Ownership of disputed property and interpretation of sale deeds and partition deeds.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the decree and judgment, dated 23.09.2011 passed in A.S.No.537 of 2009 by the learned VII-Additional Judge,City Civil Court, Chennai, confirming the decree and judgment dated 30.06.2009 passed in O.S.No.5442 of 2002 by the learned VII-Assistant Judge, City Civil Court, Chennai.)

1. The unsuccessful plaintiff is the appellant herein.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

3. The plaintiff/appellant filed suit for declaration of his title to the 'A' schedule property and for declaration that 'B' schedule property is a common property and along with injunction not to disturb the use of 'B' schedule property and for mandatory injunction to remove the obstruction in the 'B' schedule property.

4. The plaint proceeds on the basis that the land measuring about 36 cents in S.No.51/3 'A' originally belonged to one Seetharaman Reddiyar. After his death his wife Jalendra Ammal, W/o Loganatha Reddiyar and Kanthammal, W/o Lakshminatha Reddiyar became the owners of the suit property measuring 9 cents of land mentioned in the schedule and this 9 cents of land in S.No.53/3A was allotted to the share of Jalendrammal under the partition deed dated 29.09.1978 Document NO.2680/78 and ever since she and her children were in possession. In this partition deed, Kanthammal wife of Lakshminatha Reddiyar and her 3 children were parties. The 9 cents of land is the suit 'A' schedule property. The land measuring 27 cents in S.No.51/3A out of 36 cents of land was dealt with by Loganatha Reddiyar and Kanthammal and Navaneethammal, wife of Seetharaman Reddiyar, by preparing a layout in 27 cents of land and divided as 6 plots and sold to 6 various persons.

5. The defendants filed a written statement alleging that the property is also sold.

6. Before the trial Court as many as eight issues have been framed. On the side of the plaintiff, PW1 was examined and Exs.A1 to A6 were marked. On the side of the defendants, DW1 was examined and Exs.B1 to B23 were marked.

7. The trial Court dismissed the suit and allowed the cross objection. Aggrieved against the said order, the plaintiff has filed A.S.No.5442 of 2002 wherein the appeal was allowed in part in setting aside the counter claim of the defendants. However, the suit prayer stands dismissed on confirmation and hence the present second appeal.

8. As against the disallowed portion in the appeal suit regarding the cross counter claim of the defendants, they have not preferred any second appeal. At the time of admitting the second appeal, the following Substantial Questions of Law were framed:

1. Are the Courts below are right in dismissing the suit eventhough the defendants have no title to the plaintiff's property?

2. Are the Courts below are right in interpreting the words 'vacant land left by us common for all plot person'?

9. The defendants have entered appearance through their counsel, despite adjournment given for reply, they have not appeared personally or through their counsel and hence, they called absent and set exparte.

10. The sum and substance of the submissions made by the learned counsel for the appellant/plaintiff is that Exs.A1 to A6 sale deeds which will show that the respondents have not purchased 9 cents of land belonging to the plaintiff. The defendants are purchased only 6 plots and their sale deed do not convey the land of 9 cents sold to the plaintiff. The total lands are 36 cents and only 27 cents were purchased by the defendants and retained land of 9 cents sold to the plaintiff. He further relied upon the Government revenue records, viz., Exs.A4, A5 and A6. It is a specific case of the plaintiff that as per Ex.A1-partition deed 9 cents of lands were retained that was purchased by the plaintiff. When the defendants have not purchased 9 cents of the land, according to the learned counsel, both the Courts below erred in reading the sale de