Parimala v. S. Rajaperumal

JUDGMENT The Appeal Suit is directed against the order passed in O.S.No.62 of 2011, dated 09.09.2021, on the file of I Additional District Court, Tiruchirappalli.

¶2For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in their original suit.

¶3The appellants are the defendants 5 to 9, legal heirs of the deceased first defendant. The first respondent as plaintiff has filed the above suit to declare that the plaintiff is the sole and absolute owner of the suit property and consequently to deliver the possession of the suit property and for damages for use and occupation of the suit property.

¶4The case of the plaintiff is that the suit property originally belonged to one Sandhanam Muthuraja as he had purchased the suit property from one Pitchai Pillai vide sale deed dated 09.06.1933, that after the death of Sandhanam Muthuraja on 09.05.1974 intestate, his two sons Marudhai and Ganesan and their legal heirs have sold the suit property through their Power Agent to the plaintiff vide sale deed dated

12.08.2010, that since Sandhanam Muthuraja was the resident of Sri Lanka, after his purchase, he entrusted the suit propertyin the custody of his younger brother Ponnambalam Muthuraja, who was the resident of Srirangam and after the death of Ponnambalam Muthuraja, his only daughter – first respondent has been taking care of the suit property, that the first defendant does not have any right, title or interest in the suit property and like his father, she is also a licensee, that the defendants 2 and 3 claims to be the tenants of the suit property under the first defendant, that the plaintiff was assured by his vendors as well as the first defendant that they would vacate the property within a short time and hand over the physical possession of the suit property to the plaintiff, that though the first defendant has agreed to vacate the suit property, but subsequently taken a stand as if she had a share in the suit property and that therefore, the plaintiff was constrained to file the above suit to declare his title to the suit property and also for recovery of possession and damages.

¶5The defence of the first defendant is that the suit property is a joint family property purchased in the name of Sandhanam Muthuraja out of joint family funds and for the interest of joint family consisting of Sandhanam Muthuraja, Sappani, Rengasamy and Ponnambalam, that the suit property jointly belonged to Sandhanam and his three brothers, that Sandhanam Muthuraja had three children namely Maruthai, Ganesan and Deivanai - 4th defendant herein, that Sappani had a daughter by name Kamalam, that Rengasamy had no issues and the said Ponnambalam had a daughter by name Rajalakshmi, that since Sandhanam Muthuraja and his three brothers had died intestate, the suit property came to be owned by the legal heirs of Sandhanam Muthuraja and his two brothers, that the sale obtained by the plaintiff from Maruthai and Ganesan, sons of Sandhanam Muthuraja is legally invalid, that since the suit property came to be owned also by Sandhanam Muthuraja's daughter Deivanai and Kamalam, daughter of Sappanni and the first defendant – daughter of Ponnambalam Muthuraja, that the suit is bad for non-impleading the necessary parties and that since the plaintiff has filed the above suit suppressing the material facts and to cheat the shares of the other legal heirs, the suit is liable to be dismissed.

¶6Pending suit, one Vadivel claiming himself to be the Power Agent of Deivanai, the alleged daughter of Sandhanam Muthuraja, has filed a petition to get himself impleaded in the suit and subsequently Deivanai represented by her Power Agent Vadivel came to be impleaded as 4th defendant in the suit. The fourth defendant has filed a written statement cum counter claim to declare that the sale deed dated

12.08.2010 alleged to have been executed by Maruthai and Ganesan in favour of the plaintiff is legally invalid and the same does not bind the fourth defendant's share of 1/3 in the suit property. But the defence of the fourth defendant is that the suit property came to be purchased by her father Sandhanam from Pitchai Pillai, vide sale deed dated 09.06.1933, that except the fourth defendant and her brothers Maruthai and Ganesan, no other person is having any right or share over the suit property, that since Sandhanam Muthuraja died intestate on 09.05.1974, the fourth defendant along with her two brothers have become entitled to the suit property and that since the fourth defendant is having share in the suit property, she was constrained to file the counter claim.

¶7Pending suit, the first defendant died and her legal representatives were impleaded as defendants 5 to 9. The ninth defendant has filed a written statement reiterating the contentions raised by the first defendant in the earlier written statement.

¶8The learned trial Judge, upon perusing the pleadings of both parties has framed the following issues:

(i) Whether the plaintiff is entitled to the declaration as the absolute owner of the suit scheduled property and entitled to the vacant possession as prayed for?

