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2019 Supreme(Mad) 1987
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
R. Tharani, J.
Jacob Alexander - Appellants
Vs.
Anish Paul - Respondent
S.A. (MD) No. 129 of 2013 and M.P. (MD) No. 1 of 2013
Decided On : 04-01-2019
For the Appellant : J. Anandhavalli, Adv.
For the Respondents: V. Meenakshi Sundaram, Adv.
Headnote:
Transaction Prohibition Act - lying as a specific plot in Resurvey – claim of compensation - Whether the dismissal of the Suit as not maintainable for want of prayer for Declaration is sustainable in law in the absence of specific denial of title by the Defendant - Appellant herein is the Plaintiff and the Respondent herein is the Defendant in this case. The Appellant herein has filed a Suit in O.S. No. 8 of 2007 before the learned Sub-Judge, Kuzhithurai for a prayer of demarcation of Northern 8 cents in the Eastern 10 cents of the Suit property and the Plaintiff be allowed to put up a boundary on the Western and Southern sides through Court. As an alternative Prayer, it is prayed that the Plaintiff be given a Decree for Partition of the Suit property allotting the Northern 8 cents in the Eastern 10 cents to the Plaintiff in accordance with his possession and the Plaintiff be allowed to have separate possession. The Sub-Judge, Kuzhithurai has partly decreed the Suit for Partition alone and the Preliminary Decree for Partition is passed in favour of the Plaintiff with regard to 8 cents in the Plaint Schedule property and the Suit was dismissed with regard to the other reliefs. Against which, the Respondent herein has filed an Appeal in A.S. No. 50 of 2009 on the file of the learned District Judge, Kanyakumari and the Appellant herein has filed a Cross-Appeal. The learned District Judge, Kanyakumari allowed the Appeal and dismissed the Cross-Appeal. Against the Decree and Judgment, the Appellant has filed this Second Appeal – Held, On the side of the Respondent, it is stated that Radhamony is in possession of the Suit property. No documents is filed on the side of the Defendant to prove possession. On the side of the Plaintiff-Exs. A1 to A3 were filed. Ex. A2-Patta is not a document of title. But Ex. A2 can be taken into consideration to prove possession. Ex. A3 is the Tax Receipt. PW 1 has deposed regarding his possession. The Defendant failed to examine himself as a Witness. Only mother of the Defendant was examined as DW 1. The contention of the Respondent is that there was a Cheque case against the Respondent filed by the Plaintiff in Kerala and that the Plaintiff has filed this Suit simultaneously and that the property was not correctly identified are not acceptable, as this matters were not proved by the Defendant - There is no document to show the title and possession of the Defendant, whereas possession of the Plaintiff. Binami transaction is prohibited. Hence, it is decided that there is no necessity to the mother of the Plaintiff. All the Substantial Questions of Law are decided in favour of the Plaintiff - From the above discussion, it is clear that there is some dispute regarding the boundaries between the parties. Though specific boundaries are given in the Sale Deed executed in favour of the Plaintiff, it seems that there is some dispute over the fixing of the boundaries - Judgment and Decree passed in file of the learned District Judge, Kanyakumari is set aside and the Judgment and Decree passed in file of the learned Subordinate Judge is hereby confirmed - A perusal of the document reveals that the Gift Deed was executed by the father and the mother of the Defendant in favour of the Defendant in which it is clearly stated that 2 cents of the property belonged to the father of the Defendant.. This document shows that the property belonged to the father of the Defendant. There is no question of Benami transaction or Trustee - Appeal is allowed
JUDGMENT :
R. Tharani, J.
1. Heard Mrs. J. Anandhavalli, learned Counsel appearing for the Appellant and Mr. V. Meenakshi Sundaram, learned Counsel appearing for the Respondent.
2. This Appeal is filed against the Judgment and Decree passed in A.S. No. 50 of 2009, dated 12.9.2012 on the file of the learned District Judge, Kanyakumari reversing the Decree and Judgment passed in O.S. No. 8 of 2007, dated 13.10.2009 on the file of the learned Subordinate Judge, Kuzhithurai.
3. The Appellant herein is the Plaintiff and the Respondent herein is the Defendant in this case. The Appellant herein has filed a Suit in O.S. No. 8 of 2007 before the learned Sub-Judge, Kuzhithurai for a prayer of demarcation of Northern 8 cents in the Eastern 10 cents of the Suit property and the Plaintiff be allowed to put up a boundary on the Western and Southern sides through Court. As an alternative Prayer, it is prayed that the Plaintiff be given a Decree for Partition of the Suit property allotting the Northern 8 cents in the Eastern 10 cents to the Plaintiff in accordance with his possession and the Plaintiff be allowed to have separate possession. The Sub-Judge, Kuzhithurai has partly decreed the Suit for Partition alone and the Preliminary Decree for Partition is passed in favour of the Plaintiff with regard to 8 cents in the Plaint Schedule property and the Suit was dismissed with regard to the other reliefs. Against which, the Respondent herein has filed an Appeal in A.S. No. 50 of 2009 on the file of the learned District Judge, Kanyakumari and the Appellant herein has filed a Cross-Appeal. The learned District Judge, Kanyakumari allowed the Appeal and dismissed the Cross-Appeal. Against the Decree and Judgment, the Appellant has filed this Second Appeal.
4. The case of the Plaintiff/Appellant herein is that the property having an extent of 44.780 cents lying as a specific plot in Resurvey No. D2/110-2/2 of Nalloor Village is scheduled as the Plaint Schedule property. The entire Suit property formerly belonged to one Lovesom Merina David and one Paulraj has purchased the Eastern 10 cents and one Radhamani has purchased the remaining Western 34.780 cents. Accordingly Paulraj was in possession of the Eastern 10 cents and Radhamani was in possession of the remaining Western area. There was an old dilapidated building in the Suit property. On 4.8.1999 Paulraj has executed a Sale Deed in respect of the Northern 8 cents in the Eastern 10 cents of the Suit property in favour of the Plaintiff and the Plaintiff has got title and possession over the same. The remaining area of the Suit property now vests with the Defendant by subsequent transfer from Paulraj and Radhamani. There is no clear boundary between the 8 cents which was purchased by the Plaintiff and the remaining area of the Defendant in the Suit property. On 2.1.2007, when the Plaintiff has attempted to put up a boundary line along the Western and Southern boundary of the 8 cents purchased by him the Defendant and his men obstructed the Plaintiff and the Defendant has no right to do so. The Plaintiff is entitled to get a Decree for demarcation of the Northern 8 cents in the Eastern 10 cents in the Suit property and the Plaintiff be allowed to put up a boundary line alone the Western and Southern sides through Court, or as an alternative Prayer the Plaintiff be given a Decree for Partition of the Suit property allotting the Northern 8 cents of the Eastern 10 cents to the Plaintiff in accordance with his possession and the Plaintiff be allowed to have separate possession of the same.
5. The case of the Defendant/Respondent herein is that the Suit property originally belonged to one Angel Mary David. As per the Partition Deed entered by the Owners of the Suit property, the D schedule property having an extent of 44.750 cents was allotted to her. While so, on 26.10.1995, her power holder one Devadhas has executed a Sale Deed for 34% cents in favour of Radhamony, the mother of the Defendant. Then the above
