P.Udayam v. S.Jothimurugan

JUDGMENT ************* The Second Appeal is directed against the judgment and decree made in A.S.No.116 of 1999, dated 30,012002, on the file of Additional Subordinate Judge, Kumbakonam reversing the judgment and decree made in O.S.No.6 of 1993, dated 18.2.1998, on the file of Additional District Munsif Court-I, Kumbakonam.

2.The Plaintiffs in the suit are the appellants. The suit is filed for partition of the Plaintiffs 1/4th share in the suit property. The suit was decreed by the trial Court. On appeal filed by the defendants 1 and 2, the First Appellate Court reversed the findings of the Trial Court and dismissed the suit by upholding the plea of ouster. Aggrieved by the same, the plaintiffs are before this Court.

3.According to the plaintiffs, the suit property originally belong to one Ambalavana Padayachi. He had two sons namely, Ladamuthu Padayachi and Kullan Padayachi. Ambalavana Padayachi died in the year 1925. Thereafter, Ladamuthu Padayachi and Kullan Padayachi have inherited the property equally. Ladamuthu Padayachi had five sons namely, Ayyakannu, Natesan, Seenivasan, Uthirapathi and Swaminathan. Ladamuthu Padayachi died in the year 1945. The Plaintiffs 1 to 3 are the wife and children of Ayyakannu, the eldest son of Ladamuthu Padayachi. Ayyakannu died in the year 1965. The second son of Ladamuthu Padayachi namely, Natesan died in the year 1970 and his only son is the fourth plaintiff. The third son of Ladamuthu Padayachi Seenivasan died in the year 1955 as a bachelor and his interest in the suit property devolved on his four brothers. The fourth son of Ladamuthu Padayachi Uthirapathi died in the year 1980 and he sold his hare in the suit property in favour of fifth son of Ladamuthu Padayachi Swaminathan Padayachi under Ex.A1, dated

10.10.1950. Likewise, the other son of Ambalavana Padayachi namely, Kullan sold his half share in favour of Swaminatha Padayachi under Ex.A2, dated 19.12.1948. Thus Swaminatha Padayachi, was entitled to ¾ share in the suit property and the plaintiffs, who represents the branch of Ayyakannu and Natesan was entitled to ¼ share in the suit property. It was further claimed by the plaintiffs that Swaminathan Padayachi sold the entire suit property including the share of the plaintiffs to one Swaminatha Mudaliyar on 06.06.1959 under Ex.A4. The sale executed by Swaminatha Padayachi would not bind the plaintiffs. The defendants 1 and 2 are the legal heirs of Swaminatha Mudaliyar. The plaintiffs demanded partition in the year 1985 from Swaminatha Mudaliyar and the reasonable request of the plaintiffs was not acceded to and hence, they were constrained to file a suit for partition.

4.The contesting defendants 1 and 2 are all legal representatives of Swaminatha Mudaliyar, who purchased the suit property in the year 1952 from Swaminatha Padayachi, filed a written statement and resisted the suit by raising the plea of ouster. It was contended by the defendants that Ayyakannu, Natesan and Packirisamy were ousted from the suit property long back and therefore, they lost their right, if any, over the suit property. It was specifically contended by the defendants that their predecessor-in-interest Swaminatha Padayachi had been in possession and enjoyment of the suit property from the year 1959 without any interference from plainiffs or their predecessors-in -interest and hence, the title of the defendants over the entire suit property got crystalized by adverse possession. It was also asserted by the defendants that after purchasing the suit property in the year 1959, their father Swaminatha Mudaliyar removed the thatched building which stood in the property and had enjoyed the same as a vacant site. He had enjoyed the same by leasing out the property and by mortgaging the same to one Selvaraj. Since the defendants and their predecessors-in-interest have been in possession and enjoyment of the suit property for more than fourty years, adverse to the interest of the plaintiffs,the present suit for partition was liable to be dismissed. On these pleadings, the contesting defendants 1 and 2 sought for dismissal of the suit.

5.The third defendant filed a written statement supporting the plea of theplaintiffs.

6.Before the trial Court, the power agent of the plainfiffs was examined as P.W.1 and the third defendant was examined as D.W.1 and the first defendant was examined as D.W.2. On behalf of the plaintiffs, five documents were marked as Ex.A1 to Ex.A5 and on behalf of the defendants, six documents were marked as Ex.B1 to Ex.B6.

