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2018 Supreme(Mad) 2759
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. Velumani, J.
Veerasamy and Ors. – Appellants
Vs.
Rukmani – Respondent
S.A. No. 564 of 2017 and C.M.P. No. 13931 of 2017
Decided On : 10-07-2018
For the Appellant : V. Raghavachari for Avinash Wadhwani and R. Sripriya
For the Respondent: R. Arundattan for C. Munusamy
Headnote:
Indian Evidence Act, 1872 - Section 110 - Specific Relief Act, 1963 – Sections 5 and 6 - Transfer of Property Act, 1882 - Section 122 - Limitation Act, 1963 - Section 59 - Possession of Suit Property - Suit property and other properties originally belonged to father of respondent and first appellant said by deed of settlement settled property on his wife mother of respondent and first appellant said by deed of settlement settled suit property on respondent Apart from respondent and first appellant their parents had one more son and two daughters Their mother settled separate properties on each of her children including first appellant for their exclusive possession and enjoyment respondent accepted settlement and she is in possession and enjoyment of suit property settlement came into effect on same date respondent is residing in village along with her husband respondent gave money to her elder brother first appellant to pay kist to suit property on her behalf first appellant fraudulently paid kist in his name first appellant on misrepresentation got patta in his name On coming to know same respondent has taken steps for cancellation of patta and said proceedings are pending respondent came to know about same in tamil month when respondent questioned first appellant he along with his two sons who are appellants 2 and 3 trespassed into suit property respondent approached first appellant directly and also through panchayat for vacating suit property and hand over same to respondent first appellant refused to vacate suit property Hence suit was filed - Held, When facts an instrument or entitling decree or for plaintiff to have rescission of an instrument or decree contract Canceled or set aside or contract rescinded first become known to him - As far as issue of patta is concerned appellants have not let in any evidence to show that patta was issued to them after notice and respondent learned counsel for appellants contended that appellants admitted execution of settlement deed but said settlement deed is not acted upon At same time appellants contended that respondent handed over possession to first appellant This clearly shows that settlement is acted upon and respondent was in possession of suit property has no right to cancel irrevocable settlement after same was accepted by respondent and acted upon In view of same sale deed in favour of first appellant is not valid respondent is not a party to both Cancellation deed as well as sale deed Therefore she can ignore same and same is not binding on her failure to challenge cancellation deed and sale deed as null and void will not deprive her relief of declaration of title two judgments relied on by learned counsel for appellants do not advance case of appellants and are not applicable to facts of present case - Appeal is dismissed.
V.M. Velumani, J.
1. Second Appeal is filed against the judgment and decree dated 25.02.2016 made in A.S. No. 21 of 2013 on the file of the Principal Sub Court, Vridhachalam, confirming the judgment and decree dated 15.10.2012 made in O.S. No. 487 of 2006 on the file of the Principal District Munsif Court, Vridhachalam.
2. The appellants are defendants and respondent is the plaintiff in O.S. No. 487 of 2006 on the file of the Principal District Munsif Court, Vridhachalam. The respondent filed the said suit for declaration of title, recovery of possession and for mesne profit. The suit was decreed, granting relief of declaration and possession and held that mesne profit is to be decided in the proceedings under Order XX Rule 12 of C.P.C. The appeal A.S. No. 21 of 2013 filed by the appellants was dismissed. Against the concurrent findings of the Courts below, the appellants have come out with the present Second Appeal.
The case of the respondent:
3. The suit property and other properties originally belonged to Chellaperumal, father of the respondent and first appellant. The said Chellaperumal, by the deed of settlement dated 19.01.1983, settled the property on his wife, Visalakshi Ammal, mother of the respondent and first appellant. The said Visalakshi Ammal, by the deed of settlement dated 14.03.1996, settled the suit property on the respondent. Apart from the respondent and first appellant, their parents had one more son and two daughters. Their mother Visalakshi Ammal settled separate properties on each of her children, including first appellant for their exclusive possession and enjoyment. The respondent accepted the settlement and she is in possession and enjoyment of the suit property. The settlement came into effect on the same date. The respondent is residing in K. Nallur village, along with her husband. The respondent gave money to her elder brother, the first appellant to pay kist to the suit property on her behalf. The first appellant fraudulently paid the kist in his name. The first appellant on misrepresentation got patta in his name. On coming to know the same, the respondent has taken steps for cancellation of patta and said proceedings are pending. The respondent came to know about the same in Tamil month of "ij", 2004. When the respondent questioned the first appellant, he along with his two sons who are the appellants 2 and 3 trespassed into the suit property. The respondent approached the first appellant directly and also through panchayat for vacating the suit property and hand over the same to the respondent. The first appellant refused to vacate the suit property. Hence the suit was filed.
4. The first appellant filed written statement and the same was adopted by appellants 2 and 3. The appellants denied all the averments made by the respondent in the plaint. According to the appellants, the respondent has to prove all the averments made in the plaint. The alleged settlement deed in favour of the respondent is not valid. The respondent did not comply with the conditions of the settlement deed and Visalakshi Ammal, by the deed of cancellation dated 06.02.2004, canceled the settlement deed dated 14.03.1996 executed in favour of the respondent and on the same day, by the deed of sale, sold the property to the first appellant for proper consideration. The respondent was never in possession and enjoyment of the suit property. She did not take possession. The appellants were in possession and enjoyment of the property as owner of the suit property to the knowledge of the respondent for more than statutory period by cultivating the suit property and have become owner by adverse possession. Only the first appellant was cultivating the land and paying the kist. In view of possession by the appellants, the patta was granted to the first appellant and hence they prayed for dismissal of the suit.
5. Based on the pleadings, necessary issues were framed by the learned Trial Judge. The respondent examined herself as P
