Mookiah S/O. Velu v. Karuppayee

J U D G M E N T

1.1. The second defendant in the suit is the appellant. The first respondent herein filed a suit for declaration of title and injunction. The suit was decreed by the trial Court. The appeal filed by the appellant before the first appellate Court was dismissed. Hence, he has come up with this second appeal.

1.2. According to the first respondent/plaintiff, she purchased the suit property from Pappa, wife of Vaithiyalingam; Saroja, wife of Ramachandran; and minor Ponnuswamy, son of Ramachandran represented by his mother Saroja. The suit property was purchased by the first respondent on 12.08.1977 under Ex.A.1. She purchased 1.33 acres of land out of a total extent of 2 acres in Old Survey Field No. 238/F2 and New Survey Field No.283/4A. It was the case of the first respondent that she had been paying tax and enjoying the property from the date of purchase. It was further stated that the second respondent/first defendant in the suit owned 67 cents of land on the south of the suit property and he alienated the same to different persons. The appellant herein claimed to have purchased the south-eastern portion of the suit property from the second respondent and tried to obliterate the fence of the first respondent and hence, the first respondent laid the suit for declaration of title and injunction against the second respondent and the appellant herein.

¶2The appellant herein filed a written statement and submitted that the entire 2 acres of land in the suit survey number originally belonged to one Nimbavanam. After his death, his three sons viz., Kandasamy, Vaithiyalingam and Ramachandran succeeded to his estate. It was further averred in the written statement of the appellant that after death of Vaithiyalingam and Ramachandran, the first respondent claimed to have purchased the shares of Kandasamy and Ramachandran in the suit property. The first respondent attempted to annex portion of the property purchased by the appellant from the second defendant in the suit survey number and when her attempts were resisted, the first respondent came up with the present suit for declaration of title and injunction. The original written statement was filed by the appellant and the same was adopted by his vendor, the second respondent. The appellant also filed an additional written statement claiming 15 cents in the suit survey number under Ex.B.2 and Ex.B.25.

¶3The trial Court, based on the evidence available on record, came to the conclusion that the first respondent proved her title and possession over the suit property and decreed the suit. Aggrieved by the same, the appellant herein filed first appeal in A.S.No.15 of 2000 and the same was dismissed by the first appellate Court. Aggrieved by the concurrent findings, the second defendant in the suit is before this Court.

¶4At the time of admission, this Court formulated the following substantial questions of law: "i) When the plaintiffs have purchased an undivided

1.33 acres without any specific boundaries out of 2 acres, is the suit filed by the plaintiffs for declaration of title and injunction maintainable when only a suit for partition should have been filed?

ii) Is the learned Additional District Judge right in decreeing the suit when the plaintiffs have not identified their property?

iii) Whether suit for declaration can be filed with respect of undivided share of land in which both the appellant and the respondents will have their share?"

¶5The learned counsel for the appellant submitted that under Ex.A.1, the first respondent purchased only undivided share in the suit property and hence, based on Ex.A.1, the first respondent cannot seek declaration of her title. It is the case of the learned counsel for the appellant that the proper course for the person who purchased undivided interest would be to file a suit for partition. When there is no partition by metes and bounds, it is not open to the first respondent to seek declaration of title by giving wrong boundaries.

¶6The appellant also filed M.P.(MD) No.2 of 2012 seeking permission for raising additional evidence. Along with the petition, he filed four registered sale deeds executed by his vendor, the second respondent in favour of Narayanasamy, Karuppiah, Balasubramanian and Susila dated

19.02.1975, 02.04.1975, 02.04.1975 and 30.08.1977 and another sale deed executed in favour of Susila dated 13.03.1980 and also sought them to be marked by way of additional documents. The appellant also produced two rectification deeds executed by his vendor Duraikannu in favour of Susila and another rectification deed executed by Susila in favour of Alagammal along with the petition to raise additional evidence. In the affidavit filed in support of the petition to raise additional evidence, it was stated that the appellant's vendor Duraikannau was entitled to 67 cents in the suit survey number and he sold 15 cents to the appellant and remaining 52 cents to Narayanasamy, Karuppiah, Balasubramanian and Susila. It was further stated that those documents were not available with the appellant at the time of trial and admission of the additional evidence would help the Court to resolve the dispute in the suit.

¶7The learned counsel for the appellant, by taking this Court to the boundary description found in the documents executed by his vendor viz., the second respondent submitted that while selling properties to Narayanasamy, Karuppiah and Balasubramanian under document numbers 1 to 3 produced along with M.P.(MD) No.2 of 2012, his vendor retained some land on the northern side. Therefore, the boundary description mentioned in the plaint schedule may not be the correct one.