(ii) Whether the plaintiff is entitled to damages for the use and occupation of the defendant?

(iii) Whether the plaintiff is entitled the mesne profits as prayed for?

(iv) Whether the suit is bad for non joinder of necessary parties?

(v) What relief? Additional Issues:

(i) Whether D5 to D9 are the Co-shares of the schedule property?

(ii) Whether the suit is barred by limitation?

¶9During trial, the plaintiff has examined himself as P.W.1 and one witness Thiru.Chandran as P.W.2 and exhibited 7 documents as Exs.A.1 to A.7. On the side of the defendants 5 to 9, they have examined 9th defendant as D.W.1 and one other witness Tmt.Pushpamalar as D.W.2 and exhibited 8 documents as Exs.B.1 to B.8. The fourth defendant has examined her Power Agent as D.W.3 and exhibited his copy of the driving licence as Ex.X.1. The learned trial Judge, upon considering the pleadings and evidence both oral and documentary and on hearing the arguments of both sides, has passed the judgment and decree dated

09.09.2021, declaring that the plaintiff is the lawful owner of the suit property and directed the defendants 2, 3 and 5 to 9 to vacate the suit property and hand over the possession of the same to the plaintiff in two months and permitted the plaintiff to work over his remedy for damages through separate proceedings under Order 20 Rule 12 C.P.C. Aggrieved by the impugned judgment and decree, the defendants 5 to 9 have preferred the present appeal.

¶10The learned Counsel for the appellant would submit that the suit property jointly belonged to the joint family consisting of Sandhanam, Sappani, Rengasamy and Ponnambalam, that the plaintiff himself has produced and marked mortgage deeds dated 01.07.1946 and

26.07.1946 under Exs.A.5 and A.6 respectively which came to be executed jointly by Sandhanam Muthuraja and Ponnambala Muthuraja which would go to show the character of the property as joint family property, that the defendants have questioned the very genuineness and validity of the alleged power of attorney under which the plaintiff claimed title and also the execution of the sale deed in favour of the plaintiff by the alleged legal heirs of Sandhanam Muthuraja, but the plaintiff has not impleaded the alleged vendors and the Power Agent as parties to the suit nor examined any of the above parties, that the plaintiff himself admitted that the possession of the suit property remains with the first defendant and the plaintiff did not get the delivery of possession of the property at the time of obtaining sale deed under Ex.A.2, that if really the transaction was genuine one supported by consideration, the plaintiff would not have paid the sale consideration without getting possession of the suit property, that the plaintiff has not offered any reason or explanation as to why the delivery was not effected and more importantly when the alleged vendors did not have possession of the property at that time, that the plaintiff has miserably failed to produce the legal heirship certificate of Sandhanam Muthuraja, when the plaintiff has taken a stand that the fourth defendant is not the daughter of Sandhanam Muthuraja and even after she was impleaded as 4th defendant in the suit and that the plaintiff who seeks to recovery of possession on the strength of title must establish clear and valid title, but the plaintiff has failed to prove the alleged clear title.

¶11The learned Counsel for the plaintiff would submit that the suit property was the absolute property of Sandhanam Muthuraja, that the defendants would admit that the plaintiff purchased the property from the sons of Sandhanam Muthuraja and they have not disputed the said purchase made by the plaintiff, that the burden of proof that the suit property was joint family property is upon the defendants 1, 5 to 9, but they have not discharged their burden, that 9th defendant in his evidence would admit that there was no joint family nucleus and as such, it can easily be inferred that the property is not joint family property, that in Ex.A.5 mortgage deed itself, it has been stated that the suit property came to be purchased by Sandhanam Muthuraja, vide sale deed dated

09.06.1933, that Ponnambalam himself did not claim any share in the suit property at that point of time, that D.W.1 would admit that neither Ponnambalam nor the other brothers of Sandhanam Muthuraja made any claim in respect of the suit property, that the original title deeds with regard to the suit property were only with Sandhanam Muthuraja, who was the resident of Sri Lanka, that the property tax assessments and the receipts were also in the name of Sandhanam and not in favour of Ponnambalam or in favour of the first defendant and that the learned trial Judge, considering the pleadings and the evidence in a proper way, has rightly decreed the suit.

¶12The points for consideration are:

(i) Whether the learned trial Judge erred in giving a finding that the suit property is the separate and absolute property of Sandhanam Muthuraja, despite showing that two mortgage deeds came to be executed jointly by Sandhanam Muthuraja and his brother Ponnambala Muthuraja and that there was absolutely no explanation for the same?

