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2021 Supreme(Online)(MAD) 1519
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.01.2021 CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR S.A.(MD)Nos.309 to 311 of 2006 and C.M.P.(MD)No.2410 of 2006 S.A.(MD)No.309 of 2006:-
1.Chinnaponnu (died) ...Appellant/Appellant/Plaintiff
2.Parvathi
3.Minor Deepika Rani
4.Minor Sakres Kasilingam ...Appellants (Appellants 2 to 4 were brought on record ad legal heirs of the sole appellant vide Court order dated 01.04.2019)
Vs.
1.Mamundi ..1st Respondent/1st Respondent/
1st defendant
2.Pappathi Ammal ..2nd Respondent/ 2nd Respondent/
2nd defendant
3.Rajagopal (died) ..3rd Respondent/ 3rd Respondent/
3rd defendant
4.Paulraj ..4th Respondent/ 4th Respondent/
4th defendant
5.Balasubraminam ..5th Respondent/ 5th Respondent/
5th defendant
6.Susila
7.Kalaiselvi 8.Kalaivani
9.Kalaiselvan
10.Sampathkumar
11.Saraswathi
12.Durairaj ..Respondents (Respondents 6 to 12 were brought on record as legal heirs of the deceased third defendant vide order dated 01.04.2019)
1.Chinnaponnu Ammal (died) ..1st Appellant/1st Appellant/2nd defendant 2.Kasi ..2nd Appellant/4th Appellant/5th defendant 3.Koyilambal ..3rd Appellant/5th Appellant/6th defendant 4.Sevandhi ..4th Appellant/6th Appellant/7th defendant 5.Rajkumar @ Kumar ..5th Appellant/7th Appellant/8th defendant 6.Pachaimuthu ..6th Appellant/8th Appellant/9th defendant 7.Sabila @ Sabeetha ..7th Appellant/9thAppellant/10th defendant 8.Maheswari .8thAppellant/10thAppellant/11th defendant 9.Jayaseela @ Chasil .9thAppellant/11thAppellant/12th defendant
10.Jagadheesan ..10thAppellant/12thAppellant/13th defendant 11.Praba ..11thAppellant/13thAppellant/14th defendant 12.Praveen Nath ..12thAppellant/14thAppellant/15th defendant
13.Parvathi
14.Minor Deepika Rani
15.Minor Sakres Kasilingam .. Appellants (Appellants 13 to 15 were brought on record as legal heirs of the first appellant vide order dated 01.04.2019)
Vs.
1.Pappathi ammal ..1st Respondent/1st Respondent/
1st Plaintiff
2.Rajagopal (died) ..2nd Respondent/ 2nd Respondent/
2nd Plaintiff
3.Balasubramanian ..3rd Respondent/ 3rd Respondent/
3rd Plaintiff
4.Balraj ..4th Respondent/ 4th Respondent/
1st Defendant
5.Susila
6.Kalaiselvi 7.Kalaivani
8.Kalaiselvan
9.Sampathkumar
10.Saraswathi
11.Durairaj ..Respondents (Respondents 5 to 11 were brought on record as legal heirs of the second respondent vide order dated 01.04.2019)
S.A.(MD)No.311 of 2006:-
1.Chinnaponnu Ammal (died) ..1st Appellant/1st Appellant/1st defendant 2.Kasilingam (died) ..2nd Appellant/4th Appellant/4th defendant 3.Koyilambal ..3rd Appellant/5th Appellant/5th defendant 4.Sevandhi ..4th Appellant/6th Appellant/6th defendant 5.Rajkumar ..5th Appellant/7th Appellant/7th defendant 6.Pachaimuthu ..6th Appellant/8th Appellant/8th defendant 7.Sabila ..7th Appellant/9thAppellant/9th defendant 8.Maheswari .8thAppellant/10thAppellant/10th defendant 9.Jayaseela .9thAppellant/11thAppellant/11th defendant
10.Jagadheesan ..10thAppellant/12thAppellant/12th defendant 11.Praba ..11thAppellant/13thAppellant/13th defendant 12.Praveen ..12thAppellant/14thAppellant/14th defendant
13.Parvathi
14.Minor Deepika Rani
15.Minor Sakres Kasilingam .. Appellants (Appellants 13 to 15 were brought on record as legal heirs of the first appellant vide order dated 01.04.2019)
Vs.