¶8The learned counsel for the first respondent submitted that the first respondent/plaintiff proved her title over the suit property by producing Ex.A.1 dated 12.08.1977, whereunder she purchased 1 acre and 33 cents in the suit survey number from the legal representatives of the paternal uncles of the second respondent. The learned counsel also by taking this Court to the evidence of D.W.1, submitted that the appellant himself admitted that there was a partition between the paternal uncles of the second respondent and his father and northern 1 acre and 33 cents was allotted to the share of the vendors of the first respondent. The learned counsel further submitted that the appellant also admitted as D.W.1 that even before his purchase, the first respondent had taken possession of 1 acre and 33 cents. Therefore, the Courts below rightly came to the conclusion that the first respondent proved her title and possession over the suit property and decreed the suit.

¶9With regard to the first contention made by the learned counsel for the appellant that based on undivided share purchased by the first respondent, she is not entitled to maintain a suit for declaration of exclusive title, a perusal of Ex.A.1 and the evidence of D.W.1 would make it clear that there was a partition between the second respondent's father Kandasamy and his brother Vaithiyalingam and Ramachandran. When the appellant was examined as D.W.1, clearly admitted that there was a partition between Kandasamy and his two brothers. He further deposed that out of 2 acres in the suit survey number, the southern 67 cents was allotted to Kandasamy, the father of his vendor and his vendor sold that 67 cents to various persons under number of documents. D.W.1 also had given details of sales effected by his vendor, the second respondent herein on various dates. The vernacular extract of the same is as follows: "fe;jrhkp

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epyk;

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xJf;fg;gl;lJ. fe;jrhkpf;F xJf;fpa Nkw;gb ghfj;ij mtuJ kfd;fSs; xUtuhd Jiuf;fz;Z fpiuak; nfhLj;Jf; nfhz;bUe;jhh;. ehd; fpiuak; thq;Ftjw;F Kd;G NtW ahu; ahUf;nfy;yhk; Jiuf;fz;Z fpiuak; nfhLj;Js;shh; vd;gjw;F gj;jpuq;fisg; ghh;j;Njd;. fe;jrhkpf;F te;j ghfj;jpy; Jiuf;fz;Z 17 nrz;l; epyj;ij ehuhazrhkp vd;gtUf;F 06.03.75y; fpiuak; nfhLj;jhh;. ,uz;L Vf;fu; epyj;jpy; njd;gFjpapy; cs;s 67 nrz;l;by; fpof;F Xukhf ,Ue;j 17 nrz;l; epyj;ij Jiuf;fz;Z ehuhazrhkpf;F fpiuak; nfhLj;jhh;. mjw;F mLj;j Nky;Gwk; cs;s vl;liu nrz;l; epyj;ij Jiuf;fz;Z xU fUg;igah vd;gtUf;F 15.04.75y; fpiuak; nfhLj;jhh;. mNj Njjpapy; ,jw;F mLj;J Nky;Gwk; cs;s 17 nrz;l; epyj;ij Jiuf;fz;Z xU ghyRg;gpukzpad; vd;gtUf;F

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ehd; Jiuf;fz;Ztplk; ,Ue;J fpiuak; thq;fpaJ 1985y;. ,uz;L Vf;fu; epyj;jpy; tlGwk; ,Ue;j xU Vf;fh; 33 nrz;l; epyj;ij 12.08.77y; thjp itj;jpaypq;fk; kidtp ghg;gh> kw;Wk; uhkr;re;jpud; kidtp rNuhIh MfpNahh;fsplkpUe;J fpiuak; ngw;W ,Uf;fpwhh; vd;W nrhd;dhy; cz;ikjhd;."

¶10A perusal of the above said evidence of D.W.1 would make it clear that partition between the second respondent's father Kandasamy and his brothers Vaithiyalingam and Ramachandran was categorically admitted by the appellant herein. He had also gone to the extent of admitting that the first respondent purchased the said 1 acre and 33 cents lying on the northern portion of the suit survey number under sale deed dated 12.08.1977 from Pappa, wife of Vaithiyalingam; and Saroja, wife of Ramachandran. If this admission of D.W.1 is read along with the recitals in Ex.A.1, it would be clear that northern 1.33 acres in the suit survey number was allotted to the share of Vaithiyalingam and Ramachandran and from their legal representatives, the appellant purchased the same. Therefore, the argument posed by the learned counsel for the appellant that the first respondent purchased only undivided share and hence, she could not maintain a suit for declaration of title cannot be accepted.

