaint in the said suit (covered by a registered document dated 14.03.1920) without any power of alienation.
A certified copy of the said decree has been marked as Ex.A2.
3. According to the respondent herein/plaintiff in the original suit concerned in this second appeal, those two items of properties in respect of which Velayudham was granted declaration and injunction, on the basis of the compromise under the compromise decree dated 13.01.1988, Velayudham and his wife Valliammal executed a registered gift settlement deed on 09.10.1997 in favour of the son and daughter of the respondent herein/plaintiff. The original registered settlement deed is Ex.A3. The above said properties settled in favour of the son and daughter of the respondent/plaintiff are not the subject matters of the present suit O.S.No.75 of 2004. The appellant/defendant also does not dispute the title of the son and daughter of the respondent/plaintiff in the present suit, in respect of those two items of properties which figured as Item No.1 in "A" schedule and Item No.4 in "B" schedule of the plaint in the previous suit, namely O.S.No.104 of 1984. On the other hand, controversy has arisen in respect of the remaining properties in respect of which the appellant herein/defendant and the respondent herein/plaintiff were held to be joint owners. The dispute has arisen even in
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