1.Pappathi ammal ..1st Respondent/1st Respondent/
1st Plaintiff
2.Rajagopal (died) ..2nd Respondent/ 2nd Respondent/
2nd Plaintiff
3.D.Balraj ..3rd Respondent/ 3rd Respondent/
3rd Plaintiff
4.Balasubramanian ..4th Respondent/ 4th Respondent/
4th Plaintiff
5.Susila
6.Kalaiselvi 7.Kalaivani
8.Kalaiselvan
9.Sampathkumar
10.Saraswathi
11.Durairaj ..Respondents (Respondents 5 to 11 were brought on record as legal heirs of the second respondent vide order dated 01.04.2019)
COMMON PRAYER: These Second Appeals are filed under Section 100 of the Civil Procedure Code, against the decree and judgment made in A.S.No. 154, 155 and 156 of 2002 dated 25.02.2005 on the file of the First Additional Subordinate Judge, Trichirappalli confirming the decree and judgment made in O.S.No.2094 of 1993, 2111 of 1994 and 373 of 1993, respectively dated 15.02.2002 on the file of the III Additional District Munsif, Tiruchirapalli.
For Appellants : Mr.Maria Roseline (in all appeals)
For R4 and R5 : Mr.S.Meenakshi Sundaram Senior Counsel for Mr.R.Manimaran For R6 to R12 : Mr.N.G.A.Nataraj For R1 : No Appearance (for S.A.(MD)No.309 of 2006)
For R3 to R11 : Mr.N.G.A.Nataraj (for S.A.(MD)Nos.310 & 311 of 2006)
COMMON JUDGMENT
These three second appeals have been filed as against the concurrent findings of the Courts below in a common judgment in A.S.No. 154, 155 and 156 of 2002 dated 25.02.2005 confirming the decree and judgment made in O.S.No.2094 of 1993, 2111 of 1994 and 373 of 1993, respectively, dated 15.02.2002.
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Second Appeal, are as follows:-
(i) O.S.No.2094 of 1993 was filed by the first appellant in S.A.
(MD)No.309 of 2006 for permanent injunction in respect the property in Survey Nos.82/10 and 82/11 covering an extent of 1.10 cents in Somarasampettai Village and in Survey No.80/2 to an extent of 42 cents in Malliampatti Vilalge. O.S.No.2111 of 1994 was filed by the respondent Nos. 2, 3 and 5 in S.A.(MD)No.309 of 2006 herein for injunction in respect of the property in Survey No.80/2 to an extent of 42 cents, which is the second item of property in O.S.No.2094 of 1993. O.S.No.373 of 1993 was filed by the respondent Nos.2, 3 and 5 S.A.(MD)No.309 of 2006 for recovery of possession for the entire extent of 1.10 cents in Survey No.82/10 and
82/11.
(ii) It is the case of the plaintiffs in O.S.No.373 of 1993 and 2111 of
1994, who are one and the same, that the entire property belongs to them. The defendants in the above suits are their close relatives. Due to their close proximity, when the first plaintiff had intended to execute a Will in favour of her daughter, the defendants under the pretext of helping the first plaintiff, suggested that a Will can be executed. Accordingly, by the suggestion of the defendants, a Will was prepared and the first plaintiff went to the Registration Office. While executing the Will on 12.03.1991, the defendants taking advantage of the illiteracy and the age of the first plaintiff, has also maneuvered to obtain thump impression in the document stated to be lease deed. The first plaintiff put thump impression in all the documents on the instructions of the defendants.
(iii) When the matter stood thus, the second defendant in the month of May, 1992 made an attempt to enter into the property claiming to be a tenant under the first plaintiff. Only at that time, the first plaintiff came to know that the defendants under the pretext of preparing a Will, have got the thump impression in the documents styled as lease deeds (yearly lease at the rate of Rs.1,500/- per year) and the lease deeds have been registered for a period of 10 years. Hence, it is the contention that the first plaintiff never intended to execute any such document and therefore, filed the above said suits for delivery of possession and for permanent injunction restraining the defendants 2 to 4 from interfering with the peaceful possession and enjoyment in respect of entire property to an extent of 1.10 acres. It is the further contention of the plaintiffs that the so called lease deed is created and the plaintiff never intended to execute the lease. In fact there was a mortgage agreement between the plaintiff and one Mamundi in respect of the land in S.F.No.80/2 to an extent of 0.42 cents for a sum of Rs.16,000/- and allowed the said Mamundi to be in possession.
(iv) In O.S.No.2094 of 1993, the plaintiff sought permanent injunction. The second defendant in her written statement denied the allegations of the plaintiff. The contention of the plaintiff is that lease deeds have been executed by the defendants voluntarily not as alleged by them in their plaint in O.S.No.373 of 1993 and the plaintiff is the cultivating tenant. It is the contention of the plaintiff that based on the above lease deed, she is in possession of the entire extent of 1.10 cents in Somarasampettai Village.
4. Based on the above pleadings, the following issues were framed by the trial Court:-
In O.S.No.373 of 1993:-
(1) Whether the plaintiffs are entitled to the relief of recovery of possession and enjoyment of the suit pro