(ii) Whether trial Court erred in not considering the material aspect that though the plaintiff admitted that the possession of the suit property was originally with Ponnambala Muthuraja and now with the first defendant and her tenants, he has not offered any explanation as to why the same was not disclosed in the sale deed taken by the plaintiff from the sons of Sandhanam Muthuraja, but it was stated that the possession was handed over to the purchaser at the time of sale consideration?

(iii) Whether the defendants 1, 5 to 9 discharged the burden of proof that that the suit property is the joint family property of Sandhanam Muthuraja and his brothers?

(iv) Whether the judgment and decree dated 09.09.2021 passed by the trial Court is liable to be interered with?

(v) To what other reliefs, the parties are entitled to?

¶13It is admitted by both parties that Sandhanam Muthuraja who was the resident of Sri Lanka had three brothers namely Sappani, Rengasamy and Ponnambalam, that the first defendant is the only daughter of Ponnambalam Muthuraja, that Sappani had one daughter by name Kamalam and that the other brother Rengasamy had no issues. The fourth defendant has claimed that Sandhanam Muthuraja had a daughter Deivanai - 4th defendant herein and two sons namely Maruthai and Ganesan, but according to the plaintiff, Sandhanam Muthuraja had only two sons and the fourth defendant is not the daughter of Sandhanam Muthuraja. Regarding the nature of the suit property, it is the specific case of the plaintiff that the suit property is the separate and self-acquired property of Sandhanam Muthuraja, but whereas according to the defendants 1, 5 to 9, the suit property is the property owned by the joint family consisting of Sandhanam Muthuraja and his three brothers. It is also not in dispute that Sandhanam Muthuraja and his three brothers had died intestate.

¶14Before entering into further discussion, it is necessary to refer the legal position with regard to the burden of proof when nature and character of the property is in dispute. The Hon'ble Supreme Court in D.S.Lakshmaiah and another Vs. L.Balasubramanyam and another reported in AIR 2003 SC 3800 has reiterated the settled legal position that the person who claims that the property in dispute is joint family property is duty bound to prove the same and the relevant passage is extracted hereunder: "The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. "

¶15In the case on hand, in the written statement, the first defendant has taken a specific stand that the suit property came to be purchased by Sandhanam and his three brothers with the help of joint family income and in the name of Sandhanam being the elder member of the family and the relevant portion is extracted hereunder: "tHf;fpilr; brhj;ij gpr;ir gps;is vd;gthplkpUe;J fle;j

9.6.1933k; Mz;L kUij Kj;Juh$htpd; kfd;fshd 1.re;jhdk;

2.buA;frhkp 3.rg;ghzp 4.bghd;dk;gyk; Mfpa ehd;F Bgh;fSk; Brh;e;J bghJ FLk;g tUkhdj;ij bfhz;L FLk;gj;jpd; %j;j cWg;gpduhd re;jhdk; Kj;Juh$htpd; bgahpy; fpiuak; thA;fg;gl;lJ."

¶16As per the settled legal position, the duty is cast upon the first defendant and now the defendants 5 to 9 to prove that the suit property was the joint family property. Since the first defendant died pending suit, as already pointed out, his legal representatives were brought on record as defendants 5 to 9 and 9th defendant has entered into into the witness box and in the chief examination affidavit, D.W.1 would say that the suit property was purchased in the name of Sandhanam Muthuraja by Sandhanam and his three brothers jointly and treated as the joint family property. But in cross-examination, he would admit that neither Maruthai nor his sons had any ancestral property or ancestral nucleus and the relevant portion is extracted hereunder: " Mjpapy; nUe;j kUij vd;gtUf;F 4 igad;fs;. mth;fs; re;jhdk;, buA;frhkp, rg;ghdp, bghd;dk;gyk; MfpBahh;fs; Mthh;fs;. kUijf;Bfh, mtuJ kfd;fSf;Bfh g{h;tPf brhj;Jf;fs; kw;Wk; bjhif vJt[kpy;iy."