7.The trial Court, on apreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiffs were entitled to partition of their 1/4th share and decreed the suit as prayed for. Aggrieved by the same, the defendants 1 and 2 preferred an appeal in A.S.No.116 of 1999, on the file of Additional Sub-Court, Kumbakonam. The First Appellate Court reversed the findings of the trial Court and held that the defendants 1 and 2 proved their plea of adverse possession and allowed the appeal. Aggrieved by the same, the plaintiffs have come by way of this Second Appeal.

8.At the time of admission, this Court formulated the following substantial questions of law by order, dated 05.12.2002:

1.Whether the Lower Appellate Court is right in dismissing the Plaintiffs' suit for partition when the first defendant's father had purchased the undivided shares of the property from the co-owners of the plaintiffs without a partition among them?

2.Whether the finding by the Lower Appellate Court that the defendants 1 and 2 have prescribed title by adverse possession is based on adequare evidence?

9.The learned counsel for the appellants submitted that the defendants 1 and 2 have miserably failed to prove the plea of adverse possession raised by them and absolutely there is no evidence to prove their hostile possession for more than the statutory period. Therefore, the learned counsel submitted that the findings reached by the First Appellate Court upholding the plea of adverse possession is liable to be set aside. The learned counsel further submitted that one of the son of Ladamuthu Padayachi, namely Swaminatha Padayachi sold the entire suit rpoperty including the share of the plaintiffs in favour of the defendants predecessor-in-interest Swaminatha Mudaliyar in the year 1959 without the consent of the plaintiffs. When the plaintiffs or the predecessors-in-interest was not a party to the sale deed executed in favour of Swaminatha Mudaliyar, the plaintiffs are entitled to maintain a suit for partition in respect of their share.

10.From the pleadings of the plaintiffs, it is clear that Swaminatha Padayachi entitled to ¾ share in the suit property. Amabalavana Padayachi's, the second son Kullan sold his half share to Swaminatha Padayachi under Ex.A2, dated 9.12.1948. Swaminatha Padayachi himself had 1/10 share in the suit property in his capacity as one of the son of Ladamuthu Padayachi, who also entitled to ½ share. It is also seen that Swaminatha Padayachi purchased 1/10 share from his brother Uthirapathi under Ex.A1, dated 10.10.1950. It is also the admitted case that another brother of Swaminatha Padayachi namely, Seenivasan died in the year 1955 as a bachelor and his share in the suit property devolved on all his four brothers including Swaminatha Padayachi. Therefore, in that capacity, Swaminatha Padayachi is entitled to 2/40 share in the suit property. Therefore in all, Swaminatha Padayachi is entitled to 30/40 share(1/2+1/10+1/10+2/40)=3/4 share in the suit property. It is also not in dispute that the remaining ¼ share originally belonged to the plaintiffs predecessor-in-interest namely, Ayyakannu and Natesan. The children of Ayyakannu and Natesan are the plaintiffs 1 to 3 and the fourth plaintiff,. It is the specific case of the plaintiffs that Swaminathan who had ¾ share in the suit property had sold the entire suit property to Swaminatha Mudaliyar under Ex.A4, dated 6.6.1959 and the same will not bind the plaintiffs. However, the defendants 1 and 2, who are all the legal heirs of Swaminatha Mudaliyar raised a plea of ouster and adverse possession on the ground that Swaminatha Mudaliyar had been in exclusive possession and enjoyment of the suit property from the year 1959. In this regard, the First Appellate Court considered the admissions of P.W.1.

11.None of the plaintiffs entered the witness box to depose about their joint possession over the suit property. The only witness examined on behalf of theplaintiffs is the power agent of the first plaintiff namely, P.W.1. A perusal of his evidence would suggest that he was not aware of the affairs of the plaintiffs' family and hence, he was not competent to speak about the sale transaction that had taken place long back. Some of the admissions made by P.W.1 regarding the possession of defendants predecessor Swaminatha Mudaliyar are extracted below: rhkpehjd; jhth nrhj;J jdf;F g+uz cupik cz;L vd;W rhkpehj Kjypahhplk; tpw;Wtpl;lhu;. ,t;thW KOnrhj;ijAk; tpw;f rhkpehjDf;F cupik ,y;iy........................................................ rhkpehj Kjypahh; ,e;j nrhj;ij fpiuak; thq;fpdhu; vd;gJk; vdf;Fj; njupAk;. nrhj;ij mtu; thq;Ffpd;w fhyj;jpy; gf;fpuprhkp> cj;jpuhgjp MfpNahh; Ml;Nrgid vJTk; njuptpf;ftpy;iy.

