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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
Palaniammal(died) & Others - Appellant
Versus
K.M. Natarajan (died) & Others - Respondent
S.A(MD). No. 1229 of 2005
Decided On : 05-01-2022
Civil Procedure Code, 1908 - Section 100 - Declaration of title and permanent injunction - recovery of possession - Trial Court arrived at a finding that Exhibit refers to fact that vendor of defendant is also one of family members of deceased - Trial Court also arrived at a finding that plaintiff has approached Court after a period of 24 years from date of Exhibits, present suit is barred by limitation - First Appellate Court considered written statement filed by defendant, defendant has admitted that Survey has been sub-divided into having an extent of 71 ¾ cents and remaining extent has been allotted to plaintiff - Based upon said admission in written statement, First Appellate Court modified decree granted by trial Court - First Appellate Court granted a decree for southern 29 ¾ cents in suit survey number in favour of plaintiff excluding northern 72 ¾ cents - Having found that property belonged to father of appellant's vendor, whether lower Appellate court was right in not decreeing suit in full - Is not respondent/defendant estopped from saying that suit property did not belong to deceased in view of Exhibit all stand for patta 228 which belong to deceased and can be allowed to plead against his own document – Held, as long as plaintiff is in possession of suit schedule property and same has not been disturbed by defendant, creation of certain records by defendant would not confer any title or right of possession on defendant - Court can safely come to a conclusion that plaintiff has proved her possession over suit schedule property - After having arrived at a finding that suit schedule properties are owned by plaintiff based on Exhibits, First Appellate Court had grossly erred in not granting a decree for entire extent wrongly relying upon Exhibit sale deed which is invalid in eye of law - Defendant had pleaded in written statement that deceased has no connection whatsoever with suit schedule property, but has chosen to produce Exhibit, a joint patta standing in name of deceased and defendant's vendor - Defendant is clearly estopped from contending that deceased has no connection with suit schedule property - Second appeal allowed.
JUDGMENT :
Prayer: Second Appeal is filed under Section 100 of C.P.C, against judgment and decree of the Additional District Court Cum FTC Dindigul dated 25.02.2003 in A.S.No.53 of 2000 partially modifying the judgement and decree of the District Munsif Court, Nilakkottai dated 24.02.1999 in O.S.No.202 of 1995.
1. The plaintiff is the appellant.
2. The plaintiff filed O.S.No.202 of 1995 before the District Munsif Court, Nilakottai for declaration of title and permanent injunction or in the alternative for a prayer for recovery of possession with regard to the suit A and B schedule properties. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.53 of 2000 on the file of the Additional District Court (FTC), Dindigul. The learned District Judge was pleased to partly allowed the appeal and granted a decree for 29 ¾ cents to the southern portion of the suit schedule property. As against the same, the present second appeal has been filed by the plaintiff.
3. The plaintiff had contended that the suit schedule property originally belonged to one Kuppan Samban and after the life time of Kuppan Samban, his three sons namely Raman, Alagumalai and Muthukaruppan have partitioned the properties among themselves. The plaintiff had further contended that the suit A schedule property was allotted in favour of Raman and B schedule property was allotted to Alagumalai. She further contended that the brothers Raman and Alagumalai had executed a registered othi deed under Exhibits A2 and A4 in favour of one Chellathayammal. Thereafter, they have redeemed the same in the year 1971 which is reflected in the endorsement made in Exhibits A2 and A4. The plaintiff further contended that the brothers Raman and Alagumalai had sold the suit schedule property in favour of the plaintiff under Exhibits A1 and A3 both dated 24.03.1970. According to the plaintiff, she has taken possession of the suit schedule property and had changed the patta in her name. The plaintiff further contended that she was forced to be away from the town when her son got implicated in a murder case. During the said period, the defendant and his vendor have created some documents encumbering the suit schedule property and have created some revenue records in their favour. In the year 1994, the plaintiff had approached the revenue authorities for rectifying the revenue records, but there was no response. In the year 1995, the defendant attempted to prevent the plaintiff from enjoying the suit schedule property. Since the defendant in his written statement has claimed that he is in possession and enjoyment of the suit schedule property from 15.03.1991, the plaintiff had sought an alternative prayer for recovery of possession from the defendant.
4. The defendant filed a written statement contending that the suit schedule property was never owned by Kuppan Samban. On the other hand, the suit schedule property originally belonged to the family of one Alagumalai, Son of Solaimalai. According to the defendant, Alagumalai's son Ramasamy had executed a registered sale deed under Exhibit B1 dated 15.03.1991 for an extent of 71 ¾ cents. Based upon the said sale deed, the defendant has mutated the revenue records under Exhibit B3 and paid tax under Exhibits B6 to B10. According to the defendant, the plaintiff is not in possession of the suit schedule property and the plaintiff has purchased some lands with false description from the persons who have no right over the suit schedule property.
5. The trial Court after considering Exhibits A5 and A6, arrived at a finding that the plaintiff has not proved her possession from the year 1970 onwards. The plaintiff has not produced any revenue records pertaining to the possession of the suit schedule property. The trial Court also arrived at a finding that the defendant has disputed the description of the suit schedule property in his written statement. In view of the said objection, the plaintiff ought to have prayed for appointment of Advocat
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