¶17When a specific question was put to him that the suit property was purchased by Sandhanam, he would reply that the property was purchased with the help of the income of four brothers. But he would admit "th.rh.M.2 Mtzj;jpy; ne;j brhj;ij tpw;gid bra;jth; re;jdk; vd;gthplkpUe;J jhd; fpiua bjhif bgw;Ws;sjhf fz;Ls;sJ vd;W brhd;dhy; rhpjhd;. Bkw;go Mtzj;jpy; kw;w 3 egh;fspd; ve;j BfhjhtpYk; fhz;gpf;fg;gltpy;iy vd;W brhd;dhy; rhpjhd;."

¶18It is not the specific case of the first defendant or the defendants 5 to 9 that Maruthai, father of Sandhanam and his brothers was owning ancestral properties or that Sandhanam and his brothers had joint family properties and that the suit property came to be purchased with the help of the income derived from the ancestral or joint family properties. Though the first defendant in the written statement has alleged that the suit property was purchased with the help of the joint family income, before the trial Court he would take "U" turn and depose that the suit property was purchased with the income of four brothers.

¶19As already pointed out, the first defendant and the defendants 5 to 9 had mainly relied on the mortgage deed which came to be executed by Sandhanam Muthuraja along with his brother Ponnmabalam Muthuraja to canvass their case that the suit property was treated as joint family property. D.W.1 would reiterate the same in his cross-examination "th.rh.M.5 Mtzj;ij re;jdj;Jld; Brh;e;J bghd;dk;gyKk; vGjpf;bfhLj;jhh; vd;w mog;gilapy;jhd; brhj;J bghJ FLk;g brhj;J vd;W TWfpBwd; vd;why; rhpjhd;." But he would admit "th.rh.N.5 Mtzj;jpy; brhj;J bghJ FLk;g brhj;J vd;W fhz;gpj;Js;sjh vd;why; ny;iy. ne;j Mtzj;jpy; 1 nyf;fkpl;lth; re;jdk;. 2 nyf;fkpl;lth; bghd;dk;gyk; vd;why; rhpjhd; bghd;dk;gyK; Brh;e;J vGjpf;bfhLj;j th.rh.M.5 Mtzj;jpy; re;jdk; tpiyf;F thA;fp mth; mDgtpj;JtUtjhf kl;Lk; jhd; fhz;gpf;fg;gl;Ls;sJ vd;W brhd;dhy; rhpjhd;. "

¶20At this juncture it is necessary to refer the recitals in Ex.B.2 – mortgage deed dated 01.07.1946: "vA;fspy; 1 yf;fkpl;lth; brd;w 9.6.33y; vGjp =buA;fk; rg;bu$p!;lhuh; Mgp!; 1 g[f; 567tJ thy;a{k; 262 & 263 gf;fA;fspy; 1087 bek;guhf 10.6.33y; bu$p!;lh; bra;J thA;fpa fpiua rhrdg;gj;jpug;go ehsJ tiu rh;t Rje;jpukhf mDgtpj;J tUfpw fPH;f;fz;l tPL kidia ehsJ .........."

¶21As rightly contended by the learned Counsel for the plaintiff, the first defendant's father Ponnambalam is a party to the said document as one of the executant, but he has not raised any objection with regard to the above recitals. It is also not the case of the first defendant that his father Ponnambalam has claimed right or share in the suit property at any point of time.

¶22D.W.1 in his cross-examination would say "jhth brhj;jpy; jdf;F gA;F nUf;fpwJ vd;W bghd;dk;gyk; ve;j fhyj;jpYk; ve;j MtzKk;, capy; rhrdKk; vGjpa[s;shuh vd;why; ny;iy." He would also admit that the other brothers of Sandhanam Muthuraja also did not make any claim in the property. D.W.1 would say that "buA;frhkp, rg;ghdp, rg;ghdpapd; thhpRfs; jA;fSf;F gA;F chpik cz;L vd;W ve;j fhyj;jpYk; chpik cz;L vd;W Bfl;ljpy;iy."

