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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.MATHIVANAN, J.
Jayalakshmi and others – Appellant
Vs
Mohankumar and others – Respondent
Second Appeal No. 508 of 2005
Decided On : 14.11.2014
Circumstances evidence - Sale deeds - Declaring that the suit property - Against the judgment - This suit was in fact contested by defendants 2, 4 and second defendant had individually contested the suit while fifth defendant had adopted written statement filed by fourth defendant - It is manifested from records that third defendant remained ex-parte as he had not chosen to contest suit - It is also significant to note here that despite the defendants contested the suit they subsequently remained ex-parte and first defendant also remained ex-parte - Therefore this Court can say that second defendant alone is contesting defendant – Held, In such circumstances after having lost all interest right and title in property forming the subject matter of the present suit by the original owner under of the plaintiff no valid title could be passed on second defendant being the subsequent purchaser of the very same property from the very same owner – Therefore substantial question of law is answered in favor of the plaintiff - This Court has made an analytical approach on the judgments of the Courts below and found that they are perverse in nature without understanding the intrinsic evidentiary value – Held, On other hand counsel for the respondent has submitted lower appellate Court has observed in paragraph 13 of its judgment based on the boundaries relating to the defendants property, that the defendants property is located on the Eastern side of the North-South canal and therefore, it is to be accepted that the property lying on the Eastern side of the North-South canal belonged to the defendants. The arguments advanced by counsel for respondents 4 and 5 is not discernible because as already observed by this Court in the foregoing paragraphs, the finding of the Courts below is absolutely perverse in nature without proper appreciation of evidence available on record and therefore, this piece of argument advanced by counsel is to be rejected – Exist name of second defendant which are subsequent and therefore, it is for the defendants to verify prior encumbrance and not for the plaintiff to e challenge the subsequent sale deeds which are in the name of the second defendant since the plaintiff was not a party to said sale deeds - It is seen from that in vendor of the plaintiff was originally having and 56 cents of which, he had sold East-West 12 ft and North-South ft in favor of the original plaintiff since Similarly sons legal representatives of the said had sold some portion to second defendant under interest, right and title in the property forming the subject matter of present suit by the original owner of the plaintiff, no valid title could be passed on the second defendant being the subsequent purchaser of the very same property from the very same owner. Therefore, the substantial question of law is answered in of the plaintiff. This Court has made an analytical approach on the judgments of Courts below and found that they are perverse in nature without understanding the intrinsic evidentiary value - Appeal allowed
This memorandum of second appeal has been directed against the judgment and decree dated 19.3.2014 and made in A.S.No.02 of 2002 on the file of the learned Principal Subordinate Judge, Erode confirming the judgment and decree dated 24.12.1998 and made in O.S.No.523 of 1995 on the file of the learned Principal District Munsif, Erode.
2. The appellants 1 to 3 herein are the legal representatives of the deceased plaintiff P.Rangaswamy whereas, the respondents herein are the defendants 1 to 5 in the suit in O.S.No.523 of 1995.
3. For easy reference and also for the sake of convenience, the appellants and the respondents may hereinafter be referred to as the plaintiff and the defendants wherever the context so requires.
4. The deceased plaintiff P.Rangasamy, had originally filed the above suit as against the defendants 1 to 5 seeking the following reliefs:
(a) declaration declaring that the suit property absolutely belongs to him;
(b) granting permanent injunction restraining the defendants and their men from entering into the suit property in interfering in any other manner with the plaintiff's exclusive user and enjoyment of the same;
(c) granting mandatory injunction directing the first defendant, defendants 4 and 5 to remove the constructions made in the suit property and restore the same to its original position within a time to be specified by the Court and in case of non-compliance directing the same to be done by an Officer of the Court at the costs of the defendants 1, 4 and 5 and also for costs.
5. This suit was in fact contested by the defendants 2, 4 and 5. The second defendant had individually contested the suit, while the fifth defendant had adopted the written statement filed by the fourth defendant.
6. It is manifested from the records that the third defendant remained ex-parte as he had not chosen to contest the suit. It is also significant to note here that despite the defendants 4 and 5 had contested the suit, they subsequently remained ex-parte and the first defendant also remained ex-parte. Therefore, this Court can say that the second defendant alone is the contesting defendant.
7. The suit was originally dismissed by the trial Court, which was confirmed by the first appellate Court in the appeal in A.S.No.2 of 2002. Needless to say that the legal representatives of the deceased plaintiff P.Rangasamy are the appellants herein.
8. When the second appeal came up for hearing, Mr.N.Manokaran, learned counsel appearing for the appellants was present. Mr.V.S.Kesavan, learned counsel appearing for the respondents 4 and 5 being the defendants 4 and 5 was also present. Insofar as the first respondent/first defendant is concerned notice was dispensed with, as he remained ex-parte before the lower Court. Despite service of notice on the respondents 2 and 3 (defendants 2 and 3) they have not chosen to appear before this Court either in person or through respective counsels. Therefore, they were called absent.
9. As aforestated, though the second defendant had contested the suit before the trial Court, he has not chosen to appear before this Court to contest the second appeal. Even though the defendants 4 and 5 have appeared through their counsel Mr.V.S.Kesavan, they did not contest the suit as they remained ex-parte during the course of trial. Under these circumstances, the Courts below have concurrently rejected the prayer of declaration, permanent injunction and mandatory injunction sought for by the plaintiff. The findings given by the Courts below have strenuously challenged by Mr.N.Manokaran, learned counsel appearing for the appellants, who has termed the findings of the Courts below as concurrent error instead of concurrent finding.
10. The entire case of the plaintiffs is revolving around the sale deed dated 21.9.1973 (Ex.A.2) under which, the deceased plaintiff Mr.P.Rangasamy claimed to have purchased a strip of land (suit property) measuring 12 feet in breadth towards East-West and 330 feet in
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