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12.A perusal of the above admissions of P.W.1 would clearly indicate that in the year 1959, the entire suit property was sold by Swaminatha Padayachi in favour of Swaminatha Mudaliyar, predecessor-in-interest of defendants 1 and 2 and he has been in possession and enjoyment of the same. He also admitted that,Packirisamy, the predecessor of the plaintiffs' approached Swaminatha Mudaliyar 25 years back and demanded partition. However, he refused the claim of the plaintiffs on the ground that he purchased the entire suit property. Even assuming that the said point of time(demand for partition 25 years back) was taken as starting point of hostile possession by Swaminatha Mudaliyar, the present suit filed by the Plaintiffs after 25 years, is clearly barred by limitation. Apart from that, the admissions of P.Wl, Ex.B2-Mortgage deed executed by Swaminatha Mudaliyar in favour of selvaraj under ExB2 also supports the plea of adverse possession. The predecessor of defendants 1 and 2, who purchased the entire suit property from Swaminatha Mudaliyar in the year 1952 under Ex.B2, mortgaged the suit property in favour of one Selvaraj on

5.9.1980. Therefore, it is clear that Swaminatha Mudaliyar had exercised full control over the suit property all along. Ex.B4 is the tenancy chit executed by Swaminatha Padayachi in favour of Swaminatha Mudaliyar in respect of the property sold to Swaminatha Mudaliyar under Ex.A1. The suit property situate in R.S.No.150/1A1 was also dealt with in the partition deed entered into in the family of Swaminatha Mudaliyar under Ex.B5. All these documents coupled with clear admission of P.W.1 would indicate that Swaminatha Mudaliyar had been exercising full control over the suit property from the date of purchase in the year 1959 and the demand for partition made by the plaintiffs predecessor-in-interest Packirisamy was refused by him 25 years back. In such circumstances, defendants 1 and 2 have been in possession and enjoyment of the entire suit property with necessary animus for more than the statutory period. Therefore, the First Appellate Court, on proper appreciation of P.W.1's admissions and other documents, came to the conclusion that defendants 1 and 2 proved their plea of adverse possession.The said factual conclusion reached by the Court below is not vitiated by any perversity. Therefore, the substantial questions of law formulated at the time of admission are answered against the appellants and in favour of the respondents.

13.Accordingly, the Second Appeal stands dismissed. No costs.

05.07.2024 Index:Yes/No Internet:Yes/No NCC:Yes/No vsn To

1.The Additional Sub Judge, Kumbakonam.

2.The Additional District Munsif-I, Kumbakonam.

3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

S.SOUNTHAR, J. vsn S.A.NO.1765 OF 2002

05.07.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:05.07.2024 CORAM: THE HONOURABLE MR.JUSTICE S.SOUNTHAR S.A.NO.1765 OF 2002 1.P.Udayam 2.P.Kalaiselvam 3.P.Subramanian 4.N.Krishnan :Plaintiffs/1-4 Respondents/Appellants .vs. 1.S.Jothimurugan 2.S.Rajalakshmi :Defendants 1 and 2/Appellants/ Respondents 3.U.Rathinam(died) :Defendant No.3/5th Respondent/ Respondent's 4.R.Kasinathan(died) 5.R.Marimuthu 6.Sumathi 7.Manikandan 8.Amulraj :Respondents 4 to 8. (Respondents 4 and 5 are brought on record as legal representatives of the deceased third respondent asper order of this Court made in C.M.P(MD)Nos.1217 to 1219 of 2005 in S.A.No. 1765 of 2002, dated 31.1.2020) ((Respondents 6 to 8 are brought on record as legal representatives of the deceased fourth respondent as per order of this Court made in C.M.P(MD)Nos.9864 to 9866 of 2019 in S.A.No.1765 of 2002, dated 31.1.2020) PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.116 of 1999, dated 30,012002, on the file of Additional Subordinate Judge, Kumbakonam reversing the judgment and decree made in O.S.No. 6 of 1993, dated 18.2.1998, on the file of Additional District Munsif Court-I, Kumbakonam. For Appellants :Mr.T.R.Subramanian For Respondents :No appearance 1,2 and 6 to 8 Respondents 3 and 4 :Died