¶23The case of the plaintiff is that the house tax assessments in respect of the suit property originally stood in the name of Sandhanam Muthuraja and subsequently now in favour of the plaintiff and he has also produced the tax receipt under Ex.A.3. Moreover, the first defendant himself would admit that all the original title deeds were with Sandhanam. As rightly contended by the learned Counsel for the plaintiff, if really the property was joint family property, the original documents would have been with Ponnambalam as he alone was in India. D.W.1 would say that " re;jdk; tpiyf;F thA;fpa mry; fpiua gj;jpuKk;, mth; NL itj;J mry; Nl;L fld; gj;jpuKk; vd;dplk; fpilahJ. vy;yh mry; MtzA;fSk; re;jdj;jplk; jhd; cs;sJ. ne;j brhj;J rk;ke;jkhd thp urPJfs; midj;Jk; vd;dplk;jhd; cs;sJ. thp urPJfs; vy;yhBk re;jhdj;jpd; bgahpy; jhd; cs;sJ." D.W.1 in her evidence would admit that " ne;j tHf;fpw;fhd brhj;J thp Muk;g fhyj;jpy; nUe;J, re;jhdk; bgahpy; nUe;J te;jJ. jw;BghJ brhj;ij tpiyf;F thA;fpa thjp bgahpy; cs;sJ vd;W brhd;dhy; rhpjhd;. ve;j fhyj;jpYk; kw;w rBfhjuh;fs; bgahpYk; thp tpjpg;g[ Vw;gltpy;iy vd;W brhd;dhy; rhpjhd;."

¶24Considering the above evidence, the learned trial Judge has rightly come to a decision that the defendants 1, 5 to 9 have miserably failed to prove that the suit property in dispute is a joint family property, but on the other hand, the plaintiff through ample evidence has proved that it is the separate property of Sandhanam Muthuraja.

¶25Now turning to the case of the fourth defendant alleged to be the daughter of Sandhanam Muthuraja, the plaintiff has specifically disputed the factum that the fourth defendant – Deivanai is the daughter of Sandhanam Muthuraja and that the fourth defendant is a person set up by the defendants 1, 5 to 9 to drag on their claim. It is evident from the records that D.W.3 – Vadivel, after getting his alleged principal impleaded as fourth defendant, has filed a written statement cum counter claim wherein the fourth defendant has sought for a declaration that the sale deed dated 12.08.2010 executed in favour of the plaintiff is not legally valid with regard to the fourth defendant's 1/3rd share and that the said sale deed is not binding on the fourth defendant's 1/3rd share and that subsequently when the defendants were set exparte in the original suit, counter claim came to be dismissed for default and that when the exparte order was set aside and the suit was taken on file, the counter claim was not restored to file.

¶26It is further evident that after the evidence of the defendants 1, 5 to 9 was over, D.W.3 has filed an application to set aside the exparte order passed against the fourth defendant and thereafter filed his chief examination affidavit. Though the plaintiff has taken a specific stand that there was no such daughter for Sandhanam Muthuraja, the fourth defendant has not produced any iota of evidence to substantiate her claim that she is the daughter of Sandhanam Muthuraja. D.W.3, in his cross-examination would say that " bja;thiz vd;gth; re;jdj;jpd; kfs; vd;gij fhz;gpg;gjw;fhd Mjhuk; vd;dplk; nUf;fpwjh vd;why; ny;iy. mij mDg;g[tjhf vdf;F Bghdpy; brhd;dhh;. me;j Mtzj;jpd; KG tptuk; vd;d vd;W vdf;F bjhpahJ. bja;thizf;Fj;jhd; bjhpa[k;. ............... vd;Dila Kjy;th; bja;thiz Muk;g Kjy; bfhz;Bl nyA;ifapy; jhd; nUf;fpwhh;. ehd; nJtiu nyA;iff;F brd;W bja;thidia ghh;j;jjpy;iy. mth; nyA;ifapy; vA;Fs;shh; vd;w tptuk; vdf;F bjhpahJ." Even in chief examination affidavit, he would say " jhDk; re;jhdj;jpd; thhpR vd;W nt;tHf;fpy; 4k; gpujpthjpahd bja;thid epUgpg;gjw;fhf cz;lhd Mtzk; nyA;ifapypUe;J jghypy; mDg;g Vw;ghL bra;Js;shh;."

¶27Admittedly, the fourth defendant has not appeared in person before the trial Court. Moreover, the learned trial Judge has specifically observed that though that Court has given sufficient opportunity for her appearance before that Court, she did not turn up. As already pointed out, D.W.3 has entered into witness box as Power Agent of the fourth defendant. It is settled law that the agent cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge.

¶28It is necessary to refer the judgment of the Hon'ble Supreme Court in Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd., and others reported in AIR 2005 SC 439 relied on by the learned Counsel for the plaintiff, wherein it has been held as follows: "Order III, Rules 1 and 2 C.P.C., empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 C.P.C., confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."