11.1. As far as the possession of the first respondent/plaintiff is concerned, the same was admitted by the appellant as D.W.1. In his cross examination, he clearly admitted that the first respondent got possession of 1 acre and 33 cents purchased by her even before the appellant's purchase in the suit survey number. He also categorically admitted that 1 acre and 33 cents on the north of suit survey number was in possession of the first respondent. The vernacular extract of the same is as follows: "ehd; fpiuak; thq;Ftjw;F Kd;Ng thjp mtu; fpiuak; thq;fpa xU Vf;fu; 33 nrz;l;by; mDgtj;jpw;F

te;Jtpl;lhh;

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nrhd;dhy; cz;ikjhd;. ......... vf;rpgpl; gp4 cj;jpuT rhpahdNj. mjpy; vdf;F Ml;Nrgid ,y;iy. Myq;Fb jhrpy;jhh; mtuJ ];jyg; ghh;itapy; thjp fUg;ghapf;F Gy vz; 238/4y; xU Vf;fh; 33 nrz;l; mjhtJ me;j rh;Nt ek;ghpy; tlGwk; cs;sJ. thjp fUg;ghapd; mDgtj;jpYs;s ,lk; vdf; fz;lhh;. thjpapd; xU Vf;fu; 33 nrz;l; epyj;jpw;F Myq;Fb jhrpy;jhu; mj;Jf; fw;fs; Cd;wtpy;iy. thjpf;F ,e;j tof;F Gy vz;zpy; tlGwk; xU Vf;fu; 33 nrz;l; mDgtk; cs;sJ vd;gJ ehd; xg;Gf;nfhs;fpNwdh vd;W Nfl;lhy; xg;Gf; nfhs;fpNwd;. me;j xU Vf;fu; 33 nrz;l; epyk; thjp fUg;ghapf;F cupikg;gl;lJ vd;gijAk; ehd; Vw;Wf;nfhs;fpNwd;."

11.2. Therefore, the appellant as D.W.1 admitted the possession of the first respondent over 1 acre and 33 cents on the northern side of the suit survey number.

¶12The additional documents sought to be raised in M.P.(MD) No.2 of 2012 were referred to by D.W.1 in his evidence. While deposing about the various sales effected by his vendor, the appellant had minute details of all the sale transactions effected by his vendor including the dates and vendees' name. Therefore, the documents sought to be produced by way of additional evidences were very well available within the knowledge of the appellant even at the time of trial. In the affidavit filed in support of the petition for raising additional evidence, it was stated that those documents were not available with the appellant at the time of trial of the suit. Now, the certified copies of those documents are sought to be produced by way of additional evidences. When the appellant was able to give minute details of the sale transactions effected by his vendor even at the time of trial, he could have very well applied for certified copies of the same and produced it before the trial Court. Even before the first appellate Court, no attempt was made by the appellant to produce all these documents by way of additional evidence. Therefore, the reasons assigned by the appellant for production of additional evidence cannot be accepted and hence, M.P.(MD) No.2 of 2012 is dismissed.

13.1. In view of the discussions made earlier, this Court comes to a definite conclusion that the first respondent/plaintiff proved her title and possession over the suit property and hence, the findings rendered by both the Courts below need not be disturbed. All the substantial questions of law framed at the time of admission are answered, accordingly against the appellant and the second appeal is dismissed by confirming the judgments and decrees passed by the Courts below.

13.2. In nutshell, (i) this Second Appeal is dismissed by confirming the judgments and decrees passed by the Courts below; (ii) M.P.(MD) No.2 of 2012 is also dismissed; and (iii) in the facts and circumstances of the case, there will be no order as to costs.

20.02.2023 NCC: Yes Index:Yes Index: Yes abr To

1.The Additional District Judge, Pudukkottai.

2.The District Munsif, Pudukkottai.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

S.SOUNTHAR, J. abr

20.02.2023

S.A.No.1932oofo2000 BEFOREoTHEoMADURAIoBENCHoOFoMADRASoHIGHoCOURT DATEDo:o20.02.2023 CORAM THEoHONOURABLEoMR.oJUSTICEoS.SOUNTHAR S.A.No.1932oofo2000 and M.P.(MD)oNo.2oofo2012 Mookiah ...ooAppellant/Appellant/ ndooooo2 oDefendant Vs st1.Karuppayee ...oo1 oRespondent/ stooooo1 oRespondent/Plaintiff nd2.Duraikannuo(Died) ...oo2 oRespondent/ nd stooooo2 oRespondent/1 oDefendant 3.D.Solai 4.D.Balu 5.D.Karnan 6.D.Kumar ...ooRespondentso3otoo6 [RR3 to 6 – brought on record as LRs of the deceased R2 vide order order dated 03.11.2011 made in M.P. (MD) Nos.1 to 3 of 2008 in S.A.No.1932 of 2000] [RR3 to 5 – given up vide order dated 30.10.2018 made in S.A.No.1932 of 2000] [Memo dated 08.04.2022 presented before the Court on 08.04.2022 is recorded as Respondent No.6 is given up vide order dated 08.04.2022 in S.A.No.1932 of 2000] Pageo1oofo16 Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 29.09.2000 made in A.S.No.15 of 2000 on the file of the Additional District Court, Pudukkottai, confirming the judgment and decree dated 28.06.1999 made in O.S.No.962 of 1987 on the file of the District Munsif's Court, Pudukkottai. For Appellant : Mr.P.Thiagarajan For R1 : Mr.M.Senthil Kumar