¶29As rightly contended by the learned Counsel for the plaintiff, the fourth defendant has not produced the legal heirship certificate of Sandhanam Muthuraja nor any other material to show that she is the daughter of Santhanam Muthuraja. As already pointed out, the defendants 1, 5 to 9 have also taken a stand that the fourth defendant is the daughter of Sandhanam Muthuraja, but they have also not produced any iota of evidence to substantiate the same. Considering the above, this Court has no hesitation to hold that the defendants have miserably failed to prove that the fourth defendant is the daughter of Sandhanam Muthuraja.

¶30The learned Counsel for the defendants 5 to 9, after the completion of arguments by the plaintiff's side, has taken a new stand challenging the validity and legality of the sale deed dated 12.08.2010 and Power of Attorney deed through which, the sale deed came to be executed. The learned Counsel would submit that since the Power of Attorney document is stated to be executed in Sri Lanka and validated in India and when its genuineness was questioned, the plaintiff must have examined either the principals or at least the power agent, that there is absolutely no evidence to show that how his principals and power agent were known to each other, that the defendants have denied the claim of the plaintiff that he became entitled to the suit property by right of purchase and it is not the evidence of the plaintiff that D.W.1 was aware of the execution of the power of attorney by the legal heirs of Sandhanam Muthuraja.

¶31As rightly contended by the learned Counsel for the plaintiff, the above pleas were not at all raised in the written statement either by the first defendant or by the defendants 5 to 9 who entered into the picture subsequently. As rightly pointed out by the learned Counsel for the plaintiff, the first defendant in his written statement, has specifically stated that the children of Sandhanam Muthuraja namely Maruthai, Ganesan and Deivanai in collusion with Kamalam, D/o Sappani Muthuraja with an intention to grap the property, had directed the first defendant to vacate the premises and that therefore, the first defendant was constrained to file a suit for partition in O.S.No.535 of 2010, on the file of the Principal Subordinate Court, Trichirappalli. It is not in dispute that the said suit was subsequently dismissed for default and till now that suit was not restored to file.

¶32The first defendant has also taken a stand that the sons of Sandhanam Muthuraja alone had no right to sell the suit property and as such, the sale deed obtained by the plaintiff from them is legally invalid. It is not the specific case of the first defendant or the defendants 5 to 9 that the sons of Sandhanam Muthuraja have not executed any sale deed in favour of the plaintiff and that they have created a sale deed with the help of the power of attorney deed, which was also not executed by the legal heirs of the deceased Sandhanam Muthuraja.

¶33It is admitted by all the parties that originally the first defendant's father Ponnambalam Muthuraja was in possession and enjoyment of the portion of the property and leased out to two tenants and after his death, the first defendant has been in possession and enjoyment of the property by occupying the portion of the ame and leasing out to two other tenants. Pending appeal, the learned Counsel appearing for the appellants has filed a memo stating that the respondents 2 and 3 had already vacated the premises, as such, notice to them may be dispensed with. Since this Court has already given a finding that the property in dispute is the separate property of Sandhanam Muthuraja and the fourth defendant is not the daughter of Sandhanam Muthuraja, the defendants are not entitled to claim any right or share in the suit property.

¶34Considering the above, the learned trial Judge has rightly granted the reliefs of declaration and recovery of possession and this Court is in entire agreement with the findings recorded by the learned trial Judge and consequently this Court concludes that the Appeal Suit is devoid of merits and the same is liable to be dismissed.

¶35In the result, the Appeal Suit is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. The parties are directed to bear their own costs.

31.01.2025 NCC : Yes : No Index : Yes : No Internet : Yes : No SSL To

¶1I Additional District and Sessions Judge (PCR), Tiruchirappalli.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. K.MURALI SHANKAR,J. SSL

31.01.2025

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON: 29.11.2025 PRONOUNCED ON:31.01.2025 CORAM THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR and C.M.P.(MD)No.7227 of 2022 1.Parimala 2.Angayarkanni 3.Savithri 4.Shanthi 5.Murugesan :Appellants/Defendants 5 to 9 Vs. 1.S.Rajaperumal : 1st Respondent/Plaintiff 2.Marimuthu 3.Chandru 4.Deivanai : Respondents 2 to 4/ Defendants 2 to 4 PRAYER:- Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree of I Additional District and Sessions Judge (PCR), Tiruchirappalli in O.S.No.62 of 2011, on 09.09.2021. For Appellants : Mr.R.Sundar Srinivasan For Respondents :Mr.K.S.Vamsidhar for R.1 : R.2 and R.3 dispensed with